The following documents, numbered 1 to 23, were considered in connection with Defendant's Order to Show Cause, dated March 8, 2024 (hereinafter "Motion Sequence #7"), seeking the following:

1. Holding Plaintiff in contempt of Court for violating the So Ordered Stipulation, dated May 10, 2023, and entered on May 22, 2023 ("May 22 Order"); and

2. Compelling the Plaintiff to pay $9,983.02 to the Defendant, pursuant to the May 22 Order; and

3. Compelling the Plaintiff to pay his share of the May 10, 2023 Transcript in the sum of $475, pursuant to the May 22 Order; and

4. Directing the Plaintiff to turn over $2,150 representing Defendant's share of the security deposit to the Defendant within 30 days hereof; and

5. Directing the Plaintiff to pay $494 for rent arrears for the apartment to Defendant; and

6. Fining and imprisoning the Plaintiff for such contempt; and

7. Granting attorney fees to [Redacted], in the sum of $5,000 for the making of this application payable within 30 days hereof; and

8. Granting Defendant such other and further relief as the Court deems just and proper.

1. Denying Defendant's Order to Show Cause in the entirety;

2. Reducing the May 10, 2023 judgment entered against Plaintiff from $16,075 to $5,617.97;

3. Declaring Defendant [Redacted] to be the sole owner of [Redacted], nunc pro tunc, as of March 27, 2021;

4. Compelling Defendant to pay $33,0000 to satisfy her half of the HELOC, or, in the alternative, to refinance her half of that loan within 60 days;

5. Compelling Defendant to disclose the fact of, amount and any and all parties, signatories to or guarantors of any loan made to [Redacted] from the SBA;

6. Declaratory relief finding Defendant in Breach of the written stipulation of settlement between the parties dated February 26, 2021; and

7. For such other relief as this Court may deem just and proper at this time.

On March 7, 2022, this matrimonial action was resolved pursuant to the entry of a Judgment of Divorce dissolving the marriage between the parties (NYSCEF Doc. No. 68) (hereinafter referred to as the "Judgment of Divorce"). The Judgment of Divorce incorporated by reference but did not merge the terms set forth in a Stipulation of Settlement of the parties dated February 26, 2021 (hereinafter referred to as "Stipulation #1").

Following the parties seeking Court intervention for the resolution of post-judgment disputes, a settlement conference was held before the Court on May 10, 2023, resulting in a resolution reached by the parties, the terms of which were set forth on the record followed by an allocution of the parties by the Court, the Court Transcript which has been so ordered by the Court (NYSCEF Doc. No. 182) (hereinafter referred to as "Stipulation #2).

On March 8, 2024, Defendant filed Motion Sequence No. #7 (NYSCEF Doc. Nos. 192-[*2]205), which was conformed by the Court on March 11, 2024 (NYSCEF Doc. No. 206), directing: (1) April 19, 2024, as the return date; (2) appointing [Redacted], as 18-B counsel for Defendant; (3) directing Plaintiff to serve Defendant's counsel with Motion Sequence #7 by March 12, 2024; (4) directing opposition and/or cross motion to be filed by March 22, 2024; (5) directing that reply to motion and/or opposition to cross motion be filed by April 5, 2024, and; (6) directing that any reply to cross motion be filed by April 19, 2024. On March 11, 2024, a separate Order Appointing 18-B Counsel was entered (NYSCEF Doc. No. 207).

Upon receipt of correspondence from [Redacted], declining the appointment, an Order of Appointment of 18-B Counsel was entered appointing as counsel for Defendant [Redacted] (NYSCEF Doc. No. 209). On March 19, 2024, an Order was entered setting a new briefing schedule being: (1) April 9, 2024 — Deadline for Plaintiff to file opposition to Motion and/or Cross Motion; (2) April 16, 2024 — Deadline for Defendant to file Reply to Motion and/or Opposition to Cross Motion; and (3) April 23, 2024 — Deadline for Plaintiff to file Reply to Cross Motion, which will also serve as return date for both Motion and Cross Motion, with no appearances required, no oral argument, and a decision to be made on submission (NYSCEF Doc. No. 210).

