Wyser-Pratte v. Wyser-Pratte

Asch, J.,

dissents in part in a memorandum as follows: I believe that the nisi prius court erred in awarding defendant attorney’s fees of $5,000 for time spent by counsel in preparing the application for fees. Counsel fees for time expended in an attempt to obtain an award of counsel fees are not authorized by Domestic Relations Law § 237 (b) (see, Schussler v Schussler, 123 AD2d 618, 619, appeal dismissed 69 NY2d 822, lv denied 69 NY2d 612). This comports with the policy purpose of Domestic Relations Law § 237, which seeks not to deter litigation but to provide for the adequate representation of spouses who could not otherwise afford counsel (cf., Rumble v Windsor Plaza Co., 128 AD2d 425). Accordingly, I would modify the order solely to delete an amount equal to 80% of the $5,000 which plaintiff was directed to pay for such fees.