A judgment of divorce in this action was entered on December 17, 2015 (the "Divorce Judgment"). In this motion, Plaintiff seeks to have Defendant held in contempt and incarcerated for willfully failing to comply with his obligations under the Divorce Judgment for housing costs, maintenance, child support, distributions and attorney fees.^[FN1] Plaintiff also requests relief modifying the Divorce Judgment including: an order transferring into Plaintiff's name the deed and the corresponding mortgage of the marital residence located at XXX Greenwich Street, New York, NY 10014 (the "Greenwich St. Property") which currently is held solely in Defendant's name; an award of exclusive use and occupancy of all floors of the Greenwich St. Property; and a 100% distributive award to Plaintiff of the property located at XXX Bowery, New York, NY 10012 (the "Bowery Property"), currently held solely in Plaintiff's name, in lieu of Defendant's obligations for maintenance, child support, equitable distribution and counsel fees under the Divorce Judgment. Plaintiff also requests a direction that the Defendant immediately comply with his obligations for maintenance, child support, equitable distribution and counsel fees. In addition, Plaintiff requests consolidation and a stay of a foreclosure action, Bayview Loan Servicing, LLC. v. Yann Leroy, et al., Index No. 850394/15 (the "Foreclosure Action") brought by the mortgagor of the Greenwich St. Property ("Bayview") against Defendant and other necessary parties. Finally, Plaintiff requests an award of counsel fees incurred in making this motion.

On April 25, 2016, the initial return date of this motion, in the absence of opposition [*2]papers filed by Defendant, the court found Defendant in contempt for failure to pay his obligations under the Divorce Judgment. Defendant subsequently appeared by counsel and filed a response. He does not oppose the finding of contempt. (Moscarello Aff., ¶5). However, he argues that the amount of the judgment to be entered against him should be limited after deductions of support payments he actually made and opposes an order for his incarceration.

The remaining issues addressed in this Decision and Order are: (1 )the amount of arrears owed by Defendant and whether a warrant for Defendant's arrest should be issued as a result of his failure to pay his obligations under the Divorce Judgment; (2) whether title to the Greenwich St. Property and the mortgage against it should be transferred to Plaintiff; (3) whether Plaintiff should have exclusive use and occupancy of the Greenwich St. Property; (4) whether Plaintiff should be awarded a 100% distributive award of the Bowery Property in lieu of Defendant paying his obligations under the Divorce Judgment; (5) Plaintiff's request for the counsel fees incurred in this motion; and (6) Plaintiff's application for consolidation and to stay the Foreclosure Action.

The parties were married in 1988. They have five children — a daughter who turned 21 in March 2015, and four sons — ages 20, 18, 15 and 13. The parties own two properties in Manhattan purchased during the marriage: 1) the Bowery Property, titled in the Plaintiff's name, is an income producing building on the Lower East Side of Manhattan with commercial space and rental apartments; and 2) the Greenwich St. Property, a townhouse, titled in the Defendant's name, which was the marital residence and where Plaintiff and the children continue to reside. For years during the marriage and now, Plaintiff home-schooled the children and managed the Bowery Property. Defendant is an architect. During the marriage he had an international practice and worked primarily in the Far East. He now resides in Thailand. He no longer has a Green Card and claims that entry into the United States may be difficult for him, but does not adequately explain why. (Moscarello Aff., ¶9).

The parties separated in May 2007. Plaintiff commenced this divorce action in 2011. After their separation, Defendant paid the mortgage, utilities, property taxes and insurance for the Greenwich St. Property. Plaintiff used the net income received from the Bowery Property, of approximately $111,000 annually, to cover the family's other expenses. The parties stipulated, in the Preliminary Conference Order dated January 9, 2012, that they would "maintain the status quo" pendente lite. Pursuant to that arrangement, Defendant agreed to continue to pay the mortgage, real property taxes and utilities for the Greenwich St. Property and the cost of the family's health care, including medical insurance.

