A.S. v J.A.

Supreme Court, Nassau County

Decided on April 8, 2026

Index No. xxxxxx/xxxx

Edmund M. Dane, J.

The following papers have been read on these motions:

Plaintiff's Amended Order to Show Cause for Contempt and to Compel dated April 29, 2025 x

Defendant's Notice of Cross-Motion dated December 29, 2025 x

Plaintiff's Opposition & Reply dated March 18, 2026 x

Defendant's Reply dated March 30, 2026 x

PRELIMINARY STATEMENT

The Plaintiff moves by Amended Order to Show Cause for Contempt and to Compel dated April 29, 2025 (Motion Sequence No.: 013) seeking an Order: (a) release of the escrow funds being held by Peter Rubin, Esq.; (b) enforcement of the terms of my judgment of divorce, and subsequent stipulations, for monies owed to Plaintiff, A.S. by the Defendant J.A; (c) counsel fees incurred in connection with this motion; and (d) granting Plaintiff such other and further relief as this Court deems to be just and proper.

The Defendant cross-moves by Notice of Cross-Motion dated December 29, 2025 (Motion Sequence No.: 014) seeking an Order: (1) Denying summarily in its entirety the relief sought in Plaintiff, A.S. f/k/a A.A.'s, meritless Order to Show Cause, dated March 11, 2025, seeking contempt and enforcement against Defendant, J.A., when Defendant has not violated any clear or unequivocal order of this Court and where Plaintiff with unclean hands herself failed and refused to abide by the terms of the So-Ordered Minutes of Stipulation, dated February 13, 2018, and the original divorce Stipulation of Settlement, dated August 9, 2006, and then outrageously waited over seven (7) years to being her purported enforcement motion; (2) Directing Plaintiff's former attorney, PETER RUBIN, ESQ., as Escrowee, to release back to Defendant, J.A., the $5,000.00 in partial settlement proceeds Defendant paid him over seven years ago which he still holds in Escrow, as Plaintiff never timely or otherwise fully complied with the terms of the So-[*2]Ordered Minutes of Stipulation, dated February 13, 2018; (3) Directing Plaintiff A.S. f/k/a A.A. reimburse Defendant J.A. all his counsel fees, disbursements, and costs in defending against Plaintiff's meritless motion in the sum of no less than $5,000.00; (4) Awarding such other and further relief, in favor of Defendant, as to this Court may deem just, proper and equitable under the circumstances.

BRIEF BACKGROUND

These parties were married on September 9, 1979. These parties executed a written Stipulation of Settlement dated August 9, 2006 (hereinafter referred to as the "Stipulation"). The parties were thereupon divorced by Judgment of Divorce dated November 6, 2006 (hereinafter referred to as the "Judgment") (Hon. E. Jackson Stack, A.J.S.C). The parties subsequently, on the Record and in open Court, entered into a Stipulation on February 13, 2018 (hereinafter referred to as the "February 2018 Stipulation").

THE PARTIES' CONTENTIONS

Plaintiff's Contentions:

The Plaintiff alleges that since the parties executed the Stipulation back in 2006, the Defendant has "consistently and willfully" refused to comply. She alleges that in 2014, she loaned the Defendant $20,000.00, which he has never repaid to her, and that she will be pursuing that $20,000.00 in a separate action. She also alleges that in June of 2016, she retained Peter Rubin, Esq., to file a contempt motion against the Defendant for his failure to pay $12,000.00, which was settled in December of 2016 by a written Stipulation (hereinafter referred to as the "December 2016 Stipulation"). She alleges, in essence, that the December 2016 Stipulation provided that the Defendant alleged that he owed her no more than $4,500.00 and that the Plaintiff alleged that the Defendant owed her $29,500.00, and that the parties were to work together to resolve the financial issues, but also that the parties would cooperate to remove her name as trustee from a life insurance policy where the Defendant was insured. She alleges that no financial resolution was reached and that on February 13, 2018, the parties returned to Court. She alleges, in sum, that pursuant to the February 2018 Stipulation, she compromised the amount owed to her for $25,000.00, of which $5,000.00 would be deposited into the escrow account of Peter Rubin, Esq., and that she was to receive a balance of $20,000.00. She alleges she never received the $5,000.00 and that she never received the $20,000.00. She alleges that she retained new counsel, who issued a subpoena to New York Life, and the production of records therefrom reflect that there are no records with her as trustee of any trust.

