B.N. v M.N.

[*1] B.N. v M.N. 2022 NY Slip Op 50806(U) Decided on August 19, 2022 Supreme Court, Nassau County Dane, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 19, 2022
Supreme Court, Nassau County

B.N., Plaintiff,

against

M.N., Defendant.



Index No. XXXXXX/2021


Attorney for Plaintiff: Keil & Siegel, LLP Co-Counsel, Mejias, Milgrim, Alvarado & Lindo, P.C.

Attorney for Defendant: Schlissel Ostrow Karabatos, PLLC.
Edmund M. Dane, J.

Papers Read on these Motions:

Plaintiff's Notice of Motion (NYSCEF Document Nos.: 268-296) x
Defendant's Notice of Cross-Motion (NYSCEF Document Nos.: 298-308) x
Plaintiff's Reply (NYSCEF Documents Nos.: 309-315) x
Defendant's Reply (NYSCEF Document Nos.: 316-322) x PRELIMINARY STATEMENT

The Plaintiff moves by Notice of Motion dated May 16, 2022 (Motion Sequence No.: 010) seeking an Order: (a) Pursuant to CPLR § 5519(c), vacating the automatic stay of this Court's March 21, 2022 Order obtained by the Defendant's posting of an undertaking to secure his obligation to pay interim counsel fees to the Plaintiff; or in the alternative if this branch of relief is not granted, (b) Pursuant to CPLR § 2201, staying the within proceedings until such time as the Appellate Division renders a decision upon the Defendant's appeal of this Court's March 21, 2022 Order, and granting such stay without effect upon the duration of a final spousal maintenance award; and (c) Pursuant to DRL § 237, awarding Plaintiff interim appellate counsel fees and expenses payable by the Defendant in the amount of $20,000.00 in connection with the services yet to be rendered to defend against Defendant's appeal of this Court's March 21, 2022 Order; and (d) Pursuant to DRL § 237, awarding Plaintiff counsel fees payable by the Defendant in the amount of $7,500.00, in connection with this instant application; and (e) For such other and further relief as this Court may deem proper and equitable.

The Defendant cross-moves by Notice of Cross-Motion dated June 3, 2022 (Motion Sequence No.: 011) seeking an Order: (a) Pursuant to CPLR § 2221, granting Defendant leave to reargue the Order of this Court dated March 21, 2022; (b) Upon such reargument, modifying so much of the Order of this Court dated March 21, 2022 as granted Plaintiff legal fees in the amount of $75,000 and reducing the legal fee award to an amount that takes into consideration [*2]the facts and circumstances of this case; (c) Granting Defendant such other and further relief as this Court may deem just and proper.

BACKGROUND

The parties were married on XXX, 2010. The parties have three (3) children, XXXX (born XXXX), XXXX (born XXXX) and XXXX (born XXXX). The Plaintiff is employed as a Real Estate Sales Person at XXXX, and the Defendant is employed as an Attorney with the firm of XXXX, LLP.

The Plaintiff commenced the within action for divorce and ancillary relief by the filing of a Summons with Notice with the Nassau County Clerk's Office on June 29, 2021. The Plaintiff appeared by and through counsel, Keil & Siegel, LLP. The Plaintiff thereafter retained co-counsel, Mejias, Milgrim, Alvarado & Lindo, P.C. The Defendant appeared by and through counsel, Schlissel Ostrow Karabatos, PLLC.

This Court, by Decision and Order dated March 21, 2022 (Hon. Edmund M. Dane, J.S.C.), inter alia, granted so much of the Plaintiff's application seeking interim counsel fees pursuant to DRL § 237 insofar as awarding the Plaintiff the sum of $75,000.00 as and for interim counsel fees, payable within forty-five (45) days of service of that Decision and Order with Notice of Entry, without prejudice to further applications for additional sums as is necessary at the time of trial or sooner.

Subsequent to the March 21, 2022 Order, the Defendant posted an Undertaking on Appeal (NYSCEF Document No.: 275) (hereinafter referred to as the "Bond"). Said Bond was in the sum of $75,000.00, which was the amount of the counsel fee award as set forth in the March 21, 2022 Order, as heretofore noted.

THE PARTIES' CONTENTIONS

Plaintiff's Contentions:

According to the Plaintiff, the Defendant has used his financial superiority and controlled her access to funds in an attempt to gain leverage, and he has "overlitigated" this case in an attempt to drive up legal fees, that the Plaintiff claims she cannot afford. The Plaintiff contends that the parties have a huge disparity in income, and that, "within minutes" of (the issuance of) the March 21, 2020 Order, the Defendant sent her a message on Our Family Wizard (hereinafter referred to as "OFW") as follows:

"Congratulations!...Good job...that's $75,000 less for you and the kids. You're really winning!"; and"That's 1 year of mortgage and property taxes!! That's major renovations on a home. That's a year of Hebrew school, camp, extracurriculars, etc...This has become a personal fight between your lawyers and me. You are a pawn in their game";

