G.S., Plaintiff, v. A.S., Defendant. (2026)

Before the Court is a post-judgment application for counsel fees. On March 15, 2024, the parties entered into a Stipulation of Settlement which was incorporated but not merged in a Judgment of Divorce dated August 26, 2025. Article XVI, the default provision of the Stipulation, provides in pertinent part:

16.1. If either party defaults with respect to any obligation under this Agreement and said default is not remedied within twenty (20) days after the giving of notice (in accord- ance with the provisions of Article XVII of this Agreement) to the defaulting party specifying said default, then the defaulting party shall indemnify the other party and hold such other party harmless from and against any and all reasonable expenses, costs and attorney's fees and disbursements reasonably incurred by the other party in any suit or other proceeding to recover any amount to be paid to him or her by the defaulting party pursuant to this Agreement, provided such suit or other proceeding results in a judgment, decree or order in favor of the party seeking to recover.

16.2. If either party commences a suit or other proceeding claiming that the other party is in default, and the other party successfully defends such suit or other proceeding, then the initiating party shall indemnify the defending party and hold such defending party harm- less from and against any and all reasonable expenses, costs and attorney's fees and disbursements reasonably incurred by such defending party.

MOTION PRACTICE

By Decision and Order entered December 3, 2025, the Court determined that Plaintiff defaulted in his obligation to divide certain investment accounts pursuant to a methodology prescribed by the Stipulation of Settlement. Plaintiff's default resulted in significant delays in the division of accounts and Defendant's incurring significant counsel fees to enforce the Stipulation. Additionally, Defendant sought and received some, but not all, add-on expenses related to the children. Both parties addressed the issue of counsel fees in writing, and neither party expressly sought a hearing on the issue. In view of the parties' failure to request a hearing or object to a determination of counsel fees on the papers, the Court rendered a Decision without a hearing. Defendant sought a total of $54,970 in counsel fees, and the Court awarded a reason- able counsel fee of $40,000. See, Mollah v. Mollah, 136 AD3d 992 (2d Dept. 2016); Delijani v. Delijani, 100 AD3d 951 (2d Dept. 2012).

By Order to Show Cause dated January 6, 2026, Plaintiff sought reargument and other relief, and Defendant cross-moved for an increase in the award of counsel fees to account for additional fees incurred in opposing reargument. Plaintiff then moved to stay enforcement of the December 3, 2025 Decision and Order pending determination of the motion to reargue, whereupon Defendant cross-moved for additional counsel fees incurred in opposing the stay. By Decision and Order entered on March 11, 2026, the Court granted reargument "to the limited extent that a hearing on the amount of Defendant's award of attorney's fees, and upon Defendant's cross-motion for additional fees" was ordered.

Shortly before the scheduled hearing, Plaintiff filed a motion in limine asserting that an award of fees incurred to enforce a prior fee award amounted to an impermissible award of "fees on fees" and sought to limit Defendant's efforts to pursue further fees. As expected, Defendant once again cross-moved to increase the original fee award to account for additional counsel fees incurred to enforce the award of counsel fees. Considering all submissions through April 29, 2026, the issues before the Court include the following:

1. Should the amount of the original counsel fee award be adjusted?

2. Is Defendant entitled to additional fees incurred:

[a] to oppose the motion to reargue;

[b] to oppose the motion for a stay;

[c] to oppose the motion in limine; and/or

[d] to defend the fee hearing ordered on the motion for reargument?

HEARING

The hearing was held on April 17, 2026. Plaintiff, an attorney, represented himself and was assisted by co-counsel Kathleen Goodfellow, Esq. Defendant continued to be represented by Adam J. Wolff, Esq. from the firm of Alter Wolff Foley & Stutman LLP. At the outset, Defendant offered into evidence certain business records including her original Retainer Agreement, Defendant's consent to rate changes, a second Retainer dated June 24, 2025, concerning enforcement proceedings, an appeal Retainer, a billing history from March 2024 through March 2026, a summary of fees as of March 31, 2026, and some emails. Mr. Wolff testified that he reviewed all statements and made changes in real time before the bills were sent to the client. He redacted privileged matters or matters unrelated to issues of enforcement. He testified that all statements were paid in full except for the most recent statement, which was recently sent. The time spent in April for the hearing and post-trial submission had not been billed as of the hearing, and Mr. Wolff estimated those time charges at $9,000 - $10,000.

