Upon the following papers read on the motions, to wit: 1. Plaintiff’s Order to Show Cause and supporting papers (e-file documents 87-92); 2. Defendant’s Affidavit and Affirmation in Opposition and supporting papers (e-file documents 95-102; 3. Plaintiff’s Reply and supporting papers (e-file documents 104-105); 4. Plaintiff’s Order to Show Cause and supporting papers (e-file document’s 107-116); 5. Defendant’s Affidavit and Affirmation in Opposition and supporting papers (e-file documents 121-129); 6. Defendant’s Supplemental Affidavit in Opposition and exhibit (e-file documents 131- 132); 7. Defendant’s Notice of Motion and supporting papers (e-file documents 141 156); 8. Plaintiff’s Affidavit in Opposition (e-file documents 157-158); 9. Defendant’s Reply and support papers (e-file documents 161-165). DECISION and ORDER BACKGROUND The parties in the above referenced action were married on June 14, 1992. There is one emancipated child of the marriage. Plaintiff (“Wife”) commenced the instant proceeding seeking an absolute divorce from Defendant (“Husband”) on January 21, 2020. The Preliminary Conference was held on July 16, 2020. During the lengthy pendency of this action, the parties settled many issues by way of written stipulations that were “so-ordered” by this Court. At issue in the instant application is a Stipulation of Settlement on executed on May 19, 2021 that resolved their separate property claims with respect to the marital residence located at 54 Tallmadge Trail, Miller Place, New York (“the Agreement”). The Agreement was so-ordered by this Court on May 20, 2021. Motion Sequence 2: Wife’s Application for Vacatur Wife now moves to vacate subdivision 1 (B) of the Agreement and for an award of counsel fees. Husband vehemently opposes her application and has also moved for counsel fees.1 The Agreement at subdivision (1)(B) states in pertinent part as follows: 1. Upon the sale of the marital residence and after the payment of the expenses of said sale, (including, but not limited to, the real estate commission(s), the New York Transfer Tax, title closer attendance fee and any other expenses which were necessarily incurred in connection with readying the martial residence for sale), but prior to the division and distribution of the net sale proceeds, (A) Plaintiff LINDA J. BLANCHARD shall receive the sum of $32,586.38, by a separate bank check issued at closing, in full and final satisfaction of her separate property claim in connection with the original purchase of the marital residence and; (B) Defendant CRAIG A. BLANCHARD shall receive the sum of $98,000.00, by a separate bank check issued at closing, in full and final satisfaction of his separate property claim in connection with the purchase of the marital residence. The Agreement further states that it formally resolves the parties’ separate property claims, and that “the parties and their attorneys waive Notice of Settlement in connection with the same”. (See, the Agreement at paragraph 3). According to Wife, the parties purchased the marital residence in 1998. Each party contributed toward the purchase of same. Wife alleged in substance that after the recent sale of the marital residence, she found the parties’ 1998 joint federal and state tax returns prepared by a certified public accountant who was also a friend of Husband. She alleged that a review of a Fidelity Investment statement attached to said returns revealed that Husband liquidated $105,532.44 in the same year the marital residence was purchased. Wife’s discovery resulted in her conclusion that the source of Husband’s money to purchase the marital residence was a jointly held account with the right of survivorship as reflected in the aforementioned Fidelity Investment statement. Wife averred that it “should be obvious to this Court that there was a mistake of fact and a falsehood” by her and “a falsehood” Husband in that the parties agreed that Husband would receive a $98,000.00 separate property credit when said funds were marital. She requests that this Court vacate Subdivision 1(B) of the Agreement and award her of $49,000.00 of the $98,000.00 received by Husband, representing one half said sum. Husband denied Wife’s accusations and opposed her application. Husband alleged in substance that he fully disclosed the accounts from which he withdrew the monies that he contributed toward the purchase of the marital residence in his Statement of Net Worth (section IV(B)(4)(Id) of the Rider). His Statement of Net