The Plaintiff next contends that the Defendant earns substantial income in excess of $1 million per year, and that she has been a stay-at-home mother for more than a decade. The Plaintiff contends that the Defendant has filed needless motions, turning mundane issues into complicated "battles", which results in constant and costly attorney communication and court intervention. The Plaintiff further argues that the Defendant has not paid certain expenses, often finding "loopholes" to avoid paying, and further outlines the Defendant's alleged conduct vis-a-via issues surrounding the children and therapy. The Plaintiff then appends various and additional messages that were sent by the Defendant, including but not limited to, "...[y]ou will [*3]regret not working with me. This I know. That's not a threat. It's reality. Let me know when you're ready to work with me so I can help you..." and "...I hope you are using your time wisely because the gravy train is going to end eventually. Choooo [sic] choooo [sic]..." and "...Karma is gonna [sic] come Around [sic] and smack bxxxx so hard..." and "...I wonder what Karma has in store next for the Sxxx's..."

The Plaintiff next argues that without the legal fees, she will be unable to litigate this case, and that the case will progress towards trial, including discovery, depositions, all of which she cannot afford. The Plaintiff submits that her request to vacate the stay is necessary to ensure that she can continue litigating this case. The Plaintiff further argues that what she seeks from the Court is not prejudicial insofar as, if the Appellate Division, in effect, reverses or modifies any portion of this Court's March 21, 2020 Order, the Defendant can recoup the amount of the legal fee award in equitable distribution. The Plaintiff next argues that the parties have more than $3 million in assets, comprised of luxury vehicles, brokerage accounts, money market accounts and retirement accounts, the "marital residence", and a boat, from which the Defendant can be made "whole" in the event he is successful in the Appellate Division. The Plaintiff requests of this Court—to the extent that it does not vacate the Bond, to stay this action pending appeal.

The Plaintiff argues that she is in need of legal fees of $20,000.00 relative to the appeal because she cannot afford not to defend herself, even though she cannot afford to defend against it. The Plaintiff argues that the Defendant could have filed a motion seeking reargument, or he could have filed an application in the Appellate Division seeking a stay, but that he did not make the latter application, particularly because he would have had to shown a likelihood of success on the merits. The Plaintiff contends that the choice not to file an application for a stay, and instead the choice to Bond the appeal, was a litigation tactic.

Defendant's Contentions:

The Defendant contends that the Plaintiff has no incentive to settle inasmuch as she has exclusive use and occupancy of the former marital residence because of a stay-away order of protection (which the Defendant argues were based upon false criminal charges thrust upon him on the eve of father's day), that she receives a (voluntary) support package that includes the payment of all of the Plaintiff's and the children's expenses plus direct support,[FN1] and that she now [*4]has an order of this Court which granted her 100% of the Plaintiff's ten-outstanding legal fees.

The Defendant next argues that once this Court directed a forensic evaluator [FN2] —as requested by the Plaintiff - and once the fees for that forensic were directed to be paid from marital funds, the Plaintiff "changed" her position, refused to call the forensic within the five (5) day time limitation as set forth therein, and refused to authorize the release of the funds needed for payment of the forensic, forcing the Defendant to pay it on his credit card, instead of from the joint brokerage account, where that expense was supposed to come from. The Defendant contends that the Plaintiff's belief is that the rules do not apply to her, and that the Defendant is not the "horrible abusive man" depicted by the Plaintiff inasmuch as the parties, by agreement, share joint custody with the Defendant having a liberal parenting schedule. The Defendant argues that he believes that, in sum and substance, the threat of depletion of marital assets brought the Plaintiff to the negotiating table, and now, given a significant legal fee award, the Plaintiff simply seeks to dig her heels in, which will result in fueling her fire, and creating a litigation standstill.

In support of the aforesaid, the Defendant argues that on March 4, 2022, he sent a settlement offer (after settling custody) in an effort to resolve the remaining extant financial issues and, in response, the Plaintiff stated, in sum and substance, that discovery needed to be completed before the Plaintiff would respond to that proposal. The Defendant argues that he has tried - on numerous occasions - to schedule depositions, but the Plaintiff refuses to schedule depositions. The Defendant argues that nothing has happened for three months.

The Defendant argues that the Court's March 21, 2020 Order was error because the Court granted 100% of the Plaintiff's then-outstanding request for legal fees, the Court did not take into consideration inappropriate billing for work done for services vis-a-vis moving to set aside the Prenuptial Agreement, inappropriate billing for services performed in connection with the criminal court matter in the matrimonial matter, the fact that the Defendant's counsel needs to be paid, the fact that the Defendant had to borrow money from his law firm's line of credit to post the Bond, and that the Court, by granting counsel fees as ordered, put the Plaintiff in a far superior financial position. The Defendant further argues that the counsel fee order was erroneous inasmuch as the motions he made to this Court were the result of the Plaintiff's wrongful conduct, and that all of the Plaintiff's applications were either denied or referred to trial.