Defendant's Contentions:

The Defendant disputes that he is in violation of any court order, and he alleges that the Plaintiff has unclean hands and refused to timely comply with the February 2018 Stipulation. He alleges that the Plaintiff unreasonably and purposefully waited years to bring this enforcement application. He alleges that the Plaintiff waited seven years to bring this application, and failed to sign the paperwork necessary to effectuate her resignation as the sole trustee of the New York Life Irrevocable Trust which she was court-ordered to do years ago. She alleges that the Plaintiff intentionally did not comply with signing the necessary paperwork so as to make a calculated decision more beneficial to her to remain on as the beneficiary on $10,000,000.00 of his life insurance rather than receive a one-time payment of $25,000.00. He alleges that now that he has [*3]"aged-out" of the policy and there is no longer any benefit, she is seeking to get paid the $25,000.00. The Defendant alleges that the February 2018 Stipulation had reciprocal obligations, and that the Plaintiff does not even allege that she signed all the necessary trust documents, nor does she attach any copies to prove proof that she did, in fact, sign such documents.FN1 The Defendant alleges that he paid the initial $5,000.00 to the escrow account of Peter Rubin, Esq., and the Plaintiff acknowledges same. He also alleges that the subsequent payment of $20,000.00 was to be made at the same time as the parties picked-up all of the trust paperwork all signed. He alleges that he was never provided with all of the necessary trust documents within the time specified in the Stipulation. He argues that if the Plaintiff complied with her obligations with respect to the trust, he questions why Peter Rubin did not release the $5,000.00 held in escrow. He argues that the Plaintiff provided no explanation as to why she waited over seven years to seek enforcement of the February 2018 Stipulation. He also alleges that the Plaintiff violated the Stipulation as she failed to cooperate with her resignation or removal as trustee and beneficiary of the $4,000,000.00 life insurance policy. He denies that he is in contempt of court, arguing that the $20,000.00 was conditioned upon the Plaintiff timely signing the trust documents. He argues that because she failed to timely sign the trust documents, the $5,000 should be released to hIM. He argues that he should be awarded his counsel fees, and argues that the Plaintiff's request for counsel fees should be denied on the merits because she waited seven years to enforce the February 2018 Stipulation and on procedural grounds as she failed to append her retainer agreement and invoices.

Plaintiff's Opposition & Reply:

The Plaintiff alleges that she executed the required "resignation" as trustee and alleges that her counsel provided it to the Defendant's counsel. She alleges that New York Life would not speak to her once she executed the resignation. She alleges that after she subpoenaed New York Life, they advised her that there was no trust to produce in response to the request for same.

Defendant's Reply:

The Defendant alleges that the Plaintiff's Affidavit in opposition and in reply is defective inasmuch as it is not notarized, not sworn, not dated, and fails to comply with the new requirements of CPLR § 2106 as it fails to indicate, in sum and substance, that it is not being filed under the penalties of perjury. He alleges that the Plaintiff does not deny that she waited over seven years to enforce the February 2018 Stipulation and does not deny that she made the decision to remain as beneficiary on almost $10,000,000.00 of his life insurance policy rather than receive a one-time payment of $25,000.00. He alleges, on any event, that the "resignation" that the Plaintiff appends to her reply papers is dated June 12, 2019, over one year after the parties entered into the February 2018 Stipulation. He also alleges that the Plaintiff provides no explanation as to why it took her over one year to sign the resignation in 2019. He alleges that the resignation could not have been provided to him within the sixty-day time frame in the February 2018 Stipulation as it was signed over a year later.

DISCUSSION + ANALYSIS

[*4]CONTEMPT OF COURT & ENFORCEMENT

The February 2018 Stipulation, which was spread on the Record, provides, in part:

MR, RUBIN: It is hereby stipulated and agreed as and between the parties as follows: Whereas, A.S., formerly known as A.A., brought an action to recover sums of monies from the defendant, J.A., and whereas J.A. interposed a counterclaim addressing certain issues with an irrevocable trust which was established under the divorce decree issued by this Court in 2006. The parties have agreed to settle upon the following terms and conditions.

