Albert v. AlbertAlbert v. Albert
In аn action for a divorce and ancillary relief, the defendant wife appeals (1) as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Raab, J.), dated August 15, 2002, as granted the plaintiff husband’s motions for arrears due under a pendente lite order of the same court dated October 5, 2001, to hold the defendant in contempt of that order, for an award of an interim counsel fee, for an order of preclusion based upon the wife’s failure to comply with discovery demands, and for immediate sale of the marital residence, rеntal property owned by the defendant in Farmingdale, and rental property owned by the defendant in Centereach, and denied the defendant’s cross motion, inter alia, for downward modification of her obligations pursuаnt to the pendente lite order, (2) from an order of the same court
Ordered that the order dated August 15, 2002, is reversed insofar as appealed from, the orders dated September 10, 2002, and December 13, 2002, and the money judgment dated October 10, 2002, arе vacated, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of the motions and the cross motion and for a trial and determination of equitable distribution of marital property to be held with all deliberate speed; and it is further,
Ordered that the appeals from the orders dated September 10, 2002, and December 13, 2002, and the judgment dated October 10, 2002, are dismissed as academic, in light of our determination on the appeal from the order dated August 15, 2002; and it is further,
Ordered that one bill of costs is awarded to the defendant.
On August 7, 2002, the Supreme Court granted the motion of the defendant’s attornеy to be relieved, over the defendant’s objection. At that juncture, the plaintiffs counsel acknowledged “thеre is a provision for some type of an interim stay to be granted to the defendant for the purpose of allowing her to obtain new counsel.” The custody trial was adjourned until September 10, 2002, and the court directed thе defendant to “obtain new counsel before that date.”
Nevertheless, on August 12, 2002, after the defendant pro se informed the court that she had not had “enough time” to retain a new attorney, the court proceedеd with oral argument on the plaintiff husband’s motions for alleged arrears due pursuant to the pendente lite order dated October 5, 2001, to hold the defendant in contempt of that order, for an award of interim counsel fees, for an order of preclusion based upon the defendant’s alleged contemptuous failure to comply with discovery demands, and for immediate sale of the marital residence, rental property owned by the defendant in Farmingdale, and rental property owned by the defendant in Centereach, and the defendant’s cross motion, inter alia, for downward modification of her obligations pursuant to the pendente lite order.
The interim stay provision is CPLR 321 (c) which provides that “[i]f an attorney dies, becomes physiсally or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at аny time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs.” This provision applies if, as in the instant case, counsel moves to be relieved, the client objects, and counsel is removed by court order (see Iadarola v Orthopedic Inst.,
Upon remittitur, the Supreme Court shall render a new determination with respect to thе plaintiffs motions and the defendant’s cross motion in issue and proceed to a trial and determination on the issue of equitable distribution of property with all deliberate speed. In light of our determination, the parties’ remaining contentions need not be addressed at this juncture. Ritter, J.P., Goldstein, McGinity and Crane, JJ., concur.