The Defendant claims that his emails, while less than ideal, were made out of justified frustration. He claims that the Plaintiff was the aggressor, citing to incidents in February of 2019, incidents of physical acts of violence, verbal threats, such as, and including but not limited to, "...you can do whatever you want. That's why I set myself up for kicking you out of the house..." [*5]and "...I can't wait for you to suffer..." and "...what are you f***ing looking at a*****e? What are you looking at..." and "...you don't know what's coming to you..." and "...you f***ing piece of shit, you f***ing loser..." The Defendant then further cites to incidents concerning the children, such as the Plaintiff's refusal to let the Defendant see the children, which caused him to make motions for parenting time, the issuance of an improper subpoena on the Defendant's law firm in an attempt to obtain broad financial disclosure despite the existence of a Prenuptial Agreement, alleging frivolous motion practice, attempts to set aside the Prenuptial Agreement, a baited situation where the Defendant dropped shoes off at the former marital residence, only to thereupon have the Defendant arrested for conduct violative of an order of protection, the Plaintiff's inability to communicate with the Defendant regarding the children, allegations that the Plaintiff is utilizing the children as pawns, including three CPS reports that were ultimately determinative to be unfounded, and the Plaintiff's attempt to communicate with the Defendant directly instead of by OFW.

The Defendant argues that the Court's finding of "the high level of conflict between the parties" did not consider the substance and legitimacy of the motions before the Court. The Defendant further argues that the Court overlooked the parties' respective financial circumstances, and that the "huge disparity in income" is only "on paper". In this vein, the Defendant argues that all of his yearly expenses that he is obligated to pay ameliorates an argument that there is a "huge disparity in income". The Defendant argues that he is paying 100% of the expenses to carry two homes, pay the sizeable expenses of the children, and, all the while, he must pay his own legal fees. In this respect, the Defendant argues that the Plaintiff sees him as an "unlimited ATM machine."

Next, the Defendant argues that both parties have made similar payments to their respective counsel, and specifically references that he paid his counsel $56,188 while the Plaintiff paid her counsel $53,500.[FN3] In this respect, he argues that, if one were to add the $38,500 paid by him to the $75,000 as this Court ordered, he would have paid the Plaintiff's counsel fees in the total sum of $128,500.

The Defendant next addresses the text messages cited by the Plaintiff concerning the $75,000 counsel fee award, alleging that he was simply trying to have the Plaintiff realize the magnitude of the financial impact of her behavior, in an effort to attempt to have the Plaintiff realize how unnecessary and wasteful the litigation has been. The Defendant denies having controlled the Plaintiff to gain leverage, and that he has never withheld support from the Plaintiff. But, rather, the Plaintiff is seeking, in effect, recompensation of expenses not covered by the pendente lite Stipulation. The Defendant denies ever "threatening" the Plaintiff or issuing threats, and posits that he would rather give the money to the Plaintiff and the children than to counsel. The Defendant believes that a $75,000 legal fee award is money better spent on their family.

The Defendant further argues that the Plaintiff has made it clear that she does not intend to move this matter along, nor does she wish to settle this matter. The Defendant claims that he just does not have the money to pay the $75,000 legal fee award, and that he owes his counsel over $59,000 through May of this year, and he has upcoming estimated tax payments that are [*6]due, and that he must pay the new bill of $5,000 from the attorney for the children, inasmuch as he is obligated to pay 95% of those fees.[FN4]

The Defendant then reiterates that he does not have the funds to pay the $75,000 legal fee award, that he did not have them to begin with, let alone to wait until the end of the case to reimburse his law firm's business line of credit. The Defendant argues that the purpose of the bond is to ensure that the Plaintiff befalls no prejudice, by confirming that the legal fees will be paid if the Order is affirmed, but that the Defendant cannot recoup the legal fees once paid. The Defendant posits that he seeks the Plaintiff recognize the cost of paying hundreds of thousands of dollars in legal fees for a "relatively simple financial matter."

Lastly, the Defendant argues that he does not have the money to pay his own counsel, let alone the Defendant's counsel, because he has been carrying a sizeable balance with his own counsel since August of 2021, that he had to borrow money from his firms line of credit to post the Bond, the cost of carrying two households does not leave him with sufficient income to pay the "inordinate" legal fees, that the Plaintiff has failed to disclose that she is employed as a realtor and a yoga teacher at a Temple, and that the Plaintiff has failed to disclose her income.

Plaintiff's Opposition & Reply:

In her opposition and reply,[FN5] the Plaintiff contends that the Defendant will unlikely be successful in appealing the March 21, 2022 Order, and that the automatic stay (as a result of the Bond) perpetuates an ongoing economic imbalance between the parties. The Plaintiff further contends, through counsel, that the provision of the CPLR authorizing an automatic stay was enacted prior to the 2010 amendment to DRL § 237(a), which "presumptively favors the payment of interim counsel fees to the non-monied spouse." The Plaintiff argues that the New York State Bar Association has proposed adding an amendment to CPLR § 5519(a)(2) to add thereto the words "...[e]xcept in actions brought pursuant to DRL and FCA..."