Worth was served upon Wife’s Counsel on July 8, 2020 and e-filed with the Court on July 13, 2020 (see, e-file document 5). Husband also alleged that the accounts in question were originally his individual premarital account which he changed to a joint account and an another he created using his premarital monies. Neither he nor Wife contributed any additional money to one account after the date of marriage; and that he added Wife to the other account as a matter of convenience. He further argued his actual separate property contribution exceeded $98,000.00, and that said sum was a compromise in full satisfaction of his total separate property claim. Additionally, Husband argued that the Agreement is a contract and is subject to the principles of contractual interpretation. As such, it must be enforced according to the plain meaning of the language selected by the parties. The Agreement is devoid of any language correlating the payments made pursuant to its terms to specific dollar amounts contributed by the parties or to the source of the monies so contributed. The Agreement is written in clear and concise language and is the product of settlement negotiations between the parties. Husband further argued that Wife failed to meet her burden of proof to warrant a vacatur of the Agreement. He averred that her application is actually for reformation of the Agreement rather than vacatur, as she seeks to only vacate the payment already made to Husband while leaving her payment intact. As the criteria for reformation is the same for vacatur, Wife relief must nevertheless be denied. Husband relied upon several seminal cases in support of his various arguments. It is axiomatic that a matrimonial settlement agreement is a contract subject to the principles of contractual interpretation. See e.g., Edwards v. Poulmentis, 307 AD2d 1051 (2d Dept 2003); “Stipulations of settlement are favored by the courts and not lightly cast aside”. Hallock v. State of New York, 64 NY2d 224 (1984). See generally, Christian v. Christian, 42 NY2d 63 (1977); Simkin v. Blank, 19 NY23d 46 (2012). When challenged, “a stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse’s overreaching”. Cruciata v. Cruciata, 10 AD3d 349 (2d Dept 2004). See also, Abrams v. Abrams, 240 AD2d 445 (2d Dept 1997). This is especially so when the parties are represented by counsel. See, Barry v. Barry, 100 AD2d 920 (2d Dept 1984), aff’d 85 NY2d 627 (1984). In the matter sub judice, Wife has alleged a “mistake of fact and a falsehood by the Plaintiff and a falsehood by Defendant” as the basis for the instant application. See, Attorney’s Affidavit in Support (see e-file document 88, paragraph 6). As articulated, Wife’s allegation appears to be that there was a unilateral mistake by her based upon a fraud or misrepresentation by Husband. Wife cited no authority for her application. After careful consideration, the Court finds that Wife failed to establish by clear and convincing evidence that the Agreement was executed under a unilateral mistake induced by Husband’s fraudulent misrepresentation. See, e.g., Moshe v. Town of Ramapo, 54 AD3d 1030 (2d Dept 2008). Husband maintained that Wife and her Attorney were in possession of the documents upon which Wife’s application was based. Wife did not rebut Husband’s proof that over a year prior to the execution of the Agreement, he had disclosed the source of the monies he contributed to the purchase of the marital residence as a Rider attached to his Statement of Net Worth (see Section IVB 4. Id). Additionally, Wife conducted a pre-trial examination of Defendant on March 29, 2021. Wife designated the transcript of this examination as one of her proposed trial exhibits (see e-file VEC document 1-2), referenced in Husband’s application for sanctions discussed supra). Said transcript not only establishes that Husband’s Counsel provided her Counsel with the financial statements at the crux of her application on March 29, 2021 for a second time, but also that her Counsel examined Husband about these accounts, including making specific inquiry about the withdrawal of funds and his separate property claim. These facts clearly belie Wife’s allegations made in support of her application. The arguments advanced by Wife are simply unpersuasive. Wife had a full and fair opportunity to conduct discovery and question Husband regarding these accounts and his separate property claim during his deposition. Wife’s failure to conduct the necessary due diligence with respect