A trial on the financial issues was held before Special Referee Louis Crespo. The Referee issued a Report that was confirmed, with modifications, in this court's March 11, 2015 Decision and Order (the "Trial Decision"). The provisions of the Trial Decision were incorporated into but not merged with the Divorce Judgment.

The Divorce Judgment provided that Defendant would continue to be 100% responsible for payment of the Greenwich St. Property mortgage, property taxes and utilities, including any arrears, through May 31, 2015.

However, the court also found that Defendant stopped paying the housing expenses for the Greenwich St. Property in December 2013 and arrears of $76,542.49 had accumulated as of June 1, 2014. (Plaintiff's Moving Papers, Ex. B, p. 5).

Defendant submits a chart indicating mortgage, taxes and utility payments he made [*3]between February 2011 and May 31, 2015 in the amount of $227,767.35. (Moscarello Aff., Ex. D). Plaintiff does not specifically dispute that claim, but merely contends that the Defendant provided no back-up documentation to support his chart. Plaintiff also contends that, notwithstanding the Husband's obligation to pay these costs, she made some mortgage payments and utility bills during this time period in the total amount of $16,807.62.

The Trial Decision modified the pendente lite order by requiring that effective June 1, 2015, until the Greenwich St. Property was sold, Plaintiff was obligated to pay 75% and Defendant was obligated to pay 25% of the mortgage, property taxes and utilities.

In addition, the Trial Decision provided for a maintenance award to Plaintiff of $8,000 per month non-taxable to her (reduced by housing costs actually paid by Defendant) through January 15, 2022 and child support in the sum of $2,759 to be reduced in a specified amount as each child reached the age of 21. Payment of these awards was retroactive to January 26, 2011 (with credit for expenses paid by Defendant). (Plaintiff's Moving Papers, Ex. A, pp. 4-5).

The Greenwich St. Property is to be sold after the youngest child turns 18 in November 2021, with Plaintiff to receive 60% and Defendant to receive 40% of the net proceeds. Until then, Plaintiff would occupy the 2nd through 4th floors and Defendant would continue occupancy of the 1st floor of the Greenwich St. Property (on the assumption he would visit New York to see the children). Either party could rent any portion of his or her space and retain 100% of the net income received.

The Bowery Property is to be sold after the youngest child turns age 18 (in November 2021) with the proceeds divided equally between the parties. Until it is sold, each party is entitled to receive 50% of the net income derived from the Bowery Property. Plaintiff is to provide an annual accounting each January of the rental income and expenses. Defendant's 50% share of that income is to be credited toward his obligations for child support and maintenance.

Plaintiff was awarded 50% of Defendant's interest in the business known as Studio Aria Architects. If Defendant was unable to transfer that interest to Plaintiff, Defendant would be deemed a fiduciary of that interest and provide an annual accounting to Plaintiff of her share of distributions made by the company in the prior year.

Plaintiff was also awarded $48,269.64 representing her distributive share of an annuity with John Hancock., which was to be paid to her from the Defendant's share of the Greenwich St. Property proceeds when that property was sold.

Plaintiff was also awarded $10,000 for counsel fees payable directly to her counsel who was entitled to enter a money judgment against Defendant if payment was not made.^[FN2]

Bayview filed a mortgage foreclosure action against the Greenwich St. Property on December 7, 2015 (the "Foreclosure Action"). (Plaintiff's Moving Papers, Ex. C). According to Bayview, $184,338.19 was owed as of December 11, 2015 in mortgage arrears, fees and attorney fees. (Bayview Affirm, Ex. A). Bayview informed Plaintiff's counsel that the Foreclosure Action could be resolved by early repayment of the loan in the amount of $380,886.09 (comprised of $257,725.01 for the mortgage principal; $32,920.34 in delinquent interest; [*4]$80,528.86 for property taxes and insurance; late charges of $931.48; $42 for "NSF fees;" $112 for inspections; $4,092 for paid legal fees; and estimated unpaid legal fees incurred by Bayview of $5,000). (Moscarello Aff., Ex. A). Although Plaintiff's name does not appear on either the title or the mortgage for the Greenwich St. Property, she was served with a copy of the summons and complaint in the Foreclosure Action as a tenant of the property. Apparently, the Foreclosure Action has not yet proceeded because the Defendant has not been served.

