Opinion
Index No. 504935/2022 Motion Sequence Nos. 4-6
03-09-2023
Melissa Silla, Plaintiff, v. Thomas Silla Jr, Defendant.
Unpublished Opinion
PRESENT: HON. JOANNE D. QUINONES, A.J.S.C.
DECISION & ORDER
HON. JOANNE D. QUINONES, A.J.S.C.
The following e-filed papers read herein: ______NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed______52-61, 62-71, 75-77
Opposing Affidavits (Affirmations)______72, 73-74, 78-88
Affidavits/ Affirmations in Reply _____ 89-90
Transcript of December 15, 2022 Oral Argument_____91
Upon the foregoing papers in this action to enforce a separation agreement, Plaintiff moves for an order: (1) imposing discovery sanctions upon Defendant; (2) deeming a debt uncollectible; and (3) granting her fees associated with her motion (motion sequence no. 4). Plaintiff further moves for leave to amend her complaint to: (1) assert a claim for her equitable share of the marital residence located at 289 Eltingville Blvd in Staten Island NY 10312 (the marital residence) in the amount of $112,500 plus whatever appropriate statutory interest was in effect at the time of the separation agreement and all sequential years; (2) assert a claim for a temporary restraining order prohibiting Defendant from liquidating any equity from the marital residence; and (3) assert a claim for the reimbursement of all fees associated with the filing of this action and all attorney's fees associated with her prior attorney's attempt to settle this action (motion sequence no. 5).
Defendant cross-moves for an order: (1) pursuant to 22 NYCRR part 130, determining that Plaintiff has engaged in frivolous conduct and sanctioning her in the amount of $10,000 with $5,000 to be paid to him for his counsel fees and $5,000 to be paid as directed by the court; and (2) prohibiting Plaintiff from making any further motions in this action without prior approval of the court (motion sequence no. 6).
BACKGROUND
The parties were married on March 7, 2009, and later separated in or about May 2018. On May 24, 2018, the parties executed a separation agreement which was duly acknowledged (NYSCEF Doc No. 35). The separation agreement settled the financial, property, and other rights and obligations arising from the marriage.
On June 14, 2018, Defendant (as the plaintiff therein) filed an action seeking a divorce, pursuant to Domestic Relations Law (DRL) section 170 (7) against Plaintiff (as the defendant therein) and ancillary relief, including sole custody of the children, child support, and equitable distribution (Sup Ct, Kings County, Index No. 53275/2018) (the divorce action). The divorce action was initially commenced in Richmond County, but was administratively transferred to Kings County on June 20, 2018. The divorce action was highly contentious and numerous motions were filed. A trial in the divorce action was held over nine nonconsecutive days, to wit: January 18, 2022; January 24, 2022; January 25, 2022; February 10, 2022; March 9, 2022; March 18, 2022; March 25, 2022; March 30, 2022; and August 11, 2022. Defendant was represented in the divorce action by Anthony M. Bramante, Esq. and Plaintiff was represented by Adelola Sheralynn Dow, Esq.
On December 22, 2022, the court rendered its Decision After Trial. The court, in its Decision After Trial, granted Defendant (who was the plaintiff therein) a judgment of absolute divorce against Plaintiff (who was the defendant therein) pursuant to DRL section 170 (7). As to equitable distribution, the court, in its Decision After Trial, determined that the parties' separation agreement resolved the distribution of marital assets and liabilities. It noted that the separation agreement is in writing, signed by both parties, and properly acknowledged. The court concluded that equitable distribution shall be in accordance with the separation agreement, and directed the parties to comply with the provisions therein regarding the distribution of marital assets and liabilities. The court further found that pursuant to the separation agreement, neither party would be awarded counsel fees. Specifically, the court noted that article 14 of the separation agreement provided that "both parties waive any claims against their respective spouses for counsel fees pursuant to the Domestic Relations Law." The court directed the parties to settle the judgment on notice. On February 20, 2023, a proposed Judgment of Divorce was filed in the divorce action.
The parties did not apply for a HELOC within 30 days after the execution of the separation agreement as required by article 2. Title to the marital residence presently remains in the joint names of Plaintiff and Defendant.
On February 17, 2022, Plaintiff filed the instant action against Defendant (NYSCEF Doc No. 1). Plaintiff's complaint alleges that pursuant to the separation agreement, Defendant agreed to pay her $76,202, which represents her 50% share of the marital residence ($112,500) minus one-half of the parties' marital debt ($36,298). Plaintiff's complaint further alleges that Defendant did not refinance the marital residence and did not produce a deed for her to sign. Plaintiff's complaint seeks a judgment of $76,202 plus statutory interest since 2018 and attorney's fees against Defendant.
