The following papers were read on this Motion: Emergency Order to Show Cause, Petition for Enforcement of Order of Visitation Made by Supreme Court, Exhibits 1 Notice of Cross-Motion, Affidavit in Support of Respondent’s Cross-Motion and in Opposition to Petitioner’s Order to Show Cause, Affirmation in Support of Respondent’s Cross-Motion and in Opposition to Petitioner’s Order to Show Cause, Exhibits 2 Reply Affidavit in Support and in Opposition to Cross-Motion, Affirmation in Support and in Opposition to Cross-Motion, Exhibits 3 Affidavit in Reply to Petitioner’s Opposition to Respondent’s Cross Motion, Exhibits 4 DECISION AND ORDER On June 5, 2020, the Petitioner JR, filed a Petition dated June 3, 2020 for Enforcement of an Order of Visitation Made by the Supreme Court by Emergency Order to Show Cause (hereinafter, the “Petition”) seeking, inter alia, an Order: 1) holding the Respondent, SR in contempt of the parties’ Judgement of Divorce dated April 1, 2019; 2) granting the Petitioner the right to exercise his parenting time with the parties’ children in accordance with the parties’ Stipulation of Settlement, dated August 2, 2018, and Judgment of Divorce, dated April 1st 2019; 3) granting the Petitioner reasonable make up parenting time as a result of the Respondent’s unilateral decision to withhold the parties’ children from the Petitioner; and 4) granting the Petitioner reasonable counsel fees as a result of having to make this application. The Respondent opposes the Petitioner’s application and moves by Notice of Cross Motion dated August 7, 2020 (hereinafter, the “Notice of Cross-Motion”) seeking, inter alia, an Order: (a) dismissing the Petition; (b) imposing sanctions pursuant to 22 NYCRR Section 130-1.1 against the Petitioner due to his making a frivolous application to this Court; and (c) for counsel fees in the sum of Three Thousand Five Hundred ($3,500) Dollars. The Petitioner has filed a Reply Affidavit in Support and in Opposition to Cross-Motion, and the Petitioner’s Attorney has filed an Affirmation in Support and in Opposition to Cross-Motion. The Respondent has filed an Affidavit in Reply to Petitioner’s Opposition to Respondent’s Cross-Motion. The Attorney for the Child has not submitted papers. RELEVANT PROCEDURAL BACKGROUND The parties herein are the parents of three children, to wit: AR, born January XX, 20XX; AR, born May XX, 20XX; and AR, born June XX, 20XX (hereinafter, the “Children”). The parties’ marriage was dissolved pursuant to a Judgement of Divorce dated April 1, 2019 (hereinafter, the “Judgment”), which incorporated, but did not merge with the parties’ Stipulation of Settlement dated August 2, 2018 (hereinafter, the “Stipulation of Settlement”). Pursuant to the terms of the Stipulation of Settlement, the parties share joint legal custody of the Children, with the Respondent having residential custody, and the Petitioner being entitled “to liberal parental access with the unemancipated children away from the [Respondent's] residence, which access may be mutually agreed upon between the parties”. The Stipulation did set forth a schedule of minimum parental access to which the Petitioner was entitled, all so as to avoid future misunderstandings. THE PARTIES’ ARGUMENTS In support of his application, the Petitioner alleges in the Petition that the Respondent has not permitted him to see the Children since March 15, 2020 due to the COVID-19 pandemic, except for a few hours on May 26, 2020. The Petitioner states that initially, when the pandemic started, he allowed the Children to stay home with the Respondent, but that he advised the Respondent on May 7, 2020 that he would resume his regular parenting time schedule effective May 8, 2020. He alleges that Respondent stated to him that if he insisted on taking Aydin, he would have to keep the child indefinitely as she could not risk her father’s health. Petitioner states that he agreed to keep the child, but that the Respondent later indicated that the child did not want to go, and she would not force him. Petitioner states that the child stated the opposite to him. The Petitioner further alleges that he has missed his alternate weekend and midweek overnight visits with the Children for the two months prior to his filing of the Petition, as well as significant events, milestones in the Children’s lives. He claims that he has “repeatedly reached out to the [R]espondent and planned diligently for [the] [C]hildren.” He further alleges that the Respondent has manipulated the Children, putting strain on their relationship with him, has abused her role as the residential custodial parent, plans activities during his parenting time, and that major decisions are “kept” from him. The Respondent vehemently opposes the Petitioner’s motion and states straightaway in her Affidavit that the Petitioner comes before this Court misrepresenting facts and falsely claiming she withheld the Children from him in “clear” retaliation for her filing of an Enforcement of Support in Queens County Family Court against Petitioner. She claims that the parties agreed that the Children would