On April 9, 2024, Plaintiff filed opposition to Motion Sequence #7 and Motion Sequence #8 (NYSCEF Doc. Nos. 211-223). On April 19, 2024, Defendant filed an Affirmation in Reply and Supporting Exhibits (NYSCEF Doc. Nos. 224-226). On May 10, Plaintiff filed an Affirmation in Reply, Affidavit in Reply, and Supporting Exhibits (NYSCEF Doc. Nos. 231-240).

1. Defendant's Affirmation

Pursuant to 22 NYCRR § 130-1.1a:

"(a) Signature. Every pleading, written motion, and other paper, served on another party or filed or submitted to the court shall be signed by an attorney, or by a party if the party is not represented by an attorney, with the name of the attorney or party clearly printed or typed directly below the signature. Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party."

New York State Technology Law § 304 pertains to the use of electronic signatures:

"1. The electronic facilitator shall establish rules and regulations governing the use of electronic signatures and authentication. The electronic facilitator shall not establish rules or regulations that seek to apportion fault or impose or limit liability relating to the use of electronic signatures.

2. In accordance with this section unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand."

New York State Technology Law § 302(3) provides, "3. 'Electronic signature' shall mean an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record."

22 NYCRR § 202.5-b provides rules for electronic filing within the New York State Supreme Court:

"(a) Application. (1) On consent, documents may be filed and served by electronic means in Supreme Court in such civil actions and in such counties as shall be authorized by order of the Chief Administrator of the Courts and only to the extent and in the manner provided in this section.

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(ii) NYSCEF shall mean the New York State Courts Electronic Filing System and the NYSCEF site shall mean the New York State Courts Electronic Filing System website located at www.nycourts.gov/efile;

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(e) Signatures.

(1) Signing of a document. An electronically filed document shall be considered to have been signed by, and shall be binding upon, the person identified as a signatory, if:

(i) it bears the physical signature of such person and is scanned into an electronic format that reproduces such signature; or

(ii) the signatory has electronically affixed the digital image of his or her signature to the document; or

(iii) it is electronically filed under the User ID and password of that person; or

(iv) in a tax certiorari action in which the parties have stipulated to this procedure, it is an initiating document that is electronically filed without the signature of the signatory in a form provided above in this subparagraph, provided that, prior to filing, the document is signed in full in hard copy (which hard copy must be preserved until the conclusion of all proceedings, including appeals, in the case in which it is filed); or

(v) in a small claims assessment review proceeding, it is a petition recorded by the NYSCEF site upon the filing of a text file as provided in subdivision (b)(1) of this section, provided that prior to filing, the document was signed in full in hard copy (which hard copy must be preserved until the conclusion of all proceedings in the matter, including article 78 review and any appeals, and must be made available during the proceeding upon request of the respondent or the court); or

(vi) it otherwise bears the electronic signature of the signatory in a format conforming to such standards and requirements as may hereafter be established by the Chief Administrator."

Upon review of Defendant's Affirmation it is not signed as required by 22 NYCRR § 130-1.1a as Defendant's name is merely typed twice, with one signature on top of the other, which does not comply with the directives set forth in 22 NYCRR § 202.5-b. Tellingly, this mere typing of Defendant's name twice departs from the second Affirmation submitted by Defendant (NYSCEF Doc. No. 224) in opposition to Motion Sequence #8 which does comply with the applicable rules.

Based upon the foregoing, the Court must disregard Defendant's Affirmation entirely and address the Affirmation of Defendant's Attorney, which was also filed twice (NYSCEF Doc. No. 193 & 197) (hereinafter "Defendant's Attorney Affirmation"). To the extent that Defendant's Attorney Affirmation includes facts which are not based on the personal knowledge of Defendant's attorney, such factual allegations will be disregarded by the Court (Skinner v. City of [*3]Glen Cove, 216 AD2d 381 [2d Dept 1995]).

