| Karg v Kern |
| 2015 NY Slip Op 01550 [125 AD3d 527] |
| February 19, 2015 |
| Appellate Division, First Department |
[*1]
| Nathalie Karg, Respondent, v Anton Kern,Appellant. |
Law Offices of Stark & Levoritz, P.C., Brooklyn (Yonatan S. Levoritz andSteven Amshen of counsel), for appellant.
The McPherson Firm, PC, New York (Laurie J. McPherson of counsel), forrespondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered April 3,2014, which, to the extent appealed from as limited by the briefs, granted plaintiff wife'sapplication for interim counsel fees in the amount of $136,000, and directed defendanthusband to pay the real estate taxes on the parties' farm property, unanimously affirmed,without costs. Order, same court and Justice, entered June 5, 2014, which, to the extentappealed from as limited by the briefs, denied defendant's motion to hold plaintiff incontempt, to dismiss the claims related to the prenuptial agreement, and to modify thesupport award, and granted plaintiff's motions to stay defendant's plenary action andconsolidate it with this action, to vacate the automatic stay of the April 3, 2014 orderawarding counsel fees, and for an additional award of counsel fees, unanimouslyaffirmed, without costs.
Supreme Court properly awarded the wife interim counsel fees after considering thefinancial positions of the parties and the circumstances of the case (see DomesticRelations Law § 237; DeCabrera v Cabrera-Rosete, 70 NY2d 879[1987]). Plaintiff was the less monied spouse, the disparity between the parties'respective income and assets was significant.
To the extent the legal fees awarded in the April 3, 2014 order may have related tothe litigation over the parties' prenuptial agreement (there is no indication that they wereso related), and to the extent the court awarded fees in connection with that litigation inits June 5, 2014 order, the awards were proper. Plaintiff was not precluded fromrecovering legal fees under Domestic Relations Law § 237 for servicesprovided in opposing defendant's affirmative defense predicated on the prenuptialagreement (see Van Kipnis vVan Kipnis, 11 NY3d 573, 579 [2008]).
The court properly directed defendant to pay the real estate taxes on the parties' farmproperty to preserve that asset for equitable distribution (see Rosenshein vRosenshein, 211 AD2d 456 [1st Dept 1995]). At the time that the court issued itsprevious pendente lite support award, the issue of the real estate taxes was not raised byeither party.
The court correctly denied the part of defendant's motion seeking a downwardmodification of the support award since defendant failed to attach a statement of networth (22 [*2]NYCRR 202.16 [k] [2]). In any event,defendant failed to show exigent circumstances or that the court failed to consider therelevant factors (see Strauss vSaadatmand, 89 AD3d 415 [1st Dept 2011]).
The court properly denied the part of defendant's motion seeking to hold plaintiff incontempt since defendant failed to show that plaintiff had violated a clear andunequivocal mandate of the court or that he was prejudiced by the actions of which hecomplains (see Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]).Given the deeply damaged relationship between defendant and his 14-year-old son,following an incident of violence that occurred in July 2013, defendant cannot show thathe was prejudiced by remarks plaintiff may have made about him to the child.
The court correctly denied the part of defendant's motion seeking to dismiss anyclaims relating to the prenuptial agreement. Defendant pleaded an affirmative defensebased on the prenuptial agreement, and demanded in his answer that the court declare theagreement valid. He moved for summary judgment declaring the agreement valid andenforceable, and plaintiff opposed the motion, raising an issue of fact as to the validityand enforceability of the agreement. The parties then stipulated to a hearing on thevalidity of the agreement, and defendant fully and actively participated in thehearing.
The court properly consolidated this action with defendant's plenary action, whichsought relief relating to the prenuptial agreement; the actions present common questionsof law and fact (see GenevaTemps, Inc. v New World Communities, Inc., 24 AD3d 332 [1st Dept2005]).
The court properly vacated the automatic stay of the April 3, 2014 order obtained bydefendant's posting of an undertaking to secure his obligation to pay interim counsel fees(see CPLR 5519 [c]; Wechsler v Wechsler, 8 Misc 3d 328 [Sup Ct, NY County2005]). The court was appropriately concerned that defendant was taking advantage ofthe automatic stay to prevent plaintiff from receiving interim counsel fees, therebypreventing an even playing field in the litigation. Further, defendant can recoup thecounsel fee award from plaintiff's share of equitable distribution, while plaintiff wouldbe severely prejudiced if she were forced to wait months to obtain the interim award.Concur—Friedman, J.P., Andrias, Moskowitz, DeGrasse and Richter, JJ.