On March 14, 2022, Defendant filed an answer with counterclaims and a notice of deposition (NYSCEF Doc No. 4). On March 17, 2022, Plaintiff filed a notice for discovery and inspection (NYSCEF Doc No. 5). On April 12, 2022, Plaintiff filed a reply to Defendant's counterclaims (NYSCEF Doc No. 7). A preliminary conference order was signed on April 21, 2022 (NYSCEF Doc No. 8). On April 22, 2022, Plaintiff served the notice for discovery and inspection on Defendant (NYSCEF Doc No. 9). On April 26, 2022, Plaintiff filed a demand for a bill of particulars and a notice for discovery and inspection (NYSCEF Doc No. 10). Plaintiff sought judicial subpoenas on Federal Credit Union and Municipal Credit Union, which were so-ordered on May 4, 2022 and served on May 9, 2022 (NYSCEF Doc Nos. 11, 12). On May 23, 2022, Defendant served a response to Plaintiff's notice for discovery and inspection and on May 24, 2022, Defendant served a supplemental response to Plaintiff's notice for discovery and inspection (NYSCEF Doc Nos. 14, 15).
On June 10, 2022, Plaintiff filed a motion to compel discovery from Defendant (NYSCEF Doc No. 17, motion sequence no. 1). Plaintiff argued that Defendant had provided insufficient discovery responses to her notice for discovery and inspection. Specifically, Plaintiff asserted that Defendant had not provided proof of his payments towards the marital debt despite Defendant's attorney having stated on January 29, 2022 that Defendant had paid $48,566 towards the marital debt ($12,268 more than his $36,298 share of the marital debt). Plaintiff requested that Defendant provide such proof pursuant to CPLR 3124.
Also on June 10, 2022, Plaintiff filed a motion for an order: (1) granting her leave to amend her complaint to assert a claim for half of the appraised value of the marital residence at the time of the court's decision; (2) issuing a temporary restraining order prohibiting Defendant from liquidating any equity in the marital residence; and (3) reimbursing Plaintiff for all fees associated with filing this action, including all attorney's fees associated with her prior attorney's attempt to settle this action (NYSCEF Doc No. 23, motion sequence no. 2). On August 4, 2022, Defendant cross-moved for an order: (1) granting him summary judgment dismissing Plaintiff's complaint against him; (2) granting him summary judgment on his counterclaim for breach of contract and setting this matter down for an inquest on damages, and (4) imposing sanctions on Plaintiff in the amount of $4,545 for his attorney's fees on the basis that Plaintiff had engaged in frivolous conduct pursuant to 22 NYCRR part 130 (NYSCEF Doc No. 32, motion sequence no. 3).
By decision and order dated August 5, 2022, the court decided motion sequence numbers one through three (NYSCEF Doc No. 47). The court granted Plaintiff's motion under motion sequence number one to the extent stated in a compliance conference order which was issued under separate cover. The compliance conference order directed Defendant to provide, by email/certified mail on or before August 31, 2022, proof of: (1) the current amount of existing debt, if any, for each of the items listed in exhibit B of the separation agreement; and (2) proof of payments made by Defendant or on Defendant's behalf for each of the items listed in exhibit B of the separation agreement from May 24, 2018 (the date of the separation agreement) to the present, including any additional amounts borrowed on such accounts (NYSCEF Doc No. 50). The compliance conference order further provided that "NO DEVIATION FROM THIS ORDER IS PERMITTED WITHOUT WRITTEN CONSENT OF THE COURT. FAILURE TO ABIDE BY THIS ORDER MAY RESULT IN PRECLUSION, CONTEMPT OR FINANCIAL SANCTIONS UP TO $10,000.00 PURSUANT TO 22 NYCRR § 130-1.2" (id.).
The court denied without prejudice Plaintiff's motion under motion sequence number two for the reasons more fully set forth on the record, namely, that Plaintiff had failed to submit a proposed amended complaint. The court denied Defendant's cross motion under motion sequence number three.