stay at her home due to the COVID-19 pandemic, for various reasons, including but not limited to her elderly father residing in her home, and the fact that the Petitioner and his partner being employed in the medical field. According to the Respondent, the Petitioner agreed to “pause his access.” The Respondent states, in sum and substance, that she has never withheld the Children from the Petitioner, and points out that the Petitioner, by his own admission, had access to the children on May 26, 2020, May 27, 2020, June 3, 2020, and June 10, 2020. The Respondent states that the Petitioner did not request his regular time at any point, and she notes that glaringly absent from the Petition are any text messages, emails, letters or correspondence to her or her attorney requesting time with the Children. She further notes that the Petitioner had access to the children on June 15th, June 17th for an overnight visit and then resumed his regular access of alternate weekends of Friday evening to Monday morning, as well as Wednesday overnight to Thursday morning. Respondent states that with respect to the Petitioner’s claims regarding the Eid holiday, he did not show up for pick up on that day nor did he communicate with her regarding same. The Respondent further states that with respect to the Petitioner’s request for make-up time, she claims that he has not requested any make-up time with the Children, nor has he responded to her attorney’s offers for make-up time. She further argues that Petitioner’s sole motivation for filing the instant application is retaliatory and punitive. She argues that that the parties, in the midst of the COVID-19 pandemic, agreed to “pause his access,” and that he resumed his access with the children prior to filing the instant application. Moreover, she argues that he failed to make any effort to resolve his requests to resume access or for make-up time with the Children with her directly prior to filing his petition. With respect to the Petitioner’s request for counsel fees and expenses, the Respondent and her attorney both argue that the Petitioner is barred from being awarded counsel fees because he failed to serve her with a formal Notice of Default as required by Article 13 of their Stipulation of Settlement. Furthermore, the Respondent notes that the Petitioner has failed to annex a retainer agreement or invoices to his moving papers. The Respondent contends that it is she who is entitled to an award of counsel fees. In support of the Respondent’s application for sanctions against the Petitioner, Respondent’s Attorney argues, in sum and substance, that the Petitioner’s conduct is frivolous and continues unabated with the intent to harass the Respondent. With respect to Respondent’s application for an award of counsel fees, her attorney requests an award in the amount of $3,500, pursuant to F.C.A. §438. The Petitioner opposes the Respondent’s cross-motion, and in his affidavit he states, in sum and substance, that he and the Respondent only communicate by text messages or emails, and the Respondent’s contention that his Petition lacks evidence of same can be easily rebutted. He adamantly denies the Respondent’s claim that they agreed that the Children would stay with her during the COVID-19 Pandemic due her father living with her and because he and his partner are healthcare workers, and that the claim is patently false. He admits that he sent a text message to the Respondent on March 18, 2020 indicating that he would not be picking up their son as a precautionary measure since he was ill and they did not know enough about COVID-19, and in response to the Respondent’s inquiry regarding his weekend parenting, he suggested that they wait until the 14-day period to make sure that their son was “fine”. He claims that the text messages between the parties during this time have no mention of the Respondent’s elderly father or Petitioner’s employment situation. In response to the Respondent’s claim that the Petitioner did not request to resume his parenting time, he annexes a copy of a purported text conversation between the parties from May 7, 2020 wherein he advised the Respondent of his intent to resume his weekend parenting time the following Friday. The Respondent, according to text message annexed to the Petitioner’s opposition, stated that “if [he] insist on picking up [their son] then you will have to keep him indefinitely.” He claims that the Respondent reneged claiming that their son did not want to go, which Petitioner contends is a lie. He annexes another portion of the text conversation between the parties from later in the evening on May 7, 2020 wherein the Respondent writes that “[t]he well being of the household will supersede your court orders,” which he argues demonstrates his “absolute need for filing” his emergency application. The Petitioner states that although the Respondent claims that he had access to the Children prior to the filing of the Petition, he was only with the Children for a few hours, and that the Respondent withheld the Children on his alternate weekend on May 15, 2020 and