

Piccininni v Piccininni (2019 NY Slip Op 07302)





Piccininni v Piccininni


2019 NY Slip Op 07302


Decided on October 9, 2019


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 9, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE
VALERIE BRATHWAITE NELSON, JJ.


2017-11536
 (Index No. 203473/14)

[*1]Tobias M. Piccininni, respondent,
vMary Piccininni, appellant.


Parola & Gross, LLP, Wantagh, NY (Barry J. Gross of counsel), for appellant.
Saltzman Chetkof & Rosenberg LLP, Garden City, NY (Michael Chetkof and Allyson D. Burger of counsel), for respondent.

DECISION & ORDER
In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), dated September 25, 2017. The order granted the defendant's motion for an award of attorneys' fees only to the extent of awarding her the sum of $2,500.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting the defendant's motion for an award of attorneys' fees only to the extent of awarding her the sum of $2,500, and substituting therefor a provision granting the defendant's motion for an award of attorneys' fees to the extent of awarding her the sum of $5,000; as so modified, the order is affirmed, with costs to the defendant.
The parties were married in January 1995 and have one child, born in 1994. The plaintiff commenced this action for a divorce and ancillary relief in December 2014. The parties entered into a stipulation of settlement dated June 29, 2017. The stipulation provided that the defendant would submit an application to the Supreme Court for an award of attorneys' fees in addition to $3,000 in attorneys' fees already awarded to her pursuant to a prior court order.
Thereafter, the defendant moved for an award of attorneys' fees in the sum of $20,912.83. In an order dated September 25, 2017, the Supreme Court granted the defendant's motion only to the extent of awarding her attorneys' fees in the sum of $2,500. The defendant appeals.
There is a statutory "rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (Domestic Relations Law § 237[a]; see Licostie v Licostie, 171 AD3d 1153; Guzzo v Guzzo, 110 AD3d 765, 765-766). "The decision to award an attorney's fee in a matrimonial action  lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad'" as that of the trial court (Tarantina v Gitelman, 136 AD3d 663, 663, quoting O'Brien v O'Brien, 66 NY2d 576, 590; see Domestic Relations Law § 237; Licostie v Licostie, 171 AD3d at 1153; Jones v Jones, 92 AD3d 845, 848; Caracciolo v Chodkowski, 90 AD3d 801, 803). In exercising that discretion, the court must consider the financial [*2]circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation (see Jankovic v Jankovic, 170 AD3d 1134, 1135; Guzzo v Guzzo, 110 AD3d at 766; Khan v Ahmed, 98 AD3d 471, 473; Quinn v Quinn, 73 AD3d 887, 887).
Here, considering the disparity in the parties' income and the other circumstances of the case, the defendant should have been awarded attorneys' fees in the sum of $5,000 (see Domestic Relations Law § 237[a]; Licostie v Licostie, 171 AD3d at 1153-1154; Black v Black, 140 AD3d 816, 817; Caracciolo v Chodkowski, 90 AD3d at 803).
MASTRO, J.P., HINDS-RADIX, MALTESE and BRATHWAITE NELSON, JJ., concur.

2017-11536	DECISION & ORDER ON MOTION
Tobias M. Piccininni, respondent,
v Mary Piccininni, appellant.
(Index No. 203473/14)

Motion by the appellant to strike the respondent's brief on an appeal from an order of the Supreme Court, Nassau County, dated September 25, 2017, on the ground that it refers to matter dehors the record. By decision and order on motion of this Court dated October 10, 2018, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the motion is denied.
MASTRO, J.P., HINDS-RADIX, MALTESE and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