One, the defendant, J.A., will forward to my office no later than Monday a wire transfer or a bank check payable to me as attorney which will be deposited in my IOLA account to be held pending further settlement of this action. The amount of the total settlement will be 25,000 of which $20,000 will be placed in my escrow account upon Mr. A. having an opportunity to review, or the trust attorney of his choice, within 45 days but not to exceed 60 days, a presentation to me on behalf of my client, the plaintiff, of a trust acknowledging her resignation as the sole trustee of the irrevocable trust and whatever other papers are necessary to effectuate the appointment of a new trustee. Currently that trustee I believe has bee agreed to by the partied to be Mr. A's niece. Her name is —

MR. ADONI: V.A., V-X-X-X-X, A-X-X-X-X

THE COURT: Off the record.

(Discussion held off the record.)

THE COURT: Back on the record.

MR. RUBIN: $25,000 is the total monetary settlement of which 5,000 will be paid by wire or bank check to my IOLA account, check payable to Peter M. Rubin, as attorney, no later than this coming Monday. The balance of 20,000, so for a total amount of 25,000, once again, that 20,000 is to be payable to me as attorney to be held in my IOLA account pending satisfactory receipt by Mr. A's trust attorney —

MR. A: No, no, no. That's not what we agreed.

THE COURT: Yeah, when she signs the stuff.

* * *

MR. A: Payable to her at the same time as we pick up the paperwork all signed.

THE COURT: Regarding the trust that Mr. Rubin is making reference to now, correct?

MR. A: Correct.

THE COURT: Mr. Rubin, thank you. In terms of the trust.

MR. RUBIN: I will do my best on behalf of my client to cooperate with Mr. A's attorney or if Mr. A chooses not to proceed with counsel, with him personally, in order to effectuate the resignation of the plaintiff as the sole trustee and whatever other requirements New York Life might have in order to accomplish this.

THE COURT: And to accomplish this transaction of the 20,000, regarding the 20,000 payment and the issues raised regarding the trust, the parties will endeavor to do it within 45 days but not more than 60 days. Is that correct?

MR. RUBIN: That's correct.

* * *

MR. A: I just want to make sure that this is fully understood. I will deliver the $5,000 or wire it to your account by this coming up Monday. The $20,000 I will issue a bank check payable to A.S. no later than — within 45 days but not later that 60 days, and we will have a meeting where you are going to be handed that check upon us being handed all the documentation that we need.

MR. RUBIN: Correct.

As a threshold matter, the Defendant argues that the Plaintiff's Affirmation in opposition and reply (hereinafter referred to as the "Plaintiff's Reply") is defective and should be disregarded by the Court. An affirmation which does not contain the language as required by CPLR § 2016 shall be inadmissible. Great Lakes Ins. SE v. American S.S. Owners Mut. Protection & Indem. Assn. Inc.. 228 AD3d 429 (1st Dept. 2024); see also Lewis v. Herbert, 240 N.Y.S.3d 886 (1st Dept. 2025). CPLR § 2106(a) provides:

(a) The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, other than in a deposition, or an oath of office, or an oath required to be taken before a specified person other than a notary, may be used in an action in New York in lieu of and with the same force and effect as an affidavit, a certificate, a response to a notice to admit, an answer to interrogatories, a verification of a pleading, a bill of particulars and any other sworn statement. 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, except as to matters alleged on information and belief and as to those matters I believe it to be true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)

Here, the Plaintiff's Reply, entitled an "Affirmation", is utterly devoid of the language required by CPLR § 2106. Therefore, it's a nullity and is disregarded by the Court as inadmissible. In addition, even if the Plaintiff's Reply was not considered an Affirmation, and was instead supposed to be an Affidavit, the Court would have, in any event, disregarded same, as it is still not in admissible form. While the beginning of the Plaintiff's Reply states "...A.S. [capitalization in original], being duly sworn, deposes and says..." same is not notarized, and same is not dated. Therefore, even if the Plaintiff's Reply purports to be an Affidavit, it is still not in admissible form. See generally Simpson v. Tommy Hilfiger, U.S.A., Inc., 48 AD3d 389 (2d Dept. 2008) (writing that affidavit was correctly rejected as not being in admissible form where affidavit was unnotarized).

Furthermore, for the first time in the Plaintiff's Reply (which has been disregarded anyway), the Plaintiff appends a purported "Instrument of Resignation". It is well-settled that defects cannot be cured in reply papers. American Tr. Ins. Co. v. Randolph, 2012 NY Misc. LEXIS 2981 (Supreme Court Nassau County 2012). Generally, arguments proffered for the first time in reply papers shall not be considered by the Court, and this theory is meant to proscribe the practice of using reply papers to introduce new evidence in order to cure deficiencies. Guzman v. Waxter, 2017 NY Misc. LEXIS 708 (Supreme Court Bronx County 2017). Here, and [*5]without any explanation at all (not even a cognizable one), the Plaintiff failed to append a copy of the Instrument of Resignation to her initial moving papers. The Plaintiff also - again without explanation - fails to address why she failed to append a copy of the Instrument of Resignation to her moving papers. She cannot cure this defect in her reply papers.

