Wagman v. Wagman

8 A.D.3d 263, 777 N.Y.S.2d 678

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 2004
• Status: Published

Opinion

In a matrimonial action in which the parties were divorced by judgment dated December 16, 1996, the defendant appeals from an order of the Supreme Court, Westchester County (Shapiro, J.), dated January 7, 2003, which granted the plaintiffs motion for an award of an attorney’s fee.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

A party may recover an attorney’s fee from an adversary spouse where there is substantial compliance with 22 NYCRR 1400.3 (see Mulcahy v Mulcahy, 285 AD2d 587 [2001]; Flanagan v Flanagan, 267 AD2d 80 [1999]). In this case, the award of counsel fees was improper. The retainer agreement was not filed with the court until the making of this motion and, therefore, the plaintiffs counsel did not substantially comply with 22 NYCRR 1400.3. In any event, although 22 NYCRR 1400.1 required the plaintiffs counsel to render a written bill at least every 60 days, there is no evidence that any bill was rendered and none was submitted in support of the motion for an amount of an attorney’s fee. This failure alone warrants the denial of the motion (see Julien v Machson, 245 AD2d 122 [1997]; Kaplowitz v Newman, 185 Misc 2d 205 [2000]).

The parties’ remaining contentions are without merit. Florio, J.P., Townes, Cozier and Mastro, JJ., concur.