Plaintiff moves for summary judgment upon a claim for work, labor and services. Defendant cross-moves to dismiss the case for failure to state a cause of action, and for lack of personal jurisdiction.

According to plaintiff's moving papers, the Supreme Court, Queens County, appointed plaintiff to conduct a business appraisal in a contested matrimonial proceeding. The Supreme Court's interim order allocated the cost of the appraisal between the parties. When defendant failed to pay his share, the instant action was filed. Defendant answered the complaint, and these motions followed.

To the extent defendant's cross-motion seeks dismissal of the complaint on grounds of lack of personal jurisdiction, the motion is untimely. Since defendant failed to make a timely motion to dismiss on that ground, within 60 days after serving his answer, the objection had been waived (CPLR 3211[e]).

However, defendant's challenge to the sufficiency of the complaint raises a different jurisdictional issue. As defendant's cross-motion correctly observes, "[t]he issue of expert's fees in matrimonial actions is within the purview of the matrimonial Court." See generally DRL §237(a) and Scheinkman, Practice Commentaries to McKinney's DRL at C237:8. Therefore, to the extent defendant's potential liability rests upon the orders of the Supreme Court, Queens County, defendant contends that this Court should not become involved in the dispute. I agree.

Absent proof of an independent contractual duty running between defendant and plaintiff respecting the services rendered by plaintiff, the claim made against defendant is inextricably intertwined with the Supreme Court's jurisdiction over the underlying matrimonial proceeding. Only the Supreme Court has the power to apportion the court appointed appraiser's fees between the parties. See Naimollah v. De Ugarte, 18 AD3d [*2]268, 271 (1st Dept 2005); Zirinsky v. Zirinsky, 138 AD2d 43, 46-49 (1st Dept 1988). Since the issue of apportionment of the fees for plaintiff's services ultimately rests within the Supreme Court's jurisdiction, principles of comity counsel against this Court's assumption of jurisdiction over plaintiff's claim. Moreover, if "a claim for unpaid alimony under a domestic matrimonial judgment or order cannot be made the basis for recovery in an independent action," see Kahn v Simpson, 23 AD2d 539 (1st Dept 1965); see also Leitman v Leitman, 21 Misc 2d 653, 655 (Sup Ct Kings Co. 1959), affd 9 AD2d 682 (2d Dept 1959), the same should hold true for a claim for appraisal fees owed under a matrimonial court's order. Accordingly, without prejudice to plaintiff's rights, in any, to seek appropriate relief from the Supreme Court, Queens County, plaintiff's motion is DENIED, and defendant's cross-motion for an order dismissing plaintiff's complaint is GRANTED.

So Ordered:

District Court Judge

Dated: June 12, 2012

cc:Rosenthal & Goldhaber, P.C.

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