The following papers were read on these post-settlement applications for counsel fees submitted by Plaintiff and Defendant:

The parties were married in a religious ceremony on April 30, 2011. This was the first marriage for both parties. Two children were born of the marriage, C.A. (d.o.b. ******) and M.A. (d.o.b. *******) (the "Children"). Plaintiff commenced this action for divorce by filing a [*2]Summons with Notice on June 19, 2018 (NYSCEF DOC No. 1). As required by DRL § 236, the Summons with Notice was served with a Notice of Entry of Automatic Orders, precluding the parties, inter alia, from transferring, encumbering, assigning, removing, withdrawing or in any way disposing of real estate jointly held by the parties. Defendant appeared in the action by his attorney, John A. Gemelli, Esq. of Gemelli, Gross & Dujmic, P.C. on May 7, 2019 (NYSCEF DOC No. 59).

The parties own the marital residence located at **********, Hartsdale, New York ("Marital Residence") as tenants by the entirety. During the marriage, the Plaintiff acquired title to the real property located at *** V. Street, Brooklyn, New York ("V. Street Property") and the Defendant acquired title to the real property located at **** M. Avenue, Brooklyn, New York ("M. Avenue Property"). Plaintiff claimed that a condominium located at ********* Amityville, New York ("Amityville Property") was her separate property obtained prior to the marriage.

Throughout the action, Plaintiff has been represented by Johnson & Cohen and Defendant has been represented by Kulakis & Christoforatos, Esqs., Gemelli Gross & Dujmic, P.C., Self-represented, Joseph S. Gulino, Esq., and Reibling, & Payton, PLLC. Currently, Defendant is represented by Gemelli, Gross & Dujmic, P.C.

By Order to Show Cause, filed on November 14, 2018, and signed on November 16, 2018, (Motion Sequence No.1) the Plaintiff sought to restrain the Defendant from selling or transferring title of the real property located at M. Avenue, Brooklyn, New York, and prohibiting him from entering any contracts to sell same (NYSCEF DOC Nos. 2 and 16).

On December 19, 2018, the parties entered into an interim Stipulation Regarding Sale of the M. Avenue Property. This Stipulation ("M. Avenue Stipulation") was So-Ordered on December 21, 2018 (Colangelo, J.S.C.) (NYSCEF DOC No. 20). Pursuant to the Stipulation, the parties agreed, inter alia, to list the M. Avenue Property for $670,000.

On April 22, 2019, Carol W. Most, Esq. was appointed Attorney for the Children ("AFC").

By Order to Show Cause filed on May 8, 2019, and signed on May 9, 2019, (Motion Sequence No. 2), Plaintiff sought an Order directing Defendant, inter alia, to pay Plaintiff's interim counsel fees in the sum of $50,000.00, directing Defendant to pay interim counsel fees to Plaintiff's expert accountant, Gerald DeFeo, CPA, in the sum of $20,000.00, and to cooperate with Mr. DeFeo's additional document requests (NYSCEF DOC Nos. 34, 57).

On June 11, 2019, in full resolution of Motion Sequence No. 2, the parties entered into a Stipulation agreeing that the "parties' neutral expert accountant" would be Gerald DeFeo, CPA, and Defendant would pay Plaintiff's counsel fees in the amount of $20,000.00 and $5,000.00 to Mr. DeFeo as and for expert fees. Future fees for Mr. DeFeo would be shared 75% Defendant, 25% Plaintiff. The Stipulation was So-Ordered on June 12, 2019 (Everett, J.S.C.) (NYSCEF DOC No. 72). Notice of Entry was filed on June 13, 2019 (NYSCEF DOC No. 73).

