| Trajkovic v Trajkovic |
| 2012 NY Slip Op 05918 [98 AD3d 575] |
| August 8, 2012 |
| Appellate Division, Second Department |
| Jelena Trajkovic, Respondent, v Miroslav Trajkovic,Appellant. |
—[*1] Thomas K. Campagna, P.C., Hauppauge, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of an order of the Supreme Court, Suffolk County (Mackenzie, J.), dated February14, 2011, as granted the plaintiff's motion for pendente lite relief to the extent of directing him topay the full amount of the rent and 50% of other carrying charges for the marital residence,denied his cross motion, inter alia, to appoint a forensic financial expert to calculate the maritalportion of the plaintiff's medical malpractice award on the ground that there was no maritalportion of the award, and awarded the plaintiff an attorney's fee payable by him pursuant to 22NYCRR 130-1.1.
Ordered that the order is affirmed insofar as appealed from, with costs.
"Modifications of pendente lite awards should rarely be made by an appellate court and thenonly under exigent circumstances, such as where a party is unable to meet his or her financialobligations, or justice otherwise requires. Consequently, any perceived inequities in pendente litemaintenance can best be remedied by a speedy trial, at which the parties' financial circumstancescan be fully explored" (Dowd vDowd, 74 AD3d 1013, 1014 [2010] [internal citations and quotation marks omitted]; see Truglia v Truglia, 91 AD3d852 [2012]). Here, the defendant, who was still residing in the marital residence with theplaintiff and their child at the time of the instant motion and cross motion, did not even allegeexigent circumstances or that he had insufficient resources to pay the full rent and 50% of theother carrying charges for the marital residence as established in the pendente lite award and stillmeet his own financial obligations (see Conyea v Conyea, 81 AD3d [*2]869, 870 [2011]; Levy v Levy, 72 AD3d 651, 652 [2010]; Sinanis v Sinanis, 67 AD3d 773[2009]; Signorelli v Signorelli, 50AD3d 772, 773-774 [2008]). Therefore, the pendente lite award will not be disturbed by thisCourt.
Generally, the proceeds from an action to recover damages for personal injuries areconsidered separate property of the spouse receiving the compensation (see Renga v Renga, 86 AD3d 632,634 [2011]; Howe v Howe, 68AD3d 38, 39-40 [2009]). Here, the Supreme Court properly denied the defendant's request toappoint a forensic financial expert to calculate the marital portion of the plaintiff's medicalmalpractice award since there was no marital portion (see Magnotta v Magnotta, 239AD2d 320 [1997]; Samaritano v Samaritano, 172 AD2d 817 [1991]; cf. Miceli v Miceli, 78 AD3d1023, 1025 [2010]; Richmond v Richmond, 144 AD2d 549, 551 [1988]).
The Supreme Court properly exercised its discretion in finding that the defendant's motionpractice, including, among other things, repetitive applications for the same relief, constituted"frivolous conduct," as defined in 22 NYCRR 130-1.1 (c), and, accordingly, in awarding anattorney's fee to the plaintiff (seeHolmes v Holmes, 55 AD3d 1021, 1022 [2008]; Purpura v Purpura, 17 AD3d 651, 652 [2005]).
The defendant's remaining contentions are without merit. Rivera, J.P., Dickerson, Hall andCohen, JJ., concur.