The February 2018 Stipulation was clear: in sum and substance, the Defendant was to wire $5,000 to the escrow account of the Plaintiff's counsel by that Monday after the date of the February 2018 Stipulation and pay an additional $20,000 within forty-five days, but not later than sixty days, provided that the parties "...have a meeting where you are going to be handed that check upon us being handed all the documentation that we need..." In order for a contract to be binding and enforceable, there must be valid consideration. Nassau County v. New York State Urban Dev. Corp., 48 Misc 3d 248 (Supreme Court Nassau County 2015). Consideration may take the form of either a promise or performance, and has been said to consist of what is actually given or suffered and accepted for a promise. Nassau County, 48 Misc 3d at 254. As the Restatement (Second) of Contracts provides:

Where all or part of the performances to be exchanged under an exchange of promises are due simultaneously, it is a condition of each party's duties to render such performance that the other party either render or, with manifested present ability to do so, offer performance of his part of the simultaneous exchange.

See Restatement (Second) of Contracts § 237. Here, there was to be, in effect, a simultaneous exchange: the Defendant was to deliver the remaining $20,000.00 not later than sixty days from February 13, 2018 and the Plaintiff was to deliver a resignation as trustee of herself not later than sixty days from February 13, 2018. Even if the Court considered the Instrument of Resignation, same was not signed by the Plaintiff until June 12, 2019, more than one year after it was due. The Court finds the Plaintiff's failure to perform under the February 2018 Stipulation to be material. It is clear to the Court that the Plaintiff failed to timely perform under the February 2018 Stipulation. The Plaintiff offers no justification or even an explanation as to why she failed to timely perform under the February 2018 Stipulation. As guided by the Restatement (Second) of Contracts:

In determining whether a failure to render or to offer performance is material, the following circumstances are significant:

(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;

(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;

(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;

(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

See Restatement (Second) of Contracts § 241.

The Court has considered those five factors. First, the Plaintiff was deprived of the benefit he reasonably expected, i.e., that the Plaintiff resign as trustee within not later than sixty [*6]days from the date of the February 2018 Stipulation. See Restatement (Second) of Contracts § 241(a). Here, even if the Court were to consider the Instrument of Resignation (improperly placed in the Plaintiff's Reply for the first time), it is clear to the Court that the document was not executed within not later than sixty days from the February 2018 Stipulation, but, rather, more than one year after the expiration of the sixty day period. This factor weighs in favor of finding for the Defendant. Second, the Defendant cannot be adequately compensated for the part of the benefit of which he was deprived, i.e., that the Plaintiff resign as trustee not later than sixty days from the February 2018 Stipulation. See Restatement (Second) of Contracts § 241(b). There is simply no sum of money that is readily ascertainable or measurable that could recompense the Defendant for the Plaintiff's failure to timely execute the Instrument of Resignation (had the Court considered same). This factor weighs in favor of finding for the Defendant. Third, the extent to which the Plaintiff, who failed to timely perform, will suffer forfeiture is measured such that the Plaintiff will be deprived of $25,000.00 under the February 2018 Stipulation. See Restatement (Second) of Contracts § 241(c). However, the Plaintiff was not deprived of all benefits, as it is undisputed, and the Plaintiff does not even address or challenge, the Defendant's assertion that she chose to remain as beneficiary of his $10,000,000.00 life insurance policy for a longer period of time instead of receiving the one-time payment of $25,000.00. Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted. Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539 (1975). The fact of the matter is that the Plaintiff - undisputedly - remained as beneficiary of a $10,000,000.00 life insurance policy for a longer period of time that she was allowed to rather than timely accept the $25,000.00 payment. That's a risk she herself chose to take. While the Plaintiff may have forfeited $25,000.00, she gained the benefit of remaining as beneficiary of a substantial life insurance policy. This factor weights in favor of finding for the Defendant.