By letter to the Court dated July 8, 2019 (NYSCEF DOC No. 75), Plaintiff's counsel sought a pre-motion conference alleging the Defendant stopped paying the mortgages on the V. Street Property and the Amityville Property, claiming that he would no longer pay these mortgages because they were both in the Plaintiff's name. Plaintiff further alleged that Defendant had taken the M. Avenue Property off the market without notice to Plaintiff, had failed to pay Mr. DeFeo to continue his work, and had stopped paying all childcare-related expenses. By letter to the Court dated October 17, 2019, (NYSCEF DOC No. 77), Plaintiff's counsel again sought a pre-motion conference alleging, inter alia, that Defendant's failure to pay his 75% share of Mr. [*3]DeFeo's fees in violation of the parties' June 2019 stipulation, was preventing Mr. DeFeo from preparing his report. Plaintiff claimed Defendant was also refusing to cooperate with selling the M. Avenue Property.

The parties entered into a second So-Ordered Stipulation regarding the M. Avenue Property, this time attaching a contract for sale for $640,000.00. The Stipulation was So-Ordered on November 12, 2019 (Everett, J.S.C.) (NYSCEF DOC No. 86) and entered on November 13, 2019 (NYSCEF DOC No. 87).

On October 24, 2019, the parties entered into a So-Ordered Stipulation regarding Defendant's access to the Children (Everett, J.S.C.) (NYSCEF DOC No. 81). Pursuant to the Stipulation, the parties agreed that overnight visitation for the Defendant would "be re-visited November 1, 2019." (id.)

On December 14, 2019, Joseph S. Gulino, Esq. filed a Notice of Appearance for the Defendant. By letter to the Court dated December 19, 2019 (Everett, J.S.C.) (NYSCEF DOC No. 92), Mr. Gulino stated that he represented Defendant and Defendant's parents in pending litigation over a parcel of land that was also at issue in the divorce action. He sought a pre-motion conference in furtherance of an application to quash Plaintiff's subpoena seeking a non-party deposition of Defendant's mother (NYSCEF DOC No. 92).

A Trial Readiness Order was filed on December 23, 2019 (NYSCEF DOC No. 95) and a trial date was set for April 20, 2020. Defendant filed a Note of Issue on December 30, 2019 (NYSCEF DOC No. 96).

By letter to the Court dated December 22, 2019 (NYSCEF DOC No. 94), Mr. Gulino sought a pre-motion conference to discuss Defendant's potential application for temporary custody of the Children, or, in the alternative, to expand Defendant's access to include overnights. This letter was in response to Defendant's claim that Plaintiff refused to make the children available on a scheduled day. Defendant claimed that Plaintiff called the police in anticipation of his arrival, falsely claiming he was intoxicated. Defendant accused Plaintiff of custodial interference.

By Order to Show Cause filed on January 9, 2020, and signed on January 10, 2020 (Lubell, J.S.C.) (Motion Sequence No. 3), Plaintiff sought, inter alia, to disqualify Defendant's attorney from representing him due to a conflict of interest; to strike the Note of Issue as premature (as discovery was not complete); for permission to conduct depositions of non-party witnesses as well as demand documentation regarding Defendant's home in Ossining, New York and the sale of the M. Avenue Property; to appoint Plaintiff as receiver to effectuate the sale of the M. Avenue Property if it did not sell by a date certain; direct the Defendant to pay 50% of all costs associated with the Amityville Property; direct the Defendant to pay Mr. DeFeo's fees owed and cooperate with Mr. DeFeo's request for an additional interview to finalize his report; and direct the Defendant to pay Plaintiff's counsel fees in the amount of $50,000.00 (NYSCEF DOC Nos. 97, 123). In his Affirmation in Support, Plaintiff's counsel noted that Plaintiff had relied upon the sale of the M. Avenue Property to pay her counsel fees and Defendant intentionally delayed the sale in violation of the parties' stipulations (Affirmation in Support by Mitchell Y Cohen, Esq. ¶10, NYSCEF DOC No. 99).

