| Goldkranz v Goldkranz |
| 2011 NY Slip Op 01613 [82 AD3d 699] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Dina Ann Goldkranz, Appellant, v Gerard Goldkranz,Respondent. |
—[*1] Del Vecchio & Recine, LLP, Garden City, N.Y. (Phyllis Recine and Jaclene Agazarian ofcounsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from stated portions of an order of the Supreme Court, Queens County (Strauss, J.), dated July27, 2009, which, inter alia, denied those branches of her motion which were, in effect, for anaward of interest pursuant to Domestic Relations Law § 244 on unpaid counsel fees in thesum of $39,104 and for an award of arrears of pendente lite maintenance.
Ordered that the order is modified, on the law, by (1) deleting the provision thereof denyingthat branch of the plaintiff's motion which was, in effect, for an award of interest pursuant toDomestic Relations Law § 244 on unpaid counsel fees of $39,104 and substituting therefora provision granting that branch of the motion, and (2) deleting the provision thereof denying thatbranch of the plaintiff's motion which was for an award of arrears of pendente lite maintenance;as so modified, the order is affirmed insofar as appealed from, without costs or disbursements,and the matter is remitted to the Supreme Court, Queens County, for further proceedingsconsistent herewith.
The Supreme Court erred in denying that branch of the plaintiff's motion which was, ineffect, for an award of interest pursuant to Domestic Relations Law § 244 on unpaidcounsel fees in the sum of $39,104. Domestic Relations Law § 244 provides that, inenforcement proceedings, an award of prejudgment interest is mandatory where "the default waswillful, in that the obligated spouse knowingly, consciously and voluntarily disregarded theobligation under a lawful court order" (Domestic Relations Law § 244). Here, in an orderdated January 25, 2008, the defendant was directed to pay the plaintiff counsel fees in the sum of$39,104, and in the order appealed from, the Supreme Court found that the defendant's default inpaying that sum was willful. Accordingly, an award of prejudgment interest on the unpaidcounsel fees was required by statute (see Perri v Perri, 265 AD2d 539, 540 [1999];Lewis v Weiner, 191 AD2d 172, 173 [1993]; Powers v Powers, 171 AD2d 737,738 [1991]), and the matter must be remitted to the Supreme Court for calculation of the interestdue.
In addition, the Supreme Court erred in summarily denying that branch of the plaintiff'smotion which was for an award of arrears of pendente lite maintenance. In opposition to [*2]this branch of the plaintiff's motion, the defendant contended thathe had made certain specific pendente lite maintenance payments which the plaintiff alleged hadnot been paid, but he conceded that for 21 consecutive weeks during the relevant period of time,he had failed to pay the plaintiff maintenance in the amount of $1,250 per week as required bythe pendente lite support order. However, he averred that he had subsequently paid the plaintiffthe sum of $15,000 towards his pendente lite maintenance arrears, "thus substantially reducingthe arrears in direct support." In light of the parties' sharply conflicting factual allegations, theSupreme Court should have set the matter down for an evidentiary hearing to determine theamount, if any, of pendente lite maintenance arrears due pursuant to the pendente lite order (see Fackelman v Fackelman, 50 AD3d732, 734 [2008]; D'Anna vD'Anna, 17 AD3d 400, 401 [2005]; Vogel v Vogel, 12 AD3d 592, 592-593 [2004]; Rogers vRogers, 151 AD2d 738 [1989]). Accordingly, this matter must be remitted to the SupremeCourt, Queens County, for a hearing on this issue, and a new determination thereafter.
The plaintiff's remaining contention is without merit. Dillon, J.P., Covello, Florio and Hall,JJ., concur.