Fontanella v. Fontanella

Order, Supreme Court, New York County (Kristin Booth Glen, J.), entered on or about July 25, 1989, which conditioned the denial of plaintiffs motion to strike defendant’s testimony on defendant’s payment to plaintiffs counsel of $300 in attorney’s fees, unanimously modified, on the law, the facts, and in the exercise of discretion, and as so modified, affirmed.

The court was within its discretion in conditioning the denial of plaintiffs motion to strike defendant’s testimony upon defendant’s payment of plaintiffs attorney’s fees. (CPLR 3126.) Those fees were necessitated solely by defendant’s failure to comply with the court’s earlier order which required that she serve and file an affidavit of net worth by March 17, 1989. However, the court abused its discretion by arbitrarily fixing the amount of the fees, and we accordingly remand so that fees may be fixed upon a proper showing of the value of the work necessitated and amount of time actually expended. Concur—Ross, J. P., Rosenberger, Ellerin, Wallach and Rubin, JJ.