Opinion
Index No. 55515/2021
10-28-2022
JT, Plaintiff, v. GT, Defendant.
Counsel for the Plaintiff, JT: Claire Cody Miller, Esq. Counsel for Defendant, GT: Lloyd D. Thompson, Esq.
Unpublished Opinion
Counsel for the Plaintiff, JT: Claire Cody Miller, Esq.
Counsel for Defendant, GT: Lloyd D. Thompson, Esq.
Ronald Castorina Jr., J.
The following e-filed documents listed on NYSCEF (Motion #002) numbered 58-76, and 91-97 were read on this motion.
Upon the foregoing documents, and on consideration of oral argument conducted on October 13, 2022, Motion Sequence #002 is resolved and therefore, it is hereby, ORDERED, that the Plaintiff's request to strike the Defendant's answer and counterclaim is DENIED.
ORDERED, that the Plaintiff's request to preclude the Defendant from presenting any evidence at trial that he has not produced is GRANTED.
ORDERED, that the Plaintiff's request to preclude the Defendant from presenting any evidence in support of any separate property claim he may assert is GRANTED.
ORDERED, that the Plaintiff's request to preclude the Defendant from opposing Plaintiff's spousal maintenance claim is GRANTED.
ORDERED, that Plaintiff's request for an Order to compel the Defendant to pay 100% of the cost of the appraisal of the real property owned by the parties, pendente lite, subject to reallocation at trial is GRANTED.
ORDERED, that Plaintiff's request for the Defendant to pay to the Plaintiff, interim counsel fees in the amount of $6,000.00 [Six Thousand Hundred Dollars, and No Cents], is referred to the trial court.
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
Statement of Facts
Plaintiff JT and Defendant GT were married on XXXX XX, 2009. There are three children of the marriage, to wit: VT, born XXXX XX, 2011, NT, born XXXX XX, 2012, and AT, born on XXXX XX, 2014. The Plaintiff commenced this action for divorce on or about August 3, 2021. On September 7, 2022, Plaintiff filed Motion Sequence #002 by Order to Show Cause.
The Plaintiff seeks to (a) strike the Defendant's answer and counterclaim; (b) preclude Defendant from presenting any evidence at trial that he has not produced; (c) preclude Defendant from presenting any evidence in support of any separate property claims he may assert; (d) preclude Defendant from opposing Plaintiff's spousal maintenance claim; (e) compel Defendant to pay for appraisals of real property owned by the parties in accordance with the Preliminary Conference Stipulation and Order; (f) direct Defendant to pay $6,000.00 as and for the counsel fees, costs and disbursements incurred by Plaintiff for having to bring this proceeding; and (g) other further relief the Court find just and proper.
On September 26, 2022, Defendant filed opposition. Reply was filed by Plaintiff on October 3, 2022. Oral argument was heard on Motion Sequence #002 on October 13, 2022. This is a Decision and Order on Motion Sequence #002.
Discussion
I. Compliance with Disclosure Rules, Discovery Demands and Orders of this Court
The Plaintiff alleges that the Defendant has persistently and willfully obstructed all discovery and disclosure in this matter. Plaintiff alleges that the Defendant has failed to provide mandatory disclosure pursuant to 22 New York Codes Rules and Regularions § 202.16 [f]. This mandatory disclosure by the parties includes:
(i) statements of net worth, which also shall be filed with the court no later than 10 days prior to the preliminary conference;
(ii) all paycheck stubs for the current calendar year and the last paycheck stub for the immediately preceding calendar year;
(iii) all filed State and Federal income tax returns for the previous three years, including both personal returns and returns filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder;
(iv) all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which the party did not file State and Federal income tax returns;
(v) all statements of accounts received during the past three years from each financial institution in which the party has maintained any account in which cash or securities are held;
(vi) the statements immediately preceding and following the date of commencement of the matrimonial action pertaining to:
(a) any policy of life insurance having a cash or dividend surrender value; and
(b) any deferred compensation plan of any type or nature in which the party has an interest including, but not limited to, Individual Retirement Accounts, pensions, profit-sharing plans, Keogh plans, 401(k) plans and other retirement plans.
Plaintiff also alleges that Defendant has failed to provide mandatory disclosure required pursuant to the Preliminary Conference Order dated February 22, 2022. This Order directed both parties to exchange within 45 days three years of the following records:
(a) Federal, state and local tax returns, including all schedules, K-1s, 1099s, W-2s and similar data.
(b) Credit card statements for all credit cards used by a party.
(c) Checking account statements, cancelled checks and check registers for joint and individual accounts.
(d) Savings account statements for joint and individual accounts. (NY St Cts Filing [NYSCEF] Doc Nos. 61).The Order further directed the parties to engage an appraiser for all properties within two weeks. (see id).
Plaintiff further alleges that the Defendant failed to provide full and complete responses to discovery demands served by Plaintiff on February 25, 2022 pursuant to Civil Practice Law and Rules § 3101 and Domestic Relations Law §236.
