J.H.D. v B.D.V.

Supreme Court, Westchester County

Decided on March 31, 2026

Index No. XXXXX

James L. Hyer, J.

The following documents were considered in connection with the order to show cause of the Plaintiff, dated February 25, 2026, (hereinafter "Motion Sequence No. 4"), seeking the entry of an Order granting the following relief:

1. Enforcing the terms of the September 18, 2025 Stipulation of Settlement and November 24, 2025 Judgment of Divorce, specifically, directing the Defendant to execute each document necessary for the Plaintiff to assume the mortgage on the former marital residence; and

2. Awarding counsel fees for the cost of bringing and prosecuting this application; and

3. For such other and further relief in Plaintiff's favor as to this Court may seem just and proper.

PAPERS         DOC. NO.

Order to Show Cause/Affidavit of Plaintiff FN1/Affirmation of Plaintiff's CounselFN2

Exhibits 1-5 1-8

Relevant Factual and Procedural Background

On May 17, 2024, this matrimonial action was commenced with the filing of a summons with notice (hereinafter "Summons"),FN3 which requested the dissolution of the parties' marriage pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 170(1) or in the alternative DRL § 170(7), along with ancillary relief including that pertaining to the parties' children being: (1) Z.D.V. [Redacted]; (2) Z.D.V. [Redacted]; and, (3) Z.D.V. [Redacted] (hereinafter collectively "Children").

On August 28, 2024, an orderFN4 appointing an attorney for the Children was entered, appointing Faith G. Miller, Esq., as attorney for the Children (hereinafter "AFC").

On September 18, 2025, the parties entered into a stipulation pertaining to the custody of the Children (hereinafter "Custody Stipulation"), and a stipulation pertaining to the remaining issues arising out of the requested dissolution of the parties' marriage (hereinafter "Financial Stipulation"), both of which were so-ordered by this Court On September 9, 2025.FN5

Article VIII of the Financial Stipulation (hereinafter "Implementation Provision"), sets forth the parties' understanding regarding the implementation of the agreements reached within the document:

"The Parties shall at any and all times, upon request by the other Party or her legal representatives, make, execute and deliver any and all such other and further instruments as may be necessary or desirable for the purpose of giving full force and effect to the provisions of this Agreement, without charge therefore."

Article XVI of the Financial Stipulation (hereinafter "Home Provision"), provides the parties' agreement as to equitable distribution including that pertaining to the parties' former marital domicile located at [Redacted], (hereinafter "Marital Domicile"), including the following:

"1. The Parties own, the marital residence located at [Redacted], (hereinafter the "Marital Residence"). The Marital Residence has an appraised value of One Million Six Hundred [*2]($1,600,000.00) as of September 2024, and is encumbered by a mortgage held by Wells Fargo with an outstanding principal balance of approximately $631,146.92 (the "Mortgage") as of Date of Commencement.

* * *

4. No later than September 15, 2026, J.H.D. shall refinance, assume, modify, or otherwise satisfy the Mortgage so as to extinguish B.D.V.'s personal liability therefrom and remove B.D.V.'s name from the Mortgage at J.H.D.'s sole cost and expense. B.D.V. shall fully cooperate with J.H.D. and shall promptly sign any and all documents required for J.H.D. to accomplish the removal of B.D.V.'s name from the Mortgage within seven days of presentment to B.D.V. by J.H.D..

5. J.H.D. shall be responsible for the preparation of all documents necessary for the Marital Residence from the parties' joint names to the name of J.H.D. (the "MR Transfer Documents"), including the cost thereof. B.D.V. shall review and execute the aforesaid MR Transfer Documents within ten (10) business days of presentment; however, the same shall be held in escrow by counsel for J.H.D. until such time that B.D.V. receives the distributive award, as set forth hereinabove, in full. Notwithstanding the foregoing, in the event that a title company or other institution requires the MR Transfer Documents in advance, to complete the MR Refinance, J.H.D.'s attorneys may release the MR Transfer Documents to the title company or other institution requesting such MR Transfer Documents to complete the MR Refinance, and such MR Transfer Documents shall be released for the sole purpose of completing the MR Refinance. Notwithstanding the foregoing, in the event that the MR Refinance does not occur, the MR Transfer Documents shall be returned to J.H.D.'s attorneys to be held in escrow until the completion of the MR Refinance. In no event shall the MR Transfer Documents be filed until B.D.V. has received the entirety of her distributive award as described above."

