

Taormina v Taormina (2015 NY Slip Op 06667)





Taormina v Taormina


2015 NY Slip Op 06667


Decided on August 26, 2015


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 August 26, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
CHERYL E. CHAMBERS
JOSEPH J. MALTESE, JJ.


2014-06954
 (Index No. 7214/09)

[*1]Ruth Gabrielle Taormina, respondent, 
vJoseph Taormina, appellant.


Rocco V. Salerno, Jr., Eastchester, N.Y., for appellant.
Helene M. Selznick, Somers, N.Y., for respondent.

DECISION & ORDER
Appeal from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated May 28, 2014. The order granted the plaintiff's motion for an award of a counsel fee to the extent that it directed the defendant to pay the plaintiff a counsel fee in the amount of $7,781.25.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for an award of a counsel fee is denied.
The plaintiff sought an award of a counsel fee pursuant to a judgment of divorce in connection with the defendant's alleged defaults as to certain obligations set forth in that judgment. The judgment, however, required the nondefaulting party to give notice of alleged defaults by certified mail, and it is undisputed that the plaintiff did not give the defendant notice of any alleged defaults by certified mail. Accordingly, the plaintiff was not entitled to an award of a counsel fee pursuant to the judgment (see Dallin v Dallin, 225 AD2d 728, 728). Since the record does not reflect that the defendant's alleged defaults as to certain obligations set forth in the judgment were "willful" within the meaning of Domestic Relations Law § 237(c), that statute does not provide a proper alternative basis for the award of a counsel fee to the plaintiff (see Webber v Webber, 30 AD3d 723, 724). Therefore, the Supreme Court erred in awarding the plaintiff a counsel fee.
In light of our determination, we need not address the defendant's remaining contention (cf. Reynolds v Reynolds, 300 AD2d 645, 646-647).
MASTRO, J.P., BALKIN, CHAMBERS and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


