| Gruppuso v Caridi |
| 2009 NY Slip Op 07590 [66 AD3d 838] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Annette Gruppuso, Appellant-Respondent, v Joanne Caridiet al., Respondents-Appellants. |
—[*1] Rubin & Rosenblum, PLLC, Commack, N.Y. (Debra L. Rubin of counsel), forrespondents-appellants.
In an action for a divorce and ancillary relief, the plaintiff former wife appeals, as limited byher brief, from (1) so much of an order of the Supreme Court, Nassau County (Ross, J.), datedOctober 1, 2007, as denied her motion for an award of an attorney's fee and (2) so much of ajudgment of the same court entered October 26, 2007, as, upon the order, failed to award her anattorney's fee, and the defendants Joanne Caridi, Lisa Salvo, and Diana Boland, as executors ofthe estate of the deceased former husband, cross-appeal, as limited by their brief, from (1) somuch of the same order as denied his cross motion for an award of an attorney's fee and (2) somuch of the same judgment as failed to award him an attorney's fee.
Ordered that the appeal and cross-appeal from the order are dismissed; and it is further,
Ordered that the judgment is affirmed, without costs or disbursements.
The appeal and cross appeal from the intermediate order must be dismissed because the rightof direct appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal and cross appeal from theorder are brought up for review and have been considered on the appeal and cross appeal fromthe judgment (see CPLR 5501 [a] [1]).
An award of an attorney's fee pursuant to Domestic Relations Law § 237 [a] is amatter within the sound discretion of the trial court, and the issue "is controlled by the equitiesand circumstances of each particular case" (Morrissey v Morrissey, 259 AD2d 472, 473[1999]; see Prichep v Prichep, 52AD3d 61, 64 [2008]; Timpone vTimpone, 28 AD3d 646 [2006]; Walker v Walker, 255 AD2d 375, 376 [1998]).In determining whether to award such a fee, the court should "review the financial circumstancesof both parties together with all the other circumstances of the case, which may include therelative merit of the parties' positions" (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881[1987]; see Prichep v Prichep, 52 AD3d at 64; Ciampa v Ciampa, 47 AD3d 745, 748 [2008]). Here, contrary tothe parties' contentions, the Supreme Court providently exercised its discretion in denying boththe former wife's motion and the former husband's cross [*2]motion for an award of an attorney's fee. Skelos, J.P., Covello,Santucci and Balkin, JJ., concur.