2. Defendant's Request to Hold Plaintiff in Criminal Contempt

New York State Judiciary Law § 756 sets forth the procedure by which a movant may seek to hold a party in contempt:

"An application to punish for a contempt punishable civilly may be commenced by notice of motion returnable before the court or judge authorized to punish for the offense, or by an order of such court or judge requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense. The application shall be noticed, heard and determined in accordance with the procedure for a motion on notice in an action in such court, provided, however, that, except as provided in section fifty-two hundred fifty of the civil practice law and rules or unless otherwise ordered by the court, the moving papers shall be served no less than ten and no more than thirty days before the time at which the application is noticed to be heard. The application shall contain on its face a notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both, according to law together with the following legend printed or type written in a size equal to at least eight-point bold type:

WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT."

Where a motion seeking criminal contempt does not include the warning and notice provisions required by Judiciary Law § 756 the application must be denied (Board of Managers of Brightwater Towers Condominium v. M. Marin Restoration, Inc., 206 AD3d 605 [2d Dept 2022]). Strict compliance to the statutory requirements is required as dismissal is warranted even in the event where a motion seeking criminal contempt includes the required warning but does not include the required notice provision (Mente v. Wenzel, 192 AD2d 862 [3d Dept 1993]).

Here, Motion Sequence #7 requests Plaintiff to be held in criminal contempt and upon inspection, does not comply with the warning and notice requirements of Judiciary Law § 756 due to the inclusion of two wrong names of the individual for whom punishment for contempt is sought:

"WARNING! YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT. THE PURPOSE OF THIS HEARING IS TO PUNISH THE DEFENDANT, [Redacted], FOR CONTEMPT OF COURT, AND SUCH PUNISHMENT MAY CONSIST OF FINE, IMPRISONMENT, OR BOTH ACCORDING TO THE LAW. THE PURPOSE OF THE HEARING IS TO PUNISH THE ACCUSED FOR A CONTEMPT OF COURT, AND SUCH PUNISHMENT MAY CONSIST OF FINE OR IMPRISONMENT OR BOTH ACCORDANCE TO LAW"

While it may be argued that Motion Sequence #7 includes language that substantially complies with Judiciary Law § 756 aside from including the name "[Redacted]" versus the Plaintiff, due to the request for criminal contempt carrying with it the potential of severe penalties including imprisonment, even a slight deviation from the statutory requirements is fatal and requires dismissal.

Based upon the foregoing, due to Defendant's failure to comply with Judiciary Law § 756, Defendant's application to hold Plaintiff in criminal contempt is denied.

3. Defendant's Request For an Award from Plaintiff For $9,983.02 For Balance of Prior Rental Arrears

"A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation" (Meccio v. Meccio, 76 NY2d 822 [1990]). Where a settlement agreement that is incorporated but not merged into a judgment of divorce is "clear and unambiguous on its face," the parties' intent will be determined "from within the four corners of the instrument" (Id.). "An ambiguity exists only if the contract is susceptible to more than one reasonable interpretation" (Nappy v. Nappy, 40 AD3d 825 [2d Dept 2007]). "A court's fundamental objective in interpreting a contract is to determine the parties' intent from the language employed and to fulfill their reasonable expectations" (Landmark Ventures, Inc. v. H5 Tech., Inc., 152 AD3d 657 [2d Dept 2017]). An unambiguous agreement "must be enforced according to the plain meaning of its terms" (MHR Capital Partners LP v. Presstek, Inc., 12 NY3d 640 [2009]).

Here, the parties entered into Stipulation #2 which is a binding contract and includes terms which were clear and unambiguous on their face setting forth Plaintiff's obligations to provide rental arrears for an amount certain by a date certain, which the record confirms was not fully complied with as Plaintiff failed to provide the entire agreed upon amount to Defendant.

Stipulation #2 provides the following with respect to the parties' agreement as to Plaintiff's payment of what the parties categorized as rental arrears:

"THE COURT . . . I am simply just asking now, sir, if you are still in agreement to pay the $15,600 within six months for any arrears for the fair use and occupancy of that apartment.

If that's the case, are you willing to withdraw the Orders to Show Cause that are before me? Then we can proceed with this settlement.

[Redacted]: Six months, it is way too much. Can I extend the time for paying it? It is way too much money. I cannot pay it.

