SILBOWITZ v. SILBOWITZ (2013)

In a matrimonial action in which the parties were divorced by judgment entered April 7, 2005, the defendant appeals from an order of the Supreme Court, Nassau County (Falanga, J.), dated December 16, 2011, which denied that branch of his motion which was for an award of an attorney's fee and costs pursuant to a provision of the parties' stipulation of settlement dated December 2, 2004.

ORDERED that the order is affirmed, with costs.

The defendant contends that the Supreme Court erred in denying that branch of his motion which was for an award of an attorney's fee and costs based upon the plaintiff's alleged default in her obligations under the parties' stipulation of settlement. However, since the parties settled their dispute over the plaintiff's alleged default, the plaintiff was not “determined to be in default,” as required by the terms of the parties' stipulation of settlement (see Matter of Berns v. Halberstam, 46 AD3d 808, 809; Arato v. Arato, 15 AD3d 511). Accordingly, the court correctly determined that the defendant was not entitled to an award of an attorney's fee and costs (see e.g. Fackelman v. Fackelman, 71 AD3d 724, 726; Leiderman v. Leiderman, 50 AD3d 644; Millard v. Millard, 246 A.D.2d 349, 349–350).

In light of the foregoing, we need not address the plaintiff's remaining contention.