Article XX of the Financial Stipulation (hereinafter "Default Provision"), sets forth the parties' understanding as to the manner within which the parties would proceed in the event of the other's default:

"If either Party (the "defaulting Party") shall default with respect to any payment or obligation due to the other Party (the "other Party") under this Agreement and said default shall not be remedied within ten (10) days after the other Party shall send written notice, e-mail sufficing mail, to the defaulting Party specifying such default, the defaulting Party agrees to indemnify the other Party against, and to reimburse the other Party for, any and all expenses, costs and reasonable attorneys' fees incurred by the other Party, resulting from or made necessary by the other Party's action, motion or other proceeding, to enforce any of the terms, covenants or conditions of this Agreement to be performed or complied with by the defaulting Party, or to enforce any of the other Party's rights to recover any amount to be paid to the other Party by the defaulting Party pursuant to this Agreement, provided that such action or other proceeding shall result in a judgment, decree or other order in favor of the other Party."

Article XXI of the Financial Stipulation (hereinafter "Modification Provision"), confirms the parties' understanding with respect to how the document would be modified:

"Neither this Agreement, nor any provision hereof, shall be amended or modified, or [*3]deemed amended or modified, except by an Agreement writing duly subscribed and acknowledged with the same formality as this Agreement."

Article XXIV of the Financial Stipulation (hereinafter "Incorporation Provision"), sets forth the parties' agreement as to the terms of the document being incorporated into a judgment of divorce:

"It is expressly understood that the terms and conditions of this Agreement are to be incorporated into any subsequent divorce decree and shall not be merged therein but shall survive such decree of divorce."

Annexed to and made part of the document were two affidavits signed by each of the parties, reciting their sworn representations regarding their review and execution of the document, which mirrored each other, including that of Defendant (hereinafter "Defendant's Affidavit") which set forth the following:

"B.D.V., being duly sworn, according to the law, deposes and says that she is the individual described as the "Defendant" and/or "B.D.V." in the foregoing instrument and makes this Affidavit in acknowledgment thereof.

1. That she has carefully read this Agreement, word for word, paragraph by paragraph.

2. That she fully understands its contents.

3. That she understands and appreciates the legal effect of her signature to this Agreement.

4. That this Agreement completely and accurately expresses her understanding of the terms and provisions of the parties' settlement which she arrived at with the Plaintiff.

5. That this Agreement expresses the entire understanding and agreement between her and the Plaintiff, without any secret promises or other agreements or inducements not herein expressed or stated.

6. That her asset to this Agreement was reached after mature and careful deliberation and after consultation with counsel.

7. That her execution of this Agreement is voluntary and is of her own free act and deed.

8. That this Agreement is not the result of any collusion between her and Plaintiff or between herself and any third party.

9. That neither the property settlement or any other provisions of this Agreement arrived at between her and Plaintiff nor her signing and acknowledging the foregoing Agreement was occasioned, brought about or influenced by the use of duress, coercion, or undue influence practice or brought or exercised upon her in any manner by any person whomsoever.

10. That she is not under the influence of any drugs or alcohol which would impair her ability to understand the terms and conditions of this Agreement.

11. That she has not failed to take any prescribed mediation which would impair her ability to understand the terms and conditions of this Agreement.

12. That this Agreement has been signed voluntarily, after having thoroughly consulted with counsel regarding the terms thereof.

13. That she is satisfied with the representations she has received from counsel in this matter."

Thereafter, this Court has not been provided with any proof, nor has any party asserted [*4]that the Financial Stipulation has been modified pursuant to the Modification Provision, or otherwise amended, vacated or stayed.

On December 3, 2025, a judgment of divorce was entered (hereinafter "Judgment of Divorce"),FN6 for which Plaintiff's counsel filed a notice of entry.FN7 Since that date, no issues pertaining to the Children have been brought before this Court, and the AFC's appointment was concluded.

On February 25, 2026, Motion Sequence No. 4 was filed;FN8 which was conformed on February 26, 2026,FN9 directing: (1) By February 27, 2026, Plaintiff to serve Defendant with Motion Sequence No. 4, via e-mail and priority express traceable mail; and (2) scheduling the return date for the application for March 5, 2026, at 9:30 a.m., wherein all parties and counsel were directed to appear for oral argument on the relief requested wherein a briefing schedule would be set if needed.