On October 21, 2022, Plaintiff filed her motion for discovery sanctions, to have the marital debt deemed uncollectible, and for fees associated with her motion (NYSCEF Doc No. 52, motion sequence no. 4). Also on October 21, 2022, Plaintiff filed her second motion for leave to amend her complaint (NYSCEF Doc No. 62, motion sequence no. 5). On October 28, 2022, Defendant filed his cross motion for an order imposing sanctions on Plaintiff for frivolous conduct and prohibiting Plaintiff from filing further motions in this action without prior court approval (NYSCEF Doc No. 75, motion sequence no. 6). Oral argument of motion sequence numbers four, five, and six was held on December 15, 2022 (NYSCEF Doc No. 91).
PARTIES' CONTENTIONS
Plaintiff contends that Defendant has not complied with the compliance conference order. Specifically, Plaintiff asserts that Defendant has not provided any further responses to her notice for discovery and inspection and still has not turned over the missing documentation that was requested in her notice for discovery and inspection. Plaintiff argues that she does not know what is still owed on the marital debt.
Defendant states he has already produced all documents in his possession. He asserts that on May 23 and May 24, 2022, he provided Plaintiff with 118 pages of documents responsive to her notice for discovery and inspection. He has not submitted any further discovery responses following the compliance conference order. With respect to the bill of sale for the Harley Davidson motorcycle, Defendant admits that the motorcycle was sold by him, but avers that he did not retain this bill of sale. Defendant notes that the motorcycle was his separate property pursuant to article 3 and exhibit A of the separation agreement.
Plaintiff argues that because Defendant has not produced the bill of sale for the Harley Davidson motorcycle, the Division 726 MTA loan for the motorcycle in the amount of $9,500, which was listed as a marital debt in exhibit B of the separation agreement, should no longer be considered part of the total marital debt. She further asserts that she should be credited for some of the money that Defendant received for the motorcycle.
With respect to the $18,500 marital debt of the NYPD pension loan, Plaintiff sought a pension statement or a payoff letter for the time period from May 24, 2018 to the present. Defendant provided a letter from the pension department dated September 21, 2018, stating that the balance was $14,741.75. Plaintiff asserts that the date and amount in the letter do not coincide with the amount listed in the separation agreement. Plaintiff contends that this letter does not provide information as to whether there is presently an outstanding balance or whether the pension loan was ever paid off. Plaintiff argues that the NYPD pension loan listed in the separation agreement should, therefore, be removed from the marital debt.
With respect to the statements regarding Defendant's two 457 deferred compensation loans in the amounts of $12,000 and $3,000, Defendant claims that he has been unable to obtain these statements. Defendant states that he has made in-person trips to the office that addresses deferred compensation and was advised that such statements are unavailable. Defendant attests that he does not have these statements in his possession and is unable to obtain copies of them.
Plaintiff states that all information with respect to these deferred compensation loans should be available to Defendant on the website under Defendant's accounts, and Defendant should have been able to easily produce the statements requested. Plaintiff contends that since Defendant cannot provide proof as to any payments made on either loan, whether either loan has been paid off, or even that either of these loans ever existed, the amounts of $12,000 and $3,000, purportedly for these two deferred compensation loans, should be removed from the marital debt.
Plaintiff states that she has paid approximately $13,280 of the marital debt. Plaintiff asserts that only collectible debt was the loan from Jackie Davis in the amount of $13,000, listed in exhibit B of the separation agreement. Plaintiff has submitted an unsworn and unsigned letter dated May 17, 2022 from Jackie Davis, which states that there is a current loan balance of $13,500 which remains outstanding (NYSCEF Doc No. 46). The letter states that Jackie Davis loaned Defendant $15,000 on June 5, 2016 and that there was a verbal agreement for him to pay her back $500 per month for 30 months. While the letter states that there is a current loan balance of $13,500, it acknowledges a joint payment from Defendant and Plaintiff in the amount of $1,500 and payments directly from Plaintiff in the aggregate sum of $2,250, for total payments on the loan of $3,750. The letter further states that Plaintiff currently owes $4,500 and Defendant owes $6,750 of the Jackie Davis loan. Plaintiff also states that she has paid off the MCU personal loan.
Plaintiff states that Defendant has provided all mortgage statements for the marital residence, as requested by her in her notice of discovery and inspection. Plaintiff does not make any specific allegations with respect to Defendant's disclosure regarding the MCU personal loan in the amount of $5,566, the MCU loan in the amount of $5,715, the Division 726 MTA loan in the amount of $3,315, the Discover credit card in the amount of $1,200, or the Fingerhut credit card in the amount of $800.