THE COURT: How about December 31st, will you agree to that?

[Redacted]: Yes.

THE COURT: You will have until the end of the year, sir.

[Redacted]: Yes, okay." (Tr. at 105:2-17)

After Plaintiff confirmed his agreement to the settlement terms reached between the parties and placed upon the record, he was subject to an allocution by the Court:

"THE COURT: So, sir, did you listen to the entire agreement that was placed upon the record pertaining to all issues beyond custody and access today?

[Redacted]: Yes, I did.

THE COURT: Did you understand everything that was stated?

[Redacted]: Yes, I did.

THE COURT: You are appearing here without an attorney today. Are you doing so freely and voluntarily?

[Redacted]: Yes.

THE COURT: And you know that you have the ability to have an attorney?

[Redacted]: Yes.

THE COURT: But you are proceeding as a self-represented litigant?

[Redacted]: Yes.

THE COURT: Are you entering into the agreement freely and voluntarily?

[Redacted]: Yes.

THE COURT: Do you feel that you have been forced, threatened, or coerced by anybody?

[Redacted]: No.

THE COURT: Are you under the influence of any alcohol, drugs, or medication?

[Redacted]: No.

THE COURT: Is there anything else that the court should be aware of that is impairing your ability to proceed here?

[Redacted]: No.

THE COURT: And you understand that by agreeing into this settlement, you are waiving a trial or hearing before the court and you are withdrawing the pending Orders to Show Cause?

[Redacted]: Yes." (Tr. at 105:17-25; 106:1-25; 107:1-3)

Defendant represented that Plaintiff provided payment towards this amount in the sum of $5,617.97, asserting a balance owed of $9,983.02 (NYSCEF Doc. 193 ¶ 20). While Plaintiff's Affirmation confirms, "I agreed to the $15,600 settlement figure for the back rent on the [Redacted] apartment," but then notes, "based on assurances from Defendant's attorney (under direction from the judge in open court on May 10, 2023) that Defendant would negotiate and address the issues outlined below (and above) in good faith."^[FN4] (NYSCEF Doc. No. 214 ¶ 3a). Plaintiff's submissions appear to conflate the issue of the "back rent" for which the parties agreed would be resolved pursuant to the $15,600.00 payment from Plaintiff to Defendant as set forth above, and other separate issues for which he seeks "credits."

While Plaintiff is correct that the Court Transcript reflects certain disputes having remained unresolved between the parties at the conclusion of the conference, Plaintiff is incorrect that the resolution of any of the issues placed upon the record, followed by his allocution, were contingent upon any remaining unresolved issues being negotiated and settled pursuant to additional terms. The record clearly refutes this and to the extent additional issues remain unresolved they must be addressed after having been appropriately brought to the Court's attention by proper application and then addressed individually and in turn. It is entirely incorrect that Plaintiff seeks to engage in self-help through non-compliance with this particular agreement due to claims he asserts against Defendant.

Accordingly, based upon the foregoing, Defendant is awarded, as and for the balance of the rental arrears agreed to in Stipulation #2, the sum of $9,982.03 from Plaintiff, which shall be paid by Plaintiff to Defendant by August 10, 2024, by certified bank check to be received in-[*4]hand by Defendant's counsel by that date and to the extent the Plaintiff has failed to comply with this directive, Defendant has leave of the Court to file on notice of settlement to Plaintiff's counsel a proposed money judgment for the then unpaid amount.

4. Defendant's Request For Order to Compel Plaintiff to Pay his share of the Transcript fee For the Court Transcript dated May 10, 2023 in the sum of $475.00

Pursuant to the Court's directives set forth on May 10, 2023, as noted in the so ordered Court Transcript filed as NYSCEF Doc. No. 182, the Court provided clear instructions for the Court Transcript to be ordered and the manner in which it would be paid (Tr. at 108:10-23):

"THE COURT: Again, [Redacted], I will ask that you order a copy of the transcript, submit it to me. To the extent that you want to present a short form order bullet pointing the issues, I am agreeable to signing that as well. Just please provide it on notice to the plaintiff.

[Redacted]: Yes, Your Honor. The cost of the transcript 50/50, Your Honor?