On February 27, 2026, Plaintiff's counsel filed proof of serviceFN10 of Motion Sequence No. 4 as directed by this Court.

On March 5, 2026, a conference was held before the undersigned a transcript for which has been so-ordered,FN11 after which an order (hereinafter "Briefing Schedule Order"),FN12 was entered providing the following:

"This matrimonial action was commenced on May 17, 2024, with the filing of a summons with notice (NYSCEF #1). On December 2, 2025, a judgment of divorce was entered (NYSCEF #178), which did not merge, but incorporated the terms of the following: (1) parenting Agreement, dated September 17, 2025 (NYSCEF #163); and (2) Stipulation of Settlement, dated September 28, 2025 (NYSCEF Doc. No. 162). On February 25, 2026, Plaintiff filed a post-judgment motion by order to show cause (NYSCEF Doc. Nos. 181-188) (hereinafter "Motion Sequence No. 4"), which was conformed on February 26, 2026 (NYSCEF #189) directing that: (1) by February 27, 2026, Motion Sequence No. 4 be served on Defendant via e-mail to [Redacted], [Redacted], and USPS priority express trackable mail to [Redacted]; (2) March 5, 2026, 9:00 a.m., be the return date for Motion Sequence No. 4 wherein all parties and counsel would appear in person to engage in oral argument as to the relief sought and wherein a briefing schedule would be set if needed.

On February 27, 2026, Plaintiff s counsel filed proof of service of Motion Sequence No. [*5]4 as directed by this Court. On March 5, 2026, at approximately 9:30 a.m., this Court called this matter and appearances were made by Plaintiff, Plaintiff's counsel, and Defendant failed to appear or request an adjournment. In an abundance of caution, this Court called, on speaker on the record, Defendant at [Redacted]. The Defendant answered the call but refused to be placed under oath to appear electronically, accordingly the conference proceeded in her absence wherein this Court set a briefing schedule as delineated herein.

It is hereby ORDERED that:

1. Motion Sequence No. 4 shall be subject to the following briefing schedule:

a. March 13, 2026, shall be the deadline for Defendant to serve and file any answering submissions and/or cross motions;

b. March 20, 2026, shall be the deadline for Plaintiff to file any answering submissions pertaining to cross motions filed; with no reply submissions being accepted; with this date serving as the return date for Motion Sequence No. 4 and any cross motions filed; with no appearances required and no oral argument received as a decision shall be entered upon submission.

2. By March 6, 2026, Plaintiff's counsel shall serve a copy of this Order on Plaintiff via e-mail to [Redacted], [Redacted], and overnight traceable delivery to [Redacted]; and by that date shall file proof of service with a copy of the tracking slip.

3. Plaintiff's counsel shall order a copy of the Court transcript, pay the entire cost, and submit to be so-ordered by April 5, 2026."

On March 6, 2026, Plaintiff's counsel filed proof of service of the Briefing Schedule Order,FN13 pursuant to the directives of this Court.

Since that date, Defendant has failed to file any answering submissions pertaining to Motion Sequence No. 4 or to request an adjournment of the briefing schedule for the instant application, and no further submissions were made pertaining to this application.

Legal Analysis

A. Compliance with 22 NYCRR § 202.16-c(a)(8).

DRL § 235 includes statutory protections afforded to litigants in matrimonial actions preventing those, other than the parties and their attorneys, access to court records pertaining to such litigation. In furtherance of the interest of litigant confidentiality in matrimonial litigation, pursuant to New York Codes, Rules and Regulations (hereinafter "NYCRR") § 202.16-c(a)(8), adopted in 2024, attorneys are bound to remove themselves from the New York State Courts Electronic Filing (hereinafter "NYSCEF") to the extent they are no longer involved in the action as the rule requires the following:

"In a matrimonial action, attorneys for the parties or for minor children of the parties must remove their representation of such parties or such minor children from the NYSCEF record by following the instructions on the NYSCEF website for such removal in an e-filed action, within sixty (60) days after the earlier of:

(i) a judgment of divorce, separation, annulment or action to declare a marriage void or voidable has been signed and entered in the office of the County Clerk, with notice of entry also signed and served; and where any post-judgment or plenary proceedings before the Court in which the attorney represented the party have concluded by stipulation, final order or withdrawal of the post-judgment or plenary proceeding, and there are no other such proceedings pending; and where any Qualified Domestic Relations Orders or Domestic Relations Orders have been signed and served with notice of entry, and no notice of appeal has been filed in which attorneys for the parties or the minor children have been retained as counsel. If counsel is retained on an appellate issue, they may remain on NYSCEF for the duration of the appellate proceeding or as may be otherwise ordered by the Court; or

