ISAACS v. ISAACS

2009-08573.

71 A.D.3d 951 (2010)

897 N.Y.S.2d 225

CHERYL A. ISAACS, Respondent, v. MARK P. ISAACS, Appellant.

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

Decided March 23, 2010.


Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court directed the defendant to pay, inter alia, the plaintiff's interim counsel fee in the sum of $10,000, to be paid in installments of $1,000 per month. Domestic Relations Law § 237 authorizes trial courts, in their discretion, to award interim counsel fees as justice requires (see DeCabrera v Cabrera-Rosete, 70 N.Y.2d 879, 881 [1987]; Prichep v Prichep, 52 A.D.3d 61 [2008]). Despite the defendant's argument that the plaintiff failed to establish his ability to pay interim counsel fees, his ability to pay was established based on the Supreme Court's in camera review of various financial documents he produced. In any event, unlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to the award of interim counsel fees (see Prichep v Prichep, 52 AD3d at 65; Singer v Singer, 16 A.D.3d 666 [2005]; Flach v Flach, 114 A.D.2d 929 [1985]). Here, the plaintiff is an unemployed homemaker with no income, while the defendant is employed as a matrimonial attorney. Thus, contrary to the defendant's contentions, the Supreme Court appropriately awarded the plaintiff interim counsel fees in order to ensure that "the nonmonied spouse will be able to litigate the action . . . on equal footing with the monied spouse" (Prichep v Prichep, 52 AD3d at 65).

The defendant further argues that the Supreme Court erroneously directed him to produce detailed responses to the wife's discovery demands, and improperly granted a conditional order of preclusion in the event of his noncompliance. Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court (see Pryzant v City of New York, 300 A.D.2d 383 [2002]; Kingsley v Kantor, 265 A.D.2d 529 [1999]; Kelleher v Mt. Kisco Med. Group, 264 A.D.2d 760 [1999]; Roach v Roach, 193 A.D.2d 660 [1993]). "Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed" (Lotardo v Lotardo, 31 A.D.3d 504, 505 [2006]). Since the defendant failed to comply with his discovery obligations, the Supreme Court did not improvidently exercise its discretion (see CPLR 3126). Moreover, since the Supreme Court's order affords the defendant an opportunity to "provide an affidavit of due diligence with regard to each item or document not provided, setting forth the effort made to provide each item or document," the defendant has an opportunity to explain his efforts to secure the missing documents and to avoid discovery sanctions.

The defendant's remaining contentions are without merit.


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