In re Kristina

238 A.D.2d 340, 656 N.Y.S.2d 932, 1997 N.Y. App. Div. LEXIS 3389

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1997
• Status: Published

Opinion

—In an agency adoption proceeding pursuant to Domestic Relations Law article 7, Michael S. Goldstein appeals from an order of the Family Court, Dutchess County (Pagones, J.), entered November 22, 1995, which, sua sponte, reduced his agreed-upon counsel fee to $750 and denied him reimbursement for his disbursements.

Ordered that on the court’s own motion, the notice of appeal from the order entered November 22, 1995, is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [b] [1]); and it is further,

Ordered that the order is reversed, without costs or disbursements, and the appellant is awarded the full amount of his agreed-upon counsel fee in the amount of $1,500, and disbursements in the amount of $21.37.

While no appeal lies as of right from an order which does not determine a motion made on notice (see, CPLR 5701 [a] [2]; [c]; Kokalari v Kokalari, 166 AD2d 418), the notice of appeal from the order entered November 22, 1995, is treated as an application for leave to appeal and leave is granted.

The Family Court erred in disturbing the fee agreement and reducing the amount of the fee and the disbursements for which counsel was entitled to receive payment and reimbursement (see, Matter of Schmidt, 134 AD2d 432, 433). O’Brien, J. P., Ritter, Krausman and Goldstein, JJ., concur.