ANONYMOUS v. ANONYMOUS (1999)

In an action for a divorce and ancillary relief, the plaintiff husband appeals from (1) so much of an order of the Supreme Court, Westchester County (Shapiro, J.), dated November 18, 1997, as (a) granted that branch of the defendant wife's motion which was for pendente lite counsel fees to the extent of awarding her the sum of $150,000, and (b), in effect, denied that branch of his motion which was for partial summary judgment dismissing that part of the defendant wife's first counterclaim which was for permanent maintenance, and (2) an order of the same court, dated April 22, 1998, which denied his motion, in effect, to renew the defendant wife's prior application for an award of counsel fees.   The defendant wife cross-appeals, as limited by her notice of appeal and brief, from so much of the order dated November 18, 1997, as granted those branches of the plaintiff husband's motion which were for partial summary judgment dismissing her second and third counterclaims.

ORDERED that the order dated November 18, 1997, is reversed insofar as appealed from, on the law, the award of pendente lite counsel fees in the sum of $150,000 is vacated, that branch of the plaintiff husband's motion which was for partial summary judgment dismissing that part of the defendant wife's first counterclaim which was for permanent maintenance is granted, and the matter is remitted to the Supreme Court, Westchester County, for a new determination as to the amount of pendente lite counsel fees payable to the defendant wife's attorneys in accordance herewith;  and it is further,

ORDERED that the order dated November 18, 1997, is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that the order dated April 22, 1998, is affirmed;  and it is further,

ORDERED that the plaintiff husband is awarded one bill of costs.

 The Supreme Court did not improvidently exercise its discretion in granting that branch of the defendant wife's motion which was for pendente lite counsel fees (see, Berlly v. Berlly, 237 A.D.2d 553, 655 N.Y.S.2d 989;  Kesten v. Kesten, 234 A.D.2d 427, 650 N.Y.S.2d 807;  Mitzner v. Mitzner, 228 A.D.2d 483, 643 N.Y.S.2d 674).   However, the Supreme Court's award of pendente lite counsel fees in the amount of $150,000 is excessive to the extent that it improperly included compensation for legal services rendered in connection with (1) an attack on the parties' prenuptial agreement (see, Lucci v. Lucci, 227 A.D.2d 387, 642 N.Y.S.2d 326;  Sandel v. Sandel, 96 A.D.2d 584, 465 N.Y.S.2d 542;  Lamborn v. Lamborn, 56 A.D.2d 623, 391 N.Y.S.2d 679), (2) work performed in a prior 1993 Westchester County action involving the parties (see, Maloney v. Maloney, 114 A.D.2d 440, 494 N.Y.S.2d 356;  Abrusci v. Abrusci, 79 A.D.2d 980, 434 N.Y.S.2d 722), and (3) the application for counsel fees (see, Matter of Dalessandro v. O'Brien, 248 A.D.2d 468, 669 N.Y.S.2d 372).   Accordingly, the matter must be remitted to the Supreme Court, Westchester County, for a new determination as to the proper amount of pendente lite counsel fees.

 The record supports the Supreme Court's determination that the parties' prenuptial agreement was “enforceable and not unconscionable”.   Under these circumstances, that part of the defendant wife's first counterclaim which sought permanent maintenance should have been dismissed (see, Panossian v. Panossian, 172 A.D.2d 811, 569 N.Y.S.2d 182;  Grubman v. Grubman, 191 A.D.2d 194, 594 N.Y.S.2d 220).

The parties' remaining contentions are without merit.

MEMORANDUM BY THE COURT.