Cimino v. Cimino

98 A.D.2d 706, 469 N.Y.S.2d 103, 1983 N.Y. App. Div. LEXIS 21006

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1983
• Status: Published

Opinion

— In a matrimonial action, the defendant husband appeals from an order of the Supreme Court, Queens County (Kunzeman, J.), dated February 7, 1983, which denied his application to modify a stipulation and judgment of separation and granted the plaintiff wife’s cross motion for attorney’s fees to the extent of directing the defendant to pay $500 to plaintiff’s attorney. Order modified, on the law, by deleting the provision awarding an attorney’s fee, and cross motion for an attorney’s fee denied. As so modified, order affirmed, with costs to the plaintiff wife. The instant application marks the defendant husband’s third attempt to find fault with a certain provision of the stipulation entered into between the parties in open court in 1976. Although the defendant currently advances a new theory, we find the instant claim barred by res judicata inasmuch as he is seeking essentially the same relief sought on two prior occasions for an alleged harm arising out of a single factual grouping (see O’Brien v City of Syracuse, 54 NY2d 353; Smith v Russell Sage Coll., 54 NY2d 185, 192, 193; City of Long Beach v Linkar Enterprises, 93 AD2d 829). Moreover, were we to consider the merits of the husband’s application, we nevertheless would affirm that portion of Special Term’s order denying his application. The husband failed to present sufficient evidence from which an inference of overreaching by the wife could be drawn. However, Special Term erred in awarding the wife attorney’s fees (see Domestic Relations Law, § 237; Winant v Winant, 83 AD2d 850, affd 55 NY2d 870; Winant v Winant, 83 AD2d 849, affd 55 NY2d 870). Accordingly, the order is modified to the extent of striking the award. Titone, J. P., Gibbons, O’Connor and Rubin, JJ., concur.