Witter v. Daire

81 A.D.3d 720, 916 N.Y.S.2d 524

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2011
• Status: Published

Opinion

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Tolbert, J.), entered November 30, 2009, as granted that branch of the plaintiffs motion which was for an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1.

Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the plaintiffs motion which was for an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1 is denied.

It is not clear from the record that the failure of the defendant’s counsel to turn over certain documents to the plaintiffs counsel was “frivolous” within the meaning of 22 NYCRR 130-1.1 (c). Indeed, the Supreme Court did not find that either the defendant or his attorney acted purposefully, but rather characterized the conduct in question as an “error.” Accordingly, under the circumstances of this case, the award of an attorney’s fee in the sum of $7,713.75 to the plaintiff pursuant to 22 NYCRR part 130 was not warranted. Prudenti, P.J., Rivera, Lott and Miller, JJ., concur.