Summary
In Wagman, the noncompliance was failure to timely file the retainer agreement pursuant to 22 NYCRR 1400.1, and there was no evidence of any bills rendered at least every 60 days.
Summary of this case from Harding v. GilbertOpinion
2003-01060.
Decided June 1, 2004.
In a matrimonial action in which the parties were divorced by judgment dated December 16, 1996, the defendant appeals from an order of the Supreme Court, Westchester County (Shapiro, J.), dated January 7, 2003, which granted the plaintiff's motion for an award of an attorney's fee.
Jacqueline Bloom Wagman, Westport, Ct., appellant pro se.
Joel Wagman, Hartsdale, N.Y., respondent pro se.
Before: ANITA R. FLORIO, J.P., SANDRA L. TOWNES, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the motion is denied.
A party may recover an attorney's fee from an adversary spouse where there is substantial compliance with 22 NYCRR 1400.3 ( see Mulcahy v. Mulcahy, 285 A.D.2d 587; Flanagan v. Flanagan, 267 A.D.2d 80). In this case, the award of counsel fees was improper. The retainer agreement was not filed with the court until the making of this motion and, therefore, the plaintiff's counsel did not substantially comply with 22 NYCRR 1400.3. In any event, although 22 NYCRR 1400.01 required the plaintiff's counsel to render a written bill at least every 60 days, there is no evidence that any bill was rendered and none was submitted in support of the motion for an amount of an attorney's fee. This failure alone warrants the denial of the motion ( see Julien v. Machson, 245 A.D.2d 122; Kaplowitz v. Newman, 185 Misc.2d 205).
The parties' remaining contentions are without merit.
FLORIO, J.P., TOWNES, COZIER and MASTRO, JJ., concur.