LEK v. LEK (2024)

Order, Supreme Court, New York County (Michael L. Katz, J.), entered December 18, 2023, which denied defendant wife's motion to direct plaintiff husband to establish a residence away from the home of his father, to engage a child care provider for the child during his parenting time, and to pay the wife's legal fees in the amount of $17,385, and granted the husband's cross-motion to the extent of awarding him reimbursement for the payment he made to a jointly selected security guard for the walk-through of the parties’ former residence in the amount of $1,070, unanimously affirmed, without costs.

The court properly declined to hold a hearing on the wife's motion because she did not make an offer of proof, such as an affidavit based on personal knowledge, that would have affected the outcome beyond unsupported and speculative allegations (see Matter of Antoine D. v. Kyla Monique P., 168 A.D.3d 476, 89 N.Y.S.3d 620 [1st Dept 2019], lv denied 32 N.Y.3d 917, 100 N.Y.S.3d 215, 123 N.E.3d 874 [2019];  Matter of Antonio Dwayne G. v. Ericka Monte E., 137 A.D.3d 647, 647, 27 N.Y.S.3d 561 [1st Dept 2016], lv denied 27 N.Y.3d 909, 38 N.Y.S.3d 835, 60 N.E.3d 1201 [2016]).  The third-party affidavits were insufficient to raise any disputed facts that would necessitate a hearing.  Neither affidavit addressed the specific allegations raised in the wife's motion, and both affiants had not been in contact with either the child or the grandfather in recent years.

The wife's request for attorney's fees fails to comply with the technical requirements of 22 NYCRR 202.16.  Moreover, the denial of interim attorney's fees was a provident exercise of discretion given the equities and circumstances of this case, including the relative merit of the parties’ positions (see DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987];  see also Ning–Yen Yao v. Kao–Yao, 147 A.D.3d 624, 631, 48 N.Y.S.3d 337 [1st Dept 2017]).

The record supports the court's determination to award the husband $1,070 to reimburse for the cost of hiring a security company to accompany the wife during the walk-through where she failed to provide a justification for her last-minute cancelation.

We have considered the wife's remaining arguments and find them unavailing.