Fourth, the likelihood that the Plaintiff, who originally failed to perform, would cure her failure is satisfied because, had the Court considered the Instrument of Resignation, she had, in fact, executed it, albeit more than a year after it was due. See Restatement (Second) of Contracts § 241(d). As the Instrument of Resignation was executed, this factor weighs in favor of finding for the Plaintiff. Fifth, and finally, the extent to which the behavior of the Plaintiff, who failed to timely perform, failed to comport with the standard of good faith and fair dealing. See Restatement (Second) of Contracts § 241(e). The Plaintiff's execution of the Instrument of Resignation (had the Court considered same), was over 365 days after it was to be executed. She offers no explanation was to why it took her more than a year to comply with the February 2018 Stipulation. She also fails to address the assertion (had the Court considered the Plaintiff's Reply) that she remained as beneficiary of a $10,000,000.00 life insurance policy. This factor weighs in favor of finding for the Defendant.

As Corbin on Contracts explains:

Contractual promises create duties, but duties can be conditional. Unless excused, in the contractual context, a condition is an event not certain to occur, but which event must occur to activate the duty to which it is attached and make that then existing duty immediately enforceable. The condition may be express or implied or it may be a constructive condition created by the court. If the condition does not occur, the duty has never flowered into existence, so no breach of the duty to which the condition was [*7]attached is possible. If the time has expired for the conditioning event to occur, the duty to which the condition is attached is "discharged."

See 2 Corbin on New York Contracts § 68.01 (emphasis added).

Here, the Plaintiff was required to, in effect, hand over the resignation of trustee with respect to the trust not later than sixty days from February 13, 2018, or by April 14, 2018, in order to receive the remaining $20,000.00. There is no disputed issue of fact that the Defendant himself tendered the $5,000.00 to the escrow account of the Plaintiff's then-attorney by the Monday following the February 2018 Stipulation. The Defendant's good faith was satisfactorily demonstrated to the Court by that $5,000.00 payment. In furtherance of the aforesaid, the condition attached to the Plaintiff's receipt of the $25,000.00, and, more specifically, being handed a check for $20,000.00 was for her to provide the trust documents not later than sixty days from the February 2018 Stipulation. She failed to do so, and, critically, she provides this Court with no explanation whatsoever as to why she failed to timely perform. Inasmuch as the time has expired for the conditioning event to occur, namely the turnover of the resignation of trust, and inasmuch as that time expired sixty days from the February 2018 Stipulation, or April 14, 2018, the duty to which the condition is attached, namely the payment of the $25,000.00, is discharged. See 2 Corbin on New York Contracts § 68.01

As an aside, the Court has considered an additional argument propounded by the Defendant, namely, laches. As the Second Department explained:

The doctrine of laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party. The mere lapse of time without a showing of prejudice will not sustain a defense of laches. In addition, there must be a change in circumstances making it inequitable to grant the relief sought. Prejudice may be established by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay.

Skrodelis v. Norbergs, 272 AD2d 316 (2d Dept. 2000) (internal citations omitted). Here, the Plaintiff waited seven years to bring an enforcement application seeking the recovery of the aforesaid $25,000.00. She provides this Court with no explanation as to why she waited seven years. Curiously, in her initial moving Affidavit, she does not even allege that she timely complied with the condition that she execute the documents necessary to effectuate her resignation from the trust. The Court has no idea as to why she chose to admit that crucial detail, which was a necessary and material component of the parties' February 2018 Stipulation and a condition to her receipt of the $25,000.00. That aside, the Court finds the passage of seven years to be inexcusable and unreasonable. Furthermore, the Court finds that prejudice befell the Defendant inasmuch as his bargained-for exchange under the February 2018 Stipulation was her removal from the trust, and that the Plaintiff's inaction and delay resulted in her remaining as the beneficiary of that trust.

Pursuant to Judiciary Law § 753(A)(3):

"A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases:

* * *

"3. A party to the action or special proceeding, an attorney, counsellor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum except as otherwise specifically provided by the civil practice law and rules; or for any other disobedience to a lawful mandate of the court."

