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Lawrence S. Schek v. Vinni M. Schek

Schek v. Schek

49 A.D.3d 625, 856 N.Y.S.2d 127


49 A.D.3d 625856 N.Y.S.2d 127, 2008 WL 659436, 2008 N.Y. Slip Op. 02133

Lawrence S. Schek, Appellant


Vinni M. Schek, Respondent.

Supreme Court, Appellate Division, Second Department, New York

March 11, 2008

CITE TITLE AS: Schek v Schek


Husband and Wife

Counsel Fees

Martin J. Rosen, P.C., White Plains, N.Y., for appellant.

Most & Kusnetz, LLC, White Plains, N.Y. (Marcia E. Kusnetz of counsel), for respondent.

In an action for a divorce and ancillary relief, the plaintiff husband appeals from a money judgment of the Supreme Court, *626 Dutchess County (Sproat, J.), dated January 24, 2007, which, upon a decision of the same court dated January 5, 2007, awarded the defendant wife an attorney’s fee in the sum of $60,000.

Ordered that the money judgment is affirmed, with costs.

The award of a reasonable attorney’s fee is a matter within the sound discretion of the trial court (see Domestic Relations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]). An award of an attorney’s fee should be based upon, inter alia, the relative financial circumstances of the parties, the relative merits of their positions, and the tactics of a party in unnecessarily prolonging the litigation (seeDomestic Relations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d at 881;Levy v Levy, 4 AD3d 398, 398-399 [2004];Krutyansky v Krutyansky, 289 AD2d 299, 300 [2001];Morrissey v Morrissey, 259 AD2d 472, 473 [1999]). The fact that the defendant wife has assets is not, by itself, a basis to deny a motion for an attorney’s fee, as she “need not establish indigency as a prerequisite to an award of counsel fees” (Lenczycki v Lenczycki, 152 AD2d 621, 624-625 [1989]).

In view of the disparity between the incomes and resources of the parties (see Levy v Levy, 4 AD3d 398 [2004]), and the difficulties encountered in obtaining paper discovery from the plaintiff (cf. Griggs v Griggs, 44 AD3d 710, 714 [2007]), the court providently exercised its discretion in awarding the defendant an attorney’s fee in the sum of $60,000. Spolzino, J.P., Florio, Angiolillo and Dickerson, JJ., concur.

Copr. (c) 2011, Secretary of State, State of New York

NY, 2008.

Schek v Schek

49 A.D.3d 625