Daich v Daich

Daich v Daich 2017 NY Slip Op 06350 Decided on August 30, 2017 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 August 30, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON
LINDA CHRISTOPHER, JJ.
2015-08035
(Index No. 50228/12)

[*1]Evelyn Daich, respondent,

v

Leonard Daich, appellant.

Igor Niman, Brooklyn, NY, for appellant.

David H. Singer & Associates, LLP, New York, NY (Christopher S. McCann of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Barbara Irolla Panepinto, J.), dated May 28, 2015. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for an award of interim counsel fees.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for an award of interim counsel fees is denied without prejudice to renewal upon compliance with 22 NYCRR 202.16(k).

A party in a matrimonial action seeking an award of interim counsel fees must include, in his or her moving papers, a sworn statement of net worth (see 22 NYCRR 202.16[k]). The proper course where a party fails to include the statement of net worth required pursuant to the above rule is "to decline to hear the motion, or to deny it without prejudice to renewal upon compliance with the applicable requirements" (Matter of Fischer-Holland v Walker, 12 AD3d 671, 672 [citation omitted]; see 22 NYCRR 202.16[k][5][ii]). Here, the plaintiff failed to provide a statement of net worth in support of that branch of her motion which was for an award of interim counsel fees. Contrary to the plaintiff's contention, her claim that the Supreme Court was in possession of a copy of her statement of net worth is insufficient to meet the requirements of 22 NYCRR 202.16(k), especially where, as here, the court did not indicate, in the order awarding interim counsel fees, that it had considered the plaintiff's statement of net worth or the parties' financial circumstances. Accordingly, the court erred in granting that branch of the plaintiff's motion which was for an award of interim counsel fees (see 22 NYCRR 202.16[k][2], [5][ii]; Bertone v Bertone, 15 AD3d 326; Matter of Fisher-Holland v Walker, 12 AD3d at 672).

The defendant's remaining contentions have been rendered academic in light of our determination.

LEVENTHAL, J.P., LASALLE, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court