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

Alexandra Sununu O'SHEA, Respondent, v. Thomas M. O'SHEA, Appellant.

Decided: April 27, 1998

Gassman & Fisher, LLP, Garden City, N.Y. (Stephen Gassman and Barry J. Fisher of counsel), for appellant. Koopersmith & Brown, LLP, Lake Success, N.Y. (Kenneth Koopersmith, Glenn Koopersmith, and Amy Lesserson Brown of counsel), for respondent.

In a matrimonial action in which the parties were divorced by judgment entered January 3, 1996, which, in effect, severed the issue of the amount of counsel fees to be awarded to the plaintiff former wife and directed a hearing on that issue, the defendant former husband appeals from a judgment of the Supreme Court, Nassau County (McCabe, J.), entered February 5, 1997, which, after a hearing (Kingston, J.), is in favor of the plaintiff and against him in the sum of $149,923 for counsel fees.

ORDERED that the judgment is modified, on the law, by reducing the counsel fees awarded to the plaintiff from $149,923 to $107,340.93;  as so modified, the judgment is affirmed, without costs or disbursements.

 Considering the disparity in the incomes of the parties and the defendant's tactics which unnecessarily prolonged this litigation, it was appropriate for the trial court to require the defendant to pay the plaintiff's entire counsel fees (see, DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176, 518 N.E.2d 1168).   However, the award of counsel fees should not have included the fees incurred in the preparation of the application for fees (see, Schussler v. Schussler, 123 A.D.2d 618, 506 N.Y.S.2d 774), or the fees incurred prior to the commencement of the divorce action (see, Conklin v. Conklin, 196 App.Div. 607, 188 N.Y.S. 141).


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