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Davis-Potente v. Potente

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 10, 2009

LAURIE ANN DAVIS-POTENTE, PLAINTIFF-APPELLANT,
v.
SAVERIO P. POTENTE, RESPONDENT; LAW OFFICES OF RUSSELL I. MARNELL, P.C., NONPARTY-APPELLANT.

In an action for a divorce and ancillary relief, the plaintiff appeals from a money judgment of the Supreme Court, Nassau County (Stack, J.), dated November 7, 2007, and the nonparty Law Offices of Russell I. Marnell, P.C., separately appeals, as limited by its brief, from so much of the same money judgment, as upon an order of the same court dated October 1, 2007, granting that branch of its motion which was for an interim attorney's fee, awarded it an interim attorney's fee in the sum of only $10,000, and failed to award disbursements.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., DAVID S. RITTER, ANITA R. FLORIO and HOWARD MILLER, JJ.

(Index No. 203207/05)

DECISION & ORDER

ORDERED that the appeal by the plaintiff is dismissed as abandoned; and it is further,

ORDERED that on the Court's own motion, the notice of appeal of the Law Offices of Russell I. Marnell, P.C., from the order dated October 1, 2007, is deemed to be a premature notice of appeal from the money judgment dated November 7, 2007 (see CPLR 5520[c]); and it is further,

ORDERED that the money judgment is affirmed insofar as appealed from by the nonparty Russell I. Marnell, P.C.; and it is further,

ORDERED that one bill of costs is awarded to the respondent payable by the nonparty-appellant.

Contrary to the contention of the nonparty-appellant, the Supreme Court did not improvidently exercise its discretion in awarding an interim attorney's fee in the sum of only $10,000 (see Domestic Relations Law § 237[a]; O'Shea v O'Shea, 93 NY2d 187; Prichep v Prichep, 52 AD3d 61; Silver v Silver, 46 AD3d 667; Salerno v Salerno, 142 AD2d 670). The amount was sufficient to ensure that the nonmonied wife was able to litigate the action on equal footing with the monied husband (see O'Shea v O'Shea, 93 NY2d 187; Prichep v Prichep, 52 AD3d 61).

The nonparty-appellant's remaining contention is without merit.

SKELOS, J.P., RITTER, FLORIO and MILLER, JJ., concur.

20090310

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