The Plaintiff next argues that the Defendant does not deny that he could recover 100% of the counsel fee award from the Plaintiff's share of equitable distribution, and she reiterates her claims that the parties have a substantial marital estate worth more than $3 million dollars. The Plaintiff then argues that the Defendant is, in effect, arguing that the Plaintiff's counsel wait until the end of the case to be paid from the Plaintiff's share of equitable distribution. The Plaintiff also argues that while the Defendant claims that he does not have the funds to pay the $75,000 legal fee award, he contradicts himself, asserting that he accessed his firm's business line of credit to post the Bond. The Plaintiff argues that the appeal process in the Appellate Division will be a minimum of eleven (11) months, with extensions permitted as a matter of right.

With respect to the Defendant's reargument motion, the Plaintiff claims that it is defective as a matter of right, failing to include the underlying opposition papers and multiple other sets of [*7]papers that are (or were) the subject of the Court's underlying Order, rendering his motion "defective on its face". The Plaintiff next contends that the Defendant's motion for reargument is time barred, inasmuch as the March 21, 2022 Order was served with Notice of Entry on March 22, 2022, but that his application for reargument was not filed until June 3, 2022, forty-four (44) days after the statutorily prescribed period. The Plaintiff, in this vein, argues that the Defendant was required to comply with the statutory time period of thirty (30) days to file his application seeking leave to reargue, and that he has failed to present sufficient evidence to establish good cause for this Court to extend his time to move for reargument. The Plaintiff next argues, with respect to the application seeking reargument, that this Court did not overlook or misapprehend facts to warrant reargument, only reiterating the same arguments he made in the underlying motion papers.

With respect to the Plaintiff's application for additional counsel fees, the Plaintiff posits that her application was out of necessity, grounded in statute, and that she was forced to respond to a motion which is fatally defective and meritless.

With respect to the Plaintiff's application for appellate counsel fees, the Plaintiff argues, in sum and substance, that there is a vast discrepancy in the respective incomes of the parties, that she is a stay-at-home mother, and the Defendant, who earns more than $1 million per year, asserts that a majority of the parties assets are his separate property.

Defendant's Reply:

In reply to his cross-motion, the Defendant claims that the Plaintiff's focus on their assets is not relevant to determining whether or not he has sufficient income to pay legal fees, as ordered. The Defendant claims that the Plaintiff's attempt to compare assets to income—like comparing the $250,000 Lamborghini to having sufficient income to pay the counsel fee award—is a smokescreen. The Defendant reiterates his position that his income alone is insufficient to pay all of the family expenses plus legal fees to his counsel, plus the attorney for the children. In sum, the Defendant argues that he is being asked to support three (3) children, two (2) adults, two (2) households, and three (3) sets of attorneys. The Defendant posits that the Plaintiff—who has exclusive occupancy of the most valuable assets—is in a far superior financial position to pay her own counsel fees.

Next, the Defendant claims that he should not have to incur debt in accessing his firm's line of credit to pay legal fees, and that, if he has to incur debt to pay counsel fees, the Plaintiff should have to incur debt to pay counsel fees. The Defendant cites the Plaintiff's continued refusal to settle this matter, including such conduct, including but not limited to, refusing to schedule depositions and a blanket refusal to discuss settlement.

ANALYSIS

Motion Sequence No.: 010:

VACATUR OF THE BOND

The initial threshold question before this Court is whether or not it is vested with the authority to vacate the Bond. CPLR § 5519 governs the stay of enforcement of orders. Initially, CPLR § 5519(a)(3) provides:

(a) Stay Without Court Order. Service upon the adverse party of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination on the motion for [*8]permission to appeal where: * * * 3. the judgment or order directs the payment of a sum of money, to be paid in fixed installments, and an undertaking in a sum fixed by the court of original instance is given that the appellant or moving party shall pay each installment which becomes due pending the appeal and that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall pay any installments or part of installments then due or the part of them as to which the judgment or order is affirmed;

The Defendant herein posted a $75,000.00 Bond on or about April 12, 2022 (NYSCEF Document No.: 275). Therefore, so much of the March 21, 2022 Order which granted the Plaintiff interim counsel fees in the sum of $75,000 was and is stayed pending the appeal pursuant to CPLR § 5519(a)(3). Turning to CPLR § 5519(c), the plain language of that portion of the statute provides:

(c) Stay and Limitation of Stay by Court Order. The court from or to which an appeal is taken or the court of original instance may stay all proceedings to enforce the judgment or order appealed from pending an appeal or determination on a motion for permission to appeal in a case not provided for in subdivision (a) or subdivision (b), or may grant a limited stay or may vacate, limit or modify any stay imposed by subdivision (a), subdivision (b) or this subdivision, except that only the court to which an appeal is taken may vacate, limit or modify a stay imposed by paragraph one of subdivision (a). (emphasis added).

