IN RE: Proceeding (2004)

Order, Family Court, New York County (George L. Jurow, J.), entered on or about March 6, 2003, which granted petitioner father's application for counsel fees only insofar as to award him $30,000, unanimously modified, on the law and the facts, to direct that petitioner be awarded the full amount of the fees incurred by him in litigating respondent's relocation of the parties' daughter to Colorado, including, to the extent the court in its discretion deems it appropriate, the fees incurred by him in connection with the instant application, and otherwise affirmed, without costs, and the matter remanded for a determination of the additional amount to be awarded.

Despite a recent court order denying her permission to do so, respondent mother relocated the parties' child from New York to Colorado.   The reasonable legal fees incurred by petitioner father in seeking to undo this unilateral, illegal conduct should have been fully recoverable (see Domestic Relations Law § 237[b];  Kasal v. Kasal, 297 A.D.2d 624, 747 N.Y.S.2d 38 [2002], lv. denied 99 N.Y.2d 552, 754 N.Y.S.2d 204, 784 N.E.2d 77 [2002] ).   The court has discretion to grant, in addition, counsel fees incurred by petitioner in connection with the instant fee application (see O'Shea v. O'Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193 [1999] ).

The Decision and Order of this Court entered herein on May 25, 2004 is hereby recalled and vacated (see M-2633 decided simultaneously herewith).