Devivo v. Devivo

2 A.D.3d 483, 767 N.Y.S.2d 892

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2003
• Status: Published

Opinion

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated October 29, 2002, as granted the plaintiffs motion for counsel fees in the sum of $45,746.21 and pendente lite arrears in the sum of $18,975.42, and as failed to decide that branch of his cross motion which was for reimbursement of $16,000 he paid pursuant to two pendente lite orders of the same court.

Ordered that the appeal from so much of the order as failed to decide that branch of the defendant’s cross motion which was for reimbursement of $16,000 is dismissed, as that branch of the cross motion remains pending and undecided (see Katz v Katz, 68 AD2d 536 [1979]); and it is further,

Ordered that the order is affirmed insofar as appealed from and reviewed; and it is further,

Ordered that one bill of costs is awarded to the respondent.

The defendant’s contention that the award of counsel fees was erroneous because it was based on inadmissible hearsay evidence is without merit. The parties waived their right to a hearing on the issue of counsel fees, consented to resolve the issue upon motion papers and submissions, and the plaintiffs attorneys carefully documented each of the charges listed in their respective affirmations of services rendered (see Pinto v Pinto, 260 AD2d 622 [1999]; Robinson v Robinson, 166 AD2d 428 [1990]; cf. Covington v Covington, 249 AD2d 735 [1998]).

The defendant’s remaining contentions either are unpreserved for appellate review or without merit. McGinity, J.P., Luciano, Schmidt and Rivera, JJ., concur.