On cross-examination, Mr. Wolff acknowledged that the original motion sought counsel fees and expenses in an amount ($54,970) greater than that which was awarded ($40,000), explaining that more time and work was projected than expended. The billings for which recovery was sought related to the transfer of assets and support enforcement. The original motion included alleged defaults with respect to child support add-on expenses which were granted, in part. By the time of the original motion for attorney's fees, two of the required three transfers had been made, notwithstanding the delays. Plaintiff challenged the billing entries as too general and vague and lacking in description of the services provided to determine what work was done and whether the work was appropriately charged. In some instances, the billing records simply stated "emails." Other instances included an "email from and TC client re: Implementing Agreement." The sender or recipient of the email was not identified. Still, according to Mr. Wolff, emails were part of the process in preparing the motion to compel the division of assets and he believes the emails contain a reasonable description of services. It is noted that the emails in question involve small time charges, e.g., .1 hour. Longer time charge entries contained more detailed descriptions than shorter ones. Mr. Wolff also testified that there were periods of time when the issue of the division of assets was the primary if not sole matter pursued on Defendant's behalf. For example, November 2024 time charges were substantially more than February 2025 time charges. The February 2025 time charges contain an entry describing emails as "re: Security transfers" informing or responding to the client about the issues. The failure to identify the sender or recipient as the client, adversary, financial advisor, or other person is not fatal to the billing (especially where the emails themselves are readily available and the client can question the billing), although the better practice might be to include such information. Other emails included references to "brokerage", "enforcement", "E*Trade", "draft default letter", "implementing agreement" or other words to indicate to the client the purpose of the activity. In contrast, the issue of support add-on arrears was a much smaller issue, but it was addressed in some emails regarding the stock division as well as in separate emails.

The Stipulation of Settlement was executed by the parties on March 15, 2024. According to the terms of the Stipulation, the deadline for transfer of assets by tax lots was twenty days later, or April 4, 2024. More than one year elapsed before the transfers occurred, for reasons set forth in the Decision dated December 3, 2025. The services provided by Defendant's attorneys are consistent with the efforts to divide the investment account, and upon examination, do not include unrelated services. Numerous time entries reflect Defendant's counsel's effort to obtain the transfers. Plaintiff objected to a time entry on March 26, 2024, as it predated the deadline for transfer, but according to Mr. Wolff the six-minute time charge reflected an email and telephone call with the client regarding implementation of the Stipulation. Many of the time charges involved email communications with the client, Plaintiff, and third-party financial institutions and/or personnel. Other time charges reflect continued efforts to implement the Stipulation, including the preparation of subpoenas for current financial information from third parties. Plaintiff further asserts that the time charges lack a reasonable description of the services provided. However, he misconstrues the purpose of time charge entries. Those entries are not for his benefit but instead for the benefit of the client (here, Defendant) to enable her to understand what was done and why the fee was charged. Indeed, the Retainer Agreement provides:

I understand I will be billed periodically, generally each month but in no event less frequently than once every 60 days. I also understand that included in the billing will be a detailed explanation of the services rendered, by whom rendered, and the disbursements and charges incurred in connection with my matter. Upon receipt of your bill, I am expected to review the bill and promptly bring to your attention any objections I may have to the bill. You agree that I will not be charged for time expended in discussing with you any aspect of the bill.

(Ex. A, p. 4 # 9. Ex. E, p. 3 # 9).