The Court therefore reads the plain language of CPLR § 5519(c) as granting authority to this Court (the Court of original instance), to either: (a) grant a limited stay, (b) vacate the stay, or (c) limit or modify the stay that was imposed by subdivision (a) of CPLR § 5519(a), i.e., the posting of the Bond. As the Advisory Committee Notes reflect: "...[s]ubd (c) of this section is patterned after CPA § 598-a. It gives the power to modify a stay secured under subdivision (a), as well as the power to grant a stay in a case not covered by that subdivision, to the court from or to which the appeal is taken and the court of original instance..." Therefore, given the plain language of the statute, as well as the Advisory Committee Notes, the Court finds that it has the authority, under CPLR § 5519(c), to modify, limit or vacate the stay imposed by the posting of the Bond.

Now that this Court has determined that it has the authority to limit, modify or vacate the stay imposed by the posting of the Bond, the question now is whether this Court should exercise its authority and vacate the Bond, which is the relief requested by the Plaintiff. For the reasons set forth in this Decision and Order, this Court vacates the Bond.

This Court starts with the purpose of the Bond: to stay enforcement of an award of interim counsel fees. Staying enforcement of an award of interim counsel fees to the nonmonied spouse is, in and of itself, untethered from the intent of DRL § 237(a) and at odds with prevailing case-law. The Court of Appeals has recognized that "the realities of contentious matrimonial litigation require a regular infusion of funds" so as to prevent the accumulation of attorney's fees. Kaufman v. Kaufman, 131 AD3d 939 (2d Dept. 2015); Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008); Frankel v. Frankel, 2 NY3d 601 (2004); see also Scott M. v. Ilona M., 31 Misc 3d 353 (Supreme Court Kings County 2011). The Second Department noted the importance of [*9]interim counsel fee awards to the nonmonied spouse to the fundamental fairness of the proceedings, in Prichep v. Prichep, where that Court held that an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied - or deferred until after the trial, which functions as a denial - without good cause articulated in a written decision. Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008).

This Court finds that the posting of the Bond with respect to the award of interim counsel fees as ordered by this Court in the March 21, 2022 Order functions, in effect and ostensibly, as a denial of the application for fees. While the Defendant argues, in sum and substance, that the legal fees will be paid if the Order is affirmed, the reality is that if a stay of enforcement of so much of the March 21, 2022 Order which granted the Plaintiff counsel fees remains in effect, the Plaintiff and her counsel will have to wait - as opposed to being timely paid - for the award of fees, either by way of a trial or a decision from the Appellate Division. While the Court appreciates that argument, it not only finds it unpersuasive, but the Court finds that argument incongruous with the intent of DRL § 237(a) and prevailing case law. As the plain language of DRL § 237(a) provides:

In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. (emphasis added).

In other words, it is incumbent upon this Court to ensure that counsel fees are timely paid to the nonmonied spouse. DRL § 237(a)'s underlying purpose fees is to ensure that each party shall be adequately represented. The case-law is additionally clear that courts should not defer requests for interim counsel fees to the trial court, and that a party need not wait until the conclusion of the matter for his or her counsel to be paid. See generally T.K. v. D.K., 61 Misc 3d 311 (Supreme Court Nassau County 2018). In effect, by posting the Bond and staying enforcement of so much of the Order which granted interim counsel fees, the Court finds that the Defendant has deferred the timely payment of the $75,000.00 counsel fee award, as ordered. Again, that is contrary to statute and prevailing case-law.

The Court finds Wechsler v. Wechsler instructive. In that case, that court rendered an interim order, directing the defendant therein to pay $475,000 towards the legal and professional fees. Weschler v. Weschler, 8 Misc 3d 328 (Supreme Court New York County 2005). In Weschler, Justice Gische wrote that "...[t]he fact that the stay is automatic does not remove it from the purview of the court's discretion to otherwise vacate, limit or modify the stay. Moreover, the statute expressly gives the court issuing the order appealed from such discretion..." Weschler, 8 Misc 3d at 329. In vacating the automatic stay therein, that Court found as follows:

"...[i]n short, this case presents a quintessential scenario, which concerns both trial and appellate courts, about the outcome of a divorce litigation being influenced by one party's greater ability to bankroll it. By taking advantage of the automatic stay provision in CPLR 5519 (a) defendant has done indirectly what he could not do directly, that is, prevent the plaintiff from receiving interim professional fees..."

Id. at 332. While the Court recognizes - and the Defendant argues - that the fees ordered in Weschler were awarded subject to reallocation at trial, similarly here, this Court duly noted in the March 21, 2022 Order that when it considers the ultimate issue of counsel fees and equitable [*10]distribution, it will also consider the interim award made herein (emphasis added). Which means, in effect, that the $75,000 counsel fee award as ordered in the March 21, 2022 Order will be subject to reallocation and consideration when the Court equitably distributes the parties' assets that are subject to equitable distribution.

