Third Department Holds That Failure to Effectuate Proper Service of a Motion Deprives the Court of Jurisdiction to Entertain the Motion

In Matter of Gariel v Morse, --- N.Y.S.3d ----, 2016 WL 7469484 (Mem), 2016 N.Y. Slip Op. 08921 (3d Dept., 2016) the Appellate Division held that the father’s letter to the court  had to be treated as a motion for voluntary discontinuance pursuant to CPLR 3217(b) (see Family Ct Act § 165[a]) and, as such, it had to  comply with the applicable service requirements. Inasmuch as the father’s failure to effectuate proper service  “deprive[d] the court of jurisdiction to entertain the motion”(Lee v. I–Sheng Li, 129 AD3d 923, 923 [2015]; see Matter of Lydia DD., 94 AD3d at 1386; Bianco v. LiGreci, 298 A.D.2d 482, 482 [2002]; Adames v. New York City Tr. Auth., 126 A.D.2d 462, 462 [1987]; Burstin v. Public Serv. Mut. Ins. Co., 98 A.D.2d 928, 929 [1983] ), it found that  Family Court erred in dismissing the petition.

Second Department Holds That Party Seeking Counsel Fees must Demonstrate, Prima Facie, Attorney Substantially Complied with 22 NYCRR 1400.2 and 1400.3

 In Piza v Baez-Piza, --- N.Y.S.3d ----, 2016 WL 7224738, 2016 N.Y. Slip Op. 08384 (2d Dept.,2016) following a trial, the defendant sought additional attorney’s fees, and, the Supreme Court, inter alia, awarded the defendant the sum of $7,500 in attorney’s fees for legal services provided following the earlier award of $3,500 in attorney’s fees. The Appellate Division held that Supreme Court erred in awarding the defendant total attorney’s fees in excess of the $7,500 retainer that she paid to her attorney, as she did not demonstrate, prima facie, that her attorney substantially complied with 22 NYCRR 1400.2 and 1400.3 (see Vitale v. Vitale, 112 AD3d 614, 615). It modified the judgment to provide that the additional award of attorney’s fees for legal services provided following the prior award of $3,500 be limited to the sum of $4,000 (see Mulcahy v. Mulcahy, 285 A.D.2d 587, 588–589).

Appellate Division Considers Factor [6] “the existence and duration of a pre-marital joint household in awarding Maintenance

 In Kaprov v Stalinsky, --- N.Y.S.3d ----, 2016 WL 7380951, 2016 N.Y. Slip Op. 08509 (2d Dept., 2016) the husband argued, inter alia,  that as the Supreme Court had already ordered him to pay, pursuant to a pendente lite order, $3,000 per month in temporary maintenance retroactive to November 12, 2010, the date on which the wife filed her complaint seeking a divorce, the Court, in awarding maintenance for seven years from the date of judgment this effectively granted the wife an 11–year maintenance award, which is excessive in duration given that the marriage lasted only 12 years and the parties had no children together. The Appellate Division rejected this argument observing that a  party’s maintenance obligation is retroactive to the date the application for maintenance was first made (see Domestic Relations Law § 236[B][6][a] ). However, the party is also entitled to a credit for any amount of temporary maintenance ... already paid” (Huffman v. Huffman, 84 AD3d 875, 876). In arguing that the maintenance award was out of proportion to the duration of the marriage, the husband failed to recognize that, pursuant to the version of Domestic Relations Law § 236(B)(6)(a) in effect at the time of the commencement of this action, one of the factors a court should take into account in deciding the amount and duration of a maintenance award is “the existence and duration of a pre-marital joint household” (Domestic Relations Law § 236[B][6][a][6] ). The wife testified that the couple lived together from 1984 to 2010, approximately 26 years. Thus, an 11–year award of maintenance was not out of proportion with the duration of the joint household. The maintenance award was appropriate for the wife to become self-supporting given the factors involved, including the duration of the pre-marital joint household, as well as the wife’s age, absence from the workforce, reduced earning capacity, and limited education (see Domestic Relations Law § 236[B][6][a] ).