Meara v. Meara

Mar 27, 2013
Versions:104 A.D.3d 916
960 N.Y.S.2d 911

In an action for a divorce and ancillary relief, the defendant appeals from (1) an order of the Supreme Court, Rockland County (Weiner, J.) dated September 27, 2011, which granted the plaintiff’s application for an award of an attorney’s fee in the sum of $15,000, and (2) a judgment of divorce of the same court entered October 24, 2011.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

Contrary to the defendant’s contention, the Supreme Court did not err in failing to appoint a guardian ad litem for him, as the record reflects that he was capable of adequately prosecuting and defending his rights in the action (see CPLR 1201; Rapoport v Cambridge Dev., LLC, 51 AD3d 530, 531 [2008]).

There is no absolute right to assignment of counsel in a matrimonial action (see Matter of Smiley, 36 NY2d 433 [1975]; Merkle v Merkle, 186 AD2d 67 [1992]). After nine attorneys representing the defendant had been either relieved or discharged, the Supreme Court did not improvidently exercise its discretion in refusing to appoint another attorney to represent the defendant.

Finally, given the defendant’s conduct in unnecessarily prolonging the litigation, the Supreme Court did not improvidently exercise its discretion in granting the plaintiff’s application for an award of an attorney’s fee in the sum of $15,000 (see Quinn v Quinn, 73 AD3d 887 [2010]). Rivera, J.P., Angiolillo, Cohen and Roman, JJ., concur.