Fagan v. Gorbatko

Summary

The New York Appellate Division, Second Department held that a nonparty attorney who acted only as counsel to the defendant’s attorney of record lacked standing to seek attorney’s fees directly under Domestic Relations Law § 237(a). The court nevertheless determined that the attorney’s conduct was not frivolous under 22 NYCRR 130-1.1, vacated the $17,300 sanctions award, and dismissed the related appeal as academic.

Holdings

1. An attorney who functions as counsel to the attorney of record may not properly seek attorney's fees and disbursements directly in the litigation from the opposing spouse; the attorney's remedy is to seek fees from the attorney of record. Because Steinberger was not the defendant's attorney of record, it lacked standing to bring the fee motion.
2. The Supreme Court improvidently exercised its discretion by imposing attorney's-fee sanctions against Steinberger because its conduct, under the circumstances, was not frivolous within the meaning of 22 NYCRR 130-1.1. The plaintiff's sanctions cross-motion was therefore denied and the sanctions award was vacated.

Questions Presented

1. Whether an attorney who acted only as counsel to the attorney of record, and did not file a notice of appearance, had standing to seek attorney's fees directly from the opposing spouse under Domestic Relations Law § 237(a).
2. Whether the Supreme Court improvidently exercised its discretion by imposing attorney's-fee sanctions under 22 NYCRR 130-1.1 based on Steinberger's fee motion.

Disposition

reversed_and_remanded