to same does not meet the requisite threshold for either vacatur of the Agreement or a hearing on the issue. Cf., Enright v. Vasile, 205 AD2d 732 (2d Dept 1994). The Court finds Wife’s application to be devoid of merit. Accordingly, Wife’s application is denied. Motion Sequence 3: Wife’s Motion for Counsel Fees Wife’s seeks $25,000.00 as and for interim counsel fees. She alleged in substance that she suffered from a litany of serious health issues and that she was responsible for caring for their 27 years old daughter who also has significant medical issues. Additionally, Wife avers that given their respective financial circumstances, it should be “obvious” to this Court that Husband is the monied spouse which warrants an award of counsel fees. She highlighted Husband’s various investments in excess of $700,000. Wife relies on Domestic Relations Law §237 and Matter of Potts, 213 AD 59 (4th Dept 1925) in support of her request. Husband vehemently opposed Wife’s request. He argued in substance that much like her motion to vacate the Agreement, her counsel fee application is replete with misstatements and half-truths. For example, she received the sum of $106,365.86 pursuant to the Agreement and the sale of the marital residence. She alleged that she borrowed money from her parents yet did not disclose the amount or whether she was obligated to repay those monies. She also neglected to disclose that her attorney received $20,000.00 in accordance with the Agreement. She did not provide any evidence of her claimed maladies. He also contradicted Wife’s version of her current circumstances and their 27 year old daughter’s medical issues. Domestic Relations Law §237(a) states in pertinent part: “In any action or proceeding brought…for a divorce…the court may direct either spouse…to pay counsel fees…directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding 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…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.” It is well settled that an award of counsel fees is within the sound discretion of the court. The issue of counsel fees is controlled by the equities and circumstances of each case. See Nicodemus v. Nicodemus, 98 AD3d 604 (2d Dept. 2012); see also DeCabrera v. DeCabrera-Rosete, 70 NY2d 879 (1982). Additionally, an award of interim counsel fees is warranted where there is a significant disparity in the financial circumstances of the parties. See Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008). Additionally, court rules impose additional requirements upon attorneys in domestic relations matters. See, 22 NYCRR 1400. Failure to substantially comply with these rules will preclude an attorney’s recovery of fees from his or her client or from the opposing party. See, Montoya v. Montoya, 143 A.D.3d 865 (2d Dept. 2016); see also Wagman v. Wagman, 8 A.D.3d 263 (2d Dept. 2004). Wife previously submitted an application for interim counsel fees, but failed to attach an updated Statement of Net Worth. The Court denied that application and granted leave to resubmit her request by November 1, 2021 on proper papers. (See e-file doc 103). The instant resubmission was timely filed on October 6, 2021. This time, although Wife included a Statement of Net Worth with her application, she failed to attach billing statements that would support her request for a $25,000.00 counsel fee award. The only billing statement submitted for this Court’s consideration covers the time period between September 7, 2021 through October 5, 2021. Said bill reflects a monthly total of $7,220.25, which includes charges for the preparation of her Order to Show Cause pending before the Court (Motion sequence 2) and preparation for trial. After careful consideration, the Court finds that Wife’s Attorney failed to substantially comply with the rules requiring periodic billing statements at least every 60 days (see, 22 NYCRR 1400.2). See also, e.g., Montoya, Id.; Greco v. Greco, 161 AD3d 950 (2d Dept 2018); Gahagan v. Gahagan, 51 AD3d 383 (2d Dept. 2008). Moreover, there was no showing of substantial compliance made on a prima facie basis as part of Wife’s moving papers. See, Montoya, Id.; Gottlieb v. Gottlieb, 101 AD3d 678 (2d Dept. 2012). Accordingly, Wife’s application for counsel fees is denied. Motion Sequence 4: Husband’s Motion for Counsel Fees and Sanctions Husband filed this application requesting sanctions pursuant to 22 NYCRR §130-1.1 against Wife in connection with her “frivolous motion” to vacate the