| Grant v Grant |
| 2010 NY Slip Op 01761 [71 AD3d 634] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Michael Grant, Respondent, v Dana Grant,Appellant. |
—[*1] The Barbara Law Firm, Garden City, N.Y. (Judith A. Ackerman of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment entered July 15,2005, the defendant former wife appeals, as limited by her brief, from (1) so much of an order ofthe Supreme Court, Nassau County (Falanga, J.), dated February 2, 2009, as granted that branchof the plaintiff former husband's motion which was to confirm that portion of the report of ajudicial hearing officer (Gartenstein, J.H.O.), dated April 9, 2008, which, after a hearing,recommended the denial of her application for an award of an attorney's fee, and (2) so much ofan amended judgment of the same court (Diamond, J.), entered September 1, 2009, as, upon theorder dated February 2, 2009, failed to award her an attorney's fee.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the amended judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the amended judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are broughtup for review and have been considered on the appeal from the amended judgment (seeCPLR 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' " (Gruppuso v Caridi, 66 AD3d 838, 839 [2009], quotingMorrissey v Morrissey, 259 AD2d 472, 473 [1999]; see Prichep v Prichep, 52 AD3d 61, 64-65 [2008]; Timpone v Timpone, 28 AD3d646, 646 [2006]).
In this case, the judicial hearing officer providently exercised his discretion inrecommending the denial of the defendant's application for an award of an attorney's fee, and the[*2]Supreme Court properly granted that branch of the plaintiff'smotion which was to confirm that portion of the judicial hearing officer's report (seeCPLR 4403; 22 NYCRR 202.44; Dimino v Dimino, 39 AD3d 799, 799-800 [2007]).
The defendant's remaining contentions are without merit. Dillon, J.P., Miller, Eng andRoman, JJ., concur.
Motion by the respondent on appeals from an order of the Supreme Court, Nassau County,dated February 2, 2009, and an amended judgment of the same court entered September 1, 2009,to dismiss the appeal from the order on the ground that the right of direct appeal therefromterminated with the entry of the amended judgment. By decision and order on motion of thisCourt dated November 4, 2009, the motion was held in abeyance and referred to the panel ofJustices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the submission of the appeals, it is
Ordered that the motion is denied as academic in light of our determination of the appeals.Dillon, J.P., Miller, Eng and Roman, JJ., concur.