By Order to Show Cause dated August 20, 2020 (Motion Sequence 4), Defendant sought an Order awarding 50/50 split custody of the Children pending a hearing, or, alternatively, a more expansive access schedule which included overnights, a holiday parenting schedule and two consecutive weeks of summer visitation (NYSCEF DOC No. 156).

Mr. Gulino withdrew from representation of Defendant during the hearing to determine Motion Sequence No. 3. The Court issued an Order dated August 21, 2020 (Lubell, J.S.C.) which decided the following issues: denied the motion to strike the Note of Issue; permitted leave for Plaintiff to conduct non-party depositions; directed Defendant to produce documentation relating to the M. Avenue Property and the Ossining house; directed Defendant to pay 50% of all costs associated with the Amityville Property; directed Defendant to pay the fees owed to Mr. DeFeo and to cooperate with an additional interview. Plaintiff's requests to be appointed receiver of the M. Avenue Property and for counsel fees in the amount of $50,000.00 were held in abeyance pending responsive papers by Defendant's new counsel, Stephen J. Riebling, Esq. (NYSCEF DOC No. 160).

By Custody Stipulation of Settlement, So-Ordered on March 12, 2021 (Lubell, J.S.C.), and entered on April 9, 2021, the parties agreed to joint custody, Plaintiff having primary residential custody, and a comprehensive access schedule which included overnights for the Defendant (NYSCEF DOC Nos. 206, 207). Plaintiff was authorized to relocate to New Jersey (id.).

By Order to Show Cause dated February 3, 2021 and signed on February 4, 2021 (Lubell, J.S.C.), (Motion Sequence No. 5), Plaintiff sought an Order directing Defendant to pay the Plaintiff the sum of $2,363.86, as his one-half share of the Amityville Property expenses, directing the Defendant to pay his agreed-upon 75% share of the childcare expenses totaling $8,551.44, and directing the Defendant to pay Plaintiff's counsel fees in the amount of $2,500.00 for bringing this application (NYSCEF DOC Nos. 182, 200).

Pendente Lite counsel fees were awarded to the Plaintiff as part of Motion Sequence No. 3 on September 27, 2021, in the amount of $25,000.00 on a request of $50,000.00 (Lubell, J.S.C.) (NYSCEF DOC Nos. 215, 216).

On February 28, 2022, in her Statement of Disputed Issues for Trial, Plaintiff reported that she earned $109,071 in 2021 (NYSCEF DOC No. 220). In his income analysis, Mr. DeFeo determined Defendant's income in 2019 to be $442,136 for support purposes (NYSCEF DOC No. 219).

By Order to Show Cause filed March 17, 2022, and declined to be signed on March 18, 2022 (Motion Sequence No. 6), R. A., Defendant's mother, through her counsel, Joseph Gulino, Esq. brought a non-party intervenor action against both parties, seeking a stay of the divorce proceeding pending resolution of the Kings County Supreme Court actions regarding ownership of the M. Avenue Property and the V. Street Property ("Brooklyn Actions").

By So-Ordered Stipulation dated June 16, 2022, the parties consented to R.A.'s application to intervene in the matrimonial action (Greenwald, J.S.C.) (NYSCEF DOC No. 257, 258).

On January 29, 2024, after trial, the Court issued a Decision & Order on the record, So-Ordered on November 21, 2024, dismissing the Intervenor, R. A.'s constructive trust claim (NYSCEF DOC No. 316).

On November 14, 2024, on the eve of the matrimonial financial trial, the parties entered into a Stipulation of Settlement ("Agreement"), wherein both agreed to waive maintenance, be bound by the March 12, 2021, So-Ordered Custody Stipulation of Settlement and added a more comprehensive schedule for visitation. The Defendant's income for purposes of child support was $350,000.00 per year, and the Plaintiff's was $125,000.00 per year. Child support percentages were allocated 74% to Defendant, 26% to Plaintiff. The presumptively correct child [*4]support based on income over the cap was $6,939.73, but the parties agreed to deviate from the presumptively correct amount with Defendant to pay $6,000.00 per month to Plaintiff.