Counsel for Bayview submitted an affirmation opposing consolidation and a stay of the Foreclosure Action. That action involves different parties and different issues of law and fact than are present in this post judgment of divorce proceeding. The Wife's request for consolidation and a stay of the Foreclosure Action is denied.

Support Arrears

Defendant disputes the amount of maintenance and child support arrears claimed by Plaintiff. Plaintiff claims arrears of $177,354 in child support plus $528,000 in maintenance are owed through July 2016, for a total of $705,354. (Plaintiff's Reply Aff., ¶8).

According to Defendant, the maximum arrears owed from February 1, 2011 through May 31, 2015 is $558,836 (comprised of $416,000 in maintenance arrears plus $142,836 in child support arrears). Defendant claims a credit for mortgage, property taxes and utilities paid by him during that period in the sum of $227,767.35 resulting in a net obligation of $331,068.65 as of May 31, 2015. (Moscarello Aff., ¶¶32-39, Ex. D).

Neither party requests a hearing concerning the amount of support arrears owed by Defendant.

Plaintiff argues that Defendant failed to provide adequate proof of the housing expenses he allegedly made prior to June 1, 2015. (Plaintiff's Reply Aff., ¶11). However, she does not dispute the amounts listed on Defendant's chart. (Moscarello Aff., Ex. D). Moreover, it is not disputed that the mortgage, utilities and real estate tax statements are sent to the Greenwich St. Property. Thus, Plaintiff was in a position to know the exact amount of arrears. (Moscarello Aff., ¶15).

Defendant requests that Plaintiff be directed to produce to him the mortgage statements and property tax bills for the Greenwich St. Property from 2015 to the present. Plaintiff is directed to deliver to Defendant's attorney the mortgage statements and any other mail addressed to Defendant that remains at the Greenwich St. Property, within fourteen (14) days from the date of this Decision and Order.

Given Plaintiff's failure to dispute the amount of credits claimed by Defendant, the court finds that Defendant owes $331,068.65 in combined arrears of maintenance and child support after credit for payment by Defendant for housing expenses for the period from February 1, 2011 through May 31, 2015.

Defendant admits that he made no payments of child support, maintenance or any contribution for the costs necessary to maintain the Greenwich St. Property from June 1, 2015 forward. (Moscarello Aff. ¶40). However, he claims the amount of arrears owed for that period cannot be determined because Plaintiff has not provided an accounting of the Bowery Property income and expenses from which to determine the credit he is entitled to receive for his 50% share of the net income. (Moscarello Aff. ¶¶41-45).

The support awards for the period from June 1, 2015 forward were predicated on the [*5]court's finding that the Bowery Property generated at least $111,353 per year.^[FN3] In her moving papers, Plaintiff claims she lost a Bowery Property tenant early in 2015 causing a loss of income. That information was not disclosed to the court until this motion was filed in March 2016. In her moving papers, Plaintiff presented no details regarding the loss of the tenant or what her new tenant pays.^[FN4] Plaintiff presents conflicting information regarding the net income she realized in 2015 from the Bowery Property. She asserts in her moving affidavit (submitted before her 2015 tax return was filed), that the net income from the Bowery Property for all of 2015 was only $27,166. (Plaintiff's Moving Aff., ¶ 15). Yet in her Reply Papers, Plaintiff shows net income from the Bowery Property in the amount of $46,225 as reflected in her 2015 individual income tax return. Moreover, it appears that certain expenses attributed to the building did not result in out-of-pocket costs or may have resulted in additional income to Plaintiff. (Plaintiff's Reply Aff., Ex 3.)^[FN5] No proof is offered to support her claim that after payment of expenses and the reduction of income due to the loss of a tenant, the net income derived from the Bowery Property was only $6,631.88 for the period in 2015 when Defendant was entitled to a credit. (Plaintiff's Reply Aff., ¶14). She submits no information regarding the rent payments made by the new tenant, nor does she submit any information regarding the property's finances in 2016, including documents showing the income and expenses incurred in 2016 for the Bowery Property, even though her Reply papers were not filed until mid-July 2016. Plaintiff is directed to submit to Defendant's counsel an accounting of the income and expenses of the Bowery Property from June 1, 2015 through December 31, 2016 with proof of payment of the expenses, and a copy of the rent roll (or other proof of rent received) to be delivered no later than January 31, 2017.