DRL § 236 [B] [4] requires, "In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states."
Plaintiff also alleges that Defendant has failed to provide discovery in accordance with the Order of this Court dated, April 27, 2022. In the Order dated April 27, 2022 the Court Ordered the Defendant "to provide copies of all deeds and leases to Plaintiff within two weeks" and "[a]ll documentary discovery to be completed within three weeks." (NY St Cts Filing [NYSCEF] Doc Nos. 63).
Plaintiff further alleges that Defendant has failed to comply with the Order of this Court dated August 3, 2022, which directed, once again, that "[a]ll documentary discovery [was] to be completed within 10 days." (NY St Cts Filing [NYSCEF] Doc Nos. 64).
a. Defendant's Failure to Comply with Preliminary Conference Order and 22 New York Codes Rules and Regulations § 202.16 [f]
On February 22, 2022 a preliminary conference was held pursuant to 22 NYCRR § 202.16 [f]. (NY St Cts Filing [NYSCEF] Doc Nos. 61). The parties were directed to provide the listed financial records for three years prior to the commencement of the action within forty-five days of the preliminary conference. Plaintiff alleges the Defendant has failed and refused to provide all the documents required in violation of the Preliminary Conference Order. Specifically, Plaintiff alleges the Defendant has failed and refused to produce the following documents:
(1) Federal, New York State and local tax returns, including all schedules, K-1s, 1099s, W-2s and similar data for 2018.
(2) All K-1s, W-2 and similar data for 2018; 2019; 2020; and 2021 (with the exception of the K-1 from 31 HHHH LLC for 2019, 2020 and 2021.)
(3) Business tax returns including all schedules for 2018, 2020 and 2021 for Connected Properties and business tax returns including all schedules for 2018 for 31 HHHH LLC.
(4) Lowes credit card statements for account ending in XX for July 1, 2018 to December, 2019 and November, 2021 through June, 2022.
(5) Kohl's credit card statements for account ending XX for the period of July 1, 2018, through June 2022 (except for the two statements for October 2021 and November 2021).
(6) Discover credit card statements for account ending XX for July 1, 2018, to January 3, 2020, and May 2, 2022, through June 2022.
(7) Citi credit card statements for account ending XX for July 1, 2018, through December 12, 2019, and November 9, 2021, through June 2022.
(8) Citi credit card statements for account ending XX for July 1, 2018, through July 27, 2021, and April 26, 2022, through June 2022.
(9) All statements for any credit card account not previously listed.
(10) Statements for Chase bank account ending XX for July 1, 2018, through January 8, 2020, and April 6, 2022, through June 2022.
(11) Statements for Chase bank account ending XX for July 1, 2018, to January 8, 2020, and January 6, 2022, through June 2022.
(12) Statements for Chase bank account ending XX for July 1, 2018, to August 6, 2021, and January 6, 2022. through June 2022.
(13) Statements for joint Chase bank account ending XX for July 1, 2018, to January 15, 2020, and February 11, 2022, to June 2022.
(14) Statements for joint Chase savings account ending XX for July 1, 2018, to January 1, 2020, and July 1, 2021, through June 2022.
(15) Statements for CCCC Properties Santander Bank account ending XX for July 1, 2018, to January 1, 2020, and June 30, 2020, through April 1, 2021, and April 30, 2022, through June 2022.
(16) All statements for any bank accounts (checking, savings, etc.) not listed above.
(17) All brokerage account statements.
"Each party shall maintain all financial records in his or her possession or under his or her control through the date of the entry of a judgment of divorce." (NY St Cts Filing [NYSCEF] Doc Nos. 61 at Section G [1] [a]). The above listed documents are financial documents that the Defendant was required to provide to the Plaintiff within forty-five days of the February 22, 2022 Preliminary Conference Order issued by this Court. (see id).
Defendant argues that the Plaintiff is requesting a larger time period for discovery than allowed under the Preliminary Conference Order dated February 22, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 91). Defendant asserts the timeframe for production of discovery is from August 3, 2018 through February 22, 2022. (see id). In his opposition, the Defendant does not dispute Plaintiff's claim that there are a voluminous number of documents from within the Defendant's interpretation of the applicable discovery period, August 3, 2018 through February 22, 2022, that have not been provided to the Plaintiff, nor does the Defendant provide the documents as exhibits to his opposition. These documents include:
(1) Federal, New York State and local tax returns, including all schedules, K-1s, 1099s, W-2s and similar data for 2018.
(2) All K-1s, W-2 and similar data for 2018; 2019; 2020; and 2021 (with the exception of the K-1 from 31 HHHH LLC for 2019, 2020 and 2021.)
(3) Business tax returns including all schedules for 2018, 2020 and 2021 for CCCC Properties and business tax returns including all schedules for 2018 for 31 HHHH LLC.
(4) Lowes credit card statements for account ending in XX for July 1, 2018 to December, 2019 and November, 2021 through June, 2022.
