Schek v. Schek

Mar 11, 2008
Versions:49 A.D.3d 625
856 N.Y.S.2d 127
856 N.Y.2d 127

Lawrence S. Schek, Appellant, v Vinni M. Schek, Respondent. [856 NYS2d 127]—

The award of a reasonable attorney’s fee is a matter within the sound discretion of the trial court (see Domestic Relations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]). An award of an attorney’s fee should be based upon, inter alia, the relative financial circumstances of the parties, the relative merits of their positions, and the tactics of a party in unnecessarily prolonging the litigation (see Domestic Relations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d at 881; Levy v Levy, 4 AD3d 398, 398-399 [2004]; Krutyansky v Krutyansky, 289 AD2d 299, 300 [2001]; Morrissey v Morrissey, 259 AD2d 472, 473 [1999]). The fact that the defendant wife has assets is not, by itself, a basis to deny a motion for an attorney’s fee, as she “need not establish indigency as a prerequisite to an award of counsel fees” (Lenczycki v Lenczycki, 152 AD2d 621, 624-625 [1989]).

In view of the disparity between the incomes and resources of the parties (see Levy v Levy, 4 AD3d 398 [2004]), and the difficulties encountered in obtaining paper discovery from the plaintiff (cf. Griggs v Griggs, 44 AD3d 710, 714 [2007]), the court providently exercised its discretion in awarding the defendant an attorney’s fee in the sum of $60,000. Spolzino, J.P., Florio, Angiolillo and Dickerson, JJ., concur.