The following documents were reviewed on these motions: Notice of Motion x Affirmation in Support x Affirmation in Opposition x Reply x DECISION AND ORDER PRELIMINARY STATEMENT The Plaintiff/wife moves by Notice of Motion, Motion Sequence Number 18, for an order vacating the automatic stay of this court’s Judgment of Divorce dated December 22, 2022 which Judgment incorporated by reference the Decision and Order After Trial dated July 29, 2022. The wife further requests an order authorizing the Nassau County Clerk to sign the proposed money judgment prepared by the wife consistent with the terms of this Court’s July 29, 2022 and December 22, 2022 Orders. BACKGROUND This matter was commenced by the filing of a Summons and Verified Compliant with the Nassau County Clerk’s office on June 1, 2020. A trial commenced on this matter on January 10, 2022 and concluded on February 28, 2022 on the issues of equitable distribution, spousal support, counsel and expert fees, and ancillary matters. This Court heard extensive testimony with respect to the earning potential of both parties, the standard of living the parties enjoyed during the marriage, and the acts of the parties subsequent to the commencement of the divorce action. There were no less than fourteen (14) motions filed within the nineteen (19) months this action was pending before this Court and many of those applications addressed the husband’s failure to maintain the status quo. During the trial, the husband conceded that during the pendency of this action, he liquidated and transferred 1.6 million dollars from his business pension fund account into a cash account and he did so without the knowledge or consent of the wife and without court approval. The husband further conceded during trial that upon the wife’s commencement of this action, he and his girlfriend vandalized and destroyed the parties’ Westhampton Beach residence and that, without notice to the wife, he cut the wires to the house alarm, changed the code to the garage door entrance, removed locks and hardware and disconnected security cameras. With respect to the incomes of the parties’ this Court found that: The wife’s income based on her 2020 tax return is $80,426. Since the husband’s income exceeds the $203,000 income cap, the wife asks that the court deviate and award temporary support above the court [sic] based on the husband’s income reported in 2020 of $496,605 and the year 2021 of $600,000 exclusive of perks. (Decision and Order After Trial, Page 12) At the conclusion of the trial, the parties agreed that a determination as to an award of counsel fees would be rendered upon written submissions. The wife requested an award of $225,000.00. In support of the wife’s request for $225,000 in legal fees, she alleged that the husband had prolonged the underlying divorce matter needlessly as there was a Post Nuptial Agreement and the husband’s conduct resulted in an eleven (11) day trial and the submission of seventeen (17) motions. In addition, there was a significant disparity in the parties’ incomes and the husband was the “monied” spouse. The Decision and Order After Trial specifically provides at page 20 that “the wife contends that throughout the proceeding, the husband used obstructionist tactics, was evasive at trial and took meritless positions with respect to the Post-Nuptial Agreement. The court agrees.” In response to the wife’s request for $225,000 in legal fees, this Court Ordered as follows: [T]he wife’s application (motion sequence 16), for counsel fees is granted. The husband is directed to pay the wife’s attorneys $100,000 in counsel fees within 60 days of the date of this Decision and Order. If the husband fails to pay as directed, the Clerk of the County of Nassau is directed upon affirmation of non-payment to enter a money judgment in the amount of $100,000 plus statutory interest and costs in favor of the wife’s attorney, against Daniel Kaplan without further proceedings. (See Decision and Order After Trial, page. 21) (Emphasis supplied). A Judgment of Divorce was thereafter issued on December 22, 2022 which provides as follows: “ORDERED AND ADJUDGED that, pursuant to the Decision After Trial, if the Defendant fails to pay the Plaintiff’s attorneys $100,000 in counsel fees as directed, the Clerk of the County of Nassau is directed upon affirmation of non-payment to enter a money judgment in the amount of $100,000 plus statutory interest and costs in favor of the Plaintiff’s attorneys against the Defendant without further proceedings.” The husband failed to pay the court-ordered counsel fee award of $100,000.00 within the sixty (60) days provided for within the Decision and Order After Trial. On September 28, 2022, the wife filed a Proposed Money Judgment in the Nassau County Clerk’s Office along with an Affirmation of Non-Compliance. After the filing of the proposed money judgment and prior to same being signed by the clerk, on September 29, 2022, the husband posted an undertaking in the amount of the legal fees awarded consistent with the requirements of CPLR §5519(1) thereby creating a stay of the enforcement of the counsel fee award pending a determination of his appeal. The wife argues that this Court should vacate the automatic stay created by the husband’s posting of the undertaking because same serves to frustrate the very purpose of the award of attorney’s fees, to wit: to level the litigation playing field and remedy the disparity of income between the parties. The wife argues that the husband’s self-created stay serves to reward him for his dilatory and obstructionist tactics and creates more in legal fees for which the wife will be liable. The wife asserts