Critically, the Defendant readily admits that he accessed his law firm's line of credit in order to secure the Bond, which is problematic to the Court. The Defendant posted this Bond in lieu of compliance with the March 21, 2022 Order. That, to this Court, is unacceptable. This Court will not permit the Defendant herein, who is the monied spouse, to utilize a procedural mechanism to circumvent his obligation to contribute to the interim counsel fees of the Plaintiff. The Defendant admittedly earns $1,000,000 per annum, and, in addition, admits to having access to his law firm's line of credit to secure a Bond to avoid timely paying counsel fees to the nonmonied spouse. To ascribe to that logic and to not vacate the Bond would eviscerate the meaning and intent of DRL § 237(a) and go against scores of cases standing for the proposition that there must be a regular infusion of funds during contentious matrimonial litigation.

Further instructive is Karg .v Kern. In that case, the First Department unanimously affirmed an Order of the New York County Supreme Court, which, inter alia, vacated an automatic stay obtained therein, writing:

The court properly vacated the automatic stay of the April 3, 2014 order obtained by defendant's posting of an undertaking to secure his obligation to pay interim counsel fees (see CPLR 5519 [c]; Wechsler v Wechsler, 8 Misc 3d 328, 797 NYS2d 844 [Sup Ct, NY County 2005]). The court was appropriately concerned that defendant was taking advantage of the automatic stay to prevent plaintiff from receiving interim counsel fees, thereby preventing an even playing field in the litigation. Further, defendant can recoup the counsel fee award from plaintiff's share of equitable distribution, while plaintiff would be severely prejudiced if she were forced to wait months to obtain the interim award.

Karg v. Kern, 125 AD3d 527 (1st Dept. 2015).

This Court is further concerned that the Defendant, a named partner in a law firm that concentrates its practice in appellate advocacy and, admittedly, litigation strategy,[FN6] is seeking to take advantage of the automatic stay afforded to him by virtue of his posting of the Bond. Moreover, both parties set forth unbecoming and troubling text messages to this Court. This Court is particularly troubled by the Defendant's messages to the Plaintiff concerning this Court's legal fee award, wherein he writes: "...[c]ongratulations!...Good job...that's $75,000 less for you and the kids. You're really winning!"; and "...[t]his has become a personal fight between your lawyers and me. You are a pawn in their game..." Likewise, this Court has also read the Defendant's other messages, including "...I hope you are using your time wisely because the gravy train is going to end eventually. Choooo [sic] choooo [sic]..." and "...Karma is gonna [sic] [*11]come Around [sic] and smack bxxxx so hard..." This Court is of the opinion that the Defendant now sees this as a personal fight, utilizing his knowledge as an appellate attorney in an attempt to deprive the Plaintiff of meaningful representation by depriving her counsel of the fees necessary to litigate this matter.

This Court has carefully reviewed the Defendant's opposition to this application. The Court further notes that, after a close and scrutinized review of the Defendant's Affidavit, he opposes a stay of the matrimonial action pending appeal to the extent that this Court does not vacate the Bond.[FN7] In effect, then, the Defendant's position (even if tacitly taken) is to wait the appellate process out so as to defer the fees as ordered by this Court, litigate the matrimonial matter to conclusion and finality, and wait for the end of this case (or the end of the appellate process) for the Plaintiff's counsel to be paid. Such a result is, and would be, the antithesis of the intent of DRL § 237(a), and this Court declines to let the Plaintiff to be deprived meaningful represented. The Court also notes that the Plaintiff invoice appended to her moving papers (NYSCEF Document No. 293) reflects a balance due and owing to her counsel of $69,786.35. It is simply not fair to deprive the Plaintiff of a timely counsel fee payment which would cover her outstanding legal fees while the Defendant not only has access to his personal funds, income and assets, but, admittedly, has access to his law firm's line of credit. As the Court of Appeals noted in Frankel, supra, "...[w]e note that more frequent interim counsel fee awards would prevent accumulation of bills..." Frankel, 2 NY3d 601 at fn. 1.The award of counsel fees as ordered in the March 21, 2022 Order was designed to create parity in this litigation; the Bond has accomplished the opposite.

Accordingly, based upon the aforesaid, the controlling case-law and statutes, and based upon the facts and circumstances of this case, including but not limited to, the Defendant's income, his employment, the messages of the Defendant, the merits of his position, along with a careful review of the Defendant's Affidavit, it is hereby:

ORDERED, that Branch (a) of the Plaintiff's Notice of Motion dated May 16, 2022 be and is hereby GRANTED, and the Undertaking on Appeal dated April 12, 2022 is hereby vacated.

STAY

Inasmuch as this Court has now ordered the vacatur of the Bond, supra, this Court sees no practical import in directing and ordering a stay of this matrimonial action pursuant to CPLR § 2201. This is especially so in light of the fact that the Plaintiff requested this Branch of relief in the alternative in the event that Branch (a) of her Notice of Motion dated May 16, 2022 has been granted. Accordingly, it is hereby:

ORDERED, that Branch (b) of the Plaintiff's Notice of Motion dated May 16, 2022 be and is hereby DENIED.