REARGUMENT OF COUNSEL FEES

"In determining a reasonable attorney's fee, the court should consider factors such as time and labor, difficulty of the questions involved, the amount involved, counsel's experience, ability, and reputation, and the customary fee charged for such services." In re Cincotta, 139 AD3d 1058, 1059 (2d Dept. 2016) (citing In re Potts' Estate, 213 App.Div. 59, 62 (4th Dept.), aff'd 241 NY 593 (1925). "The determination of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Supreme Court." Lancer Indem. Co. v. JKH Realty Group, LLC, 127 AD3d 1035, 1035-36 (2d Dept. 2015). "The attorney bears the burden of establishing the reasonable value of the services rendered" through contemporaneous time records specifying the date, hours expended, and nature of the work performed. See, id. at 1036. In determining the reasonable value of the services rendered, "the court may consider a number of factors, including, inter alia, the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented, the lawyer's experience, ability, and reputation, the customary fee charged for similar services, and the results obtained." See, Matter of Freeman, 34 NY2d 1, 9 (1974). If the documentation is inadequate, the court may reduce the award accordingly. See, Matter of Devlin, 182 AD2d 322, 329-330 (2d Dept.1992). The court may also reduce fees where the amount lacks substantiation (see, Josefsson v. Keller, 141 AD2d 700, 701 [2d Dept. 1988]) and where there are nonspecific billing entries. See, RMP Capital Corp. v. Victory Jet, LLC, 139 AD3d 836, 840 (2d Dept. 2016).

Here, Mr. Wolff has made a prima facie showing of reasonableness. He has established his credentials, experience, skill and standing (set forth in affidavits and unchallenged). While he does not maintain an office in the county of venue and did not attest to the rates charged by attorneys therein, the Court may rely upon its "familiarity with the nature and complexity of the litigation, the time, effort and skill required for its resolution and the fees customarily charged for similar matters" to determine a reasonable attorney's fee. See, Ricciuti v. Lombardi, 256 AD2d 892, 893 (3d Dept. 1998). Key to determination of the reasonableness of a fee are counsel's experience, his knowledge of the case and of the law, the difficulty of the matter presented, and the adversary. Given the issues in this action, the Court cannot say that counsel's hourly rate is unreasonable.

The Court has reconsidered its original counsel fee award in light of the testimony and exhibits adduced at the hearing and is satisfied that the itemized entries sufficiently identify the services performed. The Court has also considered the nonspecific entries (e.g., "emails") with de minimis time charges. In some instances greater detail might have been helpful, but in context it was not necessary, especially considering the Court's familiarity with the issues. Accordingly, upon reargument, the Court adheres to its original counsel fee award of $40,000.

MOTION IN LIMINE: "FEES ON FEES"

By motion in limine, Plaintiff sought to limit Defendant's entitlement to counsel fees, claiming that Defendant is not entitled to any fees that post-date the Court's award of December 3, 2025. Defendant wasted no time in cross-moving to increase the award of counsel fees incurred in the ongoing enforcement of the counsel fee award.

A. The Parties' Contentions

Citing Hawthorne Funding, LLC v. Karish Kapital, 236 AD3d 998, 1001 (2d Dept. 2025) and other authority, Plaintiff asserts that post-judgment awards of attorney's "fees on fees" — that is, fees incurred in efforts to collect a prior fee award -- are not permitted unless expressly provided for in the divorce agreement. He observes that language permitting "fees on fees" is not contained in the parties' Stipulation of Settlement, and further, that as Defendant was unsuccessful in opposing his motions for reargument and a stay, she is not entitled to recover counsel fees incurred in defending those motions.