The Defendant waived his right to answer the Complaint by Affidavit of Defendant in Action for Divorce on December 10, 2024, and consented to the matter being immediately placed on the uncontested matrimonial calendar.

Pursuant to their Agreement, the parties agreed to submit written affirmations of legal services to the Court for final determination of counsel fees to the Plaintiff. In the instant application, Plaintiff seeks the entire balance of her legal fees owed, in the amount of $409,749.18 to be paid by Defendant. Defendant's application seeks a reallocation of same.

Plaintiff's Argument

Plaintiff states that she has incurred over $548,705.18 in legal fees during the litigation. With an outstanding balance of $409,749.18, she avers that Defendant has paid only $45,000.00 of her legal fees. Plaintiff argues that Defendant is responsible for much of the delay throughout this six-and-a-half-year divorce action. She claims that Defendant has repeatedly engaged in behavior that widened the financial disparity between the parties, and his "disrespect for the legal process [has] caused innumerable delays and hundreds of thousands of dollars in unnecessary legal fees ...." (Affirmation in Support, ¶2, NYSCEF DOC No.351). Due to Defendant's malfeasance, Plaintiff claims that it is appropriate that he, the undisputed monied spouse, pay the entirety of her outstanding fee balance (id.).

Plaintiff cites many instances where the Defendant engaged in unreasonable and dishonest conduct. First, in November 2018, Defendant listed the M. Avenue Property for sale without her knowledge or consent, forcing her to bring an emergency application to enforce the Automatic Orders (Motion Sequence No. 1). The parties ultimately stipulated on December 18, 2018, that the subject property was a marital asset and that they would list it for sale. However, the Defendant failed to honor the stipulation and sell the property (see id. at ¶6). The parties then entered into a superseding stipulation on October 31, 2019, almost a year later. This time, there were identified buyers and the parties agreed that they would equally divide the net proceeds. Again, the Defendant failed to close on the sale of this property and, as of the present date, the property remains unsold (see id.).

Second, Plaintiff alleges further evidence of Defendant's bad faith during this litigation. After stipulating twice to the contrary, in a complete reversal of his position, Defendant claimed that the M. Avenue Property and the V. Street Property belonged to his mother and should be returned to her (see id. at ¶13). Then, Defendant hired Joseph Gulino, Esq. to represent him in the divorce, while the attorney also represented Defendant's mother in Kings County Supreme Court, seeking a constructive trust against Plaintiff and Defendant, creating a clear conflict of interest (see id. at ¶7). When the conflict was pointed out to the Defendant, he refused to fire Mr. Gulino and Mr. Gulino refused to withdraw (see id.at ¶9). This necessitated an application (Motion Sequence No. 3) seeking disqualification of Mr. Gulino. The Defendant and Mr. Gulino's failure to acknowledge the readily apparent conflict of interest led the Court to conduct a trial, during which Mr. Gulino finally agreed to withdraw (id.) Plaintiff argues, "[w]hile I was ultimately successful, it cost well over one hundred thousand dollars to deal with Defendant's and his mother's positions and meritless claims at trial" (see id. at ¶14).

Moreover, in addition to the aforementioned acts demonstrating Defendant's bad faith, Plaintiff's counsel points out that her office was "forced to issue no fewer than 37 subpoenas, [*5]inclusive of discovery and trial subpoenas to entities and individuals in order to fully obtain the financial information that Defendant failed to produce or actively sought to hide" (Affirmation in Support, by Maureen A. Dunn, Esq, ¶6 NYSCEF DOC No. 352). She also notes that Defendant failed to respond entirely to two trial subpoenas, and only partially responded to a third (id.).