With limited exceptions, all marital property is sold or distributed when a judgment of divorce is entered. Here, both parties agreed that it was beneficial to maintain the Bowery Property as an income source. The court premised its decision, in part, on income imputed to Defendant from the proceeds generated by this property. Plaintiff controls the management of this asset. For these reasons, the court imputes $55,676.50 contributed by the Defendant annually towards his support payments derived from the Bowery Property. This approach is consistent with the imputation of that amount of income to the Defendant in calculating his [*6]support obligations in the Trial Decision. Thus, for the period from June 1, 2015 to July 31, 2016, payment of $64,955.80 is imputed to the Husband towards his support obligations.^[FN6] If Plaintiff has obtained a new tenant for the commercial space, the rental income may be substantially higher than in the past, resulting in a greater credit to Defendant, which may be applied to his support obligations going forward.

Having resolved the amount of Defendant's credit attributable to his share of Bowery Property income, the court can determine the arrears owed by Defendant for child support and maintenance from June 1, 2015 through July 31, 2016.^[FN7] During that period, Defendant was required to pay $10,443 in combined support ($2,443 for basic child support plus $8,000 for maintenance) resulting in a total obligation of $146,202. After deducting the credit of $64,995.80 for the Husband's imputed share of income from the Bowery Property, the Husband's arrears for combined support for the period from June 1, 2015 through July 31, 2016 amounts to $81,246.20.

Accordingly, Defendant owes the total sum of $412,314.85 ($331,068.65 from February 1, 2011 to May 31, 2015 plus $81,246.20 from June 1, 2015 to July 31, 2016) in combined support arrears for the period from February 1, 2011 through July 31, 2016.

Studio Aria Architects

Plaintiff also claims that Defendant is in default of his obligation to transfer 50% of his interest in the business entity known as Studio Aria Architects to her. Defendant argues that he has received no monies and has done no work for Studio Aria Architects and that it is "not a going concern." He further claims that he lacks the capacity and information necessary to assign any interest in it to Plaintiff. (Moscarello Aff., ¶¶51-56). ^[FN8] Plaintiff argues that Defendant continues to conduct business under the name "Studio Aria" as evidenced by a business card listing the parties' son as a representative of "studioaria architecture & interiors" and a recent email sent to their daughter with the signature "Yann Leroy Architects studioaria." (Plaintiff's Reply Aff., Ex3. 4, 5 and ¶¶15-16).

The Divorce Judgment provides that, if Defendant is unable to transfer 50% of his interest in Studio Aria Architects to Plaintiff, Defendant shall be deemed a fiduciary of Plaintiff's interest and shall provide an annual accounting to Plaintiff of her share of distributions made by the company in the prior year. As a result, Defendant is deemed a fiduciary of Plaintiff's 50% interest in his share of Studio Aria Architects and is directed to provide an accounting of and payment to Plaintiff of her share of the distributions of Studio Aria Architects from June 1, 2015 through December 31, 2016 by January 31, 2017 and then annually by January 31 of each [*7]succeeding year. Plaintiff's request that Defendant be held in contempt for failure to transfer 50% of his interest in Studio Aria Architects to Plaintiff is denied at this time.