thereafter. The Petitioner states that the Respondent’s clear defiance for the terms of the Stipulation of Settlement and Divorce Judgment have necessitated the filing of his Petition. As the Respondent’s claim that the Petitioner never requested make-up time, he submits an email exchange between the parties initiated by him on July 14, 2020. In his email from July 14, 2020, he requested that the Respondent send him the Children’s summer schedule and planning for the remaining summer vacation. He claims to have made such inquiry so that he could schedule time with them, though it is noted that he did not actually request summer access or make-up time with the Children. She replied ten days later on July 24, 2020, but did not advise of the Children’s schedule, but rather answered his other inquiries and concerns. Petitioner then states that on August 11, 2020, he advised the Respondent of the few days that he would like the Children during that time period since those where the only that he cold schedule around work. He does not claim that Respondent denied him the time he requested in August1, but rather maintains that “this time does not come close to the time that [he had] already lost with them, which is what he is seeking in his application. The Petitioner’s Attorney addresses the Respondent’s application seeking that the Petition be dismissed as a matter law arguing she has failed to meet her burden. Counsel further contends that in viewing a motion to dismiss, the court must construe every fact alleged as true, and citing EBC I v. Goldman Sachs & Co.2 argues “whether the petitioner can ultimately establish the allegations contained in the petition is not part of the analysis.” Counsel argues that the allegations contained in the Petition adequately plead a cause of action for the Respondent’s alleged repeated violations of the Petitioner’s right to parenting time with the Children and her violation of the joint custodial obligations set forth in the Stipulation of Settlement as well as the Judgment. Counsel further argues that the Respondent has not failed to provide the Court with any proof to refute the Petitioner’s allegations. With respect to Petitioner’s request for counsel fees and sanctions, Counsel argues that same are warranted pursuant to D.R.L. §237(b), Judiciary Law §753, as well as case law. Counsel contends that the “mere fact that the [P]etitioner did not send the [R]espondent a written notice of default does not preclude him from seeking such fees and fines as a matter of law as the parties did not specifically waive their right to seek such additional remedies in their agreement.” In a final reply, the Respondent states that the Petitioner agreed to “pause” his access to the children until mid-May, but that his regular access with their son resumed shortly after New York City moved to “Phase 2″ of the COVID-19 shutdown plan, but not with the parties’ daughters, with whom he did not request access3. She again maintains that the Petitioner’s access resumed before she was served with the Petitioner’s Order to Show Cause, and that he has admitted that the access has moved forward without incident. She states that at the time that the Petitioner “elected” to “resume” his access with their son, the city was still in Phase 1, and schools were closed, activities were cancelled, and they were quarantined. She notes that the pandemic and the stay at him order issued by the Governor were unique and unprecedented. As to the Petitioner’s claims that Respondent has not been coparenting, she states that she regularly informs him of the Children’s appointment, but he chooses not to appear. With respect to his allegation that she has made appointments during his parenting time, she states that she made the appointment for all three children to have their annual physicals on October 28, 2020 at 4:30 p.m., the only appointment available. She states that she selected this time so that the Children could be seen back-to-back as the Petitioner’s parenting time is scheduled to begin at 6 p.m., and that she offered Petitioner the opportunity to take them. As to the issue relating to selecting of whether their son would do remote learning versus blended learning, she submits a copy of the text she sent regarding the issue, which she claims he responded to 5 days later (September 1) thereby delaying addressing important issues. As to the issues of “add-on” expenses for the Children, she claims that same have all been litigated in the Queens County Family Court. DECISION AND ORDER As to branch “1″ of the Petitioner’s motion seeking an order holding the Respondent, Shakira Rajwant in contempt of the parties’ Judgement of Divorce dated April 1, 2019, the Court must deny the application. Judiciary Law §753 provides, in relevant part, as follows: A. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases: *** 8. In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party. The elements necessary to support a finding of civil contempt are: (1) a lawful order of the court was in effect, clearly expressing an unequivocal mandate; (2) the appearance, with reasonable certainty, that the order was disobeyed; (3) that party to be held in contempt had knowledge of the court’s order; and (4) prejudice to the right of a party to the litigation (El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 41 N.E.3d 340 [2015]). The issues regarding the Petitioner’s missed parenting time arose during earlier part of the course of the Covid-19 Pandemic, and specifically at or around the time that transmission was at its peak and information was still being gathered at the highest levels. During that time, and even so now, there was much confusion and uncertainty. Parents in non-intact families were forced to weigh the safety and health of their household members against releasing children so as not to impinge upon the rights of both parents and children to have time with each other. The correspondence submitted by both parties demonstrates the parties’ uncertainty as to the best course of action with respect to the Petitioner effectuating his parenting time with their son. Strict adherence to the parenting time schedule was difficult at that time, if not impossible. The Court is not convinced that the Respondent maliciously withheld their son, but rather the parties both chose to modify the Petitioner’s access based upon the restrictions and reality of the pandemic. Therefore, the Court does not find that she violated Stipulation of Settlement of the Judgment. Accordingly, branch “1″ of the Petitioner’s motion is hereby DENIED. Branch “2″ of the Petitioner’s motion seeking and order granting the Petitioner the right to exercise his parenting time with the parties’ children in accordance with the parties’ Stipulation of Settlement, and Judgment of Divorce is hereby GRANTED, and the parties shall endeavor to abide by both the Stipulation of Settlement and Judgment of Divorce as strictly as possible given the rise in infection rates of COVID-19 at this time, and they shall communicate with each other with as much as advance notice as possible if modifications need to be made to ensure the health and safety of the Children, their respective household members, as well as the community at-large. Branch “3″ of the Petitioner’s motion seeking an order granting the Petitioner reasonable make up parenting time is hereby GRANTED, and the parties are directed to determine the dates and times for such “make-up” parenting through counsel. As to Petitioner’s application for an award of reasonable counsel fees as a result of having to make this application, same must be denied for the reasons more fully set forth herein below. First, Article 13 of the Stipulation of Settlement, entitled “Default” provides that: 13.1 In the event either party herein defaults with respect to any obligation hereunder, Except for the payment of basic child support by HUSBAND, and such default is not remedied within fifteen (15) days after receipt of written notice by certified mail, return receipt requested, to the defaulting party specifying such default, the defaulting party agrees to indemnify the other party against and to reimburse him/her for any and all costs, expenses and reasonable attorney’s fees resulting from or made necessary by the bringing of any suit or proceeding to enforce any of the terms or conditions hereof to be performed or complied with by the defaulting party, or to enforce any of the other party’s rights to recover any amount to be paid to him/her by the defaulting party pursuant to this Stipulation of Settlement, provided such suit or other proceedings results in a judgment or order in favor of the other party, 13.2 For the purposes of this Stipulation of Settlement, it is understood and agreed that in the event a party shall institute a suit or other proceeding against the other to enforce any of the terms, covenants, or conditions of this Stipulation of Settlement and after the institution of such action or proceeding and before judgment is or can be rendered, the defaulting party shall comply with such term or condition of the Stipulation of Settlement, then and in that event, the suit, motion or proceeding instituted by the party shall be deemed to have resulted in a judgment, decree or order in favor of the non-defaulting party. Here, there is nothing contained within or attached to the Petition and Order to Show Cause which demonstrates that the Petitioner sought to enforce his remedies under Article 13 of the Stipulation of Settlement, which is a condition precedent to the filing of a petition. The Petitioner has not shown that he sent written notice to the Respondent demanding that she comply with the Stipulation of Settlement and the Judgment of Divorce, nor has he attached any letters requesting that the Respondent’s alleged default be cured. Therefore, no counsel fees may be awarded to the Petitioner pursuant to the Stipulation of Settlement. Next, Petitioner’s counsel’s argument that an award of reasonable counsel fees must be made pursuant to D.R.L. §237(b) also fails. Section 237(b) of the Domestic Relations Law provides, in pertinent part, as follows: (b) Upon any application to enforce…an order