Branch v. Branch , 108 A.D.2d 776 ( 1985 )

In a proceeding for custody and visitation referred to the Family Court, Rockland County, by the Supreme Court, Rockland County, Ellen D. Branch appeals from an order of the Family Court, Rockland County (Stanger, J.), dated January 4,1983, which denied her application for counsel fees, without a hearing.

Order affirmed, with costs.

Rule 699.11 of this court (22 NYCRR) requires that a party seeking counsel fees must include a financial statement and affidavit with the application therefor. Appellant admittedly failed to file such an affidavit with her application. Accordingly, the Family Court correctly denied the relief demanded (cf. McKean v McKean, 100 AD2d 537, 538; Stewart v Stewart, 96 AD2d 939, 940). We note that the result which attended both McKean (supra) and Stewart (supra) would be most inappropriate herein. In both cases this court, in the absence of the required affidavit, deleted provisions in the orders appealed from granting counsel fees, but remitted the matters to the courts of original jurisdiction for further consideration upon the filing of such papers. In the case at bar, the appellant moved, in effect, for reargument of the application which resulted in the order appealed from, submitting the missing affidavit and financial statement to the Family Court at such time, and such application was denied.

Since reargument has been denied by the Family Court after its consideration of the affidavit and financial statement in question, remittitur, as was done in McKean (supra) and Stewart (supra), would be both redundant and improper. The Family Court has already reconsidered its original determination in light of Ellen Branch’s affidavit of financial circumstances and has reaffirmed its original holding. Thompson, J.P., Brown, Niehoff and Lawrence, JJ., concur.