Distribution of the John Hancock Annuity

Plaintiff requests that Defendant be found in contempt for failure to pay her the sum of $48,269.64 representing her 50% share in the marital annuity with John Hancock. The Judgment of Divorce provides that Plaintiff will receive a credit equal to her distributive share of the John Hancock annuity when the Greenwich St. Property is sold. (Plaintiff's Moving Papers, , Ex. A, p. 4; Ex. B, p. 18). Defendant cannot be found in contempt with regard to the John Hancock Annuity since the Greenwich St. Property has not yet been sold or bought out by Plaintiff. Plaintiff's request that Defendant be found in contempt for failure to pay her the sum of $48,269.64 as her distributive share of the John Hancock annuity is denied.

Plaintiff also requests that Defendant be found in contempt for failure to pay the $10,000 counsel fee award made to her in the Divorce Judgment. Defendant's counsel asserts that it is "unlikely" that Defendant is able to pay that counsel fee award because he could only afford to pay $7,000 toward the $15,000 retainer requested by his present counsel. (Moscarello Aff., ¶46). No other excuse is given for Defendant's failure to pay those counsel fees.

Plaintiff acknowledges that the Divorce Judgment permits her attorney to file a money judgment against Defendant for any unpaid amount of that counsel fee award, but he failed to do so. She speculates that, since Defendant lives overseas, a money judgment would be ineffective and would only result in a further lien on parties' already leveraged properties. (Plaintiff's Moving Aff., ¶10). The recent amendment to DRL §245 (effective September 29, 2016) eliminated the requirement that other remedies be exhausted prior to making a contempt application for failure to pay monies required by a judgment of divorce. As a result, Plaintiff's request that Defendant be found in contempt for failure to pay the $10,000 counsel fee award is granted.

Payment of Mortgage and Unpaid Tax Levy

Plaintiff requests that Defendant be held in contempt for failure to pay his mortgage obligation and a tax levy on the Greenwich St. Property. The Husband's arrears of his contribution towards the mortgage and real estate taxes for this property has been addressed by finding him in contempt for his failure to pay the ordered maintenance and child support. Thus, the Plaintiff's request for an additional finding of contempt for the Defendant's failure to pay these costs is denied. The court need not address the rights of third parties to impose liens as that issue is not before the court.

Request for Modification of the Distributive Award

As an alternative to the issuance of an arrest warrant arising from the finding of contempt, the Wife proposes an alternative solution requiring a modification of the distributive award set forth in the Judgment of Divorce. (Felcher Letter, April 29, 2016). Specifically, she seeks a transfer of title for the Greenwich St. Property to her sole ownership, claiming that she has been preapproved for a mortgage in the amount of $400,000. With this amount, she would be in a position to pay off all money owed to Bayview, the present mortgage holder, including any tax liens. Once the property is out of foreclosure and the tax liens paid, she would then be in a position to rent two floors of the townhouse. The income derived from these rentals would cover the housing costs necessary to maintain the Greenwich St. Property.

She also asks that she receive 100% of the value of the Bowery Property which is [*8]otherwise to be sold in November 2021 instead of only 50% of the proceeds from that sale. She contends that this result would pay for all arrears presently owed and will pay for her maintenance and child support going forward. Presumably, she would continue to use 100% of the rental proceeds to pay for her and the children's living expenses.

The Defendant opposes both proposals. He does not object to having the Plaintiff added to the title of the Greenwich St. Property, but does not consent to her being sole titleholder. He does not specifically object to her refinancing the property. He also agrees to relinquish his right to use of the first floor apartment and would allow Plaintiff to rent any part of the Greenwich St. Property.

He opposes distributing 100% of the value of the Bowery Property to the Wife in that he believes that when the property is sold, its value will be greater than what the Wife will be entitled to receive for support arrears. However, he does not oppose having his arrears paid from the proceeds from the sale of the property when it is sold in November 2021.