(5) Kohl's credit card statements for account ending XX for the period of July 1, 2018, through February 2022 (except for the two statements for October 2021 and November 2021).
(6) Discover credit card statements for account ending XX for July 1, 2018, to January 3, 2020.
(7) Citi credit card statements for account ending XX for July 1, 2018, through December 12, 2019, and November 9, 2021, through February 2022.
(8) Citi credit card statements for account ending XX for July 1, 2018, through July 27, 2021.
(9) All statements for any credit card account not previously listed.
(10) Statements for Chase bank account ending XX for July 1, 2018, through January 8, 2020.
(11) Statements for Chase bank account ending XX for July 1, 2018, to January 8, 2020, and January 6, 2022, through February 2022.
(12) Statements for Chase bank account ending XX for July 1, 2018, to August 6, 2021, and January 6, 2022. through February 2022.
(13) Statements for joint Chase bank account ending XX for July 1, 2018, to January 15, 2020, and February 11, 2022, to February 22, 2022.
(14) Statements for joint Chase savings account ending XX for July 1, 2018, to January 1, 2020, and July 1, 2021, through February 2022.
(15) Statements for CCCC Properties Santander Bank account ending XX for July 1, 2018, to January 1, 2020, and June 30, 2020, through April 1, 2021, and April 30, 2022, through February 2022.
(16) All statements for any bank accounts (checking, savings, etc.) not listed above.
(17) All brokerage account statements.
Even if one were to agree with the Defendant's very narrow view of the discovery period, which the Court does not necessarily agree with, the Defendant clearly has not complied with the discovery requirements provided for under 22 NYCRR § 202.16 [f] and the Preliminary Conference Order dated February 22, 2022.
b. Defendant's Failure to Comply with Plaintiff's Discovery Demands
On February 25, 2022, Plaintiff served on Defendant the following discovery demands:
(a) Demand for Answers to Interrogatories; and
(b) First Notice for Discovery and Inspection; and
(c) Notice pursuant to CPLR § 3101 [d]; and
(d) Demand for Statement of Net Worth; and
(e) Demand for Statements and/or Video/Audio Tapes; and
(f) Notice of Preservation of Electronically Stored Information.Plaintiff states that demands were made for responses to the same on May 2, 2022 and June 8, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 59; 62; 65).
Plaintiff alleges Defendant has failed and refused to provide any responses whatsoever to the Notice Pursuant to CPLR § 3101 [d]; Demand for Statements and/or Video/Audio Tapes; and Notice of Preservation of Electronically Stored Information. Plaintiff also alleges Defendant failed to provide complete answers to the First Notice for Discovery and Inspection and Demand for Interrogatories.
Plaintiff further alleges that the limited and incomplete Answers to Interrogatories that Defendant served did not include the documents demanded therein and the response was not verified. (NY St Cts Filing [NYSCEF] Doc Nos. 59). Plaintiff states that the documents demanded in the Interrogatories, but not included with the response, include but are not limited to:
a. Medical reports concerning any disability claimed by Defendant.
b. Copies of canceled rent checks.
c. Copies of closing statements for purchase of real estate, and copies of deeds.
d. Copies of corporate tax returns file in the last seven (7) years.
e. Copies of pay stubs (with the exception of paystubs received separately from responses on May 12, 2022, for the period January 31, 2022, through April 14, 2022).
f. Copies of tax returns filed in the last seven (7) years (including all schedules and attachments).
g. Copies of 1099's filed in the last seven (7) years.
h. Copies of all account statements for the past seven (7) years.
i. Copies of all writings concerning pension and retirement plans.
j. Copies of all credit card statements for the last three (3) years.
Plaintiff also objects to the format of the answers that were received in that they were in the form of "a total of SIXTY-EIGHT (68) separate emails attaching documents without any explanation or periods for which the documents sent were being conveyed[.]" and not in compliance with CPLR § 3133 [b]. (NY St Cts Filing [NYSCEF] Doc Nos. 59).
Defendant's responses consisted of thirty-six (36) separate emails sent to Plaintiff on April 26, 2022, nine (9) separate emails sent on April 27, 2022 and twenty-three (23) separate emails sent on May 12, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 67; 68; 69).
Defendant asserts that Plaintiff's request for seven (7) years of discovery is in excess of the Preliminary Conference Order and was "overly burdensome[.]" (NY St Cts Filing [NYSCEF] Doc Nos. 59).
"In a divorce action, '[b]road pretrial disclosures which enables both spouses to obtain necessary information regarding the value and nature of the marital assets is critical if the trial court is to properly distribute the marital assets[.]'" (see Trafelet v Trafelet, 150 A.D.3d 483 [2d Dept 2022] quoting Jaffe v Jaffe, 91 A.D.3d 551 [1st Dept 2012]; quoting Kaye v Kaye, 102 A.D.2d [2d Dept 1984]).
