K.S., Plaintiff v. W.S., Defendant (2026)

This is an application for attorney fees from plaintiff's attorney against defendant based upon quantum meruit. The matter stems from a matrimonial settlement.

Plaintiff's counsel has already received $3400 in legal fees and disbursements. Final gross legal fees and expenses amount to $8860, leaving a balance of $5460 owed. Defense counsel has billed his client $4,000 for fees and expenses.

Plaintiff's counsel alleges that defendant caused innumerable delays during the litigation, in particular failing to provide financial information, necessitating plaintiff: to file for an RJI; issue subpoenas; and pursue additional Discovery. Additionally, according to plaintiff's counsel, the defendant abruptly stopped communicating with the mediator, requiring counsel to initiate Court proceedings. And last, alleges counsel, defendant stopped communicating with his own attorney, causing even further delays. For all these actions, according to counsel, plaintiff incurred unnecessary legal fees and expenses.

Domestic Relations Law sec. 237 allows an award of counsel fees and expenses "as in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." The Fourth Department has frequently stated that "the award of counsel fees is a matter within the sound discretion of the trial court (Decker v. Decker, 91 AD3d 1291 [4th Dept. 2012], quoting Dellafiora v. Delafiora, 54 AD3d 715 [2d Dept. 2008]). In fact, attorney fees awards are intended to redress economic disparity between the monied spouse and the non-monied spouse, and there is a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse (O'Shea v. O'Shea, 93 NY2d 187 [1999]).

In exercising its discretion, the Court may consider all of the circumstances of a given case, including the financial circumstances of both parties; the relative merit of the parties' positions; the existence of any dilatory or obstructionist conduct; and the time, effort, and skill required of counsel (Blake v. Blake, 83 AD3d 1509 [4th Dept. 2011]).

Moreover, Courts may consider any of the following factors: the nature and extent of the services rendered; the actual time spent litigating a matter; the necessity of the legal services; the nature of the issues involved; the experience and qualifications of counsel; the results achieved; the financial circumstances of the parties; the relative merit of the parties' positions; and a parties' obstructionist tactics ( O'Shea, supra; DeCabrera v. DeCabrera-Rosete, 70 NY2d 879 [1987]; Murphy v. Murphy, 126 AD3d 1443 [4th Dept. 2015]; Benzing v. Benzing, 69 AD2d 988 [4th Dept. 1978]; Fabrikant v. Fabrikant, 19 NY2d 154 [1967]). The Court may also take into account whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (Ciampa v. Ciampa, 47 AD3d 745 [2d Dept. 2008]; Timpone v. Timpone, 28 AD3d 646 [2d Dept. 2006]; Morrissey v. Morrissey, 259 AD2d [2d Dept. 1999]; Walker v. Walker, 255 AD2d 375 [x Dept. 1998]).

Defendant is alleged to be the monied spouse, but defense counsel alleges that the parties are similarly financially situated, after taking into account annual child support, spousal maintenance, awarding of the marital residence, and defendant's union job annuity. At the commencement of the matter, defendant earned approximately $82,000 per year. Plaintiff's income was approximately $21,000 per year. Accordingly, despite equitable distribution of the marital assets, the defendant is considered to be the monied spouse for these purposes.

Furthermore, applying the law to the facts and circumstances at bar, it is apparent that the defendant caused repeated and unnecessary delay of the proceedings by more than one year -- through failed mediation; refusing to provide financial documentation; and refusing to disclose the name of his attorney. All of this resulted in plaintiff incurring unnecessary expenses and legal fees.

Accordingly, weighing the time and effort expended by plaintiff's counsel, and applying all of the enumerated factors above, plaintiff's counsel is hereby awarded an additional $4800 from defendant to compensate for plaintiff's additional legal fees and expenses.

SO ORDERED

Date July 3, 2026

Hon. Peter Allen Weinmann

Peter Allen Weinmann, J.