ROBERT CONNORS v. MICHELLE CONNORS DIANA KIDD (2026)

MEMORANDUM AND ORDER

Calendar Date:  May 28, 2026

Appeal from an order of the Supreme Court (Julian Schreibman, J.), entered May 5, 2025 in Ulster County, which awarded defendant and nonparty Diana L. Kidd counsel fees.

In 2018, defendant (hereinafter the wife) commenced a divorce action against plaintiff (hereinafter the husband).  After approximately two years of litigation, the parties entered into a separation agreement and the action was discontinued.  Shortly thereafter, the wife commenced a new action against the husband for enforcement of the separation agreement (hereinafter the 2020 action).  The husband, then represented by nonparty Diana L. Kidd, joined issue and asserted two counterclaims – the first alleging that the wife had breached the agreement, and the second seeking modification of his obligations to provide spousal support and certain insurance coverage to the wife.¹  Within the context of the 2020 action, the husband's verified answer admitted that the parties entered into a separation agreement which fully resolved “all” of their marital issues, and he further sought relief via order to show cause under the terms of the separation agreement.

While the 2020 action was pending, the husband, now represented by different counsel, commenced this action seeking to set aside the separation agreement on various grounds, including mistake, fraud, duress and unconscionability (hereinafter the 2021 action).  The wife joined issue and the parties engaged in disclosure, during which Kidd was ordered to submit to deposition.  Thereafter, the husband moved for partial summary judgment and counsel fees, and the wife cross-moved for summary judgment, among other things, dismissing the complaint and for counsel fees pursuant to the terms of the separation agreement.  Kidd also moved to vacate the order requiring her appearance at a deposition, and she further sought counsel fees from the husband pursuant to 22 NYCRR part 130.  In resolving all three applications (hereinafter the January 2025 order), Supreme Court denied the husband's motion and granted the wife's cross-motion for summary judgment and dismissed the complaint in the 2021 action.  As a result, Supreme Court determined that Kidd's motion was moot and awarded counsel fees to both the wife and Kidd. Following additional submissions by the parties and Kidd, Supreme Court issued an order granting counsel fees to the wife in the sum of approximately $55,000 and to Kidd in the sum of $2,000 (hereinafter the May 2025 order).  The husband appeals from the May 2025 order.

Initially, the gravamen of the husband's brief relates to challenging the January 2025 order.  Although the husband filed a notice of appeal from that order, that appeal was dismissed for failure to prosecute (see 22 NYCRR 1250.10[a] ).  “[A] prior dismissal for want of prosecution acts as a bar to a subsequent appeal as to all questions that were presented on the earlier appeal” (Bray v. Cox, 38 N.Y.2d 350, 353 [1976] ).  “While this Court has discretion to entertain an appeal in the interest of justice after the dismissal of a prior appeal that was abandoned, such review should be exercised sparingly” (Matter of Sawhorse Lbr. & More v Amell, 2 AD3d 1082, 1083 [3d Dept 2003] [internal quotation marks and citations omitted] ).  Under the circumstances of this case, we decline the husband's invitation to consider his challenges to the January 2025 order (see Rubeo v National Grange Mut. Ins. Co., 93 N.Y.2d 750, 756 [1999];  MTGLQ Invs., L.P. v. Thompson, 188 AD3d 1483, 1483 [3d Dept 2020] ).

Turning to the contentions properly before us relating to the May 2025 order, the husband contends that neither the wife nor Kidd were permitted to recover counsel fees due to noncompliance with the court rules pertaining to domestic relations matters.  We disagree.  The court rules imposing certain requirements upon attorneys who represent clients in domestic relations matters were designed “to provide basic boundaries for the attorney-client relationship[,] ․ address abuses in the practice of matrimonial law and to protect the public” (Matter of Serazio–Plant [Channing], 299 A.D.2d 696, 698 [3d Dept 2002] [internal quotation marks and citation omitted], lv denied 100 N.Y.2d 512 [2003];  see 22 NYCRR part 1400).  Thus, to establish entitlement to counsel fees in a domestic relations matter, the movant must make a prima facie showing of substantial compliance with 22 NYCRR part 1400 (see Bauman v. Bauman, 208 AD3d 624, 626 [2d Dept 2022];  Antokol & Coffin v. Myers, 86 AD3d 876, 878 [3d Dept 2011] ).  Substantial compliance does not mean perfect compliance (see Allen v. Allen, 179 AD3d 1318, 1323 [3d Dept 2020];  Harrington v. Harrington, 93 AD3d 1092, 1094 [3d Dept 2012] ).  While “[a]n attorney's utter failure to abide by these rules precludes the attorney from collecting fees” (Edelman v. Poster, 72 AD3d 182, 184 [1st Dept 2010] [internal quotation marks and citation omitted] ), courts evaluate the unique circumstances of each matter to ensure that the legitimate objectives behind the court rules have been satisfied – notwithstanding deviations from the court rules (see Weissman v. Weissman, 116 AD3d 848, 850 [2d Dept 2014], lv denied 24 NY3d 902 [2014], cert denied 574 U.S. 1155 [2015];  see also Garr Silpe, P.C. v. Weir, 208 AD3d 1098, 1099 [1st Dept 2022];  Riley v. Coughtry, 13 AD3d 703, 704 [3d Dept 2004];  Webbe v. Webbe, 267 A.D.2d 764, 765 [3d Dept 1999], lv denied 95 N.Y.2d 753 [2000] ).

Here, the husband's allegations that the wife's attorney failed to issue itemized bills at least every 60 days and provide a notice of her right to arbitrate are belied by the record.  Although it is disputed whether the wife filed a copy of the written retainer agreement with the court with her statement of net worth (see 22 NYCRR 1400.3), or even if she was required to do so (see generally Jeffrey P. v. Alyssa P., 202 AD3d 1409, 1413 [3d Dept 2022] ), the record nonetheless contains a copy of the retainer agreement which substantially complies with the court rules and the charged rates conform to the fee schedule on that retainer (see 22 NYCRR 1400.2, 1400.3).  As for the husband's narrow challenge relating to the award of counsel fees to Kidd, we reject his characterization that he was precluded from meaningful review due to redactions on the billing invoices.  Based on the foregoing, including the attendant circumstances of this particular matter (see Weissman v. Weissman, 116 AD3d at 850), we conclude that the wife's counsel and Kidd substantially complied with the court rules governing domestic relations matters and were entitled to collect counsel fees (see Allen v. Allen, 179 AD3d at 1323;  see also Plotkin v. Esposito–Plotkin, 216 AD3d 676, 679 [2d Dept 2023];  Ader v. Ader, 205 AD3d 637, 638–639 [1st Dept 2022] ).  Accordingly, we discern no basis to disturb the May 2025 order.  We have examined the remaining contentions of the parties and Kidd, and find them to be without merit, academic or not properly before us.

Garry, P.J., Mackey, Corcoran and Ryba, JJ., concur.

ORDERED that the order is affirmed, with one bill of costs.

FOOTNOTES

1.   One of the counterclaims was labeled as a cross-claim.

Fisher, J.