Opinion
October 15, 1991
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the order is modified, on the law, and as a matter of discretion, by (1) increasing the amount of pendente lite maintenance awarded to the plaintiff to $500 per week and (2) deleting therefrom the provision disqualifying the plaintiff's expert Anthony J. Benedict as an expert appraiser; and as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
Recognizing that a speedy trial is the preferred method by which to remedy any perceived inequities in a pendente lite award (see, Barasch v. Barasch, 166 A.D.2d 399), this court will nonetheless increase a pendente lite award which it determines to be inadequate, particularly where, as here, the defendant husband was able to, and voluntarily did, pay a greater amount before the commencement of the action (see, Ciaccio v Ciaccio, 162 A.D.2d 494). Considering the comfortable life-style the parties maintained prior to their separation, and their respective conditions, we conclude that the plaintiff's reasonable needs will more appropriately be met by an award of $500 per week in temporary maintenance, a sum which the defendant has the ability to pay (see, Barasch v. Barasch, supra; Ciaccio v Ciaccio, supra; Wong v. Wong, 161 A.D.2d 710).
Further, the court improvidently exercised its discretion by sua sponte disqualifying the plaintiff's appraiser, Anthony J. Benedict, as the record reveals that the defendant never requested his removal or challenged his expert qualifications. Instead, the defendant merely alleged that Mr. Benedict was a past, and possible future, adversary who threatened to pose a conflict of interest or appearance of impropriety if he were allowed access to the case files of the defendant's law firm. As there was no challenge to Mr. Benedict's expert qualifications, the Supreme Court erred in removing him on the basis of an alleged conflict which should be considered in the context of the disqualification of an attorney (see, e.g., Greene v. Greene, 47 N.Y.2d 447; Matter of Reichenbaum v. Reichenbaum Silberstein, 162 A.D.2d 599). If the defendant can identify an actual conflict of interest, he can seek relief in the form of a protective order to exclude a specific case file from the expert's appraisal.
The awards of expert fees in the amount of $1,000 and $3,500 did not constitute improvident exercises of discretion (see, Domestic Relations Law § 237 [a]; Ahern v. Ahern, 94 A.D.2d 53). Mangano, P.J., Thompson, Bracken and Copertino, JJ., concur.