| Putterman v Wenk-Wolff |
| 2012 NY Slip Op 01229 [92 AD3d 746] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Jules B. Putterman, Respondent, v Ragin Wenk-Wolff,Appellant. |
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Hennessey & Bienstock, LLP, New York, N.Y. (Peter Bienstock of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment entered March 13,2009, the defendant appeals, as limited by her brief, from so much of an order of the SupremeCourt, Westchester County (Jamieson, J.), entered July 26, 2010, as (1), in effect, uponrearguement, adhered to the original determination in an order of the same court dated January 6,2010, inter alia, granting the plaintiff's motion to enforce certain provisions of the judgment ofdivorce by directing her to transfer certain sums to him, and (2) denied that branch of her motionwhich was for an award of an attorney's fee.
Ordered that the order is affirmed insofar as appealed from, with costs.
In this matrimonial action, the Supreme Court issued an order dated January 6, 2010, which,inter alia, granted the plaintiff's motion to enforce certain provisions of the judgment of divorce,which incorporated, but did not merge, a stipulation settlement dated January 5, 2009, bydirecting the defendant to transfer certain sums to him. Upon granting the defendant leave toreargue, the Supreme Court properly adhered to its original determination. The defendant failedto demonstrate that the Supreme Court, in determining the amounts due each party under thestipulation of settlement, overlooked or misapprehended either the husband's 401K withdrawalsor the valuation date agreed to by the parties for valuing retirement assets (see CPLR2221 [d] [2]). The 401K withdrawals occurred prior to the execution of the stipulation ofsettlement, in which the parties waived any right to a distributive award other than expressly setforth in the stipulation of settlement. Contrary to the defendant's contention, neither thestipulation of settlement nor a prior order dated October 9, 2009, set forth a valuation date ofJanuary 5, 2009, for retirement assets, as opposed to nonretirement assets. The accountstatements submitted by the defendant were improperly submitted for the first time on hermotion, which was only denominated as one for leave to reargue (see CPLR 2221 [d] [1],[2]), nor did she provide a reasonable justification for not submitting them in her originalopposition to the plaintiff's notice of settlement and proposed order so as to support a motion forleave to renew (cf. CPLR 2221 [e] [3]).
That branch of the defendant's motion which was for an award of an attorney's fee [*2]was properly denied. The stipulation of settlement between theparties governs any award of attorneys' fees on a motion to enforce the stipulation. That branch ofthe defendant's motion which was to enforce the stipulation of settlement did not result in anorder in her favor, and thus she was not entitled to an award of an attorney's fee for prosecutionof that branch of her motion. Moreover, the defendant did not prevail on the remainder of hermotion. Mastro, A.P.J., Florio, Lott and Cohen, JJ., concur.