Silbowitz v. Silbowitz

Appellate Division of the Supreme Court of New York

Silbowitz v. Silbowitz

106 A.D.3d 806, 964 N.Y.S.2d 615

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 8, 2013

StatusPublished

Cited by2 cases

This text of 106 A.D.3d 806 (Silbowitz v. Silbowitz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Silbowitz v. Silbowitz, 106 A.D.3d 806, 964 N.Y.S.2d 615 (N.Y. Ct. App. 2013).

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Opinion

In a matrimonial action in which the parties were divorced by judgment entered April 7, 2005, the defendant appeals from an order of the Supreme Court, Nassau County (Falanga, J.), dated December 16, 2011, which denied that branch of his motion which was for an award of an attorney’s fee and costs pursuant to a provision of the parties’ stipulation of settlement dated December 2, 2004.

Ordered that the order is affirmed, with costs.

The defendant contends that the Supreme Court erred in denying that branch of his motion which was for an award of an attorney’s fee and costs based upon the plaintiff’s alleged default in her obligations under the parties’ stipulation of settlement. However, since the parties settled their dispute over the plaintiff’s alleged default, the plaintiff was not “determined to be in default,” as required by the terms of the parties’ stipulation of settlement (see Matter of Berns v Halberstam, 46 AD3d 808, 809 [2007]; Arato v Arato, 15 AD3d 511 [2005]). Accordingly, the court correctly determined that the defendant was not entitled to an award of an attorney’s fee and costs (see e.g. Fackelman v Fackelman, 71 AD3d 724, 726 [2010]; Leiderman v Leiderman, 50 AD3d 644 [2008]; Millard v Millard, 246 AD2d 349, 349-350 [1998]).

In light of the foregoing, we need not address the plaintiffs remaining contention. Dillon, J.E, Angiolillo, Austin and Hinds-Radix, JJ., concur.

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In a matrimonial action in which the parties were divorced by judgment entered April 7, 2005, the defendant appeals from an order of the Supreme Court, Nassau County (Falanga, J.), dated December 16, 2011, which denied that branch of his motion which was for an award of an attorney’s fee and costs pursuant to a provision of the parties’ stipulation of settlement dated December 2, 2004.

Ordered that the order is affirmed, with costs.

The defendant contends that the Supreme Court erred in denying that branch of his motion which was for an award of an attorney’s fee and costs based upon the plaintiff’s alleged default in her obligations under the parties’ stipulation of settlement. However, since the parties settled their dispute over the plaintiff’s alleged default, the plaintiff was not “determined to be in default,” as required by the terms of the parties’ stipulation of settlement (see Matter of Berns v Halberstam, 46 AD3d 808, 809 [2007]; Arato v Arato, 15 AD3d 511 [2005]). Accordingly, the court correctly determined that the defendant was not entitled to an award of an attorney’s fee and costs (see e.g. Fackelman v Fackelman, 71 AD3d 724, 726 [2010]; Leiderman v Leiderman, 50 AD3d 644 [2008]; Millard v Millard, 246 AD2d 349, 349-350 [1998]).

In light of the foregoing, we need not address the plaintiffs remaining contention. Dillon, J.E, Angiolillo, Austin and Hinds-Radix, JJ., concur.

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Bluebook (online)

106 A.D.3d 806, 964 N.Y.S.2d 615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silbowitz-v-silbowitz-nyappdiv-2013.

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