THE COURT: Yes. You will pay for it first and seek reimbursement from the plaintiff. Provide him with an invoice.

[Redacted]: Yes, Your Honor, I will do that."

Defendant asserts that she paid the entire invoice for the Court transcript in the amount of $950.00, was entitled to a fifty percent reimbursement from Plaintiff in the amount of $475.00 and never received such reimbursement. In support of her application Defendant submits as Exhibit B to Motion Sequence #7 proof of electronic payment of $950.00 to Court Reporter [Redacted] on May 11, 2023 (NYSCEF Doc. No. 196).

Upon review of Plaintiff's opposition to Motion Sequence #7, Plaintiff asserts that he has made this payment as part of a payment of $5,617.97 to Defendant, but fails to provide proof of the same.

Based upon the foregoing, Defendant is awarded from Plaintiff as and for half of the cost of the Court Transcript fee for the Court Transcript for the Court appearance on May 10, 2023, $475.00 which shall be paid by Plaintiff to Defendant by August 10, 2024, by certified bank check to be received in-hand by Defendant's counsel by that date and to the extent the Plaintiff has failed to comply with this directive, Defendant has leave of the Court to file on notice of settlement to Plaintiff's counsel a proposed money judgment for the then unpaid amount.

5. Defendant's Request for Order Directing Plaintiff to Pay $494.00 for Rent Arrears Accrued Following Stipulation #2

Stipulation #2 provides the following with respect to the parties' agreement as to Plaintiff's continued occupancy of an apartment in the former marital domicile, the manner within which he would provide rent for such occupancy and the manner by which Defendant would ensure that the premises are habitable:

"THE COURT: Sir, are you willing to move out by September 30th and that's a move-out date where the property would have to be in broom clean condition, and with all of your tangible personal property left out, removed from the property?

[Redacted]: Okay, yes, I am willing to do this.

THE COURT: Okay. Sir, you understand that if you agree to do that, that there is not going to be any delays, any motions that are filed with the court, any appeals, and you also agree that a warrant of eviction can be entered by the court simultaneously with the stipulation.

[Redacted]: Yes, that's correct, I do.

THE COURT: With respect to the ongoing occupancy cost of $900 a month, to the extent that there is going to be an inspection by the defendant, [Redacted], as an Officer of the Court, you will make a representation that your client will make sure that the house is habitable?

[Redacted]: Yes, Your Honor. I will get a copy of the inspection report, the repair report, and I will share it with [Redacted]. I will discuss the repairs that will be made but we are asking that he start paying rent as of May 1st.

[Redacted]: I have no objection to paying rent as long as the apartment will be fixed.

THE COURT: So the rent is due on May 1st. It is now May the 10th. You will have until May 15th to pay May's rent.

[Redacted]: Yes."

Defendant asserts that Plaintiff "shorted the Defendant by $494.00" before he left the apartment (NYSCEF Doc. No. 193 ¶ 26). Defendant fails to articulate what, if any rent was paid by Plaintiff to Defendant for rent of the apartment, and how the alleged arrears of $494.00 was calculated. Plaintiff claims that Defendant breached Stipulation #2 by failing to maintain the subject apartment that remained uninhabitable (NYSCEF Doc. No. 213 ¶ 22); (NYSCEF Doc. No. 214 ¶¶ 3, 17-25). Other than the uncorroborated statements of Plaintiff, no proof has been presented to the Court for a determination to be made by the Court that the subject apartment is uninhabitable. Plaintiff provides Exhibit 9 (NYSCEF Doc. No. 223) as his asserted proof of payment of rent which he claims totals $4,500.00 in rent for the period of May 2023 through September 2023, which includes the following checks and corresponding copies of utility bills referencing reductions:

Date	Check #	Payor	Payee	Memo	Amount
5/15/23	[Redacted]	[Redacted]	[Redacted]	Rent May $900-$118.83 utilities	$781.17
[*5]7/1/23	[Redacted]	[Redacted]	[Redacted]	Rent June $900-133.93 utilities	$766.07
7/25/23	[Redacted]	[Redacted]	[Redacted]	Rent July $900-$146.22 utilities	$733.78
8/15/23	[Redacted]	[Redacted]	[Redacted]	Rent August $900-$646.83 utilities	$253.17
9/29/23	[Redacted]	[Redacted]	[Redacted]	Rent September $900-$406.32 utilities	$493.68
Total Paid: $3,027.87