"[B]oth parties in a matrimonial action governed by the Equitable Distribution Law are now entitled to: 'a searching exploration of each other's assets and dealings at the time of and during the marriage, so as to delineate the extent of 'marital property', distinguish it from 'separate property', uncover hidden assets of 'marital property', discover possible waste of 'marital property', and in general gain any information which may bear on the issue of equitable distribution, as well as maintenance and child support. The entire financial history of the marriage must be open for inspection by both parties. It is simply no longer true that the current financial status of the parties is all that counts[.]'" (see Kaye v. Kaye, 478 N.Y.S.2d 324 [2d Dept 1984] quoting Roussos v. Roussos, 106 Misc.2d 583 [Sup Ct, Queens County 1980]).
Section G [1] of the Preliminary Conference Order provides for the preservation of financial records through the date of the entry of the Judgment of Divorce. (NY St Cts Filing [NYSCEF] Doc Nos. 59). As Plaintiff points out in her reply, "there would be no reason to direct the preservation of records if disclosure of documents and information after the date of the preliminary conference was not permitted[.]" (NY St Cts Filing [NYSCEF] Doc Nos. 96).
The narrowest interpretation of the financial disclosure requirements would place the start period for financial discovery at August 3, 2018 through June 2022.
The responses provided by the Defendant to the Plaintiff in the form of sixty-eight (68) separate emails are not only incomplete but are not in accord with CPLR § 3133. "Interrogatories shall be answered in writing under oath by the party served, if an individual, or, if the party served is a corporation, a partnership or a sole proprietorship, by an officer, director, member, agent or employee having the information. Each question shall be answered separately and fully, and each answer shall be preceded by the question to which it responds." (see CPLR § 3133 [b]).
c. Defendant's Failure to Comply with Court Order Dated April 27, 2022
The Order of this Court dated April 27, 2022 states, "Defendant Ordered to provide copies of all deeds and leases to Plaintiff within two weeks." (NY St Cts Filing [NYSCEF] Doc Nos. 63). On May 12, 2022, Plaintiff alleges that Defendant served a document labeled as "House Deeds", however that document included only a cover page and signature page for five (5) properties and did not include the deeds for the properties. (NY St Cts Filing [NYSCEF] Doc Nos. 59; 70).
The Order dated April 27, 2022 further Ordered, "All documentary discovery to be completed within three weeks [May 18, 2022]." (NY St Cts Filing [NYSCEF] Doc Nos. 63). Plaintiff alleges Defendant did not complete discovery as Ordered. (NY St Cts Filing [NYSCEF] Doc Nos. 59).
No credible evidence has been provided by Defendant to contradict the Plaintiff's allegations that the property deeds have not yet been provided to the Plaintiff as required by Court Order.
Even were the Court to use the Defendant's own most restrictive interpretation of the financial disclosure period of August 3, 2018 through February 22, 2022, the Defendant has offered no credible evidence that he is in compliance with the Order that all documentary discovery to be completed by May 18, 2022, in accord with, and in the format provided for by the CPLR.
d. Defendant's Failure to Comply with CPLR § 3122 [c]
CPLR § 3122 [c] provides, "Whenever a person is required pursuant to such notice or order to produce documents for inspection, that person shall produce them as they are kept in the regular course of business or shall organize and label them to correspond to the categories in the request."
Responses to discovery demands should be produced in the manner that the documents were kept in the regular course of business and be labeled to correspond to the categories in the defendants' demands. (see H.P.S. Mgt. Co., Inc. v. St. Paul Surplus Lines Ins. Co., 127 A.D.3d 1018 [2d Dept 2018]). Discovery should be provided in a manner that allows the opposing party "'to know and understand' which documents apply to their separate discovery demands." (see id).
The Defendant's choice to produce documents electronically does not alter or obviate Defendant's obligation to organize and label all documents produced to correspond to the categories in the discovery demands.
The Appellate Division, Second Department, has not yet ruled regarding a requirement of a responding party to include an index of the electronic files submitted, identifying the document produced in response to each demand. The Monroe County Supreme Court has found that parties "must provide an index to the electronic files identifying the document produced in response to each demand[.]" (see Dartnell Enters., Inc. v Hewlett Packard Co., 33 Misc.3d 1202 (A) [Sup Ct, Monroe County 2011] citing CPLR § 3103; Matter of O. Winston Link Revocable Trust, 24 Misc.3d 768 [Sur Ct Westchester County 2009]).
e. Defendant's Failure to Comply with Court Order Dated August 3, 2022
The Order of this Court dated August 3, 2022 Ordered, "All documentary discovery to be completed within 10 days [August 13, 2022]." (NY St Cts Filing [NYSCEF] Doc Nos. 64). Plaintiff alleges Defendant did not complete discovery as Ordered. (NY St Cts Filing [NYSCEF] Doc Nos. 59).