Furthermore, in yet another example of Defendant's dilatory tactics, Plaintiff avers that Defendant's failure to pay his 75% share of childcare and unreimbursed medical expenses necessitated her filing Motion Sequence No. 5 to enforce Defendant's obligations, as well as fixing the Defendant's contribution to the parties' property in Amityville, New York. Plaintiff asserts that "[m]ore unnecessary fees were expended in this motion, simply attempting to ensure that Defendant followed court orders and agreements that he often blatantly violated" (Plaintiff's Affidavit in Support, ¶10).

Lastly, Plaintiff argues that Defendant's dishonesty regarding his business interests and income therefrom caused her to amass significant legal fees (see id. at ¶17). She claims that Defendant pretended for years that he had no ownership interest in R. E. C. Corp, a mortgage brokerage company (id.). When Plaintiff's counsel subpoenaed documents from the company, it was revealed that Defendant's fiancée owned the company, and as an authorized signor, Defendant had issued checks for hundreds of thousands of dollars to himself and to vendors for his personal benefit, including for the installation of an in-ground pool at his new home (see id. at ¶18). According to Plaintiff, Defendant's failure to admit ownership of this company is salient to her counsel fee application because the business generated gross revenue of $4,126,710 in the last three years (see id. at ¶19).

Plaintiff explains that she is a W2 wage earner, with an annual income of $125,499.00, clearly demonstrating that Defendant remains the monied spouse (see id. at ¶22). While, in their Agreement, the parties stipulated that Defendant's salary is $350,000.00 for child support purposes, Plaintiff contends that he earns far more than that (see id.at ¶20). Plaintiff argues this is evident, based inter alia, upon the lavish, frequent, and long vacations the Defendant has taken with first-class accommodations (see id.at ¶21).

Defendant's Argument

In his application, Defendant admits to being the monied spouse, but argues he should not be exclusively responsible for Plaintiff's legal fees. Defendant asserts that Plaintiff has taken unreasonable positions regarding the Children. For instance, Plaintiff "flatly rejected" his November 26, 2018, global settlement offer which proposed joint custody, residential custody to Plaintiff, and alternate weekends, including overnight and two dinners on the weeks that Defendant did not have the weekend. He again attempted to negotiate custody/access in January of 2019, and this time he requested immediate overnight visitation. Then, he sent proposed changes in June of 2019 wherein he agreed to work up to overnight visitation within 6 months and agreed to keep his girlfriend separate from the Children. In September of 2019, Defendant's counsel advised that Defendant was willing to wait until December of 2019, when he moved into his newly purchased home in Ossining to begin overnight visitation (Exhibit C, NYSCEF DOC No. 325). Plaintiff rejected this proposal, "even though under her June 2019 proposal expressly contemplated overnights for the Husband along the same timeline" (Affirmation of Attorney Fees, by John A Gemelli, Esq., ¶¶ 22-24).

The Defendant argues that throughout the litigation, he has consistently requested overnight visitation with the Children and Plaintiff has consistently opposed this with no basis in fact or law. After meeting with the Children, the Attorney for the Children, Carol W. Most, Esq., [*6]agreed that Defendant should have overnight visitation (see id. at ¶ 22). Defendant argues that despite the AFC's position, Plaintiff has taken on the mantra "my way or no way" and has put him through a four-year custody fight, not because of his parental unfitness, "but rather because of her scorn" towards him (see id. at ¶¶ 29, 35).

Defendant argues that it was not until two years after the parties' separated, in October 2019, that Plaintiff finally stipulated to any access schedule. Yet, she unreasonably continued to refuse overnight visitation or a holiday schedule. Even with an access stipulation in place, Plaintiff interfered with Defendant's parenting time by calling the police and making false claims that he was intoxicated. He was forced to take a breathalyzer and a field sobriety test in front of their young children and the police directed Plaintiff to let the children go with Defendant once he passed these tests (see id. at ¶¶25-27). This is just further evidence of Plaintiff's unreasonable positions and dilatory litigation tactics.