(ii) they cease to be the attorney of record in the action or cease to be associated with the law firm that is the attorney of record in the action; or

(iii) they have filed a properly executed consent to change attorney pursuant to CPLR 321(b)(1); or

(iv) an order of the Court authorizing the withdrawal or change of attorney has been filed and entered pursuant to CPLR 321(b)(2); or

(v) they have filed a notice of completion of limited scope representation in the action pursuant to CPLR 321(d)."

Here, there does not appear to be any basis for the AFC to remain a consented party on NYSCEF. Based upon the foregoing, by April 3, 2026, the AFC shall comply with 22 NYCRR § 202.16-c(a)(8) by removing their representation of the Children on NYSCEF.

B. Compliance with CPLR § 2106.

Pursuant to New York Civil Practice Law and Rules (hereinafter "CPLR") § 2106, the statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

"I affirm this ____ day of ____, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)" (CPLR § 2106)."

An affirmation which fails to comport with the requirements of CPLR § 2106, shall be inadmissible and must be disregarded by the Court (see Great Lakes Insurance SE v. American Steamship Owners Mutual Protection and Indemnity Association Inc., 228 AD3d 429 [1st Dept 2024]).

Here, the affirmation submitted by Plaintiff's counsel (hereinafter "Affirmation of Plaintiff's Counsel") includes the following:

"[Redacted], an attorney duly licensed to practice law before the Courts of the State of New York does hereby affirm the following under the penalties of perjury:"

Here, the Affirmation of Plaintiff's Counsel failed to include the language required by [*6]statute and must be disregarded. Therefore, it was not considered by this Court when making the determinations set forth herein.

C. Plaintiff's Request For Relief Pertaining to the Marital Domicile.

"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]).

"The essential elements of a cause of action to recover damages for breach of contract are "the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" (Cruz v. Cruz, 213 AD3d 805 [2d Dept 2023], quoting, Klein v. Signature Bank, Inc., 204 A.D3d 892 [2d Dept 2022] [internal citations omitted]). A non-defaulting party having proven the breach of contract of another may seek specific performance as noted by the Appellate Division in a decision upholding a trial court's directive that title documents be provided by the defaulting party, "[a]lthough specific performance generally is an inappropriate remedy when money damages are sufficient to protect the interests of the injured party, that remedy is appropriate where the amount of damages is difficult to ascertain, based **820 on the unique nature of the subject matter of the contract or agreement or the lack of an established market value" (JMG Custom Homes, Inc. v. Ryan, 45 AD3d 1278 [4th Dept 2007] citing Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409 [2001]). In Sokoloff, Id., the Court of Appeals afforded the following guidance as to the manner within which a trial court should consider the grant of specific performance:

"The decision whether or not to award specific performance is one that rests in the sound discretion of the trial court. In determining whether money damages would be an adequate remedy, a trial court must consider, among other factors, the difficulty of proving damages with reasonable certainty and of procuring a suitable substitute performance with a damages award (see, Restatement [Second] of Contracts § 360). Specific performance is an appropriate remedy for a breach of contract concerning goods that 'are unique in kind, quality or personal association' where suitable substitutes are unobtainable or unreasonably difficult or inconvenient to procure (see, id., comment c)."

Here, the Financial Stipulation, which was incorporated but not merged into the Judgment of Divorce, includes the House Provision providing unambiguous language wherein the parties acknowledge the parties' ownership of the Marital Domicile; that the property is encumbered by a mortgage; that Plaintiff is required to remove Defendant as a responsible party from the mortgage by September 15, 2026 and to transfer the property into Plaintiff's sole name; that Plaintiff was responsible for the preparation of documents needed to effectuate this [*7]agreement; and, that Defendant was required to cooperate with through the prompt completion and return of said documents.