Transfer of Title to Greenwich St. Property to Plaintiff

Plaintiff claims that she received pre-approval for a mortgage in the amount of $400,000 on the Greenwich St. Property. The mortgage would be in her name alone with payment to be covered by rental income from the apartments on the first and third floors of the building, at rents of $3,100 for each apartment. She provided evidence that the existing tax liens prevent rental of the apartments now. (Moscarello Affirm., Ex. A). She will be able to remove the liens by refinancing the mortgage. Her counsel submitted a letter from what appears to be a mortgage broker, indicating that Plaintiff qualifies for such a mortgage. (Moscarello Affirm., Ex. A). Plaintiff claims that she "must be listed as a 'titled' owner of the property" in order for her to obtain a mortgage. She provides no evidence that she needs be the sole titleholder to obtain a new mortgage.

Defendant opposes transfer of title to the Greenwich St. Property solely to Plaintiff. Instead, he proposes that Plaintiff be added to the title. Plaintiff did not respond to Defendant's proposal, nor did she provide proof that her ability to refinance would not be possible if both she and Defendant are the titleholders. (Moscarello Affirm., ¶¶9-11). Defendant also raises concerns regarding whether he would receive a credit towards his support obligations upon the refinancing derived from the rental income. In addition, Defendant questions how, if the Plaintiff is the sole titleholder, he will receive a share in the distribution of the value of the property at the time it is to be sold in 2021. Notably, the Greenwich St. Property had an appraised value of approximately $5.5 million in May 2012 (Plaintiff's Moving Papers, Ex. B, p. 2) Thus, even after deduction of any arrears he may owe, it appears likely that Defendant will be entitled to a significant distributive award once the property is sold.

The court cannot grant the Plaintiff's application based on the limited information presented by Plaintiff. Although a mortgage broker claims the Plaintiff would be eligible to receive a mortgage, no specifics have been provided. Moreover, the Plaintiff failed to offer proof that it is essential that she alone be the titleholder. On the other hand, the court is troubled by the Defendant's failure to provide any details that refinancing can occur if both parties are titleholders. The Defendant is seemingly concerned only about protecting his interests and shows little regard to meeting the needs of his children. Nonetheless, without more information, the Plaintiff's application must at this time be denied.

Plaintiff's Request for Redistribution of the Value of the Bowery Property

In conjunction with the refinancing of the Greenwich St. Property, Plaintiff requests that [*9]100% of the value of the Bowery Property be awarded to her to satisfy the Defendant's past and future support obligations.Plaintiff asserts that such an award would obviate future litigation costs arising from Defendant's anticipated ongoing failure to make any payment toward his support obligations. (Plaintiff's Reply Aff., ¶10). Defendant opposes this request.

Plaintiff's application is denied at this time. Too many unanswered questions regarding this property exist. Plaintiff failed to advise the court of the present income derived from the building and how much of the Defendant's support obligation is met from his share of that income. Second, the court has no basis to determine if the eventual value of the Husband's share of this asset will exceed or be less than his ultimate support obligation.

The court is not opposed to the parties reaching a settlement that will enable the refinancing of the Greenwich St. Property or a solution to satisfy the Defendant's support obligations using the income and/or value of the Bowery Property. Certainly it is in each party's interest to maintain a roof over the children's heads and to provide for their financial needs. However, on the information before the court, it cannot issue an order to modify the distributive award or title of these assets at this time.

Penalty for Contempt

The court concludes that the Plaintiff owes arrears of $412,314.85 for maintenance and child support owed through July 31, 2016 and $10,000 for counsel fees, for a total obligation of $422,314.85. Plaintiff asks that Defendant be held in contempt and asserts that, short of the modifications in the distribution and title of the real property, only the threat of incarceration will motivate Defendant to comply with his obligations. Defendant opposes an order of incarceration. In his opposition papers, Defendant provides no reason for his failure to pay the monies he owes. He submits no information about his current income and finances. Defendant's only assertions concerning his financial circumstances are that he does not oppose adding Plaintiff to the title for the Greenwich St. Property because he "doesn't have the means to avoid a foreclosure" and that he was able to pay his counsel only $7,000 of the $15,000 requested retainer fee. (Moscarello Aff., ¶¶9, 46). Defendant does not dispute Plaintiff's claim that he is operating an architectural firm under the name Yann Leroy Architects with offices in Asia and Europe. He does not dispute that, when the parties' children visited him in the Far East "his company provided them with up to $4,000 per month as income during their time with him." (Plaintiff's Moving Aff. ¶18). He did not provide an updated net worth statement.