Defendant contends that only after seeking Court intervention and assistance from Ms. Most did the Plaintiff finally agree to a Custody Stipulation on March 11, 2021, "three years in the making and on the eve of a custody trial" (see id. at ¶28). Defendant stresses that the Stipulation memorialized a substantially similar agreement to the Defendant's proposals in November 2018. Defendant asserts that he has fought for "every minute of time" with the Children through this four-year custody ordeal (see id. at ¶34-36). This fight was not a result of Defendant's "parental unfitness," but a product of Plaintiff's "true vindictive nature" (see id. at ¶35).

Defendant argues that the parties engaged in a several year battle over his income just for Plaintiff to ultimately waive maintenance in their Agreement. Defendant avers that he made multiple maintenance proposals to the Plaintiff throughout the litigation, and she would consistently reject his numbers (see id. at ¶¶ 38-43). She would demand ever increasing amounts for longer periods of time, based on imputing income to the Defendant that was significantly higher than Mr. DeFeo had in his report (id. at ¶ 39).

Defendant contends that Plaintiff had little incentive to settle the action while she enjoyed him paying her pendente lite maintenance (see id. at ¶44). "At the time of trial, this matter had prolonged for six (6) years and four (4) months, all while the Husband continued to pay for all of the household expenses, in addition to the Wife's car payment and car insurance " (id.) Defendant also notes that the parties settled their litigation on "essentially the same terms the Husband offered in November 2019-5 years ago," minus maintenance. (see id. at ¶60).

Defendant argues that another example of Plaintiff unreasonably delaying the litigation, was her refusal to reveal where she planned to relocate until a relocation hearing was scheduled for the end of February of 2021 (see id. at ¶30). Also, Defendant notes that the parties negotiated obtaining passports for the Children for two years starting in August 2022 and finally applied for them in January of 2024 due to the Plaintiff's lack of cooperation and ongoing unreasonable demands (see id. at ¶¶61-69). Until counsel intervened, Plaintiff refused to switch visitation weekends with the Defendant when his father passed away and he wanted to travel to Puerto Rico for the funeral (see id. at ¶70).

Defendant asserts that it was Plaintiff's intransigence, once again, that made the divorce take an additional three years of negotiating over property ownership. Defendant argues that it was the Plaintiff who incurred debt on the V. Street Property due to mismanagement (see id. at ¶79). He also claims that he was the one who suggested selling both Brooklyn properties and the marital residence with the parties equally dividing the net sale proceeds in April 2021, [*7]September 2021 and February 2022 (see id. at ¶¶80-84). The Defendant alleges that it is Plaintiff's fault that his mother brought an intervenor action which caused each party to incur litigations costs, four days of depositions and six days of trial. Had the Plaintiff just accepted his earlier settlement proposals, which included the sale of the Brooklyn Properties, Defendant avers the parties would have resolved their action three years ago (see id. at ¶¶79-82).

Defendant contends that he should not be responsible for the additional $101,700.00 that Plaintiff incurred because her attorneys raised their hourly rates throughout the divorce action. (see id. at ¶¶ 89-90). In addition to having paid $45,000.00 of Plaintiff's counsel fees, he has also paid Mr. DeFeo and Ms. Most in the combined amount of $18,000.00, plus his own counsel fees of $217,000.00, going Pro Se for a time just to defray "the exorbitant litigation costs" (see id. at ¶¶ 95, 100-102).

He also claims that, although he is the undisputed "breadwinner," this is an oversimplification of the parties' economic circumstances. He notes that he paid all the expenses (mortgage and maintenance) related to the Plaintiff's Amityville Property from date of commencement through December of 2019, because she purposefully omitted the fact that this was her separate property when seeking Court intervention (see id. at ¶101). Then, she sold the property in violation of the automatic orders and he never received credit for his financial contribution to same.

Defendant argues that Plaintiff unduly prolonged the divorce action to keep the Defendant paying the bills and used the Defendant solely as her "ATM machine" (see id. at ¶105). He asserts that she should not be rewarded for her "unreasonable incurrence of debt and litigious conduct" (see id. at ¶106).

