J.E.T. v M.A.T.
Annotate this CaseDecided on October 25, 2021
Supreme Court, Nassau County
J.E.T., Plaintiff,
against
M.A.T., Defendant.
Index No. xxxxxx/2017
Attorney for Plaintiff: TERENCE CHRISTIAN SCHEURER, P.C. (516) 535-1500
Attorney for Defendant: Wisselman, Harounian & Associates, P.C. (516) 773-8300
Edmund M. Dane, J.
The following papers were read on these motions:
Defendant's Notice of Motion, Affirmation [FN1] , Affidavit, Exhibits X
Plaintiff's Notice of Cross Motion, Affirmation, Affidavit, Exhibits X
Defendant's Affirmation [FN2] in Opposition to Cross Motion/Reply, Exhibit X
Plaintiff's Reply Affirmation, Affidavit, Exhibits X
PRELIMINARY STATEMENT
Defendant moves by Notice of Motion dated June 8, 2021, seeking an Order for counsel fees in the amount of $79,265.71. Plaintiff cross-moves for an Order (1) dismissing Defendant's motion in its entirety; (2) awarding Plaintiff counsel fees in the sum of $10,000 for having to respond to Defendant's frivolous motion; and (3) imposing sanctions upon Defendant for harassing and dilatory misconduct by filing this motion.
BACKGROUND
Plaintiff commenced this action for divorce on February 21, 2017. The parties resolved the issues of the underlying matrimonial action pursuant to oral Stipulation of Settlement spread across the record on December 7, 2020 ("Stipulation")[FN3] . The transcript of the settlement was subsequently "So-Ordered" by this Court. Pursuant to said Stipulation, the parties agreed that [*2]sole remaining issue of counsel fees would be determined upon written submission to the Court. After initially setting the time for Defendant to submit her legal fee request at two weeks, the Court extended her time to January 8, 2021, at the request of Defendant's counsel.
Five months later, by motion dated June 8, 2021, Defendant seeks an award of legal fees in the sum of $79,265.71. She argues that she did not have an independent source of income during the marriage and that Plaintiff was the sole financial provider for the family. She states that Plaintiff earned income of $202,000 in 2019 and he only contributed $2,500 towards her legal fees. Defendant further states that the only asset she received in settlement was $25,000 equity in the marital residence.
In Plaintiff's cross-motion, he argues that Defendant's application must be denied as untimely for failure to comply with the briefing schedule set by the Court at the time of settlement. He argues that the parties agreed to be bound by schedule and that Defendant never requested additional time, even when the final divorce packet was submitted to the Court in April, 2021. Plaintiff further argues that it is inequitable for Defendant to seek fees at this late stage since he made financial decisions based upon his belief that Defendant could no longer recover legal fees from him. In particular, he states that he agreed for the parties' daughter to attend the most expensive college of her choice and agreed to pay the cost for same after the time for Defendant to make an application for legal fees had passed. He further argues that Defendant's request for fees is defective as she fails to offer an updated sworn statement of net worth, which would have necessarily included the fact that she is now working. He further states Defendant also incorrectly claims he contributed $2,500 towards her legal fees when he actually contributed $5,500. Plaintiff argues that sanctions are necessary as Defendant refused to withdraw her defective application and he should not have to bear the cost of legal fees for having to defend against same. Plaintiff maintains that Defendant's motion is so frivolous that it is an abuse of the judicial process and it was made with intent to injure the Plaintiff.
In response, Defendant's counsel states that he has spoken with Defendant's former counsel (the associate who made the initial motion). He asserts that the fee request was not made sooner because Defendant's former counsel and the Plaintiff's counsel were attempting to resolve the issue without motion practice. He further states Plaintiff's counsel told Defendant's former counsel to "take as much time as you need." Counsel argues that the motion is not frivolous as the request for legal fees "was contemplated by the parties" at the time of settlement. Counsel further argues that because the Plaintiff's obligation towards college was capped, it is does not matter which expensive college the child selected.
In reply, Plaintiff complains that Defendant's counsel continues to disregard the rules of the Court by filing three separate affirmations without leave from the Court. He further asserts that counsel's "double hearsay" statements of purported discussions held regarding his consent to allow Defendant more time to file her request are categorically false. Plaintiff notes that there is no affirmation offered to the Court from Defendant's former counsel attesting to those discussions and no affidavit offered from the Defendant refuting any of Plaintiff's claims. He further notes that Defendant fails to address her outdated financial information and maintains that sanctions are appropriate.
DISCUSSION
There is a clear and unequivocal directive from this Court with respect to the timeliness of Defendant's request for counsel fees. At the time of settlement, on the record, the Court ordered that counsel fee applications be made by January 8, 2021, so that the Court could issue an "expeditious" decision:
THE COURT: So the Court accepts the stipulation and agreement between the parties in full settlement of their matrimonial action. I understand the counsel fee requests need to be submitted to the Court. I would urge that it be done expeditiously. How's two weeks?MR. BRACCONIER: Just because of the holidays, if I could have until the first week of January — January 8th?THE COURT: Okay; January 8th it is.MR. SCHEURER: Could I have two weeks to oppose, to put in my opposition?THE COURT: That would be the 22nd.MR. SCHEURER: Yes, your Honor.THE COURT: Okay. We'll make a decision as expeditious as we can for both of you....That transcript was "So-Ordered" and therefore became an Order of the Court. The time for Defendant to submit a request for fees was set for a date certain and was not left to the discretion of the parties or their counsel. Notwithstanding same, Defendant moved the Court, without permission, approximately five months beyond the court imposed deadline. At no time between December 7, 2020 and June 8, 2021 did Defendant or her counsel contact the Court to express any concern with the submission date or to request an extension of time.
