Erin Quinn, respondent, v. William Quinn, appellant. (2010)

Supreme Court, Appellate Division, Second Department, New York.

Erin Quinn, respondent, v. William Quinn, appellant.

2009-05908 (Index No. 33145 /06)

Decided: May 11, 2010

WILLIAM F. MASTRO, J.P. FRED T. SANTUCCI ARIEL E. BELEN CHERYL E. CHAMBERS, JJ.

T. Kevin Murtha & Associates, P.C., Westbury, N.Y. (William Bird III of counsel), for appellant. An award of an attorney's fee pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court (see DeCabrera v Cabrera-Rosete, 70 N.Y.2d 879, 881;  Stadok v Stadok, 25 AD3d 547, 547;  Herzog v Herzog, 18 AD3d 707, 709).   The issue of such a fee “ ‘is controlled by the equities and circumstances of each particular case’ ” (Gruppuso v Caridi, 66 AD3d 838, 839, quoting Morrissey v Morrissey, 259 A.D.2d 472, 473).   In its determination of an attorney's fee application within the context of a matrimonial action, the trial court must consider, inter alia, the relative financial circumstances of the parties (see Prichep v Prichep, 52 AD3d 61;  Timpone v Timpone, 28 AD3d 646;  Popelaski v Popelaski, 22 AD3d 735).   The determination an attorney's fee can also be affected by the consideration of whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Matter of Brink v Brink, 55 AD3d 601;  Prichep v Prichep, 52 AD3d 61;  Grumet v Grumet, 37 AD3d 534).   Here the Supreme Court did not improvidently exercise its discretion in awarding an attorney's fee to the plaintiff.   Although the parties are on relatively equal financial footing, the record discloses that, but for the defendant ‘s conduct in this case, the plaintiff would not have incurred significant legal fees (see Brink v Brink, 55 AD3d 601;  Prichep v Prichep, 52 AD3d 61;  Saslow v Saslow, 305 A.D.2d 487;  see also Baron v Baron, 71 AD3d 807).   Accordingly, an award of an attorney's fee was warranted (see Denholz v Denholz, 147 A.D.2d 522).