APPELLATE COUNSEL FEES

With respect to awards of appellate counsel fees, the Third Department has held:

Domestic Relations Law § 237 (a) provides that, in certain enumerated actions and proceedings, which includes the divorce action herein, "the court may direct either spouse [*12]to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding" (emphasis added). As noted by one commentator, the "defense of an appeal is part of the carrying on or defense of the underlying action or proceeding" (Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 237, at 23). An award of appellate counsel fees to enable a spouse to defend an appeal may be made either before (see Caldwell v Caldwell, 209 AD2d 1022, 1023, 619 N.Y.S.2d 908 [1994]; Delgado v Delgado, 160 AD2d 385, 386, 553 N.Y.S.2d 750 [1990]) or after the appeal has been resolved (see Matter of Salvati v Salvati, 242 AD2d 538, 538, 662 N.Y.S.2d 130 [1997], appeal dismissed 87 NY2d 954, 664 N.E.2d 893, 641 N.Y.S.2d 827 [1996], lv denied 88 NY2d 803, 668 N.E.2d 416, 645 N.Y.S.2d 445 [1996]). Furthermore, such applications are correctly presented to the court of original instance (see Matter of Urbach v Krouner, 213 AD2d 833, 836, 623 N.Y.S.2d 380 [1995]). Notably, no time limit for making an application for appellate counsel fees appears in Domestic Relations Law § 237.

Holloway v. Holloway, 307 AD2d 405 (3d Dept. 2003).

The Court has reviewed the Plaintiff's retainer agreement with her law firm, Mejias, Milgrim, Alvarado & Lindo, P.C. (NYSCEF Document No.: 293). The Court notes that said Retainer Agreement specifically provides that the firm was retained to represent the Plaintiff "...in connection with a matrimonial action..." And, in any event, the Retainer Agreement expressly provides that "...[t]he above retainer fees do not include work in Appellate Courts, any other actions or proceedings and disbursements..." After a close review of the firm's Retainer Agreement, it does not appear to this Court that said Retainer Agreement covers services in connection with an appeal. Therefore, in light of the aforesaid, it is hereby:

ORDERED, that Branch (c) of the Plaintiff's Notice of Motion dated May 16, 2022 be and is hereby DENIED, without prejudice and with leave to renew upon the submission of proper papers.

ADDITIONAL COUNSEL FEES

DRL § 237 directs the court in awarding counsel fees to exercise its discretion as "...justice requires having regard to the circumstances of the case and of the respective parties." In addition to the parties' respective financial position, the court is entitled to consider whether or not a party "unnecessarily protracted the litigation and the quality of presentation afforded the [moving party's] attorney" (Singer v. Singer, 16 AD3d 666 [2d Dept 2005]). The issue of counsel fees is controlled by the equities and circumstances of each particular case. (Basile v. Basile, 122 AD2d 759 [2d Dept 1986]).

Among many factors, the court must consider the respective financial positions of the parties in determining whether an award is appropriate (Borakove v. Borakove, 116 AD2d 683 [2d Dept 1986]), the financial need of the party and the parties' disparate incomes (Hausman v. Hausman, 162 AD2d 590 [2d Dept 1990]), the time expended by counsel, the hourly rate for such services in the legal marketplace, the nature of the legal services rendered, the issues before the court and the professional standing of counsel. (DeCabrera v. Cabrera-Rosete, 70 NY2d 879 [1987]). "[A]ny award of attorney's fees should be based, inter alia, on the relative financial circumstances of the parties, the relative merit of their positions, and the tactics of a party in unnecessarily prolonging the litigation (Ventimiglia v. Ventimiglia, 36 AD3d 899 [2d Dept [*13]2007]).

The Court finds that the Plaintiff is entitled to an additional award of counsel fees with respect to this application seeking, inter alia, to vacate the Bond. The Court has reviewed the invoice of the Plaintiff's counsel dated May 12, 2022, and finds the time charges attendant to seeking to vacate the Bond to be fair and reasonable, and finds the hourly rates charged by the Plaintiff's counsel to be fair and reasonable. After a comprehensive review of said invoice, this Court finds that the total sum of $5,290.00 was incurred in connection with the instant application, brought by necessity after the Defendant posted the Bond to stay enforcement of so much of the March 21, 2022 Order which granted the Plaintiff the sum of $75,000 in interim counsel fees.

Thus, in light of the conduct of the Defendant as set forth aforesaid, in light of the enormous disparity of income between the parties, in light of the Defendant's income of $1,000,000 per annum, and based upon a review of the billing statement of the Plaintiff's counsel, the Plaintiff's retainer agreement, and based upon the totality of the circumstances and the facts of this case, it is hereby:

ORDERED, that Branch (d) of the Plaintiff's Notice of Motion dated May 16, 2022 be and is hereby GRANTED TO THE EXTENT that the Defendant shall pay directly to MEJIAS, MILGRIM, ALVARADO & LINDO, P.C., attorneys for the Plaintiff, the sum of $5,290.00, within thirty (30) days of the date of service of the within Decision and Order with Notice of Entry; and it is further

ORDERED, that upon the failure of Defendant to pay the Plaintiff's counsel as set forth herein above, the Plaintiff's attorneys may file an Affidavit of Non-Compliance with the Clerk of the County, who shall enter a judgment, with statutory interest thereon as of the date of this Decision and Order, in favor of MEJIAS, MILGRIM, ALVARADO & LINDO, P.C., attorneys for the Plaintiff, and against the Defendant, MN, without further proceedings.