"Section 237 of the Domestic Relations Law seeks to 'redress the economic disparity between [a] monied and non-monied spouse' so that 'the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet'" (O'Shea v O'Shea, 93 NY2d 187 [1999]). "The purpose [of DRL § 237] is to 'enable the [less affluent] spouse to carry on or defend the action or proceeding' so that even though the parties [in a matrimonial action] may not have equal bargaining positions, the more affluent spouse should not be afforded further leverage by reason of inequality of representation during the litigation process" (Wyser-Pratte v Wyser-Pratte, 160 AD2d 290 [1st Dept. 1990]).

By statute, there is "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (DRL §237[a]). "In exercising judicial discretion to determine counsel fee applications, the courts must take into account not only the financial circumstances of the parties but the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings unreasonably or engaged in unnecessary litigation. A less-monied spouse should not be expected to exhaust or spend down a prospective or actual distributive award in order to pay counsel fees as the result of unreasonable or excessive litigation conduct by the adverse party. On the other hand, the more affluent spouse should not be treated as an open-ended checkbook expected to pay for exorbitant legal fees incurred by the less affluent spouse through excessive litigation or the assertion of unreasonable positions" (Kaufman v Kaufman, 189 AD3d 31, 74—75 [2d Dept 2020]).

"Where each party pays his or her own counsel out of his or her own funds, each party carries the financial responsibility for the selection of counsel and the litigation choices made over the course of the case. However, the equation is quite different where, even though both [*8]parties may have significant assets, one party has engaged in dilatory or obstructive conduct which has increased the counsel fee obligations of the other party" (Kaufman v Kaufman, 189 AD3d at 74).

"Where a party has asserted unreasonable positions or failed to cooperate in discovery, and thereby increased the cost of the litigation, the court may make a counsel fee award in favor of the offended party or not make, or make a lesser award, in favor of the offending party" (id. at 75) (see also Morille-Hinds v Hinds, 169 AD3d 896, 900 [2019]; Cravo v Diegel, 163 AD3d 920, 923 [2018]; Culen v Culen, 157 AD3d at 933; Samimi v Samimi, 134 AD3d 1010, 1013 [2015]).

Here, Defendant is the undisputed monied spouse, creating the presumption that he should pay counsel fees. Additionally, he has been less than forthright regarding all sources of income, causing delay, and impeding the neutral expert's evaluation, by refusing to pay his retainer and failing to comply with several requests for documentation. Defendant also refused to comply with multiple subpoenas from Plaintiff to reveal his real estate holdings, his business interests and income therefrom, thus unnecessarily prolonging the litigation. It is also clear to this Court that, even though he listed the V. Street and M. Avenue properties as marital assets on his January 1, 2019 Statement of Net Worth (see NYSCEF Doc. No. 25), Defendant's attempts to recast the V. Street and M. Avenue properties from marital to separate properties was disingenuous and inconceivably prolonged the proceedings.

Further, Defendant and his attorney Joseph S. Gulino, Esq. unnecessarily delayed and prolonged this litigation when Mr. Gulino refused to withdraw as counsel for Defendant. Initially, Defendant was represented by Mr. John Gemelli, then in December of 2019, Defendant relieved Mr. Gemelli and retained Mr. Joseph S. Gulino, Esq. In January 2020, Plaintiff moved via Order to Show Cause seeking the disqualification of Mr. Gulino due to a conflict of interest. Notably, Mr. Gulino and his family were family friends with Plaintiff and Defendant. Plaintiff submitted numerous texts between herself and Mr. Gulino of such a nature that warrants disqualification. Further, Mr. Gulino was also representing Defendant's mother, R. A., in several actions that R. A. filed, or threatened to file, against Plaintiff in Kings County Supreme Court regarding the ownership of the V. Street and M. Avenue properties. It was only during the fact-finding hearing regarding the disqualification of Mr. Gulino in late summer of 2020, that he finally withdrew as counsel for Defendant. Interestingly, in 2022, Defendant's mother, R. A., still represented by Mr. Gulino, commenced an interpleader action in this matrimonial action seeking a declaration, under the theory of a constructive trust, that the V. Street and M. Avenue properties, although titled in the names of the parties, were really assets owned by R.A. After trial, on January 29, 2024, this Court dismissed R.A's interpleader action. This Court has no doubt that the actions of Defendant in hiring Mr. Gulino as his counsel and then stubbornly proceeding with Mr. Gulino as his attorney and forcing a hearing on the issue despite clear evidence of a conflict of interest was intentional conduct to cause Plaintiff to incur additional legal fees and to delay and hinder this litigation.