Defendant contends that as per the Court's December 3, 2025 Decision and Order she was entitled to an award of counsel fees pursuant to ¶16.1 of the Stipulation of Settlement, and where Plaintiff has defaulted on his obligation to pay those counsel fees and forced Defendant to engage in ongoing court proceedings and motion practice to enforce her rights under the Stipulation, ¶16.1 requires that all reasonable counsel fees incurred in connection with such enforcement are recoverable. Defendant notes in addition that in matrimonial actions counsel fees may be awarded "for services rendered in pursuing a counsel fee application" (Marchese v. Marchese, 185 AD3d 571, 579 [2d Dept. 2020]) and "in connection with the hearing to determine the amount of the fee award." O'Shea v. O'Shea, 93 NY2d 187, 193 (1999).

B. Legal Analysis

"Under the general rule, attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule." Hooper Associates, Ltd. v. AGS Computers, Inc., 74 NY2d 487, 491 (1989). See also, IG Second Generation Partners, LP v. Kaygreen Realty Co., 114 AD3d 641, 643 (2d Dept. 2025).

Concerning the scope of a contractual promise requiring a party to indemnify his adversary for attorney fees, the Court of Appeals in Hooper Associates wrote:

Words in a contract are to be construed to achieve the apparent purpose of the parties. Although the words might "seem to admit of a larger sense, yet they should be restrained to the particular occasion and to the particular object which the parties had in view" (Robertson v. Ongley Elec. Co., 146 NY 20, 23 . . . ). This is particularly true with indemnity contracts. When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed(Levine v. Shell Oil Co., 28 NY2d 205, 211 . . . ; Kurek v. Port Chester Hous. Auth., 18 NY2d 450, 456 . . . ). The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances [cit.om.].

Hooper Associates, supra, 74 NY2d at 491-492 (emphasis added).

The requirement of narrow construction applies where, as here, a party contends that a contractual attorney fee indemnification provision encompasses "fees on fees", i.e., fees incurred in efforts to collect a prior fee award. In IG Second Generation Partners, LP v. Kaygreen Realty Co., supra, the Second Department held:

An award of fees on fees also must be based upon a specific contractual provision or statute (see 546-552 W. 146th St. LLC v. Arfa, 99 AD3d 117, 120 . . . ; Sage Realty Corp. v. Proskauer Rose, 288 AD2d 14, 15 . . . ). Consequently, where "a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" (Hooper Assoc. v. AGS Computers, 74 NY2d 487, 491 . . . ).

The relevant provision of the lease, Article VII, Section 2, does not contain clear language expressly providing for an award of fees on fees, or any reference to fees incurred to recover counsel fees. Given the absence of unmistakably clear intent regarding the recovery of fees on fees, a right to recover those fees should not be implied(see 214 Wall St. Assoc., LLC v. Medical Arts-Huntington Realty, 99 AD3d at 990 . . . ; 546-552 W. 146th St. LLC v. Arfa, 99 AD3d at 122 . . . ; [cit.om.].

IG Second Generation Partners, LP, supra, 114 AD3d at 643 (emphasis added). See also, Hawthorne Funding, LLC v. Karish Kapital, supra, 236 AD3d 998, 1001 (2d Dept. 2025)(fees on fees improperly awarded where "the agreement did not expressly provide for the prevailing party to recover fees on fees"); Pace v. Robertson, 235 AD3d 989, 992 (2d Dept. 2025) (fees on fees improperly awarded where "neither the promissory notes nor the mortgage agreement demonstrate an unmistakable clear intent regarding fees on fees").

Here, once again, ¶16.1 of the parties Stipulation of Settlement provides:

If either party defaults with respect to any obligation under this Agreement and said default is not remedied within twenty (20) days after the giving of notice (in accordance with the provisions of Article XVII of this Agreement) to the defaulting party specifying said default, then the defaulting party shall indemnify the other party and hold such other party harmless from and against any and all reasonable expenses, costs and attorney's fees and disbursements reasonably incurred by the other party in any suit or other proceeding to recover any amount to be paid to him or her by the defaulting party pursuant to this Agreement, provided such suit or other proceeding results in a judgment, decree or order in favor of the party seeking to recover.