Pursuant to the terms of Stipulation #1 pertaining to Defendant receiving ownership of the subject property, the limited liability company holding title to the property ([Redacted]) would be transferred to Defendant after which she would be responsible for all costs associated with the property including without limitation payment of all utilities without exception. (NYSCEF Doc. No. 16, Page 38, Lines 1-19). Plaintiff was then permitted to remain in an apartment within the premises as a renter in consideration of payment to Defendant of $900.00 per month, maintenance of the property, and maintenance of renter's insurance. (NYSCEF Doc. No. 16, Page 39, Lines 1-12).

Pursuant to the terms of Stipulation #2 pertaining to Plaintiff's occupancy of the subject apartment from May 2023 to September 2023, Plaintiff was required to provide to Defendant monthly rent in the amount of $900.00, making the total rent due for this five-month period from Plaintiff to Defendant $4,500.00, reflecting the same rental amount set forth in Stipulation #1 with no alterations of the terms pertaining to Defendant's responsibility for payment of the utilities of the premises.

Upon review of Stipulation #1, Stipulation #2, and the documents submitted to this Court, Plaintiff complied with his obligations to Defendant for the payment of rent for the apartment for the period of May 2023 through September 2023, through payments made directly to Defendant and for the utilities equating to the balance due to the failure of Defendant to provide payment of same. Notably, Plaintiff's cross motion includes an assertion that Defendant failed to pay the utilities, to which Defendant provides no response.

Based upon the foregoing, Defendant's request for an award of 494.00 from Plaintiff, as and for rent arrears for the period of May 2023 through September 2023, $494.00 is denied.

6. Defendant's Request For An Order Directing Plaintiff to Return Half of Security Deposit to Defendant in the sum of $2,150.00

Defendant asserts that Plaintiff stopped paying rent at the parties' dance studio before he vacated the premises which resulted in the landlord applying the parties' security deposit to make up for Plaintiff's share of the rent obligation, and thus requests an award from Plaintiff in the amount of $2,150.00.

In support of her request, Defendant provides as Exhibit D, (NYSCEF Doc. No. 202) a one-page document entitled "Extension of Lease Agreement" between [Redacted], as landlord; and [Redacted] and [Redacted], as tenants; for the property located at [Redacted]; for the occupancy period of March 1, 2022 through February 28, 2023; with a rent of $13,200.00 for the entire period; dated March 1, 2022. The Court notes that nowhere in this document is there any mention of a security deposit required to be paid by the tenants to the landlord.

In further support of her request, Defendant provides Exhibit C, (NYSCEF Doc. No. 201) which is a check payable to [Redacted] from the parties; check number [Redacted]; date illegible; for the amount of $3,600.00; with a memo that is partially illegible but from which the Court can decipher, "security deposit for [Redacted] . . . " Defendant does not provide a manner by which she calculated the amount.

Plaintiff asserts that he initially rented the premises in 2003 referring the Court to Exhibit 7, (NYSCEF Doc. No. 221) consisting of multiple lease documents. He claims the parties' initial security deposit was $3,600.00 paid out of the parties' joint account, which he confirms a copy of which is included in Exhibit C. Plaintiff further asserts that he vacated the premises in February 2024 and negotiated a return of $1,400.00 from the landlord for his share of the security deposit, referring to Exhibit 7 (NYSCEF Doc. No. 7) being a copy of the check.

Defendant then asserts in her affirmation in opposition to Plaintiff's cross motion that while the initial security deposit was $3,600.00, it increased to $4,150.00 by 2024, but provides no compelling evidence to support this claim, nor to support her claim that Plaintiff failed to pay his portion of the rent for the studio.

Based upon the foregoing, Defendant's request for an award from Plaintiff of $2,150.00 for rental arrears and/or a portion of the security deposit for the studio space is denied.

