Order, Supreme Court, New York County, entered April 19, 1977, granting a $350 counsel fee, pursuant to a motion by plaintiff's counsel, for legal services rendered to the plaintiff in opposing a motion made by defendant for leave to appeal to the Court of Appeals, unanimously reversed, on the law, on the facts, and in the exercise of discretion, without costs and disbursements, and the motion denied. In awarding the counsel fee, Special Term incorrectly observed that "this is the first application by plaintiff, wife, for a counsel fee," whereas a prior $1,000 counsel fee was awarded. Further, where the wife is not indigent and is able to pay her own counsel, no award should be made (see Kann v Kann, 38 A.D.2d 545). In view of this and of the counsel fees already paid by plaintiff to her counsel, no basis is presented which would warrant award of the counsel fee directed by Special Term. Indeed, even assuming the award of counsel fee to be proper, it is clear that the amount of $350 is excessive.
Concur — Lupiano, J.P., Fein, Lane, Lynch and Sandler, JJ.