The Court held an on-the-record conference following remand of this matter on January 10, 2023, via Microsoft Teams (209 AD3d 526 [1st Dept 2022]) As an initial matter, this Court notes that the Appellate Division’s October 18, 2022, decision found petitioner was not represented by counsel at the contempt hearing despite this Court never having relieved petitioner’s counsel, despite petitioner’s counsel continuing to be listed as counsel of record, and despite this Court repeatedly advising petitioner’s counsel that until petitioner’s counsel was relieved by Court Order, or new counsel filed a notice of appearance, counsel continued to represent petitioner. Be that as it may, the Court, upon consideration of the record of this matter, and as discussed with counsel on-the-record on January 10, 2023, directs counsel to appear for a hearing on the amount of legal fees due respondent and respondent’s counsel as well as submit briefs as discussed herein. To the extent that petitioner’s counsel’s objection to this Court proceeding with an evidentiary hearing regarding the amount of legal fees due respondent and/or respondent’s counsel amounts to an application for recusal, the Court denies such request. That a prior ruling of this Court is not to plaintiff’s liking does not amount to bias or an appearance of impropriety, as alleged (Ctr. For Jud. Accountability, Inc. v. Cuomo, 167 AD3d 1406, 1408 [3d Dept 2018], “a ruling that is not to a litigant’s liking does not demonstrate either bias or misconduct”; see also Gonzalez v. L’Oréal USA, Inc, 92 AD3d 1158 [3d Dept 2012]). Curiously, petitioner’s counsel, on-the-record at the January 10, 2023, conference, contended that this Court was too biased to conduct a hearing on the amount of appropriate attorney’s fees — and thus claimed the hearing must be conducted before a referee — but was not too biased to review and confirm or reject the referee’s report following such hearing before the referee. To the extent that petitioner’s claim of bias is predicated upon this Court’s previous order finding the legal fees at issue appropriate, such claim ignores two important facts: first, petitioner absented herself from the prior hearing (and her counsel refused to proceed with the hearing), leading to an order without the benefit of a hearing or counsel; and second, the Court’s prior determination, rendered in petitioner’s absence, has been vacated by the Appellate Division. As such, there is no factual basis for any claim of bias, and indeed, this Court is not biased. The Appellate Division remanded the matter to this Court, and did not disqualify this Court for bias, as there is no factual basis to find bias, and no bias in fact exists.1 Furthermore, counsel is reminded that baseless serious accusations against the Court, such as bias or impropriety, are grounds for sanctions, and additional notice by the Court that sanctions may be imposed for such conduct is not required, and counsel shall be guided accordingly (Nachbaur v. American. Transit Ins. Co., 300 AD2d 74 [1st Dept 2002]; see also Benefield v. New York City Hous. Auth., 260 AD2d [1st Dept 1999] “There is no requirement that the dictates of [22 NYCRR] §130-1.2 be followed in any rigid fashion, the court’s decision was sufficient to set forth the conduct on which the [sanctions] award was based, the reasons why it found this conduct to be frivolous and the amount to be appropriate”). As the Court discussed at the January 10, 2023, conference, there is no dispute that the legal fees in this matter exceed several million dollars. Likewise beyond dispute — and notwithstanding that the Court has repeatedly ordered petitioner, as the monied party, pay legal fees of respondent, the opposing non-monied party, pursuant to Domestic Relations Law §237[b] — respondent’s counsel’s efforts have gone mostly uncompensated while petitioner’s various counsel and consultants have been compensated. Of note, this Court’s orders directing petitioner pay respondent’s counsel have been affirmed by the Appellate Division (see Kelly G. v. Circe H., 178 AD3d 533 [1st Dept 2019]). Now, as this matter reaches its conclusion, and after paying her own counsel several million dollars, petitioner contends that she is destitute and unable to pay respondent’s counsel, despite this Court repeatedly ordering same, on an interim basis, throughout this litigation. Notably, and as discussed supra, petitioner continued to retain counsel and consultants following the Court’s interim orders directing petitioner to pay respondent’s legal fees, while resisting payment of respondent’s counsel’s fees, as ordered by the Court, leaving same