Defendant argues that incarceration is not appropriate because there is no evidence that he has the means to purge his contempt. However, it is Defendant's burden to submit evidence of an inability to pay. El-Dehdan v. El-Dehdan, 26 NY3d 19, 36 (2015).

Judiciary Law §753(A) confers upon this court the power to punish a party, by fine and imprisonment, or either, for "a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced." Here, the court finds that Defendant is in civil contempt for his failure to pay court ordered support through July 31, 2016 in the sum of $422,314.85 and that his conduct was calculated to and actually did defeat, impair and prejudice the rights and remedies of Plaintiff to her damage in that amount.

Where a party asserts a financial inability to comply with the directions in an order or judgment as a defense in a contempt proceeding, DRL §246(3) requires a hearing. Here, Defendant does not assert a financial inability to pay his obligations or any other excuse, nor did he request a hearing to address the issue of his inability to pay the ordered support. Defendant [*10]does not assert a defense of financial inability to comply. Cf, Edelstein v. Edelstein, 110 AD3d 567, 568 (1st Dep't 2013); Bergman v. Bergman, 84 AD3d 537, 539, 923 N.Y.S.2d 460 (1st Dep't 2011).

Defendant is fined $412,314.85 for arrears in maintenance, child support owed as of July 31, 2016, plus $10,000 for counsel fees for a fine in the total sum of $422,314.85. Defendant may purge said contempt by paying the sum of $422,314.85 to the New York City Sheriff's Office by February 17, 2017. The Sheriff shall pay the same over to the Plaintiff. If Defendant fails to purge the contempt within the time provided, a warrant shall issue for his arrest and he shall be incarcerated for a period of six months or until he pays the amount of $422,314.85 and the Sheriff's lawful fees, or until he is otherwise discharged according to law.^[FN9] In addition, Plaintiff shall have a money judgment against Defendant in the sum of $422,314.85 plus interest at the statutory rate, which shall be reduced by any amount recovered by the Sheriff.

Plaintiff requests an award of the counsel fees she incurred in connection with this motion. Plaintiff seeks an award of $25,000 for her counsel fees. DRL §237(b). She submits invoices issued by her counsel supporting that request. (Plaintiff's Reply Aff., Ex. 6). The hourly rates charged by her counsel are reasonable. The amount of time billed by counsel also is reasonable given the complexity of the issues. Plaintiff's counsel avers that $20,097.52 in fees were incurred as of July 11, 2016 (the date of her Reply papers). (Felcher Supp. Aff., ¶6). Defendant does not dispute his failure to pay support, and provides no reason for that default.

Plaintiff's request for an award of counsel fees incurred in connection with this motion is granted. Defendant shall pay $20,000 to the Plaintiff's attorney, Howard B. Felcher within 60 days of the date of this Decision and Order without further notice. If Defendant fails to make said payment, Plaintiff's attorney shall thereafter cause the clerk of the court to enter a money judgment against Defendant for any unpaid amount on notice.

