Morris v. Morris

Jun 29, 1998
Versions:251 A.D.2d 638
675 N.Y.S.2d 879
1998 N.Y. App. Div. LEXIS 7949

—In a matrimonial action, the plaintiff appeals from an order of the Supreme Court, Nassau County (Kohn, J.), dated August 28, 1997, which denied his motion for reargument and granted the defendant’s cross motion for an award of $4,000 and counsel fees.

Ordered that the appeal from so much of the order as denied reargument is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order is reversed insofar as reviewed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing in accordance herewith.

The Supreme Court’s award of $4,000, based solely on the defendant mother’s unsubstantiated assertions and estimates, without an offer of proof, cannot be sustained. As determined in the plaintiff father’s appeal from a prior order dated May 12, 1997 (Morris v Morris, 251 AD2d 637 [decided herewith]), a hearing to determine the amount, if any, of the father’s financial obligation under the parties’ settlement agreement is required before an award can be made. An evidentiary hearing on attorney’s fees is also required where a stipulation by the parties to the contrary is absent (see, Morris v Morris, supra; Santora v Nicolini, 237 AD2d 504, 505; Petritis v Petritis, 131 AD2d 651, 654). Rosenblatt, J. P., O’Brien, Krausman and Goldstein, JJ., concur.