Plaintiff contends that Defendant has not provided proof of payoff or paying down of the marital debt and that, therefore, the marital debt should not be subtracted from the amount that she should receive from the marital residence. Plaintiff argues that Defendant cannot prove any marital debt, and, therefore, she is entitled to her full half of the marital residence in the amount of $112,500.
Plaintiff contends that Defendant wants the court to take his word that the loans existed, with no proof to back up his words. Plaintiff argues that the marital debt has changed from the time of the separation agreement or never existed at the time the separation agreement was signed.
Defendant contends that Plaintiff has not paid her $36,298 share of the marital debts listed in exhibit B of the separation agreement according to the documents that she has produced. Defendant argues that Plaintiff, by stating that she should not be required to pay the marital debt, is seeking to abrogate the separation agreement even though it has already been ruled to be a valid agreement.
As to Plaintiff's motion to amend her complaint, Plaintiff did not submit a copy of her proposed amended complaint at the time that she filed her motion, but subsequently submitted it on December 14, 2022 (NYSCEF Doc No. 90). Plaintiff, in her proposed amended complaint, alleges that Defendant has not provided any proof of any payment by him of the marital debt or any proof of the marital debt. Plaintiff also alleges that Defendant did not provide a deed for her to sign to be held in escrow. Plaintiff asserts that due to Defendant's breach of the separation agreement, she is entitled to statutory interest from the time that the separation agreement was signed. Plaintiff seeks $112,500 plus statutory interest from May 24, 2018 for her interest in the marital residence. Plaintiff also seeks a temporary restraining order prohibiting Defendant from liquidating any interest in the marital residence. Plaintiff further seeks reimbursement of all fees associated with this action and all attorney's fees associated with the attempt by her prior attorney (i.e., the attorney who represented her in the divorce action) to settle this action.
Defendant asserts that this is Plaintiff's second motion to amend her complaint in which she has failed to submit her proposed amended complaint. Defendant acknowledges that Plaintiff subsequently submitted her proposed amended complaint on December 14, 2022 (NYSCEF Doc No. 90), but contends that it was submitted untimely and only after her motion was already filed. Defendant argues that Plaintiff's motion to amend should be denied on this basis.
Defendant contends that Plaintiff's motion to amend should also be denied on the basis that Plaintiff's proposed amendment lacks merit. Defendant asserts that the separation agreement required that 50% of the marital debt be subtracted from the amount of $112,500. Defendant also contends that no temporary restraining order is necessary since Plaintiff's name is on the deed to the marital residence and he, therefore, cannot encumber the marital residence without Plaintiff's consent. Defendant additionally contends that Plaintiff cannot recover attorney's fees in this action since she is pro se.
Defendant argues that Plaintiff refuses to acknowledge that she is not entitled to anything above $76,202. Defendant notes that while Plaintiff claims that he has refused to provide her with a deed to sign, he had applied for and obtained a commitment for a loan with Prime Lending in the principal amount of $450,000 at the rate of 4.75% with the payment of one-half point ($2,225.00) with a commitment date of March 21, 2022 and an expiration date of June 24, 2022 (NYSCEF Doc No. 41). By an email dated April 20, 2022, Defendant's attorney requested that Plaintiff sign the deed to the marital residence with $76,202 to be held by him until an agreement was reached regarding the amount of the $76,202 to which Plaintiff was entitled (NYSCEF Doc No. 39). Plaintiff did not accept this offer. Defendant contends that he could have closed at an interest rate of about four percent and interest rates are currently over seven percent.
Defendant argues that Plaintiff has engaged in frivolous conduct because she seeks to amend her complaint with no supportable basis to do so. Defendant contends that based on the relief sought by Plaintiff in her proposed amendment, she is seeking to once again argue that the requirement of the payment of marital debt in the separation agreement is invalid even though the court has already found that the separation agreement is valid. Defendant further contends that Plaintiff's failure to timely file a proposed amended complaint was frivolous, and that her request for attorney's fees, despite her appearing pro se, is also frivolous.
Defendant seeks the imposition of sanctions in the amount of $10,000 upon Plaintiff, with $5,000 of this sanction to be paid to him for his counsel fees for having to defend this frivolous motion and $5,000 to be paid to the fund which receives sanctions for frivolous conduct. Defendant argues that due to Plaintiff's repetitive motions which seek frivolous relief, the court should issue an order requiring that she obtain prior court approval before filing any further motions in this action.
Plaintiff responds that Defendant has disregarded court orders with respect to discovery and that he did not comply with the separation agreement by timely applying for a loan and providing a deed for her to sign. Plaintiff contends that she has not engaged in frivolous conduct and that she is seeking relief to which she is entitled.