that the husband’s conduct is contemplated to wear the wife down and delay the legal fee award for potentially years all while the husband appeals each and every decision of this Court for sport. In seeking a vacatur of the automatic stay pursuant to CPLR §5519(c), the wife relies upon the decision of B.N. v. M.N., 76 Misc.3d 1202(a), 172 N.Y.S3d 919 (Sup. Ct., Nassau Co. 2022) wherein the Court (Dane, J.) held that the deferral of an award of interim counsel fees in reliance upon an automatic stay obtained by the payor pursuant to CPLR §5519 was incongruous with the intent of DRL §237(a) and prevailing case law. The wife argues that she will be severely prejudiced without vacating the stay and permitting the judgment to be entered, in that her retained legal fees are continuing to mount as part of ongoing issues as well as ongoing appellate litigation brought by the husband. The husband opposes the wife’s application and argues that he was within his right to post an undertaking under CPLR §5519 in the amount of the attorney’s fee awarded and stay the enforcement of the Decision and Order After Trial and Judgment of Divorce. The husband further states that the wife suffers no prejudice as the undertaking protects her award whereas he will be prejudiced if he is required to pay the counsel fee award as he may be unable to recoup the attorney’s fees paid should he be successful on the appeal. Notably, while the husband states he may be unable to recoup the fees paid, he states that the wife has seven (7) million dollars in assets from which to pay her fees. In reply, the wife states that the husband has far more in assets and income, as she was terminated from her employment in the husband’s business. The wife notes the husband’s submissions to this Court do not contain any objection to the entry of the money judgment as provided for in the Decision and Order After Trial and Judgment of Divorce nor does it contain any objection to his income as stated by the wife. The court notes the Appellate Division has not issued a stay of the Judgment of Divorce or the underlying Decision and Order After Trial. Moreover, to date, the husband’s appeal remains unperfected. DISCUSSION CPLR §5519(a)(2) provides that a stay may be obtained without court order where “the judgment or order directs the payment of a sum of money, and an undertaking in that sum is given that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall pay the amount directed…” CPLR §5519(c) provides “the court from or to which an appeal is taken or the court of original instance may stay all proceedings to enforce the judgment or order appealed from pending an appeal or determination on a motion for permission to appeal in a case not provided for in subdivision (a) or subdivision (b), or may grant a limited stay or may vacate, limit or modify any stay imposed by subdivision (a), subdivision (b)…” (emphasis added). This Court recognizes that there is an incongruity in the interplay between CPLR §5519 and DRL §237, DRL §237 allows for an award of legal fees to the “less monied” spouse in order to level the playing field and create a sense of equality between the parties however CPLR §5519 allows for a party with significantly more in resources to create a delay in the payment of legal fees for potentially years, creating the precise issue that the DRL §237 seeks to ameliorate. In Wechsler v. Wechsler, 8 Misc.3d 328 (Sup. Ct., N.Y. Co., 2005), the Court (Gische, J.) articulated the injustice associated with the utilization of CPLR §5519(a)(2) within the context of an award of interim attorney’s fees. The Court stated, in relevant part: By appealing a decision awarding a non-monied spouse interim counsel fees, and then bonding the award to stay enforcement pending appeal, a monied spouse can compromise a nonmonied spouse’s ability to litigate the ongoing case proceeding at the trial level. The effect of the stay is to prevent the non-monied spouse from receiving money to pay professionals as the case continues. Thus, the monied spouse achieves indirectly what it could not do directly, depriving the nonmonied spouse of the ability to pay for representation while the case is ongoing. In Karg v. Kern, 125 A.D.3d 527 (1st Dept., 2015), the First Department affirmed the lower court’s vacatur of an automatic stay of interim matrimonial counsel fees. The First Department held that the CPLR §5519 stay “prevent[ed] an even playing field in the litigation.” In B.N. v. M.N., 76 Misc.3d 1202(a), 172 N.Y.S3d 919 (Sup. Ct., Nassau Co. 2022), an award of interim legal fees was the subject of an appeal, and the payor-husband posted an undertaking in the amount of the interim legal fees thereby creating a stay of enforcement of the Order. The Court (Dane, J.) initially made the threshold determination as the court of original instance, it had the authority pursuant to CPLR §5519(c) to vacate the stay imposed by the posting of the bond. Following a determination that the court had the power to vacate the stay, the court held that it was incumbent upon the Court to ensure that counsel fees pursuant to DRL §237 are “timely paid” and the Court relied, in large part upon the determination in Wechsler, that “the fact that the stay is automatic does not remove it from the purview of the court’s discretion to otherwise vacate, limit or modify the stay.” This Court is vested with the power and authority to vacate or modify the stay created by the husband by virtue of his posting of a bond pursuant to CPLR §5519. The trial of this matter was concluded, and a Judgment of Divorce was issued. To the extent that the wife requires an award of fees associated with the pending