| Yerushalmi v Yerushalmi |
| 2016 NY Slip Op 00968 [136 AD3d 809] |
| February 10, 2016 |
| Appellate Division, Second Department |
[*1]
| Malka Yerushalmi, Respondent, v JosephYerushalmi, Appellant. Schlissel Ostrow Karabatos, PLLC, NonpartyRespondent. |
Joseph Yerushalmi, Great Neck, NY, appellant pro se.
Weinstein, Kaplan & Cohen, P.C., Garden City, NY (Alexander Mark Kaplanand Erika L. Conti of counsel), for plaintiff-respondent.
Schlissel Ostrow Karabatos, PLLC, Garden City, NY (Jeanine M. Elbaz, ElenaKarabatos, Steven W. Schlissel, and Lisa R. Schoenfeld of counsel),nonparty-respondent pro se.
Appeals from (1) an order of the Supreme Court, Nassau County (Stacy D. Bennett,J.), dated September 30, 2013, (2) a money judgment of that court dated October 15,2013, (3) a money judgment of that court dated November 15, 2013, and (4) an order ofthat court dated May 8, 2014. The order dated September 30, 2013, insofar as appealedfrom, denied the defendant's motion to terminate his temporary maintenance obligation,and granted the plaintiff's respective cross motions for an award of attorneys' fees and anaward of additional attorneys' fees. The money judgment dated October 15, 2013, uponthe order dated September 30, 2013, is in favor of nonparty Schlissel Ostrow Karabatos,PLLC, and against the defendant in the principal sum of $125,000. The money judgmentdated November 15, 2013, upon the order dated September 30, 2013, is in favor ofnonparty Schlissel Ostrow Karabatos, PLLC, and against the defendant in the principalsum of $20,969.63. The order dated May 8, 2014, denied the defendant's motion, ineffect, for leave to reargue his opposition to the plaintiff's cross motions for an award ofattorneys' fees and for an award of additional attorneys' fees.
Motion by the plaintiff to dismiss the appeal from the order dated May 8, 2014, onthe ground that no appeal lies from an order denying reargument. By decision and orderon motion of this Court dated September 23, 2014, the motion was held in abeyance andreferred to the Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeal, it is
Ordered that the motion is granted, and the appeal from the order dated May 8, [*2]2014, is dismissed; and it is further,
Ordered that the appeal from so much of the order dated September 30, 2013, asgranted the plaintiff's cross motions for an award of attorneys' fees and for an award ofadditional attorneys' fees is dismissed; and it is further,
Ordered that the order dated September 30, 2013, is affirmed insofar as reviewed;and it is further,
Ordered that the money judgments are affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The motion to dismiss the appeal from the order dated May 8, 2014, must be granted.The defendant's underlying motion, although denominated as one for leave to renew andreargue, was, in actuality, for leave to reargue his opposition to the plaintiff's crossmotions for an award of attorneys' fees and for an award of additional attorneys' fees, thedenial of which is not appealable (see Gelobter v Fox, 90 AD3d 829, 830 [2011]; Coccia v Liotti, 70 AD3d747 [2010]).
The appeal from so much of the order dated September 30, 2013, as granted theplaintiff's cross motions for an award of attorneys' fees and an award of additionalattorneys' fees must be dismissed, as those portions of that order were superseded by themoney judgment dated October 15, 2013, and the money judgment dated November 15,2013 (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on theappeal from those portions of the order dated September 30, 2013, are brought up forreview and have been considered on the appeals from the money judgments (seeCPLR 5501 [a] [1]; Delijani vDelijani, 100 AD3d 951, 952 [2012]).
In this action for a divorce and ancillary relief, the plaintiff was awarded certainpendente lite relief, and the defendant sought, among other things, to modify that award."Modifications of pendente lite awards should rarely be made by an appellate court andthen only under exigent circumstances, such as where a party is unable to meet his or herfinancial obligations, or justice otherwise requires. Consequently, any perceivedinequities in pendente lite maintenance can best be remedied by a speedy trial, at whichthe parties' financial circumstances can be fully explored" (Dowd v Dowd, 74 AD3d1013, 1014 [2010] [internal quotation marks and citations omitted]; see Trajkovic v Trajkovic, 98AD3d 575, 575-576 [2012]; Truglia v Truglia, 91 AD3d 852 [2012]). Here, thedefendant failed to establish that he did not have sufficient resources to pay temporarymaintenance to the plaintiff and the carrying charges for the marital residence. Therefore,the Supreme Court properly denied the defendant's motion to terminate his temporarymaintenance obligation.
The plaintiff cross moved for an award of attorneys' fees in the principal sum of$125,000, and subsequently cross-moved for an award of additional attorneys' fees in theprincipal sum of $20,969.63. The Supreme Court providently exercised its discretion ingranting the plaintiff's cross motions in light of the defendant's conduct, which includedhis making of repetitive motions to terminate his pendente lite obligations, and theparties' financial circumstances (see Domestic Relations Law § 237[a]; Johnson v Chapin, 12NY3d 461, 467 [2009]; DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881[1987]; Lugo v Torres, 132AD3d 824 [2015]; Vistoccov Jardine, 116 AD3d 842, 844 [2014]; Prichep v Prichep, 52 AD3d 61, 65 [2008]). Mastro, J.P.,Leventhal, Cohen and LaSalle, JJ., concur.