II. Preclusion and Striking Defendant's Answer and Counterclaims
CPLR § 3126 provides that:
If any party, or a person who at the time a deposition is taken or an examination orinspection is made is an officer, director, member, employee or agent of a party orotherwise under a party's control, refuses to obey an order for disclosure or willfully failsto disclose information which the court finds ought to have been disclosed pursuant to thisarticle, the court may make such orders with regard to the failure or refusal as are just,among them:
1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.
"The nature and degree of the penalty to be imposed pursuant to CPLR § 3126 lies within the sound discretion of the trial court[.] (see Field v Bao, 140 A.D.3d 921 [2d Dept 2016] citing Kihl v Pfeffer, 94 N.Y.2d 118 [1999]; Umar v Ohrnberger, 72 A.D.3d 1066 [2d Dept 2010]; Joseph v Iannace, 6 A.D.3d 502 [2d Dept 2010]; Ordonez v Guerra, 295 A.D.2d 325 2d Dept 2002]).
a. Willfulness and Contumaciousness of Defendant's Conduct
The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to comply with discovery demands or orders without a reasonable excuse. (see Field v Bao, 140 A.D.3d 921 [2d Dept 2016] citing Commisso v Orshan, 85 A.D.3d 845 [2d Dept 2011]; Workman v Town of Southampton, 69 A.D.3d 619 [2d Dept 2010]; Horne v Swimquip, Inc., 36 A.D.3d 859 [2d Dept 2007]).
The willful and contumacious character of a party's conduct can also be inferred from "the failure to comply with court-ordered discovery over an extended period of time[.]" (see Ritornato v Ritornato, 186 A.D.3d 1422 [2d Dept] citing Madonna Mgt. Servs., Inc. v R.S. Naghavi, M.D., PLLC, 172 A.D.3d 845 [2d Dept 2019]).
Defendant has failed to serve full and complete responses Plaintiff's demands. Plaintiff served demands on February 25, 2022, May 2, 2022 and June 8, 2022.
Defendant failed to comply with the Preliminary Conference Order dated February 22, 2022. The Preliminary Conference Order required the parties to provide three (3) years of specific financial disclosure within forty-five (45) days. (NY St Cts Filing [NYSCEF] Doc Nos. 61). Eight months later the Defendant is still not in compliance with this Order.
On April 27, 2022, this Court Ordered the Defendant to provide copies of all deeds and leases to Plaintiff within two (2) weeks. (NY St Cts Filing [NYSCEF] Doc Nos. 63). Six months later, the Defendant has still not complied with the Order of the Court. In the Order of April 27, 2022, the Court further Ordered that all documentary discovery be completed within three (3) weeks. (see id). Defendant's documentary discovery is still not complete six months after this Order was issued.
On August 3, 2022, this Court Ordered again that all documentary discovery be completed within ten (10) days. Almost three (3) months later, the Defendant has still not completed discovery.
In his Affidavit in Opposition, Defendant objects to the timeframe of Plaintiff's demand, but never offers any reason for the failure to provide discovery that is clearly within the time covered by the Preliminary Conference Order.
Defendant further states that, "On September 8, 2022, I attended a deposition conducted by the Plaintiff's attorney where I answered questions concerning my separate property and my current work status." (NY St Cts Filing [NYSCEF] Doc Nos. 61).
During the referenced deposition of the Defendant on September 8, 2022, Defendant was questioned about his sworn statement of net worth.
Q. [W]hen looking and reviewing the information that you included in your sworn Statement of Net Worth on pages 1 through 25 of that document, I am going to ask you, was all of that information true, accurate, and complete, as of September 15, 2021?
A. I'm going to read all 25 pages and get back to you on that. (NY St Cts Filing [NYSCEF] Doc Nos. 97).
The Defendant was questioned about his employment as represented in his statement of net worth.
Q. [I]t indicates the occupation of the Plaintiff is none, and the occupation and employer for you as retired. Is that wholly truthful, accurate, and complete?
A. Retired from the FDNY.
Q. Any other employer or occupation, sir?
A. Yes, ma'am. I believe it's listed somewhere else on the net worth.
Further in Defendant deposition.
Q. [A]s of September 15, 2021, what additional employment were you engaged in?
A. I don't remember.
Q. You don't remember what you did last September?
A. I don't remember.
Defendant was questioned regarding his rental properties.
Q. How is 7 XXXXX Avenue held? Do you hold that individually? Do you own it with someone?
A. It's a partnership?
Q. With whom?
A. My partner.
Q. Who is that partner?
A. All this has been listed on that net worth.
Further in the deposition regarding the property.
Q. And when did you purchase the property?
A. I don't recall. Prior to marriage.
Q. How much did you pay for the property?
A. I don't recall.
Q. Did you have a mortgage?
A. Yes, ma'am.
Q. How much was the mortgage?
A. I don't recall. I don't handle the financials.
Q. How much did you contribute to the purchase of the property?
A. I don't recall
A review of the transcript shows the Plaintiff was obstructionist, evasive and vague. Defendant engaged in what appears to be dilatory tactics to prolong the deposition. Throughout the Defendant's deposition, he claimed that he was unable to recall even very basic information.