The Stipulation provides, in essence, that upon one party's defaulting on an obligation under the Agreement, the other party may recover fees incurred in a proceeding to enforce the obligation. As Plaintiff observes, it contains no reference to fees incurred to recover counsel fees, never mind "clear language expressly providing for an award of fees on fees." See, IG Second Generation Partners, LP v. Kaygreen Realty Co., supra.

Defendant suggests that the Court's December 3, 2025 Order awarding attorney's fees pursuant to the Stipulation constitutes an "obligation under this Agreement" such that Plaintiff's default in payment thereof triggers anew her ¶16.1 right to recover fees incurred in enforcing that obligation. Although the language of ¶16.1 might conceivably bear that sense, Defendant's argument plainly runs afoul of the rule of strict construction of attorney fee indemnification agreements, as the language does not evidence an "unmistakably clear intent regarding the recovery of fees on fees." See, Hooper Associates, Ltd. v. AGS Computers, Inc., supra; IG Second Generation Partners, LP v. Kaygreen Realty Co., supra.

Defendant further argues that the parties' Stipulation should be construed in light of Domestic Relations Law ("DRL") §§ 237 and 238 — the fee-shifting provisions in matrimonial actions — to encompass fees on fees, since Sections 237 and 238 permit recovery of attorney's fees for services rendered in connection with a counsel fee application and with a hearing to determine the amount of the fee award. See, O'Shea v. O'Shea, supra, 93 NY2d 187, 193 (1999); Marchese v. Marchese, supra, 185 AD3d 571, 579 (2d Dept. 2020).

However, case authority dictates to the contrary that "[w]here the parties have agreed to provisions in a settlement agreement which govern the award of attorney's fees, the agreement's provisions, rather than statutory provisions, control(see Matter of Berns v. Halberstam, 46 AD3d 808, 809 [2007]; Arato v. Arato, 15 AD3d 511, 512 [2005])." Sweeney v. Sweeney, 71 AD3d 989, 992 (2d Dept. 2010) (emphasis added); Momberger v. Momberger, 103 AD3d 971 (3d Dept. 2013).

Furthermore, Defendant's argument cannot be squared with the Second Department's analysis in Kessler v. Kessler, 33 AD2d 42 (2d Dept. 2006), lv. dismissed 8 NY3d 968 (2007). In Kessler, the Court acknowledged the "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" which in matrimonial matters are expressly authorized by Domestic Relations Law § 236(B)(3). Id., at 45-46. The Kessler Court also acknowledged the strong public policy "in favor of assuring that matrimonial matters are determined by parties operating on a level playing field," implemented by DRL § 237(a), the fee-shifting provision which "represents a statutory exception to the general rule that an attorney's fee is an incident of litigation to be borne by the respective parties." Id., at 46-47. Where the parties' agreement and the statute are in conflict — i.e., where the matrimonial agreement does not authorize an attorney fee recovery that would be permitted under DRL § 237 (or, implicitly, DRL § 238) — the conflict is resolved not by interpreting the parties' agreement expansively in light of Sections 237 and 238, but instead by determining whether an agreement circumscribing the recovery of attorney's fees constitutes an enforceable waiver of a fee award pursuant to statute. Id., at 47-48.

This accords with matrimonial case authority that "a party may seek recovery of fees under both the statute and an agreement, unless the agreement contains an express waiver of the right to apply under the statute." Skotarczak v. Skotarczak, 242 AD3d 1532, 1533 (4th Dept. 2025); Jeffrey P. v Alyssa P., 202 AD3d 1409, 1413 (3d Dept. 2022); Momberger v. Momberger, supra, 103 AD3d at 972. See also, Canick v. Canick, 122 AD2d 767, 769 (2d Dept. 1986) (recognizing that award of counsel fees may be made pursuant to DRL § 238 or pursuant to provisions of separation agreement).