Plaintiff asserts that while she has sought to comply with her responsibilities required in the House Provision, Defendant has failed to do so, in that she retained a real estate attorney to assist her in completing the necessary transfer, but that Defendant refused to attend the closing. In support of her assertion, she directs this Court to Exhibit 3 annexed to the instant application being a letter from her real estate counsel to her matrimonial counsel which reads as follows:

"My office represents J.H.D. in the assumption of mortgage in the above referenced property. B.D.V. is pro se in this matter. On February 10, 2026, I contacted B.D.V. in order to arrange for a closing on the time sensitive mortgage assumption. I asked Ms. B.D.V. if she was available on February 12, 2026 to come to our office to attend the closing of the mortgage assumption, sign the required closing documents, and receive her distributive award in the amount of $350,000.00 pursuant to the terms of the Stipulation of Settlement dated September 18, 2025. Ms. B.D.V. refused to attend the closing. She indicated to me that she would not sign anything until the Court "removes allegations against her" that were included in her divorce. I explained that our office was only retained for the mortgage assumption and that I was not aware of anything involved in her divorce. She was combative and obstreperous on the call while signifying her refusal to cooperate. The Mortgage Company is ready, willing and able to fund the loan and the transfer documents have been prepared and are also ready for execution."

Following this call, Plaintiff advises that her real estate counsel then sent an e-mail to Defendant forwarding her the necessary real estate transfer documents with a request that they be completed and returned to effectuate the transfer contemplated in the House Provision, annexing to the motion as Exhibit 4 a copy of that communication. Plaintiff then asserts that while the allotted number of days in the House Provision have passed since the real estate transfer documents have been furnished to Defendant, she has failed to comply requiring her to seek the intervention of this Court and causing her to retain counsel to assist her in this process annexing a copy of her retainer agreement as Exhibit 5. Defendant has failed to file any answering submissions resulting in Plaintiff's allegations to be unrefuted and accepted as true by this Court.

Based upon the foregoing, it is without question that Defendant has engaged in a breach of contract as the Financial Stipulation constitutes the existence of a contract between the parties. The Plaintiff's unrefuted allegations confirm that she has engaged in performance of her obligations pursuant to the House Provision of the contract while the Defendant has engaged in a material breach of her contractual obligations, and Plaintiff has suffered damages resulting from the breach. While Plaintiff only seeks specific performance as relief from Defendant's breach of contract, this Court determines such relief to be appropriate as the subject matter of the Financial Stipulation is unique as it is a matrimonial contract between now former spouses pertaining to their Marital Domicile reflecting their mutually agreed understanding as to the equitable distribution of that asset. Like so many other such agreements, the parties agreed that one party would retain the Marital Domicile, while the other would receive a distributive award for their share of the net worth of the asset commonly referred to as a "buy out", and that both parties would follow a set of protocols in an enumerated timetable to effectuate the transfer and buy out. Therefore, the specific performance requested is fitting relief as it addresses the breach of [*8]contract with the understanding that the transfer of the Marital Domicile is unique in kind with a personal association to movant that renders other forms of relief inappropriate.

Based upon the foregoing, the parties are directed to comply with the House Provision in the following manner: (1) By April 15, 2026, Plaintiff shall serve Defendant, via e-mail and traceable overnight delivery, with transfer documents needed to effectuate the terms of the House Provision, along with a pre-paid completed return envelope for overnight delivery from Defendant to Plaintiff; and, (2) By April 20, 2026, Defendant shall return the completed transfer documents to Plaintiff via traceable overnight delivery, and by that date shall file an affidavit of service with this Court.

D. Plaintiff's Request Pertaining to Attorneys' Fees.

The Appellate Division Second Department has noted how 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, 84 N.Y.S.3d 786; Patete v Rodriguez, 109 AD3d 595, 599, 971 N.Y.S.2d 109). 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, 945 N.Y.S.2d 409; Finnan v. Finnan, 95 AD3d 821, 943 N.Y.S.2d 559; Prichep v. Prichep, 52 AD3d 61, 64—65, 858 N.Y.S.2d 667). 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, 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, 84 N.Y.S.3d 786; Chesner v. Chesner, 95 AD3d 1252, 945 N.Y.S.2d 409; Prichep v. Prichep, 52 AD3d at 64—65, 858 N.Y.S.2d 667)." (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]). Accordingly, Yakobowtiz, Id., requires the movant to file the executed retainer agreement between the movant and movant's counsel, statement of client's rights and responsibilities, along with the billing invoices. By doing so, the reviewing court is afforded the opportunity to confirm that 22 NYCRR § 1400.2 FN14 was complied with by movant's counsel with [*9]the presentation, execution and return of the statement of client's rights and responsibilities prior to the execution of a retainer agreement with the movant; that 22 NYCRR § 1400.3 FN15 was complied with by movant's counsel with the execution of a retainer agreement with movant; and, through the presentation of invoices of the movant's counsel to movant, confirmation that said invoices comport with the related retainer agreement.

