Argued-April 9, 2018
Mischel & Horn, P.C., New York, NY (Scott T. Horn and
Naomi M. Taub of counsel), for appellant.
Clair Lans Greifer Thorpe & Rottenstreich LLP, New York,
NY (Howard P. Roy of counsel), for respondent.
C. BALKIN, J.P. BETSY BARROS ANGELA G. IANNACCI LINDA
DECISION & ORDER
matrimonial action, the defendant appeals from an order of
the Supreme Court, Westchester County (Francis A. Nicolai,
J.), entered March 28, 2014, and a judgment of the same court
(Janet C. Malone, J.), entered September 27, 2016. The order,
insofar as appealed from, granted the plaintiffs motion for
an award of attorney's fees and set the matter down for a
hearing on the amount of attorney's fees to be awarded.
The judgment, after a hearing, awarded the plaintiff
attorney's fees in the sum of $224, 287.
that the appeal from the order is dismissed; and it is
further, ORDERED that the judgment is affirmed; and it is
further, ORDERED that one bill of costs is awarded to the
appeal from the intermediate order must be dismissed because
the right of direct appeal therefrom terminated with entry of
the judgment (see Matter of Aho, 39 N.Y.2d 241,
248). The issues raised on the appeal from the order are
brought up for review and have been considered on the appeal
from the judgment (see CPLR 55Ol[a]).
parties were divorced pursuant to a judgment of divorce dated
July 20, 2OlO. The judgment incorporated, but did not merge,
the parties' stipulation of settlement, dated March 17,
2010 (hereinafter the 2010 stipulation of settlement). The
2010 stipulation of settlement provided, as relevant here,
that where one of the parties commences litigation to enforce
it, and that litigation does not ''result in a
judgment or order in favor of the party" who commenced
the litigation, that party shall reimburse the other party
for any and all expenses, including attorney's fees. In
2011, the defendant commenced litigation in the Family Court
to enforce certain provisions of the 2010 Stipulation of
Settlement, as incorporated into the judgment of divorce.
Thereafter, the plaintiff filed a contempt motion under a
separate docket number. After eight days of trial over nine
months, the parties agreed to withdraw their respective
petitions with prejudice. The parties nevertheless
"reserve[d] all other rights provided for" in the
2010 stipulation of settlement.
January 2014, the plaintiff filed a motion in the Supreme
Court seeking an award of attorney's fees pursuant to the
parties' 2010 stipulation of settlement, as incorporated
into the judgment of divorce, relative to the 2011 Family
Court litigation. In an order entered March 28, 2014, the
Supreme Court granted the plaintiffs motion to the extent of
finding that the plaintiff was entitled to an award of
attorney's fees and set the matter down for a hearing as
to the appropriate amount. In a judgment entered September
27, 2016, after a hearing, the plaintiff was awarded
attorney's fees in the sum of $224, 287. The defendant
appeals. We affirm.
of settlement, especially open court stipulations, are
favored by the courts and not lightly cast aside (see
McClorey v McClorey,153 A.D.3d 1252, 1253-1254).
"Litigants should bear in mind that a stipulation of
settlement limiting the issues, discontinuing a cause of
action, or withdrawing a claim is an agreement to which the
courts are party and in the enforcement of which the courts
have a particular interest" (Matter of Hofmann,287 A.D.2d 119, 122). Here, as the Supreme Court recognized,
because the defendant's 2011 enforcement proceeding did
not "result in a judgment or order in favor of the party
bringing such suit or proceeding," the defendant was
obligated under the terms of the 2010 stipulation of
settlement to reimburse the plaintiff s attorney's fees.
The defendant's contentions to the contrary are without
merit, as is the defendant's contention that the
plaintiff is barred by principles of res judicata from
seeking reimbursement of her attorney's fees. The Family
Court did not rule against the plaintiff on the matter of
attorney's fees, ...