Agreement. Specifically, he seeks the sum of $2,792.25 as and for reimbursement for the reasonable fees and costs incurred with the defense to Wife’s application, and the sum of $3,793.50 as and for the reasonable costs incurred by him in connection with his counsel fee request. The gravamen of Husband’s application is his allegation that Wife and her Attorney have been disingenuous with the Court, that her application for vacatur of the Agreement was based upon false information and lacked merit based upon her failure to set forth a legal theory to warrant the requested relief. Husband reiterated his arguments articulated in his opposition to Wife’s vacatur motion and attached billing statements to support his request. Wife did not proffer a legal or factual defense to Husband’s application for sanctions. Inexplicably, she criticizes Husband’s Counsel for submitting an affirmation rather than an affidavit in support of what she describes as his application for counsel fees. She argued in substance that she was “ripped off’, that Husband did not disclose that the accounts at issue were joint accounts with the right of survivorship and that had she known this she would have never signed the Agreement. 22 NYCRR §130-1.1 enables a court, in its discretion to impose sanctions against a party or an attorney who engages in frivolous conduct. For purposes of this rule, conduct is frivolous if: it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation or to harass or maliciously injure another; or it asserts material factual statements that are false. See, 22 NYCRR 130-1.1(c). “A party seeking the imposition of a sanction or an award of any attorney’s fee pursuant to 22 NYCRR §130-1.1(c) has the burden of proof’. Lebron v. Lebron, 101 AD3d 1009 (2d Dept 2012). Wife’s allegations were serious in nature yet demonstrably incorrect. Under the circumstances herein, a reasonable review of the facts and circumstances as discussed infra, yields the conclusion that Husband has met his burden of establishing that Wife asserted material factual statements that were false. “To avoid sanctions, at the least, the conduct must have a good faith basis”. Tso-Horiuchi v. Horiuchi, 122 AD3d 918 (2d Dept 2014)[citing, Dank v. Sears Holding Mgt. Corp., 69 AD3d 558 (2d Dept 2010)]. The Court could find no good faith basis for Wife’s motion and further finds that the imposition of sanctions is appropriate. Accordingly, Husband is awarded the sum of $3,500.00 as and for sanctions pursuant to 22 NYCRR §130.1-1. The Court notes that the parties ultimately resolved all other ancillary issues in this matter by stipulation except for the instant applications which obviated the need for the scheduled trial. Wife requested a date for submission of the divorce packet which had been denied pending the determination of the instant applications. In light of this decision, Wife shall now be directed to submit a proposed Judgment of Divorce in accordance with the rulings set forth herein, together with Findings of Fact and Conclusions of Law within 60 days from the date of this Decision. In addition, Husband is directed to complete any additional and necessary documents in connection therewith. WHEREFORE, it is hereby ORDERED, that Wife’s motion for vacatur of the Agreement is DENIED for the reasons set forth herein; and it is further ORDERED, that Wife’s application for counsel fees is hereby DENIED for the reasons set forth herein; and it is further ORDERED, that Husband is awarded the sum of $3,500.00 as and for sanctions pursuant to 22 NYCRR §130.1-1 payable to Husband’s Counsel within thirty (30) days of the date of this order; and it is further ORDERED, that upon the filing of a copy of this Decision and Order along with an affidavit indicating that the award of sanctions ordered herein has not been paid to Husband’s Counsel in accordance herewith, the County Clerk is directed to enter and docket a money judgment in favor of Nicholas A. Gabriele with offices at 191 Terry Road, Smithtown, New York 11787 and it is further ORDERED, that Wife shall submit a proposed Judgment of Divorce in accordance with the rulings set forth herein, together with Findings of Fact and Conclusions of Law within 60 days from the date of this Decision. Additionally, Husband is directed to complete any additional and necessary documents in connection therewith. This constitutes the Decision and Order of this Court. Any application not specifically addressed herein is denied. Dated: February 14, 2022
