| Cohen v Cohen |
| 2010 NY Slip Op 04130 [73 AD3d 832] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Allan Cohen, Respondent, v Joan Cohen,Appellant. |
—[*1] Allan Cohen, Jericho, N.Y., respondent pro se.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from so much of an order of the Supreme Court, Nassau County (Diamond, J.), dated January 30,2009, as granted that branch of the plaintiff's motion which was for leave to reargue hisopposition to her motion for an award of an attorney's fee and for payment of the costs ofproducing an appellate record, which had been determined in a prior order dated October 29,2008, and, upon reargument, vacated the order dated October 29, 2008, and thereupon denied hermotion.
Ordered that the order dated January 30, 2009, is reversed insofar as appealed from, on thelaw, with costs, that branch of the plaintiff's motion which was for leave to reargue is denied, andthe matter is remitted to the Supreme Court, Nassau County, to determine that branch of theplaintiff's motion which was for leave to renew.
The defendant moved in the Supreme Court, pursuant to Domestic Relations Law §237 (a), for an award of an attorney's fee and the costs associated with producing an appellaterecord, so that she could afford to perfect and prosecute three appeals relating to this matrimonialaction. By decision and order on motion of this Court dated September 28, 2009, the threeappeals were held in abeyance pending the outcome of the instant appeal. The Supreme Courtgranted the defendant's motion and directed the plaintiff to pay the sum of $25,000 as aprospective attorney's fee, and to pay the costs of producing an appellate record. In addition, theSupreme Court awarded the defendant's attorney the sum of $3,000 as a fee for making themotion. The plaintiff, inter alia, moved for leave to reargue his opposition to the defendant'smotion and, upon reargument, the Supreme Court vacated its original order, finding that therewas no reasonable ground to believe that the defendant would be successful on her appeals, andthereupon denied the defendant's motion in its entirety. We reverse the order made uponreargument.
The Supreme Court erred in granting that branch of the plaintiff's motion which was forleave to reargue, since the plaintiff failed to demonstrate that the Supreme Court overlooked ormisapprehended the facts or law, or for some other reason mistakenly reached its earlier decision(see CPLR 2221 [d]; E.W.Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654 [2007]; see also McDonald v Stroh, 44 AD3d720, 721 [2007]; Matter of NewYork Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654, 655 [2007]).
In matrimonial actions, courts have the authority to order one spouse to pay the otherspouse's attorney's fee "as, in the court's discretion, justice requires, having regard to thecircumstances of the case and of the respective parties" (Domestic Relations Law § 237[a]; see [*2]Prichep v Prichep, 52 AD3d 61 [2008]). DomesticRelations Law § 237 (a) also permits an award of an attorney's fee and the costs ofproducing an appellate record so that a spouse may prosecute an appeal (see e.g. Block vBlock, 296 AD2d 343 [2002]; LeRoy v LeRoy, 276 AD2d 442 [2000]). An award ofan attorney's fee "will generally be warranted where there is a significant disparity in thefinancial circumstances of the parties" (Prichep v Prichep, 52 AD3d at 65). The purposeof Domestic Relations Law § 237 (a) is to "redress the economic disparity between themonied spouse and the non-monied spouse" (O'Shea v O'Shea, 93 NY2d 187, 190[1999]). "In determining whether to award fees, the court should 'review the financialcircumstances of both parties together with all the other circumstances of the case, which mayinclude the relative merit of the parties' positions' " (Prichep v Prichep, 52 AD3d at 64,quoting DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). However, thenonmonied spouse is no longer required to demonstrate a likelihood of success as a "strictpredicate" to an award of an attorney's fee (O'Shea v O'Shea, 93 NY2d at 192).
Moreover, an award of an attorney's fee and payment of the costs of producing an appellaterecord were appropriate in this case, given the significant economic disparity between theparties. The defendant is unemployed and has no independent source of income, while theplaintiff earns approximately $450,000 per year as a partner in a large law firm. Furthermore, theaward of $3,000 to the defendant's attorney for making the motion for an award of appellatecounsel fees was appropriate (see O'Shea v O'Shea, 93 NY2d at 193-194).
The parties' remaining contentions are without merit.
Since it granted reargument, the Supreme Court, in effect, denied, as academic, that branchof the plaintiff's motion which was for leave to renew his opposition. As we are denyingreargument, the matter must be remitted to the Supreme Court, Nassau County, for adetermination of that branch of the plaintiff's motion which was for leave to renew. Skelos, J.P.,Florio, Hall and Austin, JJ., concur.