Michael Sharp v Linda Sharp

Sharp v Sharp 2006 NY Slip Op 02186 [27 AD3d 639] March 21, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 17, 2006

Michael Sharp, Plaintiff,
v
Linda Sharp, Appellant. Kenneth J. Glassman, Nonparty Respondent.

—[*1]In an action for a divorce and ancillary relief, the defendant appeals from a judgment of the Supreme Court, Suffolk County (Bivona, J.), entered May 7, 2004, which awarded Kenneth J. Glassman an attorney's fee in the principal sum of $19,178.75.

Ordered that the judgment is affirmed, with costs.

Initially, we note that the defendant previously appealed from an order dated March 26, 2004. That appeal was dismissed by this Court for failure to prosecute. While the defendant ordinarily would be precluded from relitigating the issues which could have been raised on the prior appeal (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350, 353 [1976]), since the instant appeal was perfected before the prior appeal was dismissed, and because the order appealed from directed the nonparty respondent, Kenneth J. Glassman, to submit judgment, we exercise our discretion to determine the issues raised on the instant appeal (see Faricelli v TSS Seedman's, 94 NY2d 772, 774 [1999]; Roland v Ajamian, 17 AD3d 440 [2005]).

We agree with the Supreme Court's award of an attorney's fee to the nonparty respondent. Contrary to the defendant's claim, no hearing was required under the circumstances of this case (see Bruk v Albin, 270 AD2d 441 [2000]; see generally Cooper v Cooper, 21 AD3d 869 [2005]). Schmidt, J.P., Krausman, Luciano and Mastro, JJ., concur.