The following e-filed documents listed on NYSCEF (Motion No. 004) numbered 109-[*2]118, 123, were read on this motion.

Upon the foregoing documents, and on consideration of the oral argument conducted on July 14, 2025, Motion Sequence No. 004 is resolved and therefore, it is hereby,

ORDERED, that Defendant's Motion Sequence No. 004 request for counsel fees is GRANTED and Defendant is awarded counsel fees in the sum of $17,500.00 [SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS], pendente lite, subject to reallocation at trial, and to be paid by Plaintiff directly to Defendant within 10 days; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.

I. Procedural Posture

Plaintiff ES and Defendant NS were married in a civil ceremony in Orange County, California on XX XX, 2022. There is one child of the marriage, to wit: AES, born XX XX, 2023. Plaintiff commenced this action for divorce on or about January 8, 2025.

On or about June 3, 2025, Defendant's former counsel, Aoife Collins of Kleyman Domestic Relations Law Firm, PC, filed Motion Sequence No. 004 by Order to Show Cause seeking: (1) an award of counsel fees, pendente lite, to Defendant pursuant to DRL § 237 in the sum of $50,000.00 for litigation expenses already incurred to prosecute the instant litigation, and (2) such other and further equitable relief as the Court may deem just and proper. On June 5, 2025, Defendant filed a consent to change attorney, substituting Keith Casella, Esq, for Aoife Collins of Kleyman Domestic Relations Law Firm, PC.

Plaintiff filed opposition on July 11, 2025. Oral argument was completed on Motion Sequence No. 035 and Motion Sequence No. 036 on July 14, 2025.

II. Facts

The parties were married in a civil ceremony on XX XX, 2022 in Orange County, State of California. The parties have an eighteen (18) month old child, AES, born on XX XX, 2023.

The matrimonial action commenced on January 8, 2025, by Plaintiff filing a Summons with Notice. (NY St Cts Filing [NYSCEF] Doc No. 1). An Amended Summons with Notice was filed on January 27, 2025. (NY St Cts Filing [NYSCEF] Doc No. 2). Plaintiff filed a verified complaint on March 12, 2025. (NY St Cts Filing [NYSCEF] Doc No. 31).

Defendant filed a statement of net worth, mislabeled as Plaintiff's Net Worth as Exhibit G to Motion Sequence No. 001 on February 13, 2025. (NY St Cts Filing [NYSCEF] Doc No. 17). Defendant also filed a retainer agreement as Exhibit H to Motion Sequence No. 001. (NY St Cts Filing [NYSCEF] Doc No. 18). Plaintiff filed a statement of net worth on March 12, 2025. (NY St Cts Filing [NYSCEF] Doc No. 34). Two days after Defendant's Order to Show Cause seeking counsel fees, pendente lite, was signed, Defendant filed a consent to change attorney, substituting Keith Casella, Esq, for Aoife Collins of Kleyman Domestic Relations Law Firm, PC on June 5, 2025. (NY St Cts Filing [NYSCEF] Doc No. 119). Mr. Casella filed a Notice of Appearance for the Defendant on June 5, 2025. (NY St Cts Filing [NYSCEF] Doc No. 120). Neither party provided statements of net worth as exhibits to their filings. Defendant further [*3]failed to provide a retainer agreement as an exhibit to Motion Sequence No. 004.

Plaintiff's statement reports a gross income of $136,000.00. (NY St Cts Filing [NYSCEF] Doc No. 34). Plaintiff's 2024 W-2 reports a gross income of $136,000.00. (NY St Cts Filing [NYSCEF] Doc No. 35). Defendant's statement of net worth reports no gross income. (NY St Cts Filing [NYSCEF] Doc No. 17).

Plaintiff has paid previously awarded counsel fees in the amount of $10,000.00. (NY St Cts Filing [NYSCEF] Doc No. 110). Defendant submits billing for the period from January 28, 2025 through May 30, 2025, and reports an outstanding balance due of $48,053.58 in counsel fees. (NY St Cts Filing [NYSCEF] Doc No. 114). This amount includes the $10,000.00 payment made by the Plaintiff.

III. Discussion

Defendant failed to include a copy Defendant's statement of net worth and failed to include a copy of the retainer agreement with the Defendant as exhibits with Defendant's filing of Motion Sequence No. 004. Both documents are part of the Court's NYSCEF file having been previously uploaded on February 13, 2025 (NY St Cts Filing [NYSCEF] Doc Nos. 17; 18). Plaintiff failed to include a copy Plaintiff's statement of net worth as exhibits with Plaintiff's filing of opposition to Motion Sequence No. 004. Plaintiff's statement of net worth is part of the Court's NYSCEF file having been previously uploaded on March 12, 2025. (NY St Cts Filing [NYSCEF] Doc No. 34).