The conduct of the Defendant in repeatedly failing to comply with discovery demands and Orders of the Court without a reasonable excuse infers the willful and contumacious character of the Defendant's conduct. (see see Field v Bao, 140 A.D.3d 921 [2d Dept 2016] citing Commisso v Orshan, 85 A.D.3d 845 [2d Dept 2011]; Workman v Town of Southampton, 69 A.D.3d 619 [2d Dept 2010]; Horne v Swimquip, Inc., 36 A.D.3d 859 [2d Dept 2007]). Further the willful and contumacious character of the Defendant's conduct can also be inferred from his failure to comply with three separate Court Orders Ordering discovery over an eight-month period. (see Ritornato v Ritornato, 186 A.D.3d 1422 [2d Dept] citing Madonna Mgt. Servs., Inc. v R.S. Naghavi, M.D., PLLC, 172 A.D.3d 845 [2d Dept 2019]).
b. Order Pursuant to CPLR § 3126, Striking Defendant's Answer and Counterclaim
"When a party's failure to comply with disclosure orders is willful, deliberate, and contumacious, it is within the trial court's discretion to dismiss that party's pleading[.]" (see Vanalst v City of New York, 302 A.D.2d 515 [2d Dept 2003] citing Kihl v Pfeffer, 94 N.Y.2d 118 [1999]; Abouzeid v Cadogan, 291 A.D.2d 423 [2d Dept 2002]; Lones v Lampeas, 270 A.D.2d 317 [2d Dept 2000]). The flagrant failure to comply with discovery orders of the Court over an extended period, without sufficient excuse, is willful and contumacious and the Court may providently exercise its discretion in dismissing the party's pleadings. (see id; citing Castrignano v Flynn, 255 A.D.2d 352 [2d Dept 1998]; Kubacka v Town of N. Hempstead, 240 A.D.2d 374 [2d Dept 1997]; Frias v Fortini, 240 A.D.2d 467 [2d Dept 1997]).
"When a party's failure to comply with court-ordered disclosure is shown to be willful, contumacious, or in bad faith, dismissal of that party's pleading is within the broad discretion of the trial court[.]" (see Black v Little, 5 A.D.3d 520 [2d Dept 2004]; citing Vanalst v City of New York, 302 A.D.2d 515 [2d Dept 2003]; Gruber v Cent. Truck Equip., Inc., 298 A.D.2d 360 [2d Dept 2002]; Frias v Fortini, 240 A.D.2d 467 [2d Dept 1997]). "Furthermore, the absence of an excuse for the delay in responding to court-ordered disclosure supports an inference that the failure to comply was willful[.]" (see Frias v Fortini, 240 A.D.2d 467 [2d Dept 1997]).
"The drastic remedy of striking a pleading pursuant to CPLR § 3126 [3] for failure to comply with court-ordered disclosure should be granted only where the conduct of the resisting party is shown to be willful and contumacious[.]" (see Martin v City of New York, 46 A.D.3d 635 [2d Dept 2007]; citing Bomzer v Parke-Davis, Div. of Warner Lambert Co., 41 A.D.3d 522 [2d Dept 2007]; Goldstein v. Kingsbrook Jewish Med. Ctr., 39 A.D.3d 816 [2d Dept 2007]). "[W]illful and contumacious conduct can be inferred from their repeated failures, over an extended period of time, to comply with court orders directing disclosure and the absence of any reasonable excuse for these failures[.]" (see id; citing Maiorino v City of New York, 39 A.D.3d 601 [2d Dept 2007]; Vanalst v. City of New York, 302 A.D.2d 515 [2d Dept 2003]; Montgomery v City of New York, 296 A.D.2d 386 [2d Dept 2002]).
"Pursuant to CPLR § 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party 'refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed[.]'" (see Nationstar Mtge., LLC v Jackson, 192 A.D.3d 813 [2d Dept 2021]; quoting Aha Sales, Inc. v Creative Bath Prods., Inc., 110 A.D.3d 1019 [2d Dept 2013] quoting CPLR § 3126 ).
"The nature and degree of the penalty to be imposed pursuant to CPLR § 3126 lies within the sound discretion of the trial court[.]" (see Field v Bao, 140 A.D.3d 921 [2d Dept 2016] citing Kihl v Pfeffer, 94 N.Y.2d 118 [1999]; Umar v Ohrnberger, 72 A.D.3d 1066 [2d Dept 2010]; Joseph v Iannace, 6 A.D.3d 502 [2d Dept 2004]; Ordonez v Guerra, 295 A.D.2d 325 [2d Dept 2002]).
" CPLR § 3126 provides that a court may, in its discretion, impose a wide range of penalties upon a party that 'refuses to obey an order for disclosure' or 'willfully fails to disclose information which the court finds ought to have been disclosed.' The penalties set forth by the statute include: (1) deciding the disputed issue in favor of the prejudiced party, (2) precluding the disobedient party from producing evidence at trial on the disputed issue, or (3) striking the pleadings of the disobedient party." (see Morano v Westchester Paving & Sealing Corp., 7 A.D.3d 495 [2d Dept 2004]).