Motion Sequence No.: 011:

REARGUMENT

"A motion for leave to reargue is addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law, or for some reason mistakenly arrived at its earlier decision." Beverage Marketing USA, Inc. v. South Beverage Co., Inc., 58 AD3d 657 (2d Dept., 2009); See: CPLR § 2221. A motion for leave to reargue "shall not include any matters of fact not offered on the prior motion" and "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented." Mazinov v. Rella, 79 AD3d. 979, 980 (2d Dept., 2010); quoting McGill v. Goldman, 261 AD2d 593, 594 (2d Dept., 1999); CPLR § 2221.

As to the Plaintiff's procedural arguments, the Court finds them unavailing. The Court deems the Defendant's Notice of Cross-Motion seeking reargument to be timely in the exercise of its discretion. Furthermore, with respect to the Plaintiff's argument that the Defendant's motion should be denied for failing to append the underlying papers, the Court finds that argument to likewise be unavailing. Indeed, the within matrimonial action is an electronically filed action through NYSCEF, and, as a result thereof, this Court has access to all papers heretofore filed on the NYSCEF e-filing system.

In its prior Decision, this Court duly considered the Defendant's expenses he is obligated to pay and the remaining funds available to him, and that some of the legal fees may not be recoverable in this matrimonial action. The Court also duly noted in the underlying Decision that it considered the equities of this case, and the expenses of the parties, along with pertinent case law. Because the Court did not overlook or misapprehend any facts or law in its prior Decision, it is hereby:

ORDERED, that Branches (a) and (b) of the Defendant's Notice of Cross-Motion dated June 3, 2022 be and are hereby DENIED.

Any other relief requested not specifically addressed herein is hereby DENIED.

This constitutes the DECISION AND ORDER of this Court.

Dated: Mineola, New York
August 19, 2022
E N T E R:
Hon. Edmund M. Dane, J.S.C. Footnotes

Footnote 1:The parties pendente lite Stipulation dated August 2, 2021, and so ordered by this Court on February 25, 2022 (Hon. Edmund M. Dane, J.S.C.), provides, inter alia, that the Defendant shall pay the mortgage, interest, real estate taxes, homeowner's insurance premiums, gas, electricity, cable/internet, gardener for a weekly maintenance and fall/spring cleaning, water, alarm, extreminator contract, fall and spring gutter cleaning, $250 per week for housekeeper and babysitting services, pool maintenance, generator maintenance and the Plaintiff's cell phone up to $150 per month. That Stipulation also provides that the Defendant shall pay for the cost of reasonable and necessary home repairs on the marital residence. The Stipulation further provides that the Defendant shall pay to the Plaintiff unallocated maintenance and child support of $5,000 per month, that the Plaintiff is permitted to spend up to $800 per month on a separate credit card for certain delineated expenses for the children only, that the Defendant is to pay 100% of the reasonable and necessary in-network unreimbursed or uncovered medical, optical and orthodontic expenses for each child and the Plaintiff, the costs of therapy for XXXX with Dr. XXXX, one routine dental visit for the Plaintiff per year and all of the children's medically necessary dental expenses, and 100% of the Plaintiff's 2018 Audi Q7 lease and car insurance, and the Plaintiff's EZ Pas expenses and 100% of: the children extracurricular activities consistent with past practice, the cost of tuition for the children in accordance with past practice, necessary tutors for the children, and temple and religious education for the children.

Footnote 2:By Order Appointing Mental Health Professional of this Court dated December 10, 2021 (Hon. Edmund M. Dane, J.S.C.), this Court appointed Nicole Berman, Psy.D. to conduct a comprehensive mental health evaluation.

Footnote 3:In this respect, the Defendant claims that $38,500 came from him.

Footnote 4:By Order Appointing Attorney for the Children dated July 15, 2021 (Hon. Edmund M. Dane, J.S.C.), this Court appointed Michael Cancellare, Esq., as attorney for the children, directing the Plaintiff to pay 5% of said fees, and the Defendant to pay 95% of said fees, subject to reallocation at the conclusion of this matter.

Footnote 5:As submitted, through NYSCEF, the Plaintiff's opposition and reply consists of an Affirmation by the Plaintiff's counsel, David L. Mejias, Esq.

Footnote 6:The Court takes judicial notice of all prior motion papers filed with this Court. In his Affidavit dated July 14, 2021, submitted to this Court in connection with his Order to Show Cause filed on July 14, 2021, the Defendant wrote "...I am an attorney and have my own pracitce, XXXX, LLP, a firm that is dedicated to appellate advocacy and litigation strategy...") (emphasis added) (see NYSCEF Document No. 6).

Footnote 7:This Court notes Paragraph "29" of the Defendant's Affidavit dated June 2, 2022 requests that this Court deny the Plaintiff's motion "in its entirety."