The "Court may take judicial notice of undisputed court records and files" (see Khatibi v Weill, 8 AD3d 485 [2d Dept 2004]). "In some instances, and under certain circumstances, undisputed portions of court files or official records, such as prior orders or kindred documents, may be judicially noticed" (see Ptasznik v Schultz, 247 AD2d 197 [2d Dept 1998] citing In re Allcity Ins. Co., 66 AD2d 531 [1st Dept]; People v Singleton, 36 AD2d 725 [2d Dept 1971]; People ex rel. Bloom v Collins, 277 AD 21 [1st Dept 1950], affd 302 NY 603; Sleasman v Sherwood, 212 AD2d 868 [3d Dept 1995]).

"The decision to award . . . [an] attorney's fee lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as [that of] the trial court" (see Crook v Crook, 85 AD3d 958 quoting O'Brien v O'Brien, 66 NY2d 576 [1985]; citing Ciociano v Ciociano, 54 AD3d 797 [2d Dept 2008]).

Pursuant to Domestic Relations Law § 237 [a], "There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded." "An award of reasonable counsel fees in a matrimonial action is a matter within the discretion of the trial court[.]" (see Guzzo v Guzzo, 110 AD3d 765 [2d Dept 2013] citing Domestic Relations Law § 237; De Cabrera v. Cabrera-Rosete, 70 NY2d 879 [1987]; Quinn v Quinn, 73 AD3d 887 [2d Dept 2010]).

"For matrimonial actions such as this one, commenced on or after October 12, 2010, there is a statutory 'rebuttable presumption that counsel fees shall be awarded to the less monied spouse[.]'" (see Weidman v Weidman, 162 AD3d 720 [2d Dept 2018] quoting Domestic Relations Law § 237 [a]; citing Teaney v. Teaney, 138 AD3d 1301 [3rd Dept 2016]; Vantine v Vantine, 125 AD3d 1259 [3rd Dept 2018]). "[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case[.]" (see id quoting De Cabrera v Cabrera-Rosete, 70 NY2d [*4]879 [1987]).

The Court must further consider "complexity of the issues involved, and the reasonableness of counsel's performance and the fees under the circumstances" (see Matter of Sanchez v Reyes, 174 AD3d 907 [2d Dept 2019] citing Matter of Westergaard v Westergaard, 106 AD3d 926 [2d Dept 2013]) and "the equities and circumstances of each particular case" (see id citing Lerner v Lerner, 168 AD3d 736 [2d Dept 2019]; Waldron v Waldron, 229 AD2d 433 [2d Dept 1996]).

Defendant contends that Plaintiff is a self-described entrepreneur, CEO and Founder of several multimillion-dollar corporations called Rx2Go, Satex, Rx4Routh and is affiliated with PharmaStaff earning a substantial income. (NY St Cts Filing [NYSCEF] Doc No. 111). Defendant maintains that she has not worked during the almost three-year marriage taking care of the parties' child. (see id).

Defendant contends that even with the Plaintiff as the sole income earner the parties previously lived a lavish lifestyle, with homes in Staten Island and Pennsylvania, had expensive cars worth approximately one million dollars and went on lavish vacations.

Plaintiff contends that Defendant's counsel is now no longer the attorney of record, and the motion should be rejected as a matter of law.

The statute [DRL § 237] goes on to say that "[a]ny applications for counsel fees and expenses may be maintained by the attorney for either spouse in [counsel's] own name in the same proceeding." The provision is silent, however, as to whether an attorney who has been discharged without cause has the right in the same proceeding to seek counsel fees. (see Frankel v Frankel, 2 NY3d 601 [2004]).

The Court of Appeals has held that

[I]n light of our precedents and the policy interests surrounding the statute, we agree with the Appellate Division dissenters that Domestic Relations Law § 237 [a] allows an attorney who was discharged without cause to proceed against the monied spouse in the matrimonial litigation (see id).

If lawyers terminated without cause lose their right to petition the court for a fee award from an adversary spouse, the less affluent spouse would suffer the consequences. The spouse with ready and ample funds would have a wide choice of counsel, and the financial wherewithal to maintain the litigation, while the nonmonied spouse would struggle to find a lawyer who might have to go unpaid. A matrimonial lawyer may be willing to carry a client on its accounts receivable books, but not as to accounts that will prove unreceivable. In this regard, the Legislature designed Domestic Relations Law § 237 [a] to eliminate the disparity between the monied and the nonmonied spouse. (see id).