While the Defendant offers no excuse for his failure to fully comply with the Orders of this Court and his conduct to be willful and contumacious, the Court in excising its discretion finds striking the Defendant's answer and counterclaim would be unduly harsh and not in furtherance of the interests of justice.
Accordingly, the Plaintiff's request for the Striking of Defendant's answer and counterclaim is DENIED.
c. Preclusion of Defendant from Presenting any Evidence at Trial that he has not Produced
"[R]epeated failures to comply with the defendants' discovery demands and court-ordered discovery were willful and contumacious and that the penalty of preclusion was warranted[.]" (see Gafarova v Yale Realty, LLC, 174 A.D.3d 862 [2d Dept 2019]; citing Arpino v F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201 [2d Dept 2012]; Williams v Suttle, 168 A.D.3d 792 [2d Dept 2019]).
The Court is within its discretion to impose preclusion, when a party fails to timely and adequately comply with court-ordered discovery, and fails to provide a reasonable excuse for this failure. (see Lotardo v Lotardo, 31 A.D.3d 504 [2d Dept 2006]).
"'If any party... refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed' the court may, inter alia, make an order 'that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order;... prohibiting the disobedient party... from producing in evidence designated things or items of testimony, or... striking out pleadings[.]'" (see Lieberman v Green, 190 A.D.3d 713 [2d Dept 2021]; quoting Rogers v Howard Realty Estates, Inc., 145 A.D.3d 1051 [2d Dept 2016]; quoting CPLR § 3126 [1], [2], [3]).
"Pursuant to CPLR § 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party 'refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed[.]'" (see Nationstar Mtge., LLC v Jackson, 192 A.D.3d 813 [2d Dept 2021]; quoting Aha Sales, Inc. v Creative Bath Prods., Inc., 110 A.D.3d 1019 [2d Dept 2013] quoting CPLR § 3126 ).
Preclusion is warranted in this case because the Defendant has repeatedly failed to comply with Court Ordered discovery and disclosure. Specifically, the Defendant has failed to fully comply with the Preliminary Conference Order of this Court dated February 22, 2022, the Order of this Court dated April 27, 2022, and the Order of this Court dated August 3, 2022. Preclusion is necessary to ensure that the Plaintiff is not ambushed at trial with evidence that Defendant willfully withheld.
Defendant has failed and refused to provide any documents supporting his separate property claim other than recording pages. (NY St Cts Filing [NYSCEF] Doc Nos. 59).
Defendant has provided limited and incomplete answers to interrogatories and did not include the documents demanded. Further, the Defendant's answers were not verified as required by CPLR § 3133 [b]. Defendant offers no explanation for his failure to verify his answers to interrogatories and has not cured any of the deficiencies in his responses.
In Defendant's September 8, 2022 deposition, he claimed he was unable to recall very basic information. (NY St Cts Filing [NYSCEF] Doc Nos. 96).
Defendant objects in his opposition that it is overly burdensome, and Plaintiff is not entitled to seven years of discovery. (NY St Cts Filing [NYSCEF] Doc Nos. 91). Defendant is correct in that seven years of discovery would far exceed the amount required and the amount Ordered in the Preliminary Conference Order, however, Defendant did not provide in the proper format as required by CPLR § 3133 [b], the three (3) years of discovery Ordered in the Preliminary Conference Order. In not complying with CPLR § 3133 , the Defendant failed to comply with the Preliminary Conference Order dated February 22, 2022, the Order of this Court dated April 27, 2022, and the Order of this Court dated August 3, 2022.
Defendant has not made any motion for a protective Order pursuant to CPLR § 3103, which provides:
(a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.
(b) Suspension of disclosure pending application for protective order. Service of a notice of motion for a protective order shall suspend disclosure of the particular matter in dispute.
(c) Suppression of information improperly obtained. If any disclosure under this article has been improperly or irregularly obtained so that a substantialright of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed.
Defendant further did not serve any objections to disclosure in accordance with the requirements CPLR § 3122:
(a) 1. Within twenty days of service of a notice or subpoena duces tecum under rule 3120 or section 3121, the party or person to whom the notice or subpoena duces tecum is directed, if that party or person objects to the disclosure, inspection or examination, shall serve a response which shall state with reasonable particularity the reasons for each objection. If objection is made to part of an item or category, the part shall be specified. The party seeking disclosure under rule 3120 or section 3121 may move for an order under rule 3124 or section 2308 with respect to any objection to, or other failure to respond to or permit inspection as requested by, the notice or subpoena duces tecum, respectively, or any part thereof.
(b) Whenever a person is required pursuant to such a notice, subpoena duces tecum or order to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required by the notice, subpoena duces tecum or order to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document for a subpoena duces tecum.