Whether fees are awarded pursuant to agreement or pursuant to DRL § 238 (the fee-shifting provision applicable in this post-judgment proceeding) has great practical implications. Had the parties' Stipulation of Settlement provided for an award of fees on fees — which it does not — then Defendant would be entitled by law to recovery of a reasonable fees on fees. However, an award of fees on fees pursuant to Section 238 is wholly discretionary. As the Court of Appeals wrote in O'Shea v. O'Shea:

. . . the court had discretion to grant counsel fees to the wife for legal services in connection with the hearing to determine the amount of the fee award. This is not to say that awards for legal services for fee hearings should be routinely expected or freely granted any more than those for pre-action services. Again, it is a matter of discretion, to be exercised in appropriate cases, to further the objective of litigational parity, and to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation [cit.om.]. This is in keeping with the Court's holding in DeCabrera v Cabrera-Rosete, 70 NY2d 879 . . . , that flexibility and judicial discretion are essential devices in adjusting financial disparities in litigation.

O'Shea v. O'Shea, supra, 93 NY2d at 193.

In view of the foregoing, Defendant's application for an award of fees on fees pursuant to ¶16.1 of the Stipulation of Settlement is denied. However, as the Stipulation does not foreclose an award of fees on fees pursuant to DRL § 238, and since Defendant cited O'Shea v. O'Shea, supra, and Marchese v. Marchese, supra, as grounds for her fee application, the Court will consider whether a statutory award of fees on fees pursuant to Section 238 is warranted.

FEES ON FEES PURSUANT TO DRL § 238

DRL § 238 provides that in matrimonial enforcement proceedings "the court may in its discretion require either party to pay counsel fees . . . directly to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse . . . "

In Kaufman v. Kaufman, 189 AD3d 31 (2d Dept. 2019), the Second Department articulated at some length the criteria governing a discretionary award of counsel fees pursuant to statute in a matrimonial action:

In exercising judicial discretion to determine counsel fee applications, the courts must take into account not only the financial circumstances of the parties but the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings unreasonably or engaged in unnecessary litigation [cit.om.]. A less-monied spouse should not be expected to exhaust or spend down a prospective or actual distributive award in order to pay counsel fees as the result of unreasonable or excessive litigation conduct by the adverse party [cit.om.]. On the other hand, the more affluent spouse should not be treated as an open-ended checkbook expected to pay for exorbitant legal fees incurred by the less affluent spouse through excessive litigation or the assertion of unreasonable positions. Where a party has asserted unreasonable positions or failed to cooperate in discovery, and thereby increased the cost of the litigation, the court may make a counsel fee award in favor of the offended party, or not make, or make a lesser award, in favor of the offending party [cit.om.].

. . . .An award of fees for the services incurred in seeking fees "is a matter of discretion, to be exercised in appropriate cases, to further the objective of litigational parity, and to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation" (O'Shea v. O'Shea, 93 NY2d 187, 193 . . . ) . . . .

Kaufman v. Kaufman, supra.

A. Financial Circumstances / Litigational Parity

In view of the very substantial equitable distribution award that Defendant has received, she can scarcely be deemed the "less monied spouse" and concerns of litiga- tional parity are simply not present here. However, Defendant is not expected to spend down her distributive award to protect the December 3, 2025 counsel fee award from unmeritorious, unreasonable, unnecessary or excessive litigation conduct by Plaintiff.

B. Litigation Conduct / Merits

Defendant was awarded attorney's fees pursuant to the parties' Stipulation in the Court's December 3, 2025 Decision and Order. Plaintiff's motion for reargument was granted as a matter of discretion based on conflicting appellate guidance.¹ Plaintiff naturally moved to stay enforcement of the fee award pending a hearing on fees and has successfully moved in limine to prevent an award of fees on fees pursuant to the Stipulation. Defendant just as naturally opposed Plaintiff's applications and cross-moved for additional counsel fees in order to protect her attorney fee award.

