Latona v. Latona

Appellate Division of the Supreme Court of New York

Latona v. Latona

210 A.D.2d 899, 621 N.Y.S.2d 973, 1994 N.Y. App. Div. LEXIS 13359

Appellate Division of the Supreme Court of the State of New York·Decided December 23, 1994·Published·Cited by 3 cases

Opinion

—Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Attorney’s fees should not be awarded without conducting a hearing or requiring proof by affidavit substantiating the attorney’s fees requested (see, Cooper v Cooper, 179 AD2d 1035; Kieffer v Kieffer, 163 AD2d 907, 908; Falcone v Falcone, 112 AD2d 796, 797). Defendant did not request a hearing. The parties refer to an attorney’s affidavit in their briefs, but such affidavit is not in the record. We, therefore, modify the judgment appealed from by vacating the thirty-first and thirty-second decretal paragraphs and remit the matter to Supreme Court for a determination regarding attorney’s fees based upon proper proof.

We otherwise affirm for reasons stated in the decision at Supreme Court (Whelan, J.). (Appeal from Judgment of Supreme Court, Erie County, Whelan, J.—Attorney’s Fees.) Present—Green, J. P., Wesley, Callahan, Doerr and Boehm, JJ.

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—Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Attorney’s fees should not be awarded without conducting a hearing or requiring proof by affidavit substantiating the attorney’s fees requested (see, Cooper v Cooper, 179 AD2d 1035; Kieffer v Kieffer, 163 AD2d 907, 908; Falcone v Falcone, 112 AD2d 796, 797). Defendant did not request a hearing. The parties refer to an attorney’s affidavit in their briefs, but such affidavit is not in the record. We, therefore, modify the judgment appealed from by vacating the thirty-first and thirty-second decretal paragraphs and remit the matter to Supreme Court for a determination regarding attorney’s fees based upon proper proof.

We otherwise affirm for reasons stated in the decision at Supreme Court (Whelan, J.). (Appeal from Judgment of Supreme Court, Erie County, Whelan, J.—Attorney’s Fees.) Present—Green, J. P., Wesley, Callahan, Doerr and Boehm, JJ.

Latona v. Latona, 210 A.D.2d 899, 621 N.Y.S.2d 973, 1994 N.Y. App. Div. LEXIS 13359 (N.Y. Ct. App. 1994).

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