Opinion
9082N Index 306632/16
04-23-2019
Ulises TORRES, Plaintiff–Appellant, v. Sharon TORRES, Defendant–Respondent.
Brian D. Perskin & Associates P.C., Brooklyn (Brian D. Perskin of counsel), for appellant. Christine K. Wienberg, New City, for respondent.
Brian D. Perskin & Associates P.C., Brooklyn (Brian D. Perskin of counsel), for appellant.
Christine K. Wienberg, New City, for respondent.
Renwick, J.P., Gische, Webber, Singh, JJ.
Order, Supreme Court, New York County (Michael L. Katz, J.), entered September 24, 2018, which denied plaintiff's motion to vacate the pendente lite order of spousal maintenance and counsel fees awarded to defendant and his request for sanctions and counsel fees, unanimously affirmed, without costs.
The court properly denied plaintiff husband's motion to vacate the pendente lite order of spousal maintenance and counsel fees because he failed to show the existence of fraud (see CPLR 5015[a][3] ; Grinshpun v. Borokhovich, 148 A.D.3d 447, 49 N.Y.S.3d 114 [1st Dept. 2017] ). Moreover, whether or not defendant wife's nondisclosure of a new tenant in the investment property amounted to misrepresentation or other misconduct, plaintiff did not establish that the information would have been material to the outcome of her request for temporary spousal maintenance and attorney's fees (see Matter of Travelers Ins. Co. v. Rogers, 84 A.D.3d 469, 922 N.Y.S.2d 82 [1st Dept. 2011] ).
We decline to disturb the pendente lite award, there being no showing of exigent circumstances (see Sumner v. Sumner, 289 A.D.2d 129, 733 N.Y.S.2d 869 [1st Dept. 2001] ). Ordinarily, an aggrieved party's remedy for any perceived inequities in a pendente lite award is a speedy trial, and no exception is warranted here (see Anonymous v. Anonymous, 63 A.D.3d 493, 496, 881 N.Y.S.2d 66 [1st Dept. 2009] ).
We find that the court providently exercised its discretion in denying plaintiff's request for counsel fees and sanctions as there is no basis for concluding that defendant's conduct was frivolous ( Pickens v. Castro, 55 A.D.3d 443, 444, 867 N.Y.S.2d 47 [1st Dept. 2008] ).