Nabi v. Nabi

266 A.D.2d 860, 698 N.Y.S.2d 207, 1999 N.Y. App. Div. LEXIS 11887

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1999
• Status: Published

Opinion

—Order unanimously reversed* on the law without costs and application denied with leave to renew in accordance with the following Memorandum: Supreme Court improvidently exercised its discretion in granting plaintiffs application and awarding plaintiff counsel fees in the amount of $8,500 (see, Lee v Chan, 245 AD2d 270). The parties’ separation agreement, incorporated into the amended judgment of divorce, authorizes an application for counsel fees only in connection with enforcement proceedings or appeals. Plaintiffs application improperly sought counsel fees from the inception of the action; relied on alleged intransigent conduct by defendant during the pendency of the action; failed to set forth competent evidence of plaintiffs financial circumstances; and failed to delineate separately the time spent, services rendered and charges made for legal services related to the appeal and to the enforcement proceeding. We therefore reverse the order and deny the application with leave to renew upon appropriate submissions (see, DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881; Lee v Chan, supra; Faust v Faust, 199 AD2d 1057; Kremler v Kremler, 199 AD2d 901, 902-903). (Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Counsel Fees.) Present — Pine, J. P., Wisner, Pigott, Jr., Hurlbutt and Scudder, JJ.