(c) Whenever a person is required pursuant to such notice or order to produce documents for inspection, that person shall produce them as they are kept in the regular course of business or shall organize and label them to correspond to the categories in the request.
(d) Unless the subpoena duces tecum directs the production of original documents for inspection and copying at the place where such items are usually maintained, it shall be sufficient for the custodian or other qualified person to deliver complete and accurate copies of the items to be produced. The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.
Considering the number of properties involved and the Defendant's inability to recall numerous facts, it is not unreasonable for the Plaintiff to request the Defendant to provide the documentation requested.
This Court has provided the Defendant with many opportunities to rectify his non-compliance with the discovery Orders of this Court. The Defendant was told on the record of the requirement that discovery be provided on multiple occasions. On February 22, 2022, the Court explained the requirements of the Preliminary Conference Order to both parties. On April 27, 2022, on the record, the Court Ordered discovery to be completed within three (3) weeks and specifically Ordered the Defendant to provide copies of all deeds and leases within two weeks. On August 3, 2022, the Court once again Ordered all discovery to be complete within ten (10) days.
On October 13, 2022, the Court told the Defendant on the record that discovery must be provided in compliance with the CPLR or it was the equivalent of not providing it. Once again, the Court provided the Defendant with an additional week to comply with discovery orders and resolve Motion Sequence #002.
Defendant in his recalcitrance behavior has still not complied with the Orders of this Court in producing the discovery required in compliance with the CPLR. Defendant's refusal to comply with the Orders of this Court after being provided with repeated opportunities to rectify his non-compliance clearly demonstrate the willful, deliberate, and contumacious character of the Defendant's conduct. It pains the Court, but based on the Defendant's conduct, after having been provided with numerous opportunities to remedy his non-compliance, the Defendant has left the Court no alternative.
The Orders of the Court and the CPLR must be followed. There cannot be a meaningful trial without appropriate discovery and the Court cannot allow the matter to be protracted and delayed by the recalcitrant, willful, deliberate, and contumacious conduct of the Defendant.
Accordingly, the Plaintiff's request to preclude the Defendant from presenting any evidence at trial that he has not produced is GRANTED, and
Plaintiff's further request to preclude the Defendant from presenting any evidence in support of any separate property claims he may assert is GRANTED, and
Plaintiff's further request to preclude Defendant from opposing Plaintiff's spousal maintenance claim is GRANTED.
III. Compelling the Defendant to Pay for Appraisal of the Real Property Owned by the Parties
Plaintiff is requesting an Order to compel the Defendant to pay for appraisals of the real property owned by the parties. Defendant offers no objection and in his affidavit in opposition states, "As far as the [a]ppraisals are concerned, as a result of an order from this Court, I am able to withdraw from my Deferred Compensation Plan to pay for the appraisals[.]" (NY St Cts Filing [NYSCEF] Doc Nos. 91).
This Court has previously determined that the Defendant is the monied spouse and responsible for 100% of appraisal costs, subject to reallocation at trial. (NY St Cts Filing [NYSCEF] Doc Nos. 17). There has been no evidence offered to contradict the Court's previous finding.
Accordingly, the Plaintiff's request for an Order compelling the Defendant to pay 100% of the cost for the appraisal of the real property owned by the parties, subject to reallocation at trial, is GRANTED.
IV. Plaintiff Counsel Fees, Pendente Lite
Plaintiff's request for the Defendant to pay to the Plaintiff, interim counsel fees in the amount of $6,000.00 [Six Thousand Hundred Dollars, and No Cents], is referred to the trial court.
Decretal Paragraphs
It is hereby ORDERED, that the Plaintiff's request to strike the Defendant's answer and counterclaim is DENIED, and it is further;
ORDERED, that the Plaintiff's request to preclude the Defendant from presenting any evidence at trial that he has not produced is GRANTED, and it is further;
ORDERED, that the Plaintiff's request to preclude the Defendant from presenting any evidence in support of any separate property claim he may assert is GRANTED, and it is further;
ORDERED, that the Plaintiff's request to preclude the Defendant from opposing Plaintiff's spousal maintenance claim is GRANTED, and it is further;
ORDERED, that Plaintiff's request for an Order to compel the Defendant to pay 100% of the cost of the appraisal of the real property owned by the parties, pendente lite, subject to reallocation at trial is GRANTED, and it is further;
ORDERED, that Plaintiff's request for the Defendant to pay to the Plaintiff, interim counsel fees in the amount of $6,000.00 [Six Thousand Hundred Dollars, and No Cents], is referred to the trial court.
Any relief requested, and not specifically addressed in this Decision and Order is referred to the trial court.
This matter is set down for a pre-trial conference on December 13, 2022 at 9:30 AM in person at the courthouse. Counsel is reminded to be in full compliance with the Part Rules for Part MP-7. In addition, memoranda of law regarding all triable issues and statements of proposed disposition are ORDERED to be filed at least two weeks prior to the pre-trial conference.
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.