Citing Frankel v Frankel, 2 NY3d 601 [2004], Plaintiff contends that "When an attorney is discharged for cause in a divorce proceeding, the other spouse cannot be directed to pay their fees; this principle is consistently upheld in case law, ensuring that attorneys discharged for cause do not have the right to seek fees from the other spouse." (NY St Cts Filing [NYSCEF] Doc No. 123 at ¶4).

There has been no evidence submitted that Defendant's prior counsel was discharged for cause. "A client has 'an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney'" (see CPMI, Inc. v Kolaj, 137 AD3d 953 [2d Dept 2016] quoting Campagnola v Mulholland, 76 NY2d 38 [1990]; citing Schultz v [*5]Hughes, 109 AD3d 895 [2d Dept 2013]; Doviak v Finkelstein & Partners, LLP, 90 AD3d 696 [2d Dept 2011]; Coccia v Liotti, 70 AD3d 747 [2d Dept 2010]).

"[W]here the discharge is without cause the outgoing attorney is limited to recovering in quantum meruit the reasonable value of the services rendered" (see Byrne v Leblond, 25 AD3d 640 [2d Dept 2006] citing Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655 [1993]; Campagnola v Mulholland, 76 NY2d 38 [1990]; Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454 [1989]; Teichner v W & J Holsteins, 64 NY2d 977 [1985]).

Plaintiff maintains that an award of legal fees now as requested controverts standing public policy and invites an unparalleled abuse of the system.

Plaintiff further contends

Where, as here, the less monied spouse seeks to litigate with impunity because it is "on someone else's dime," the very policy behind Prichep [(see Prichep v Prichep, 52 AD3d 61 [2d Dept 2008])] is turned on its face were the Court to reward that litigant for her maneuvering with a requirement that the victim of her assault, in this case the Plaintiff, pay for the attack. (NY St Cts Filing [NYSCEF] Doc No. 123 at ¶15).

Awarding such an exorbitant amount of legal fees or, for that matter, any legal fees at all, would have the effect of financially punishing the Plaintiff for defending against frivolous litigation and forcing him to subsidize his wife's misguided litigation tactics (see id at ¶16).

Indeed, awarding counsel fees at this juncture would not "level the playing field" at all, as Defendant's legal strategy, evidenced by her ill-conceived litigation tactics, is designed to wear down her husband with meritless litigation that she does not have to worry about paying for. (see id at ¶17).

Defendant's status as a "non-monied" spouse — apart from being pure fiction — if accepted, is undeniably the by-product of her own doing (refusing to work or even make efforts at re-employment despite serving as a babysitter and nanny when she previously worked), and therefore, she cannot come before this Court to benefit from the same. (see id at ¶27).

Despite the Plaintiff's attempts to strip the Defendant of her clear status as the non-monied, it is abundantly clear that Defendant is the non-monied spouse and as such is entitled to counsel fees. Defendant submits billing for the period from January 28, 2025 through May 30, 2025, and reports an outstanding balance due of $48,053.58 in counsel fees. (NY St Cts Filing [NYSCEF] Doc No. 114). Approximately 106 hours of billable time was rendered in just slightly over four months. (see id). This amount includes the $10,000.00 payment made by the Plaintiff. Defendant's prior counsel's firm billed at rates that varied from $700 per hour, $600 per hour, and $500 per hour depending on the counsel working the Defendant's file.

In considering the total circumstances of this contentious and litigious matter the Court finds the Plaintiff to be the monied spouse and Defendant is entitled to an award of reasonable counsel fees to ensure Plaintiff's adequate representation. The Court has reviewed and considered all the billing submitted by the Defendant.

Accordingly, Defendant's Motion Sequence No. 004 request for counsel fees is GRANTED and Defendant is awarded counsel fees in the sum of $17,500.00 [SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS], pendente lite, subject to reallocation at trial, and to be paid by Plaintiff directly to Defendant within 10 days.

IV. Decretal Paragraphs

Therefore, it is hereby ORDERED, that Defendant's Motion Sequence No. 004 request for counsel fees is GRANTED and Defendant is awarded counsel fees in the sum of $17,500.00 [SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS], pendente lite, subject to reallocation at trial, and to be paid by Plaintiff directly to Defendant within 10 days; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.