Opinion
December 31, 1998
Appeal from the Supreme Court, Nassau County (Goldstein, J.).
Ordered that so much of the appeal as seeks review of the court's failure to decide that branch of his cross motion which was for downward modification is dismissed ( see, Katz v. Katz, 68 A.D.2d 536, 542-543); and it is further,
Ordered that the order is modified, on the law, by deleting the fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, and fifteenth decretal paragraphs thereof and substituting therefor a provision ordering that the deed to the former marital residence be released to the husband; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the plaintiff's counsel fees consistent herewith.
In the judgment of divorce dated March 4, 1993, the Supreme Court determined that the defendant owned the former marital residence located in Garden City and that the plaintiff would execute and deliver to the defendant's attorneys a bargain and sale deed in recordable form conveying her right, title, and interest in the residence to the defendant, which was to be held in escrow by the defendant's attorneys until he had satisfied certain enumerated requirements. At the hearing on the plaintiff's motion for post-judgment relief, she conceded that the defendant had satisfied each of those requirements. The court therefore erred in failing to direct the release of the deed to the former marital residence to the defendant and in imposing additional conditions on the deed's release ( see, Siegel v. Siegel, 132 A.D.2d 247).
The court also erred in directing the defendant to unconditionally return a certain sum of money to the children's bank accounts ( see, Siegel v. Siegel, supra). The judgment of divorce conditioned the return of those sums on either the sale or refinance of the house, contingencies which had not yet occurred at the time the order was issued.
Given the nature of the oral agreement entered into by the parties' attorneys at the hearing, the court erred in awarding counsel fees to the plaintiff in the absence of considering her statement of net worth ( cf., Stang v. Stang, 173 A.D.2d 812), and the matter is remitted for a new determination considering that statement.
The defendant's remaining contention is without merit.
Bracken, J. P., Copertino, Thompson and Friedmann, JJ., concur.