Brennen v. Brennen

Mar 13, 1989
Versions:148 A.D.2d 487
538 N.Y.S.2d 835
1989 N.Y. App. Div. LEXIS 2719

In a matrimonial action in which the parties were previously divorced, the plaintiff appeals (1) from a judgment of the Supreme Court, Westchester County (Campbell, J.H.O), entered November 30, 1987, which is in favor of the defendant Ulla Brennen and against him in the principal sum of $7,021.35, and (2) from a judgment of the same court, also entered November 30, 1987, which is in favor of Barbara W. Cummings and against him in the principal sum of $978.65.

Ordered that the judgments are affirmed; and it is further,

*488Ordered that the defendant is awarded one bill of costs.

The court did not improvidently exercise its discretion in awarding counsel fees to the defendant (see, Domestic Relations Law § 237; DeCabrera v Cabrera-Rosete, 70 NY2d 879). It would be unfair to have the wife, in effect, extinguish her assets to pay counsel fees incurred in reaching a settlement which might just as easily have been attained much earlier but for what appears to have been a lack of good faith by the husband (see, Schussler v Schussler, 109 AD2d 875; Stern v Stern, 67 AD2d 253).

We note that the plaintiff did not submit an affidavit in opposition to the factual allegations set forth in the defendant’s affidavit. The affirmation of the plaintiff’s attorney was not based upon personal knowledge and contained mere conclusory allegations (see, Metzger v Metzger, 52 AD2d 1056). Thompson, J. P., Lawrence, Kunzeman and Rubin, JJ., concur.