7. Defendant's Request for Award of Attorneys' Fees of $5,000.00

The Appellate Division Second Department has noted how a trial court should determine if an award of attorneys' fees is warranted in a matrimonial action:

"In a matrimonial action, an award of attorney's fees is a matter committed to the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case (see Prochilo v. Prochilo, 165 AD3d 1304; Patete v Rodriguez, 109 AD3d 595, 599). The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former (see Chesner v. Chesner, 95 AD3d 1252, 1253; Finnan v. Finnan, 95 AD3d 821; Prichep v. Prichep, 52 AD3d 61, 64—65).

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In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, [*6]including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Prochilo v. Prochilo, 165 AD3d 1304; Chesner v. Chesner, 95 AD3d 1252; Prichep v. Prichep, 52 AD3d at 64—65)." (Brockner v. Brockner, 174 AD3d 567, 568 [2d Dept 2019]).

When seeking an award of attorneys' fees, parties are required to submit itemized billing statements as proof of the attorneys' fees incurred, both to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the "extent and value of [the] services" rendered (Yakobowitz v. Yakobowicz, 217 AD3d 733 [2d Dept 2023] [internal citations omitted]).

Here, Defendant requests an award of counsel fees to be awarded from Plaintiff in the amount of $5,000.00. Upon review of the Affirmation of Defendant's Attorney the following pertains to this application:

"30. Plaintiff has no excuse for this financial abuse. I have spent a total of 9.4 hours working on this motion to help Defendant collect this debt.

31.My time consists of discussing this case with my client, reviewing the transcripts, drafting this affirmation, the affidavit and the order to show cause, and reviewing the supporting documents and then filing them. This amounts to a total of $4,230. I have also paid $194 for the February transcript and $46 for the motion fees. This count does not include the time I expended on the February 16, 2024 court appearance.

32.The Defendant agreed to compensate me at an hourly rate of $450, plus pay the expenses. Exhibit F is a copy of our retainer agreement and the statement of client's rights.

33. I ask that the Court award the Defendant $5,000 for her legal fees. The Plaintiff is in contempt of court. My rate is comparable to hourly rate of other attorneys with my level of experience." (NYSCEF Doc. No. 193 ¶¶ 30-33).

While the Court recognizes Defendant has submitted the retainer agreement entered into between Defendant and Defendant's counsel, the Court has not been presented with itemized billing statements as proof of the attorneys' fees incurred, both to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the "extent and value of [the] services" rendered. Based upon the foregoing, Defendant's application for an award of legal fees from Plaintiff is denied.

8. Plaintiff's Request for an Order Declaring Defendant to be the Sole Owner of [Redacted] Nunc Pro Tunc as of March 27, 2021

Pursuant to Stipulation #1, Defendant is to receive sole ownership of [Redacted], with Plaintiff waiving any rights to same (NYSCEF Doc. No. 16, Page 33, Line 33). Defendant confirms that she received ownership of this entity under Stipulation #1 (NYSCEF Doc. No. 224 ¶ 14). Plaintiff asserts that Defendant continues to refuse to execute the documents necessary to transfer sole ownership of the entity to Plaintiff. Defendant fails to address what, if any, transfer documents she has executed with Plaintiff to effectuate this transfer and/or if any documents [*7]remain necessary to be executed to effectuate this transfer.

Plaintiff's request is granted to the extent Defendant shall file on NYSCEF by August 10, 2024 either: (1) copies of documents reflecting the transfer of [Redacted], to Defendant as sole owner, or; (2) copies of all documents needed to effectuate the transfer of [Redacted], to Defendant as sole owner which shall be fully executed by Plaintiff and returned to Defendant's counsel by overnight delivery, with copies filed with the Court along with proof of service, by August 20, 2024.

