On February 11, 2019, the Honorable Thomas E. Walsh, II, J.S.C., Supreme Court, Rockland County, issued a Decision and Order which denied defendant’s motion to restore her application for an attorney’s fees and costs award against plaintiff pursuant to CPLR §2214 and 22 NYCRR 130.1.1 to the trial court. The award being sought exceeded $600,000.
Defendant had successfully secured the award for attorney’s fees and costs in two lower court decisions dated February 21, 2012 and February 11, 2014. Plaintiff appealed these lower court decisions granting the award to the Appellate Division, Second Department. The Second Department issued a Decision and Order, dated April 26, 2017, reversing the lower court’s Decisions and Orders and vacating the award of counsel fees and costs. The court did so because defendant had made the application for counsel fees and costs for the first time in her reply papers in support of her motion for summary judgment without providing plaintiff with prior notice of this application or an opportunity to be heard in opposition thereto. The Second Department’s April 26, 2017 Decision and Order did not remit the case to the trial court for further proceedings.
Thereafter, defendant requested the trial court to restore the matter to its docket so she could move forward with her application for counsel fees and costs. The trial court declined to restore the matter because the Second Department’s April 26, 2017 Decision did not remit it to the lower court and therefore the lower court had no jurisdiction to do so.
Defendant then moved in the Second Department for a clarification of its April 26, 2017 Decision and Order, specifically requesting the Court to interpret its April 26, 2017 Decision and Order to permit defendant to renew the motion for attorney’s fees and costs to the trial court. By a Decision and Order dated November 21, 2017, the Appellate Division, Second Department denied the motion to clarify its April 26, 2017 Decision and Order. Notwithstanding the Appellate Division’s failure to remit the action to the trial court, defendant moved in the trial court for permission to move forward with her application for attorney’s fees and costs.
The trial court’s February 11, 2019 Decision and Order denied the motion. The trial court concluded that it lacked jurisdiction to restore the matter to its docket because it had been vacated after appeal by the Appellate Division on April 26, 2017 without being remitted to the trial court. Plaintiff was represented in this action by Edward F. Beane, Esq., Senior Counsel for Keane & Beane, P.C., before the Appellate Division, Second Department and in the trial court. A copy of the Court’s Decision and Order can be found below.