| Bentz v Bentz |
| 2010 NY Slip Op 02496 [71 AD3d 931] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Stephen Bentz, Appellant, v Jennifer Bentz,Respondent. |
—[*1] Jennifer Bentz, East Quogue, N.Y., respondent pro se.
In an action for a divorce and ancillary relief, the plaintiff appeals from an order of theSupreme Court, Suffolk County (Bivona, J.), dated December 29, 2008, which granted thedefendant's motion for an award of an attorney's fee to the extent of awarding her the sum of$13,000 and, in effect, denied his cross motion for an award of an attorney's fee.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thedefendant's motion to the extent of awarding her an attorney's fee in the sum of $13,000, andsubstituting therefor a provision denying the defendant's motion; as so modified, the order isaffirmed, without costs or disbursements.
"Absent substantial compliance with 22 NYCRR 1400.3, which requires the execution andfiling of a retainer agreement setting forth, inter alia, the terms of compensation and the nature ofservices to be rendered, an attorney may not recover a fee from an adversary spouse" (Sherman v Sherman, 34 AD3d670, 671 [2006]; see Wagman vWagman, 8 AD3d 263 [2004]). Similarly, an attorney is precluded from seeking feesfrom his or her own client where the attorney has failed to comply with 22 NYCRR 1400.3 (see Gahagan v Gahagan, 51 AD3d863, 864 [2008]).
In this case, the award of an attorney's fee to the defendant was improper. The applicableretainer agreement was not filed with the court until the defendant made her motion for anattorney's fee. Therefore, the defendant's attorney did not substantially comply with 22 NYCRR1400.3 (see Wagman v Wagman, 8 AD3d at 263).
The Supreme Court did not improvidently exercise its discretion by, in effect, denying theplaintiff's cross motion for an award of an attorney's fee (see Domestic Relations Law§ 237 [a]; Gruppuso v Caridi,66 AD3d 838, 839 [2009]). Prudenti, P.J., Balkin, Leventhal and Austin, JJ., concur.