9. Plaintiff's Request for an Order Compelling Defendant to Pay $33,000.00 Pertaining to the HELOC, or to Refinance

Pursuant to Stipulation #1 (NYSCEF Doc. No. 16, Page 41, Lines 14-20) the parties acknowledged the existence of a home equity line of credit loan for which they would remain equally liable for the paydown and satisfaction of that existing loan, for which they would make equal timely payments until satisfied. Plaintiff claims Defendant has failed to provide payments resulting in his having to make $1,455.94 due to interest and late payments (NYSCEF Doc. No. 214, ¶ 3c). Plaintiff directs the Court to Exhibit 3 (NYSCEF Doc. No. 217) including a chart appearing to be of Plaintiff's creation, text messages, and bank statements. Defendant asserts that she has complied with her obligations pertaining to the payment of the loan, providing no supporting proof.

Based upon the Court's review of the documents presented, Plaintiff failed to provide support for his claim that Defendant has breached Stipulation #1 by failing to comply with her obligations pertaining to the payment of the loan and therefore the request for the entry of an order pertaining to the loan is denied.

Accordingly, it is hereby

ORDERED that based upon the foregoing, due to Defendant's failure to comply with Judiciary Law § 756, Defendant's application to hold Plaintiff in criminal contempt is denied; and it is further

ORDERED that Defendant is awarded from Plaintiff, as and for half of the cost of the Court Transcript fee for the Court Transcript for the Court appearance on May 10, 2023, $475.00 which shall be paid by Plaintiff to Defendant by August 10, 2024, by certified bank check to be received in-hand by Defendant's counsel by that date and to the extent the Plaintiff has failed to comply with this directive, Defendant has leave of the Court to file on notice of settlement to Plaintiff's counsel a proposed money judgment for the then unpaid amount; and it is further

ORDERED that Defendant is awarded, as and for the balance of rent arrears agreed to in Stipulation #2, the sum of $9,982.03 from Plaintiff, which shall be paid by Plaintiff to Defendant by August 10, 2024, by certified bank check to be received in-hand by Defendant's counsel by that date and to the extent the Plaintiff has failed to comply with this directive, Defendant has leave of the Court to file on notice of settlement to Plaintiff's counsel a proposed money judgment for the then unpaid amount; and it is further

ORDERED that Defendant's is request for an award of $494.00 from Plaintiff, as and for rental arrears for the period of May 2023 through September 2023, is denied; and it is further

ORDERED that Defendant's request for an award from Plaintiff of $2,150.00 for rental arrears and/or a portion of the security deposit for the studio space is denied; and it is further

ORDERED that Defendant's application for an award of legal fees from Plaintiff is denied; and it is further

ORDERED that Defendant shall file on NYSCEF by August 10, 2024 either: (1) copies of documents reflecting the transfer of [Redacted], to Defendant as sole owner, or; (2) copies of all documents needed to effectuate the transfer of [Redacted], to Defendant as sole owner which shall be fully executed by Plaintiff and returned to Defendant's counsel by overnight delivery, with copies filed with the Court along with proof of service, by August 20, 2024; and it is further

ORDERED that Plaintiff failed to provide support for his claim that Defendant has breached Stipulation #1 by failing to comply with her obligations pertaining to the payment of the loan and therefore the request for the entry of an order pertaining to the loan is denied.

ORDERED that by July 30, 2024, Plaintiff's counsel shall serve a copy of this Decision and Order with Notice of Entry by NYSCEF filing, and by that date shall file proof of service with the Court; and it is further

ORDERED that any relief requested not expressly granted herein is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: July 25, 2024
White Plains, New York
ENTER:
Hon. James L. Hyer, J.S.C.

Footnotes

Footnote 1:This document was filed twice, as NYSCEF Doc. Nos. 193 and 197.

Footnote 2:This document was filed twice, as NYSCEF Doc. Nos. 194 and 198.

Footnote 3:Exhibit A was filed twice, as NYSCEF Doc. Nos. 195 and 199. Exhibit B was filed twice, as NYSCEF Doc. Nos. 196 and 200.

Footnote 4:The Affirmation of Plaintiff's counsel incorrectly asserts that "Plaintiff was ordered to pay $15,600 in arrears on that rent, despite that the apartment was never habitable," as the Plaintiff agreed to pay this amount pursuant to a stipulation reached between the parties on the record followed by an allocution. (NYSCEF Doc. No. 213 ¶ 21)