Although this Court appreciates that certain unforeseeable circumstances may arise that warrant flexibility and accommodation from the Court, this is not one of them. Even accepting the Defendant's explanation that the delay was due to conversations between counsel to extend the time to avoid motion practice [FN4] , the Court never approved of same. Just as litigants are expected to comply with Orders of the Court, so must their counsel. Court orders are not subject to unilateral modification by counsel.
Even putting all of that aside, a final award of counsel fees must include a consideration of the parties' financial circumstances. In support of the Defendants request, she offers the Court only a sworn statement of net worth dated November 22, 2017. Her instant application for fees was made more than three and a half years later and after a full settlement of the financial issues in this action. The Court cannot rely upon that outdated statement to make a final determination on fees. It is well established that when determining whether to award legal fees, the Court must "review the financial circumstances of both parties together with all other circumstances of the case, which may include the relative merit of the parties' positions." (DeCabrera v. DeCabrera, 70 NY2d 879 [1987]). The outdated net worth statement does not provide the information necessary for the Court to properly consider the Defendant's financial circumstances (see e.g. Bertone v. Berton, 15 AD3d 326 [2nd Dept., 2005]).
Furthermore, Defendant does not refute Plaintiff's claim that the parties jointly agreed to send their daughter to the most expensive college of her choice, with Plaintiff agreeing to pay above and beyond the "cap" set forth in their Stipulation, because he believed Defendant had abandoned her claim for legal fees. Plaintiff states that he contacted his attorney to confirm that the fee request had not been made before reaching that agreement. It would be unjust for the Plaintiff, or the parties' child, to suffer the financial consequences of Defendant's failure to honor, or even acknowledge, the deadline imposed by the Court.
For any and all of the above reasons, Defendant's motion is DENIED in its entirety.
In light of the above order, branch (1) of Plaintiff's motion is GRANTED.
Pursuant to 22 N.Y.C.R.R. §130—1.1, an award of costs, including an attorney's fees, may be imposed against a party or attorney for frivolous conduct. Among the types of conduct which will be considered frivolous are those determined to be "completely without merit in law" or "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (22 N.Y.C.R.R. §130—1.1[c][1], [2]; Glenn v. Annunziata, 53 AD3d 565, 566 [2nd Dept., 2008]; Ofman v. Campos, 12 AD3d 581, 582, [2nd Dept., 2004]).
"In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (22 N.Y.C.R.R. §130-1.1[c]).
The Defendant brought the instant application with complete disregard for the Court's directives. When the motion was finally made, Defendant failed to even address the fact that it was five months too late. The only excuse offered by Defendant's counsel are hearsay conversations between Defendant's former counsel and Plaintiff's counsel, which Plaintiff's counsel denies. Either way, no one contacted the Court seeking permission for additional time. It would both undermine and diminish the authority of the Court were the Court to allow counsel to disregard its orders, whether it be upon the agreement of counsel, or otherwise.
It is apparent that Defendant's motion is both untimely and defective which has served to prolong this litigation, causing Plaintiff financial harm. Defendant's counsel was placed on notice that an applications for sanctions would be forthcoming but Defendant's counsel remained unwilling to withdraw the motion. It is unfair for the Plaintiff to have to incur legal fees responding to a frivolous motion, particularly where Defendant herself does not refute Plaintiff's claims or provide current financial information.
In light of the totality of the facts and circumstances of this case, the Court finds that a sanction as and for Plaintiff's reasonable legal fees in connection with these motions pursuant to 22 N.Y.C.R.R. §130—1.1 is appropriate and warranted. In determining the sanction to impose, the Court has considered the Plaintiff's billing statement, retainer agreement, underlying affidavits, and the totality of the facts and circumstances of this case.
In determining the appropriate sanction, the Court has also considered that there is nothing in the record to suggest that the Defendant herself was responsible in any way for the five month delay in submission. Further, there is nothing to suggest that Defendant even knew sanctions were being sought against her and/or her attorney, or that she participated in the decision to nonetheless move forward with the initial motion. After the initial moving papers [*3]were submitted, there are no further affidavits from the Defendant. Under these facts and circumstances, the Court does not find that it would be equitable for the Defendant to be penalized for the decisions made by her counsel.
Therefore, branches (2) and (3) are GRANTED to the extent it is
ORDERED, that WISSELMAN, HAROUNIAN & ASSOCIATES, P.C., shall pay directly to TERENCE CHRISTIAN SCHEURER, P.C., the sum of $5,000.00, representing Plaintiff's reasonable legal fees as determined by the Court as a sanction, within 30 days of the service of a copy of this order with Notice of Entry.
This constitutes the Decision and Order of this Court.
DATED: Mineola, New York
October 25, 2021
ENTER:
_____________________________
HON. EDMUND M. DANE, J.S.C Footnotes
Footnote 1:The associate who represented Defendant throughout the litigation offers the initial affirmation. The subsequent affirmations are offered by a different associate after the prior associate left the firm.
Footnote 2:Defendant's counsel filed three separate affirmations: the first on September 20, 2021, the second on September 30, 2021, and finally on October 4, 2021, all seeking to replace prior affirmations.
Footnote 3:Said Stipulation was subsequently incorporated but not merged into the Judgment of Divorce signed on September 1, 2021 and entered with the Nassau County Clerk on September 10, 2021.
Footnote 4:The billing statements offered by Defendant do not indicate any communication with opposing counsel from the date of the Stipulation through January 7, 2021, one day before the submission was due. The billing statements through March 30, 2021, show legal services rendered in the preparation of the attorney fee motion on January 7, 2021, January 29, 2021, February 17, 2021, February 24, 2021, March 23, 2021, March 24, 2021,
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