A contempt citation is a drastic remedy which should not be granted absent a clear right to such relief. Pinto v. Pinto, 120 AD2d 337 (1st Dept. 1986); Usina Costa Pinto SA v. Sanco Sav Co. Ltd., 174 AD2d 487 (1st Dept. 1991); See also Board of Mgrs. of the Empire Condominium v. Attwood, 2014 NY Misc. LEXIS 2265 (Supreme Court New York County 2014). Contempt is a drastic remedy which necessitates strict compliance with procedural requirements. Loeber v. Teresi, 256 AD2d 747 (3d Dept. 1998). A motion to punish a party for civil contempt is addressed to the sound discretion of the court. Matter of Hughes v. Kameneva, 96 AD3d 845 (2d Dept 2012). Given the Plaintiff's failure to timely comply with the February 2018 Stipulation, and given her longstanding delay in the filing of her application, and given that the Defendant's duties under the February 2018 Stipulation were discharged because of the Plaintiff's own failure to comply (see supra), the Court declines to adjudicate the Defendant in contempt of court, and declines to enforce the February 2018 Stipulation. To this end, it is hereby:

ORDERED, that Branches (a) and (b) of the Plaintiff's Amended Order to Show Cause for Contempt and to Compel dated April 29, 2025 be and the same are hereby DENIED; and it is further

ORDERED, that Branch (2) of the Defendant's Notice of Cross-Motion dated December 29, 2025 be and the same is hereby GRANTED TO THE EXTENT that the Plaintiff's former attorney, Peter Rubin, Esq., escrowee, is hereby directed to release-back to the Defendant the sum of $5,000.00, which was being held in the escrow account of Peter Rubin, Esq., within five (5) days of the date of this Decision and Order.

COUNSEL FEES

A. Plaintiff's Application

The Plaintiff's application for counsel fees is denied. On procedural grounds, the Court would have denied the motion without prejudice. The Plaintiff failed to append a copy of her retainer agreement and invoices with her counsel. On substantive grounds, even if the Plaintiff had provided those documents, the Court would have denied this portion of the motion in any event. The Plaintiff was unsuccessful in her enforcement motion, failed to timely perform under the February 2018 Stipulation, and provided no explanation as to why she waited seven years to seek enforcement. The Plaintiff's position simply had no merit. Accordingly, it is hereby:

ORDERED, that Branch (C) of the Plaintiff's Amended Order to Show Cause for Contempt and to Compel dated April 29, 2025 be and the same is hereby DENIED.

B. Defendant's Application

Domestic Relations Law § 238 provides, in relevant part, that:

"...[i]n any action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce...the court may in its discretion require either party [*8]to pay counsel fees and fees and expenses of experts directly to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires having regard to the circumstances of the case and of the respective parties..."

An award of counsel fees may be based in part on the relative merit of the parties' positions, but should not be predicated solely on who won and who lost. Matter of Steven S. v. Yelena M., 129 AD3d 408 (1st Dept. 2015). Like DRL § 237 applications, there is a statutory presumption that counsel fees should be awarded to the less monied spouse, and when determining whether a counsel fee award is warranted, the Court is directed to consider the "relative financial circumstances of the parties, the relative merit of their positions, and the tactics of a party in unnecessarily prolonging the litigation. S.P. v. M.P., 2019 NY Misc. LEXIS 333 (Supreme Court Richmond County 2019). Here, the Defendant's application for reimbursement of counsel fees is granted. The invoice appended to the Defendant's cross-moving papers reflects the sum of $2,385.00 incurred. See generally DeCamello v. DeCamello, 151 AD3d 804 (2d Dept. 2017) (counsel fees of $2,500 modified to $855 awarded when documentation submitted in support of that branch of the plaintiff's motion only established that the plaintiff had incurred attorney's fees in the sum of $855). The Defendant was forced to incur these counsel fees in the defense of an application interposed by the Plaintiff which completely lacked merit inasmuch as she waited over seven years to file it without explanation and she failed to timely perform under the February 2018 Stipulation. Therefore, it is hereby:

ORDERED, that Branch (3) of the Defendant's Notice of Cross-Motion dated December 29, 2025 be and the same is hereby GRANTED TO THE EXTENT that the Plaintiff shall pay directly to the Defendant, J.A., the sum of $2,385.00 as and for reimbursement of his reasonable counsel fees, within thirty (30) days of the date of service of the within Decision and Order with Notice of Entry; and it is further

ORDERED, that upon the failure of Plaintiff to pay the Defendant as set forth herein above, the Plaintiff may file an Affidavit of Non-Compliance with the Clerk of the County, who shall enter a judgment, with statutory interest thereon as of the date of this Decision and Order, in favor of the Defendant, J.A., and against the Plaintiff, A.S., without further proceedings.

Any other relief requested not specifically addressed herewith is hereby DENIED.FN2

This constitutes the Decision and Order of this Court.

Dated: April 8, 2026

Mineola, New York

E N T E R :

Hon. Edmund M. Dane, J.S.C.