Levine v. Levine

• Decision Date: 27 November 2013
• Citation: 2013 N.Y. Slip Op. 07943,975 N.Y.S.2d 686,111 A.D.3d 898
• Court: New York Supreme Court — Appellate Division
• Parties: Julie LEVINE, plaintiff-appellant, v. Robert LEVINE, respondent; Johnson & Cohen, LLP, nonparty-appellant.

111 A.D.3d 898
975 N.Y.S.2d 686
2013 N.Y. Slip Op. 07943

Julie LEVINE, plaintiff-appellant,
v.
Robert LEVINE, respondent;
Johnson & Cohen, LLP, nonparty-appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 27, 2013.

Johnson & Cohen, LLP, White Plains, N.Y. (Mitchell Y. Cohen of counsel), nonparty-appellant pro se.

Shapiro Gettinger & Waldinger, LLP, Mount Kisco, N.Y. (Mona D. Shapiro of counsel), for respondent.

In a matrimonial action in which the parties were divorced by an amended judgment dated April 25, 2005, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Neary, J.), entered January 24, 2012, and (2) a judgment of the same court entered March 30, 2012, and the nonparty Johnson & Cohen, LLP, appeals, as limited by its brief, from so much of the same judgment, as, upon the order entered January 24, 2012, denying the plaintiff's motion, inter alia, for a judgment pursuant to CPLR 3001 making certain declarations, and granting, without a hearing, that branch of the defendant's cross motion which was for an award of attorney's fees and expenses payable by the plaintiff and her counsel, the nonparty Johnson & Cohen, LLP, upon finding that the plaintiff's motion constituted frivolous conduct within the meaning of 22 NYCRR 130–1.1, is in favor of the defendant and against it in the principal sum of $17,594.92.

ORDERED that the appeals by the plaintiff from the order and the judgment are dismissed as abandoned; and it is further,

[975 N.Y.S.2d 687]

ORDERED that the judgment is affirmed insofar as appealed from by the nonparty Johnson & Cohen, LLP; and it is further,

ORDERED that the defendant is awarded one bill of costs payable by the nonparty Johnson & Cohen, LLP.

The Supreme Court providently exercised its discretion in granting that branch of the defendant's cross motion pursuant to 22 NYCRR 130–1.1 which was for an award of attorney's fees and expenses payable by counsel for the plaintiff, nonparty-appellant Johnson & Cohen, LLP (hereafter J&C), in the sum of $17,594.92 (see 22 NYCRR 130–1.1[a], [c]; Breytman v. Schechter, 101 A.D.3d 783, 957 N.Y.S.2d 145; Trajkovic v. Trajkovic, 98 A.D.3d 575, 576, 949 N.Y.S.2d 706). Contrary to J&C's contention, since the defendant expressly requested the subject relief in his cross motion papers, and J&C was afforded an opportunity to be heard and to oppose the cross motion, a hearing was not required (see 22 NYCRR 130–1.1[d]; Wesche v. Wesche, 51...