Accordingly, it is hereby

ORDERED, that Plaintiff's request for consolidation and a stay of the Foreclosure Action is denied; and it is further

ORDERED, that Plaintiff is directed to deliver to Defendant's counsel the mortgage statements and any other mail addressed to Defendant that remains at the Greenwich St. Property, within fourteen (14) days from the date of this Decision and Order; and it is further

ORDERED, that Plaintiff is directed to submit to Defendant's counsel an accounting of the income and expenses of the Bowery Property from June 1, 2015 through December 31, 2016 with proof of payment of the expenses, and a copy of the rent roll (or other proof of rent received) to be delivered no later than January 31, 2017; and it is further

ORDERED, that, Defendant is deemed a fiduciary of Plaintiff's 50% interest in his share of Studio Aria Architects and is directed to provide an accounting of and payment to Plaintiff of her share of the distributions of Studio Aria Architects from June 1, 2015 through December 31, 2016 by January 31, 2017 and then annually by January 31 of each succeeding year. Plaintiff's request that Defendant be held in contempt for failure to transfer 50% of his interest in Studio [*11]Aria Architects to Plaintiff is denied; and it is further

ORDERED, that Plaintiff's request that Defendant be found in contempt for his failure to pay her the sum of $48,269.64 as her distributive share of the John Hancock annuity is denied; and it is further

ORDERED, that Plaintiff's request that Defendant be found in contempt for failure to pay the mortgage and a tax levy on the Greenwich St. Property is denied; and it is further

ORDERED, that Plaintiff's request that title to the deed and corresponding mortgage of the Greenwich St. Property be transferred solely to her name is denied without prejudice to any stipulation the parties may reach with regard to that issue; and it is further

ORDERED, that Plaintiff's request for an award of exclusive use and occupancy of the first floor of the Greenwich St. Property for the purpose of generating rental income is granted on consent; and it is further

ORDERED, that Plaintiff's request for modification of the distributive award of the Judgment of Divorce to award her 100% of the value of the Bowery Property is denied; and it is further

ORDERED, that the Defendant, Yann Leroy is in contempt of court for failure to pay maintenance, child support and counsel fees in the sum of $422,314.85 and that such conduct of the Defendant was calculated to and actually did defeat, impair and prejudice the rights and remedies of Plaintiff to her damage in that sum; and it is further

ORDERED, that Defendant, Yann Leroy whose address is XXXXXXXXXX, Bangkok, Thailand, be and hereby is fined the sum of $422,314.85; and it is further

ORDERED, that Defendant, Yann Leroy may purge said contempt by paying the fine as follows: payment of the sum of $422,314.85 to the New York City Sheriff's Office by February 17, 2017; and it is further

ORDERED, that the Sheriff of the City of New York be and hereby is directed, upon delivery to him/her of a duly certified copy of this order, to collect the fines hereby imposed upon Defendant, Yann Leroy, whose address is XXXXXXXXXX, Bangkok, Thailand, and pay the same over to the Plaintiff, Janet Mervin, whose address is XXX Greenwich Street, New York, New York; and it is further

ORDERED AND ADJUDGED, that upon the failure of the Defendant, Yann Leroy, whose address is XXXXXXXXX, Bangkok, Thailand to purge the contempt by February 17, 2017, he shall stand committed for the aforesaid contempt of court, a warrant for his arrest shall be issued and he shall be taken into custody and held to be given to the Sheriff of the City of New York or any County within the State of New York to whom this Order is delivered which Sheriff shall, without further process, arrest the said Defendant Yann Leroy and commit and imprison him in the jail of said County to be detained there for a period of six months or until he pays the amount of $422,314.85 and the Sheriff's lawful fees, or until he shall otherwise be discharged according to law; and it is further

ORDERED, that Plaintiff shall have a money judgment in the sum of $422,314.85 plus interest at the statutory rate; and it is further

ORDERED, that Plaintiff's request for an award of counsel fees incurred in connection with this motion is granted. Defendant Yann Leroy shall pay $20,000 to Plaintiff's attorney, Howard B. Felcher, PLLC, 655 Third Avenue, Suite 2600, New York, New York, within 60 days of the date of this Decision and Order without further notice. If Defendant fails to make said payment, the Plaintiff's attorney shall thereafter cause the clerk of the court to enter a money [*12]judgment against Defendant Yann Leroy for any unpaid amount on notice; and it is further

ORDERED, that any relief not specifically granted is denied.

This constitutes the decision and order of the court.