Jerman v. Jerman

80 A.D.2d 825, 436 N.Y.S.2d 1015, 1981 N.Y. App. Div. LEXIS 10635

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1981
• Status: Published

Opinion

In an action, inter alia, for a money judgment for arrears due under the escalation clause of the parties’ separation agreement, incorporated but not merged into a decree of divorce, defendant appeals from a judgment of the Supreme Court, Suffolk County, entered June 18, 1980, which, after a hearing, fixed arrears and awarded plaintiff a counsel fee. Judgment modified by deleting the second decretal paragraph, which awarded plaintiff a counsel fee. As so modified, judgment affirmed, without costs or disbursements, and case remanded to Trial Term for further proceedings consistent herewith. Although the award of a counsel fee is permissible in the instant action (see Fab'rikant v Fabrikant, 19 NY2d 154), defendant is entitled to an evidentiary hearing, as requested, in which he may challenge the value and extent of counsel’s claimed services (see Sadofsky v Sadofsky, 78 AD2d 520). Hopkins, J. P., Damiani, Lazer and Thompson, JJ., concur.