Lima v Lima

Lima v Lima 2009 NY Slip Op 09434 [68 AD3d 935] December 15, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Emilda Lima, Appellant,
v
Anibal Lima, Respondent.

—[*1] Eric Ole Thorsen, New City, N.Y., for appellant.

Abel & Brustein-Kampel, P.C., New City, N.Y. (Steven L. Abel of counsel), for respondent.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Rockland County (Alfieri, J.), dated October 3, 2008, as denied her motion for an award of an attorney's fee.

Ordered that the order is affirmed insofar as appealed from, with costs.

An award of counsel fees is entrusted to the sound discretion of the court (see DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]). In awarding counsel fees "a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions" (id. at 881). Here, in denying the plaintiff's motion for an award of an attorney's fee, the court considered the parties' financial positions as well as the fact that the plaintiff commenced an action for divorce upon grounds that she knew were without merit. Under these circumstances, the order of the Supreme Court should not be disturbed on appeal. Covello, J.P., Santucci, Chambers and Hall, JJ., concur.