

Rosner v Rosner (2016 NY Slip Op 06817)





Rosner v Rosner


2016 NY Slip Op 06817


Decided on October 19, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on October 19, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
JOSEPH J. MALTESE
BETSY BARROS, JJ.


2014-10068
 (Index No. 552/08; Docket No. F-7179-13)

[*1]Christine L. Rosner, respondent, 
vNorman M. Rosner, appellant. (Matter No. 1)In the Matter of Norman M. Rosner, appellant,
vvChristine L. Rosner, respondent. (Matter No. 2)


Norman M. Rosner, Pound Ridge, NY, appellant pro se.
Brett Kimmel, P.C., New York, NY, for respondent.

DECISION & ORDER
Appeal by Norman M. Rosner from an order of the Supreme Court, Westchester County (Jane C. Malone, J.), entered October 3, 2014. The order granted that branch of the motion of Christine L. Rosner which was for an award of attorney's fees.
ORDERED that the order is affirmed, with costs.
The parties were divorced by a judgment of divorce dated October 15, 2010. In the divorce action, Christine L. Rosner (hereinafter the plaintiff) moved for various post-judgment relief, and for an award of attorney's fees. Norman M. Rosner (hereinafter the defendant) commenced a Family Court proceeding which was thereafter consolidated with the divorce action. The post-judgment relief requested by the plaintiff was granted after a hearing in an order dated June 26, 2014, but the Supreme Court reserved decision on the issue of whether the plaintiff was entitled to an award of attorney's fees. In the order appealed from, the court granted that branch of the plaintiff's motion which was for an award of attorney's fees. The defendant appeals.
At the conclusion of the hearing, the plaintiff's counsel requested permission to submit an affirmation in connection with the plaintiff's request for an award of attorney's fees. The Supreme Court asked the defendant if he wished to submit a post-trial memorandum, and he said that he had nothing else to offer. He did not request a hearing on the issue of an award of attorney's fees, and did not object to the resolution of the issue based on written submissions. Thus, he waived the right to a hearing on that issue (see Mollah v Mollah, 136 AD3d 992, 993; Delijani v Delijani, 100 AD3d 951, 952). The court properly granted that branch of the plaintiff's motion which was for an award of attorney's fees, inasmuch as the plaintiff was entitled to reimbursement for attorney's fees pursuant to the default provision in the parties' stipulation of settlement, which was incorporated but not merged into the judgment of divorce (see Garcia v Garcia, 104 AD3d 806, 807; Martin v Martin, 92 AD3d 646).
RIVERA, J.P., LEVENTHAL, MALTESE and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