Here, the Affirmation of Plaintiff's Counsel is defective for the reasons set forth herein, and therefore must be disregarded and has not been considered by this Court when making this determination. Turning to Plaintiff's Affidavit, the only portion thereof to address movant's request for an award of attorneys' fees is the following:

"I have retained the services of [Redacted], Esq. to represent me in this post judgment matter. A copy of my post judgment retainer agreement with Ms. [Redacted] office is annexed hereto as Exhibit '5'. If Defendant would have cooperated with the assumption, which benefits her also, I would not have to incur the counsel fees associated with having to seek enforcement from the Court."

Upon review of the post-judgment retainer between Plaintiff's counsel and Plaintiff, it is determined that it complies with 22 NYCRR § 1400.3 and 22 NYCRR § 1400.2, as it annexed and incorporated therein a complete statement of client's rights and responsibilities which has been fully executed. However, movant has not submitted any billing statements pertaining to attorneys' fees incurred by her during this post-judgment litigation affording this Court the ability to review same along with the subject retainer agreement as required. Accordingly, for this reason alone this Court must deny Plaintiff's request for an award of attorneys' fees from Defendant for legal services incurred in the commencement of this post-judgment litigation.

However, even if the billing statements were provided, this Court would not have granted Plaintiff's request for an award of attorneys' fees due to Plaintiff's failure to comply with the Default Provision of the Stipulation of Settlement which sets forth the manner within which the parties are to proceed in the event of an alleged default of the other. Similar to many contracts, including those prepared to resolve matrimonial actions, this provision affords the parties the [*10]opportunity to address an alleged default prior to seeking court intervention resulting in what may be unnecessary litigation costs, wherein the non-defaulting party would serve the defaulting party with a notice of default providing that party ten days to cure after which if no cure was made the non-defaulting party could then seek recovery of attorneys' fees incurred through litigation to address the default.

Here, this Court has been provided with no evidence that Plaintiff complied with the terms of the Default Provision while Plaintiff's Affidavit is silent to even any assertions that this was done. While Plaintiff has pointed to communications between her real estate counsel and Defendant related to the alleged default, these do not constitute a notice of default between the parties pursuant to the Default Provision which the parties crafted to address post-settlement issues such as the one currently before this Court. Accordingly, even while this Court has determined Defendant to have breached the terms of the Stipulation of Settlement, it would remain unable to grant Plaintiff attorneys' fees arising from this motion practice due to Plaintiff's failure to comply with the Default Provision.

Based upon the foregoing, this Cout cannot grant Plaintiff's application for an award of attorneys' fees from Defendant and must deny that requested relief.

F. Other Relief.

To the extent any relief requested has not been granted or otherwise addressed herein, it is hereby denied.

Accordingly, it is hereby

ORDERED that the relief requested in Motion Sequence No. 4 is granted in part and denied in part as set forth herein; and it is further

ORDERED that by April 2, 2026, the AFC shall comply with 22 NYCRR § 202.16-c(a)(8) by removing their representation of the Children on NYSCEF; and it is further

ORDERED that by April 15, 2026, Plaintiff shall serve Defendant, via e-mail and traceable overnight delivery, with transfer documents needed to effectuate the terms of the House Provision, along with a pre-paid completed return envelope for overnight delivery from Defendant to Plaintiff; and it is further

ORDERED that by April 20, 2026, Defendant shall return the completed transfer documents to Plaintiff via traceable overnight delivery, thereby effectuating the terms of the House Provision, and by that date shall file an affidavit of service with this Court; and it is further

ORDERED that Plaintiff's request for an award of attorneys' fees from Defendant is hereby denied; and it is further

ORDERED that by April 2, 2026, Plaintiff's counsel shall serve a copy of this Decision and Order with Notice of Entry on Defendant by e-mail and traceable overnight delivery; and by April 2, 2026 shall file a copy of the Notice of Entry and Affidavit of Service, along with a copy of the overnight tracking slip; and it is further

ORDERED that other than as set forth herein, all prior judgments, decisions and orders entered in this action shall remain in effect.

The foregoing constitutes the Decision and Order of the Court.

Dated: March 31, 2026

White Plains, New York

ENTER:

HON. JAMES L. HYER, J.S.C.