Pekoe v. Pekoe

101 A.D.2d 813, 475 N.Y.S.2d 144, 1984 N.Y. App. Div. LEXIS 18470

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1984
• Status: Published

Opinion

In a matrimonial action, Richard D. Ostor appeals from so much of an order of the Supreme Court, Kings County (Duberstein, J.), dated October 28,1983, as (1) directed him to turn over to defendant’s present attorneys the file in the instant action, and (2) deferred determination of the issue of the reasonable value of his services for the trial court’s determination or, in the event that a trial is not conducted, for a plenary action. 1 Order modified, by deleting the third and fourth decretal paragraphs which deferred the issue of the reasonable value of appellant’s services for the trial court’s determination or for a plenary action. As so modified, order affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to Special Term for a prompt hearing in accordance herewith. H Appellant is entitled to a summary judgment fixing the value of his services. However, in light of defendant’s allegations of indigency, it would be inequitable to permit appellant to retain the file in the instant action pending payment of that amount. Accordingly, the matter must be remitted to Special Term for a hearing to determine the amount of compensation, if any, to which appellant is entitled. Payment of such amount is to be deferred until the conclusion of this action (Rosen v Rosen, 97 AD2d 837), when the court can make suitable provision for the payment of counsel fees. Lazer, J. P., Gibbons, Bracken and Lawrence, JJ., concur.