DELLAFIORA v. DELLAFIORA (2008)

In a matrimonial action in which the parties were divorced by judgment dated March 28, 2005, the defendant former wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Orange County (Alessandro, J.), dated October 10, 2007, as (a), in effect, denied that branch of her motion which was to direct that the marital real properties be immediately listed for sale, (b) denied that branch of her motion which was for an award of an attorney's fee, and (c) granted those branches of the cross motion of the plaintiff former husband which were to direct her to pay one-half of the mortgage payments, insurance premiums, and taxes associated with the marital properties, as well as reimbursement for one-half of the expenses paid by the plaintiff former husband since the inception of the action.

ORDERED that the order is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof, in effect, denying that branch of the defendant's motion which was to direct that the marital real properties be immediately listed for sale and substituting therefor a provision granting that branch of the motion, (2) by adding to the final paragraph thereof the following words “, less an amount equal to one-half of any rents received from the marital real properties since the inception of the underlying action,” and (3) by adding a provision thereto awarding the defendant an attorney's fee in the sum of $10,000;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

 The Supreme Court providently exercised its discretion in granting that branch of the plaintiff's cross motion which was to direct the defendant to pay one-half of the mortgage payments, insurance premiums, and taxes associated with the marital real properties, as well as reimbursement for one-half of the expenses paid by the plaintiff since the inception of the action (see Loria v. Loria, 46 A.D.3d 768, 770, 848 N.Y.S.2d 681;  Chabbott v. Chabbott, 306 A.D.2d 368, 369, 761 N.Y.S.2d 275;  Rubin v. Rubin, 262 A.D.2d 390, 690 N.Y.S.2d 742).   However, the court should have directed that the amount due be offset by an amount equal to one-half of the rental income received by the plaintiff from the marital real properties.

Under the circumstances, the Supreme Court improvidently exercised its discretion by, in effect, denying that branch of the defendant's motion which was to direct that the marital real properties be immediately listed for sale (see Dellafiora v. Dellafiora, 38 A.D.3d 825, 826, 835 N.Y.S.2d 204;  Domestic Relations Law § 236[B][5][a] ).

 “The award of reasonable counsel fees is a matter within the sound discretion of the trial court.   The issue of counsel fees is controlled by the equities and circumstances of each particular case, and the court must consider the relative merits of the parties' positions and their respective financial positions in determining whether an award is appropriate” (Morrissey v. Morrissey, 259 A.D.2d 472, 473, 686 N.Y.S.2d 71;  see Domestic Relations Law § 237[a];  Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667;  Miklos v. Miklos, 21 A.D.3d 353, 800 N.Y.S.2d 561).   The court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Ciampa v. Ciampa, 47 A.D.3d 745, 748, 850 N.Y.S.2d 190;  Timpone v. Timpone, 28 A.D.3d 646, 646, 813 N.Y.S.2d 752;  Morrissey v. Morrissey, 259 A.D.2d at 473, 686 N.Y.S.2d 71;  Walker v. Walker, 255 A.D.2d 375, 376, 680 N.Y.S.2d 114).   Here, the Supreme Court improvidently exercised its discretion in declining to award the defendant an attorney's fee.

The defendant's remaining contentions are without merit.