Rubio v Rubio

Rubio v Rubio 2012 NY Slip Op 01446 Decided on February 21, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 21, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
RANDALL T. ENG
L. PRISCILLA HALL
SANDRA L. SGROI, JJ.
2011-02489
(Index No. 24476/01)

[*1]Henry Rubio, appellant,

v

Rosemary Rubio, respondent.




Stephen David Fink, Forest Hills, N.Y., for appellant.


DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment dated February 13, 2003, the plaintiff appeals from an order of the Supreme Court, Queens County (Flaherty, J.), dated December 16, 2010, which, without a hearing, granted that branch of the defendant's motion which was for an award of an attorney's fee.

ORDERED that the order is affirmed, without costs or disbursements.

Although, generally, an evidentiary hearing to determine the appropriate amount of an attorney's fee should be conducted before the court grants an award of an attorney's fee (see Matter of Hobenson v Tarnavsky, 76 AD3d 560, 561; Kerrigan v Kerrigan, 71 AD3d 737, 738; Sheikh v Basheer, 34 AD3d 670, 670), the record demonstrates that the plaintiff waived his right to a hearing on this issue when he opposed that branch of the defendant's motion which was for an award of an attorney's fee (see Messinger v Messinger, 24 AD3d 631; Bengard v Bengard, 5 AD3d 340, 341; cf. Janousek v Janousek, 108 AD2d 782, 783).

The plaintiff's contention regarding the belated submission of the defendant's net worth statement is without merit, and his remaining contention is not properly before this Court.
RIVERA, J.P., ENG, HALL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court