The Court also notes that during the course of this protracted litigation Defendant has had numerous attorneys, (Mr. John Gemelli: 2019, Mr. Joseph Gulino: 2019-2020, Mr. Stephen Riebling: 2020 - 2021, and then Mr. John Gemelli for a second time: 2021- present) and while he currently seeks a legal fee award in the amount of $217,000.00, it is not clear if that is the total amount of legal fees Defendant accrued during the course of this litigation. Defendant has not indicated his total legal fee expenditure for this entire litigation.

On the other hand, Plaintiff, despite the encouragement of the Attorney for the Children, remained entrenched in an unreasonable position, refusing Defendant a consistent access schedule or overnight visitation with the Children for several years without evidence of parental unfitness. Throughout the proceedings, Defendant made reasonable settlement offers for custody and visitation and ultimately, the parties entered into a Stipulation which mirrored the settlement offers made by Defendant. Notwithstanding Plaintiff's recalcitrance to settle the issues of custody and visitation, this Court finds Defendant's conduct throughout the proceedings to be more reprehensible and more significantly contributed to these extraordinarily protracted proceedings. Thus, this Court does not find that Defendant should pay the entirety of Plaintiff's counsel fees since Plaintiff was at least partly responsible for the delay. This Court finds that Defendant should be responsible for the majority of Plaintiff's counsel fees

Therefore, Plaintiff's application for her counsel fees to be paid by Defendant is partially granted to the extent that the Defendant shall pay Plaintiff's attorneys $350,000 which is a large portion, but not the entirety of Plaintiff's outstanding balance. In reaching this determination, this Court has considered that Defendant is the undisputed monied spouse. Although Defendant has asserted that the parties are on equal footing financially due to the equal division of the marital estate, this Court disagrees. Defendant's financial circumstances are still lacking credibility based on conflicting information provided in his updated Statement of Net Worth dated November 13, 2024, and his 2023 tax returns. For instance, Defendant lists monthly expenses of $22,000 on his Statement of New Worth while his 2023 individual income tax return reflects gross income of $50,000. Based on the foregoing, this Court finds that a counsel fee award of $350,000 payable by Defendant to Plaintiff's counsel, Johnson & Cohen, LLP, is reasonable and appropriate considering the totality of the circumstances, including the financial circumstances of the parties and the relative merit of their positions throughout the pendency of this litigation.

All other arguments raised, and evidence submitted by the parties and/or counsel have been considered by the Court notwithstanding the absence of specific reference thereto.

Accordingly, it is

ORDERED that Plaintiff's application for an award of counsel fees is granted in the amount of $350,000; and it is further

ORDERED that Defendant shall pay the counsel fee award in the amount of $350,000 directly to Johnson & Cohen, LLP on or before August 1, 2025; and it is further

ORDERED that upon Defendant's failure to satisfy in full the counsel fee award directed herein, the firm Johnson & Cohen, LLP may file a money judgment against Defendant for any or all of the outstanding legal fees on ten days' notice to Defendant.

The foregoing constitutes the Decision and Order of the Court. Any relief requested and not decided herein is denied.