appeal, the wife has legal remedies with respect to same. The fees awarded to the wife pursuant to the Decision and Order After Trial were not awarded as interim fees, but rather fees awarded after the parties submitted their respective post-trial briefs. There was no “unequal playing field” as a result of the financial inequity of the parties and the posting of the bond did not compromise the legal representation the wife received during the parties’ divorce. Indeed, while the husband enjoys the benefit of a stay with respect to his court-ordered counsel fee obligation, the Judgment of Divorce remains in full force and effect and to the extent that enforcement of that Order is necessary (other than the payment of attorney’s fees to wife’s counsel) the wife has the right to pursue same and seek relief pursuant to DRL §238. This Court acknowledges the disjunction that exists by virtue of the self-imposed stay created by CPLR §5519(a)(2) and the award of interim attorney’s fees pursuant to DRL §237 to a “less monied” spouse in order to ensure that “the matrimonial scales of justice are not unbalanced by the weight of the wealthier spouse’s wallet.” See O’Shea v. O’Shea, 689 N.Y.S.2d 8 (1999). This case is distinguishable from the cases cited above as the award of legal fees was made at the conclusion of the matrimonial matter whereas the vacatur of the §5519(a)(2) stay in Wechsler, Karg and B.N., supra, was the result of a determination by the Court that the legal fees awarded were necessary to avoid an unfair advantage to the monied spouse during a divorce. Based upon this Court’s determination the legal fees awarded within the Decision and Order After Trial were not awarded as and for prospective legal fees to “even” the litigation playing field relative to the prosecution/defense of a matrimonial action, this Court declines to vacate the stay pursuant to CPLR §5519(a)(2). Accordingly, the wife’s application to vacate the automatic stay of the Decision and Order After Trial dated July 29, 2022 and the Judgment of Divorce dated December 22, 2022 is hereby DENIED. Turning to the wife’s request that the Nassau County Clerk be directed to enter the money judgment filed on September 28, 2022, this Court issued a Decision and Order After Trial which was thereafter incorporated into the Judgment of Divorce dated December 22, 2022. This Court notes that both the Decision and Order After Trial and Judgment of Divorce include specific language wherein the Clerk was directed to enter a money judgment in the amount of $100,000.00 plus statutory interest and costs upon the filing of an affirmation of non-compliance. Neither the Decision and Order After Trial nor the Judgment of Divorce have been stayed by the Appellate Division or this Court and both Orders continue to be in full force and effect. The only stay that exists relative to the foregoing Orders is limited to the “enforcement” of the $100,000.00 legal fee award. Therefore, the Nassau County Clerk is presently under court order to enter the money judgment to the extent that an affirmation of non-compliance has been filed. It is the position of the Court that the entry of the money judgment does not constitute “enforcement” which would be stayed pursuant to CPLR §5519(a)(2) as it is an absolute right granted to the wife within no less than two (2) court orders, neither of which has been stayed. Again, it is the enforcement of the provision relative to counsel fees that has been stayed, not the orders contained therein. To the extent that counsel asserts the position that the entry of money judgment should be stayed, the Court recognizes that the proposed money judgment and affirmation of non-compliance were filed on September 28, 2022 and the bond was not posted until September 29, 2022. The Court is of the position that the entry of the money judgment was a ministerial act in as much as it was based upon a decision of this court and entirely consistent with the Judgment of Divorce. See Traut v. Traut, 16 A.D.3d 488 (2d Dept., 2005). The Court further notes that the accrual of interest upon a judgment is not tolled by virtue of the posting of an undertaking during the pendency of an appeal. In Purpura v. Purpura, 261 A.D.2d 595 (2d Dept., 1999), the Appellate Division held that “interest was accruing on the plaintiff’s distributive award at the statutory rate of 9 percent…The accrual of this interest was not tolled when the defendant posted an undertaking in order to secure a stay pending appeal…the plaintiff…is still entitled to earn interest upon the moneys which were awarded to her and affirmed on appeal.” See also Khoudari v. Basset, M.D., 147 A.D.3d 477 (1st Dept., 2017); Wiederhorn MD v. Merkin, 106 A.D.3d 416 (1st Dept., 2013); Matra Building Corp., v. Kucker, 19 A.D.3d 496 (2d Dept., 2005). The entry of the proposed money judgment was not an act of “enforcement” as it was directed within the Decision and Order After Trial and Judgment of Divorce and the accrual of interest associated with the money judgment is similarly not an act of “enforcement” as courts have routinely held that the accrual of interest on an award is not tolled by virtue of a stay of enforcement under CPLR §5519(a). Accordingly, the wife’s application authorizing the Nassau County clerk to sign the proposed money judgment is GRANTED and it is hereby ORDERED, that the proposed money judgment filed by the wife’s counsel dated September 28, 2022 shall be signed and entered nunc pro tunc together with statutory interest and costs in favor of the wife. All applications not herein decided are hereby denied. This constitutes the Decision and Order of the Court. Dated: March 30, 2023
