Rosenberg v. Rosenberg

On this appeal by defendant from a judgment of the Supreme Court, Kings County, entered November 20, 1970, which, after a non jury trial, inter alla, granted plaintiff a separation on the ground of cruel and inhuman treatment and awarded plaintiff alimony and counsel fees, except that defendant did not appeal from the provision therein which granted the separation, this court previously made an order remanding the case to Special Term for determination of defendant’s two counterclaims and holding the appeal in abeyance in the interim (Rosenberg V. Rosenberg, 39 A D 2d 737). Subsequently, Special Term made an order, entered January 31, 1973, which inter alla amended the judgment so as to add thereto a provision dismissing the counterclaims on the merits. Judgment, as amended, modified, on the facts, by (1) reducing the award of alimony, in the second decretal paragraph thereof, from $75 per week to $60 per week; (2) striking out the third, fourth and fifth decretal paragraphs thereof, which relate to the awarding of retroactive alimony, from November *74624, 1969; (3) reducing, in the eighth decretal paragraph thereof the award of counsel fees from $2,500 to $2,184 and the portion thereof allocated to the firm of Zolotorofe & Oxenberg, Esqs., from $816 to $500; and (4) striking out the tenth decretal paragraph thereof, which directed defendant to pay plaintiff’s medical and dental expenses incurred from the commencement of this action to the date of the entry of the judgment, up to $750. As so modified, judgment, as amended, affirmed insofar as appealed from, without costs. In our opinion, the above-mentioned awards were excessive to the extent indicated herein. The inclusion in the counsel fee award of the $500 allocated to the firm of Sparrow and Sparrow, Esqs., was somewhat premature (see Domestic Relations Law, § 237, subd. [b]). Since that firm did represent plaintiff on this appeal, however, we do not disturb this item in the award. Munder, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.