entirely outstanding. Put simply, petitioner has expended millions of dollars in legal fees prosecuting her failed parentage application while respondent’s counsel has gone entirely uncompensated — excepting only for a payment by respondent financed by the sale of her home, various loans from family, and a move to the United Kingdom — despite Court Orders requiring petitioner to pay respondent’s counsel’s fees on an interim basis. Now, having exhausted millions of dollars on her own legal team, petitioner contends she is unable to pay respondent’s legal fees. The general purpose of DRL §237 is commonly referred to as seeking to level the playing field among parties. The Court, therefore, discussed with counsel on-the-record on January 10, 2023, the possibility of leveling the playing field via a claw-back of one-half of the fees petitioner paid to her various counsel and consultants throughout this litigation, pursuant to DRL §237, in order to fund a judgment for fees due respondent and respondent’s counsel. It seems a perverse outcome, and contrary to DRL §237′s very purpose, to countenance a monied party’s expenditure of the entirety of their resources on their own legal team in order to deprive the non-monied party’s legal team of fair recompense and circumvent the protections of DRL §237. This is especially so when, as here, public records reflect the monied party has transferred title of their real estate holdings to corporate entities, ostensibly in a misguided attempt shield same from impending judgments. If such outcome is permitted, as a practical matter, it appears likely that non-monied parties would be unable to retain sophisticated counsel, as any counsel retained would not be compensated due to the monied party’s willful attempts to expend their wealth on their own litigation and parentage may, therefore, be based chiefly on the financial position of the parties and the monied party’s ability to expend, hide, transfer, etc. their wealth in contravention of the purpose of DRL §237. Accordingly, it is ORDERED that all counsel — including petitioner’s current and former trial counsel, appellate counsel, and consultants — shall brief the issue of whether the Court should direct petitioner’s prior trial counsel, appellate counsel, and consultants to remit to the Court, as a claw-back, one-half of their fees paid by petitioner to respondent’s counsel so as to ensure respondent’s counsel receives compensation in accordance with longstanding Court Orders; and it is further ORDERED that the above briefs regarding the proposed claw-back shall be filed and courtesy copy delivered to chambers, no later than April 24, 2023; and it is further ORDERED that counsel for petitioner, shall serve a copy of this order upon all prior trial counsel, appellate counsel, and legal consultants retained by petitioner or on petitioner’s behalf, including but not limited to: via personal service and shall file proof of service of same — including an affidavit that all prior trial counsel, appellate counsel, and consultants have been served — with courtesy copy to chambers, no later than February 3, 2023; and it is further ORDERED that the failure to submit a brief in opposition to the proposed claw-back by petitioner’s prior trial counsel, appellate counsel, or legal consultant, shall constitute waiver of any objection to such claw-back and related relief; and it is further ORDERED that the failure to timely file proof of service, with affidavit of same attesting that all prior counsel and consultants have been served, may result in sanctions; and it is further ORDERED that current counsel shall, additionally, brief the issue of attorney’s fees due respondent and/or respondent’s counsel, and same shall be filed and courtesy copy delivered to chambers, no later than April 24, 2023; and it is further ORDERED that the hearing on the amount of attorney’s fees due respondent and/or respondent’s counsel, as remanded by the Appellate Division, shall proceed before the Court on April 25, 2023, at 10:00am in Courtroom 327 at 80 Centre Street New York, NY 10013; and it is further ORDERED that all parties shall be prepared to proceed on April 25, 2023, and such hearing shall continue day-to-day until completion, subject only to any adjournment granted by the Court; and it is further ORDERED that, as directed on January 10, 2023, the parties shall share in the costs associated with ordering a copy of the Court’s January 10, 2023, stenographic record, and shall file same. THIS CONSTITUTES THE ORDER OF THE COURT. Check One: Case Disposed X Non-Final Disposition Check if Appropriate: Other (Specify) Dated: January 24, 2023