The only matter indicative of unmeritorious, unreasonable, unnecessary or excessive litigation conduct on Plaintiff's part is that, having successfully moved for a hearing on counsel fees, he demonstrated no meritorious grounds for modifying the Court's December 3, 2025 fee award. The Second Department observed in Kaufman v. Kaufman, supra, that "the courts are alive to the prospect that a fee hearing is sought solely, or primarily, for the purpose of increasing the costs of litigating the fee issue or to financially injure a party or counsel. Thus, as a matter of discretion, the court may award fees for legal services rendered in fee hearings." Id.

Under the circumstances, the Court in its discretion pursuant to DRL § 238 denies Defendant's application for an award of attorney's fees incurred to oppose the motions for reargument, for a stay, and for a prohibition of "fees on fees", but grants the appli- cation for fees incurred in connection with the hearing to determine the amount of fees awarded as a result of Plaintiff's default on his obligation to divide certain investment accounts pursuant to a methodology prescribed by the parties' Stipulation of Settlement. See, O'Shea v. O'Shea, supra.

C. Award

The Court has examined the Defendant's attorney's billing for the period from December 3, 2025 to April 28, 2026. For the reasons stated above, no award is made for time entries relating to Defendant's opposition to Plaintiff's motions for reargument, for a stay, and for a prohibition of "fees on fees." Moreover, time charges after December 3, 2025 involving ongoing issues relating to the division of the E*Trade account are not the subject of Defendant's present applications and hence may not be considered at this juncture. However, since Plaintiff upon the fee hearing failed to advance any meritorious grounds to challenge the December 3, 2025 counsel fee award, and since neither defense counsel's skill and experience nor the quality of legal services he provided is in dispute, the Court awards Defendant the sum of $13,300 for services rendered in connection with the fee hearing, together with expenses (for ride services, transcripts, etc.) in the amount of $1,145.59.

It is therefore

ORDERED, that upon reargument, the Court adheres to its December 3, 2025 award of attorney's fees to Defendant in the amount of $40,000.00, and the stay of enforcement of the said award is hereby vacated, and it is further

ORDERED, that pursuant to DRL § 238, Defendant is awarded additional attorney's fees in the amount of $13,300.00 for services rendered in connection with the fee hearing, plus expenses in the amount of $1,145.59, making in all the sum of $14,445.59, and it is further

ORDERED, that Plaintiff is directed to make payment of the aforesaid awards within 60 days of the date of this Order, failing which Defendant may enter Judgment therefor with prejudgment interest as provided by law.

The foregoing constitutes the Decision and Order of the Court.

Dated: July 13, 2026

Carmel, New York

E N T E R

HON. VICTOR G. GROSSMAN, J.S.C.

FOOTNOTES

1.   The granting of reargument was purely a discretionary determination by the Court and it is not construed as a victory or defeat for either party. The discretion was exercised because of the conflicting authority in the Second Department. See, Pfluger v. Pfluger, 35 AD3d 828 (2d Dept. 2006) ("the Supreme Court erred in awarding the wife's former attorney an attorney's fee in the sum of $38,192.10 without a hearing in the absence of a stipulation consenting to a determina- tion upon written submissions"); cf., Messinger v. Messinger, 24 AD3d 631 (2d Dept. 2005) ("Contrary to the plaintiff's contention, the Supreme Court properly awarded an attorney's fee to the defendant without conducting an evidentiary hearing. The record demonstrates that the plaintiff neither objected to the court's decision to resolve the motion for an award of an attorney's fee on the papers submitted, nor requested an evidentiary hearing on the issue. Accordingly, the plaintiff waived his right to a hearing on the matter (see Bengard v. Bengard, 5 AD3d 340 [2004]; Roshevsky v. Roshevsky, 267 AD2d 293 [1999]; Matter of Zirkind v. Zirkind, 218 AD2d 745 [1995]; Rosenberg v. Rosenberg, 155 AD2d 428 [1989])."

Victor G. Grossman, J.