or judgment…for custody, visitation, or maintenance of a child, made as in section two hundred thirty-six or section two hundred forty of this article provided,…or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and…directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court’s discretion, the court shall seek to assure that each party shall be adequately represented…Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement, between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Here, the Petitioner failed to annex to his moving papers “an affidavit with the court detailing the financial agreement, between the party and the attorney, [which] affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses.” Such defect may not be cured in reply papers. The purpose of reply papers is to give the movant the opportunity to address the arguments made in the opposition papers (Matter of Harleyville Ins. Co. v. Rosario, 17 AD3d 677, 677-678 [2d Dept. 2005]; Matter of TIG Ins. Co. v. Pellegrini, 258 AD2d 658, [2d Dept. 1999]). The Court finds that the Petitioner’s failure to annex the required affidavit to his moving papers is a fatal defect which cannot be cured by annexing same to his reply. Furthermore, even if, arguendo, the Petitioner’s failure to annex the required affidavit to his initial moving papers were to be overlooked, his application would still fail. This Court has carefully considered the circumstances of the case and of the respective parties, and the issue being within this Court’s discretion, it is this Court’s determination that an award of counsel fees would not be appropriate nor would it serve the interests of justice. Accordingly, branch “4″ of the Petitioner’s motion is DENIED. Now, in light of the foregoing, branch “a” of the Respondent’s cross-motion is DENIED. The Court is satisfied that for reasons which are not necessarily agreed upon between the parties, and which were largely outside of the control of the parties, the Respondent missed parenting time with the parties’ son pursuant to the Stipulation of Settlement and Judgment, and that he is entitled to enforce the terms of same. The four-corners of the Petition set forth a prima facie cause of action for enforcement thereby making dismissal for failure to state a cause of action in appropriate. As to branch “b” of Respondent’s motion seeking an order imposing sanctions pursuant to 22 NYCRR Section 130-1.1 against the Petitioner due to his making a frivolous application to this Court, the Court denies the application. 22 NYCRR 130-1.1 provides the following, in relevant part: (a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart…. (b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both…. (c) For purposes of this Part, conduct is frivolous if:…(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another…In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party. The Court, in this instance, and taking into consideration the facts and allegations as set forth in the parties’ respective moving papers, declines to sanction Respondent at this time in light of the remedies granted herein below. With respect to the Respondent’s application for counsel fees, the Court finds that the Respondent’s failure to provide the Petitioner with notice of any default in compliance with Article 13 of the Stipulation of Settlement, or apprise her of his intention to bring an enforcement action, deprived her of the opportunity to cure any alleged default before litigation expenses were incurred. Now, having taken into account the nature and extent of legal services rendered by the Respondent’s Counsel, the billing statements, the professional standing of the Respondent’s Attorney, and the necessity of the Respondent’s defense of the Petition, and filing of her own cross-motion, and after review of same, this Court finds that an award of counsel fees in this matter is appropriate. Accordingly, Respondent’s counsel is hereby awarded the sum of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) to be paid by the Petitioner to the Respondent’s Counsel, Barrocas, Mintz, Misuraca, and Record, P.C. on or before December 15, 2020. Based upon the foregoing, it is hereby ORDERED, the Petitioner, JR, shall pay to the Respondent’s Counsel, BARROCAS, MINTZ, MISURACA AND RECORD, P.C., the sum of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) as and for counsel fees, which sum shall be paid on or before December 15, 2020; and it is further ORDERED, that upon the failure of the Petitioner, JR, to pay the Respondent’s Counsel, BARROCAS, MINTZ, MISURACA AND RECORD, P.C., as more specifically set forth herein, counsel may file an affidavit of noncompliance with the Nassau County Clerk, who shall enter a money judgment against the Petitioner, JR, with statutory interest thereon as of the date of this order; and it is further ORDERED, the Petition is hereby deemed fully resolved, and there shall be no further proceedings before this Court thereon. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. Order mailed on [specify date(s) and to whom mailed: Dated: November 18, 2020
