Merrick v Merrick

[*1] Merrick v Merrick 2012 NY Slip Op 52132(U) Decided on November 8, 2012 Supreme Court, Orange County Ecker, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 8, 2012
Supreme Court, Orange County

David Merrick, Plaintiff,

against

Deborah Merrick, Defendant.



5946/2010



Appearances

Robert G. Smith, PLLC

Attorney for Plaintiff

110 East 59th Street, 25th Floor

New York, New York 10022

Sheila Callahan O'Donnell, Esq.

Attorney for Defendant

257 Main Street, POB 484

Cornwall, New York 12518

Lawrence H. Ecker, J.

In this contested action for divorce, the court has heard the testimony and accepted the evidence of the parties. The matter is pending submission of counsels' post-trial memoranda, which are due to be simultaneously filed with the court on November 15, 2012. In addition, defendant's counsel was ordered to submit her time records relative to her client's demand for counsel fees. As of the last date of trial, plaintiff had reserved as to whether defendant's counsel would be required to testify as to her services rendered, or whether plaintiff would accept defendant's counsel's [*2]affidavit of services. Further, the court ordered plaintiff's counsel to provide the court and defendant's counsel with his time records and the payments he received, or any balance due.

By letter, dated October 25, 2012, plaintiff's counsel has written to the court requesting the court rescind its order for the production of his billing records, citing Match v. Match, 168 AD2d 226 (1st Dept. 1990). He further states his client will agree that the demand for counsel fees by defendant's counsel may be considered on written papers and requests a briefing schedule. Not surprisingly, by letter, dated October 29, 2012, defendant's counsel opposes the application of plaintiff's counsel to rescind the court's order directing submission of the billing records of plaintiff's counsel.

Upon review, the court adheres to its prior order that billing records of plaintiff's counsel shall be produced. The applicable statute is DRL § 237(a) entitled "Counsel Fees and Expenses". As amended in 2010 [L. 2010, c. 329 §1, eff. October 12, 2010], the statute now requires "(B)oth parties to the action or proceeding and their respective attorneys file shall an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amounts charged by the attorney, the amounts paid, or be paid, any experts, and any additional costs, disbursements or expenses." (emphasis added)

The Practice Commentaries to DRL § 237 specifically noted that Match v. Match, supra, predated the 2010 statutory amendment. See also De La Roche v. De La Roche, 209 AD2d 157 (1st Dept 1994). Practice Commentaries by Hon. Alan D. Scheinkman, McKinney's Cons. Laws of New York, 2010, pages 17-19). Further, the Court in Match held on those particular facts, it was an abuse of discretion to "shift the burden of proving plaintiff's counsel's fee to the defendant's counsel, by utilizing defendant's counsel's time records to assist in determining the reasonableness of plaintiff's counsel's request for attorney's fees, given what the trial court described as the "deplorable" records of plaintiff's counsel.

It is the court's opinion that the amount of attorney's fees that each attorney has billed and received, or is owed from his/her client, is relevant to the prospective award of counsel fees. Such information assists the court in determining the extent and appropriateness of the work claimed to have been done, and provides a measure of the ability of each party to pay for his/her attorney's labor and services. Further, the 2010 Amendment to DRL §237 requires mutual disclosure in such applications.

Accordingly, it is this court's order that plaintiff's counsel shall submit his records, as defined in DRL § 237(a), for the consideration of defendant's counsel and the court. Any issue regarding the confidentiality of the attorney client relationship shall be addressed to the court.

Plaintiff's counsel shall serve and file the records to be submitted by November 15, 2012. Each party's time to submit his/her post trial memoranda is hereby extended to November 29, 2012.

The foregoing constitutes the order of the court.

Dated: Goshen, New York

November 8, 2012

E N T E R,

Hon. Lawrence H. Ecker, J.S.C.