KOHLI v. TEWARI (2023)

Judgment, Supreme Court, New York County (Kathleen Waterman–Marshall, J.), entered April 18, 2022, inter alia, awarding plaintiff wife $174,500 plus interest, and bringing up for review order, same court and Justice, entered March 8, 2022, which awarded the wife certain pendent lite support, and order, same court and Justice, entered on or about April 12, 2022, which found defendant husband in contempt for violating the court's pendent lite orders, unanimously affirmed, with costs.  Appeals from aforesaid orders, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.  Appeal from order, same court and Justice, entered March 29, 2022, which authorized the wife to have a limited power of attorney, unanimously dismissed, without costs, as moot.  Order, same court and Justice, entered May 13, 2022, which denied defendant husband's motion to disqualify plaintiff wife's counsel, and granted her cross-motion for sanctions, unanimously affirmed, with costs.

Supreme Court providently exercised its discretion in denying the husband's motion to disqualify the wife's counsel from representing her in this action (Harris v. Sculco, 86 A.D.3d 481, 926 N.Y.S.2d 897 [1st Dept. 2011];  Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 131, 651 N.Y.S.2d 954, 674 N.E.2d 663 [1996]).  The totality of the circumstances make clear that the husband did not retain the wife's counsel in connection with an Administration for Children's Services investigation (see Pellegrino v. Oppenheimer & Co., Inc., 49 A.D.3d 94, 99, 851 N.Y.S.2d 19 [1st Dept. 2008]).  Moreover, the husband's delay in making the motion waived any objection to the other party's representation (Hele Asset, LLC v. S.E.E. Realty Assoc., 106 A.D.3d 692, 694, 964 N.Y.S.2d 570 [2d Dept. 2013];  St. Barnabas Hosp. v. New York City Health & Hosps. Corp., 7 A.D.3d 83, 775 N.Y.S.2d 9 [1st Dept. 2004]).  The court also did not abuse its discretion in awarding the wife counsel fees on her cross-motion, given that the timing of the motion appeared to be an attempt to gain a tactical advantage and delay resolution of the action (see Solow v. Grace & Co., 83 N.Y.2d 303, 610 N.Y.S.2d 128, 632 N.E.2d 437 [1994];  22 NYCRR 130–1.1;  Grozea v. Lagoutova, 67 A.D.3d 611, 888 N.Y.S.2d 507 [1st Dept. 2009]).

We decline to disturb the pendente lite award, as there has been no showing of exigent circumstances (Anonymous v. Anonymous, 167 A.D.3d 527, 527, 91 N.Y.S.3d 377 [1st Dept. 2018];  Torres v. Torres, 171 A.D.3d 613, 614, 96 N.Y.S.3d 848 [1st Dept. 2019]).  Ordinarily, an aggrieved party's remedy for any perceived inequities in a pendente lite award is a speedy trial, and there is no basis for any exception present (Anonymous v. Anonymous, 63 A.D.3d 493, 497, 881 N.Y.S.2d 66 [1st Dept. 2009], lv dismissed 14 N.Y.3d 921, 905 N.Y.S.2d 125, 931 N.E.2d 94 [2010]).

With respect to the court's order of a limited power of attorney to effectuate expeditious renewal of the expiring lease, we note that this issue is moot, as the limited power of attorney has expired, as has the lease renewal, and the rights of the parties will no longer be directly affected by the determination of the appeal (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980]).  Accordingly, the appeal from that order is dismissed as moot (Matter of Anonymous [Billie Boggs] v. New York City Health & Hosps. Corp., 70 N.Y.2d 972, 974, 525 N.Y.S.2d 796, 520 N.E.2d 515 [1988].

Supreme Court did not abuse its discretion in finding the husband in contempt for his disobeying the court's pendente lite support orders (El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 14–15, 978 N.Y.S.2d 239 [2d Dept. 2013], affd 26 N.Y.3d 19, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015]).  The husband was fully aware of the lawful orders.  Moreover, the wife's prejudice is amply supported in the record.  At a minimum, she and the children were facing eviction due to the husband's refusal to pay the court ordered carrying costs of the marital apartment.  The court's preclusion of newly proffered evidence of the husband's purported inability to pay pendente lite support was warranted, given his continuous refusal to comply with discovery orders (Casey v. Casey, 39 A.D.3d 579, 580, 835 N.Y.S.2d 277 [2d Dept. 2007];  cf.  Holliday v. Jones, 36 A.D.3d 557, 829 N.Y.S.2d 458 [1st Dept. 2007]).  Finally, under the circumstances, the court's award of counsel fees to the wife for her having to make the contempt motion was a provident exercise of the court's discretion (Oxman v. Oxman, 184 A.D.3d 404, 405, 126 N.Y.S.3d 89 [1st Dept. 2020], lv dismissed 36 N.Y.3d 963, 137 N.Y.S.3d 293, 161 N.E.3d 481 [2021];  22 NYCRR 130–1.1[d]).

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