Schek v Schek
2008 NY Slip Op 02133 [49 AD3d 625]
March 11, 2008
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008


Lawrence S. Schek, Appellant,
v
Vinni M. Schek, Respondent.

[*1] Martin J. Rosen, P.C., White Plains, N.Y., for appellant.

Most & Kusnetz, LLC, White Plains, N.Y. (Marcia E. Kusnetz of counsel), for respondent.

In an action for a divorce and ancillary relief, the plaintiff husband appeals from a money judgment of the Supreme Court, Dutchess County (Sproat, J.), dated January 24, 2007, which, upon a decision of the same court dated January 5, 2007, awarded the defendant wife an attorney's fee in the sum of $60,000.

Ordered that the money judgment is affirmed, with costs.

The award of a reasonable attorney's fee is a matter within the sound discretion of the trial court (see Domestic Relations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]). An award of an attorney's fee should be based upon, inter alia, the relative financial circumstances of the parties, the relative merits of their positions, and the tactics of a party in unnecessarily prolonging the litigation (see Domestic Relations Law § 237 [a]; DeCabrera v Cabrera-Rosete, 70 NY2d at 881; Levy v Levy, 4 AD3d 398, 398-399 [2004]; Krutyansky v Krutyansky, 289 AD2d 299, 300 [2001]; Morrissey v Morrissey, 259 AD2d 472, 473 [1999]). The fact that the defendant wife has assets is not, by itself, a basis to deny a motion for an attorney's fee, as she "need not establish indigency as a prerequisite to an award of counsel fees" (Lenczycki v Lenczycki, 152 AD2d 621, 624-625 [1989]).

In view of the disparity between the incomes and resources of the parties (see Levy v Levy, 4 AD3d 398 [2004]), and the difficulties encountered in obtaining paper discovery from the plaintiff (cf. Griggs v Griggs, 44 AD3d 710, 714 [2007]), the court providently exercised its discretion in awarding the defendant an attorney's fee in the sum of $60,000. Spolzino, J.P., Florio, Angiolillo and Dickerson, JJ., concur.