DISCUSSION
Motion Sequence Number Four
In motion sequence number four, Plaintiff seeks discovery sanctions against Defendant, deeming certain marital debt uncollectible, and an award of fees associated with this motion.
Under CPLR 3101 (a), "full disclosure" is required for "all matter material and necessary in the prosecution or defense of an action." Parties are required to strictly comply with all court-ordered discovery deadlines (22 NYCRR 202.20-e). Upon a failure to do so, the party seeking disclosure may move to compel compliance pursuant to CPLR 3124 or seek an appropriate sanction pursuant to CPLR 3126 (id.). Where a party willfully fails to disclose relevant information, CPLR 3126 permits the court to enter an order that is just to remedy such noncompliance. For example, the court may issue:
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(CPLR 3126 [1]-[3]).
"Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court" (Rosenstock v Rosenstock, 149 A.D.3d 887, 888 [2d Dept 2017]; see also Isaacs v Isaacs, 71 A.D.3d 951, 952 [2d Dept 2010]; Lotardo v Lotardo, 31 A.D.3d 504, 505 [2d Dept 2006]). With respect to granting an order of preclusion under CPLR 3126 (2), it is noted that "[b]efore a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious" (Maliah-Dupass v Dupass, 166 A.D.3d 873, 875 [2d Dept 2018]; see also Lombardi v Lombardi, 190 A.D.3d 964, 967 [2d Dept 2021]; Ritornato v Ritornato, 186 A.D.3d 1422, 1424 [2d Dept 2020]). "Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures, or a failure to comply with court-ordered discovery over an extended period of time" (Bouri v Jackson, 177 A.D.3d 947, 949 [2d Dept 2019]; see also Ritornato, 186 A.D.3d at 1424; Maliah-Dupass, 166 A.D.3d at 875; Smookler v Dicerbo, 166 A.D.3d 838, 839-840 [2d Dept 2018]; Candela v Kantor, 154 A.D.3d 733, 734 [2d Dept 2017]; Casey v Casey, 39 A.D.3d 579, 580 [2d Dept 2007]).
Article 4 of the separation agreement provides as follows:
Responsibility For Debts . The parties heretofore have incurred certain bills, debts and obligations described in Exhibit B annexed hereto. The Husband and Wife agree to pay the items designated in Exhibit B, 50% Husband and 50% Wife, as 'Obligations of the Marriage' at the time the Home Equity Line of Credit ('HELOC') is taken on the marital residence. The Husband and Wife shall cooperate with each other in applying for said HELOC; the application shall be submitted no later than thirty (30) days after full execution of this agreement. Each party represents and warrants that, except as set forth in Exhibit B, he or she, as the case may be, has not incurred or contracted any debts or obligations for which the other or any property of the other may be liable, either individually or jointly. Each party agrees that he or she hereafter shall not incur any debts or obligations for which the other may be liable. Each party shall indemnify and hold the other harmless from and against any costs and expenses resulting from a breach or violation by such party of any representation, warranty or covenant contained in this Article 4.
In the event that Husband and Wife cannot acquire the HELOC, and the Husband and Wife remain joint holders of title to 289 Eltingville Blvd, Staten Island, NY 10312, the marital debts shall continue to be paid 50% by Husband and 50% by Wife until such time the HELOC or refinance takes place at which time an adjustment to [the] balance of the marital debts shall be recalculated.
Exhibit B to the separation agreement listed the marital debts as follows:
NYPD Pension Loan by Husband - $18,500
457 Deferred Compensation Loan by Husband - $12,000
457 Deferred Compensation Loan by Husband - $3,000
Division 726 MTA Loan (1) for Harley Davidson - $9,500
Loan by Jackie Davis - $13,000
MCU Personal Loan - $5,566
Division 726 MTA Loan (2) - $3,315
MCU Loan - $5,715
Discover Credit Card - $1,200
Fingerhut Credit Card - $800
Total Marital Debts: $72,596
Here, Exhibit B of the separation agreement expressly lists the marital debts and the amounts of these marital debts. The parties agreed that 50% of said marital debts shall be paid out of the $112,500 due to Plaintiff upon the transfer of the marital residence. Contrary to Plaintiff's contentions, these amounts and whether they were legitimate marital debts and whether the amounts of these marital debts were accurately stated in exhibit B are not subject to relitigation in this action. Both parties agreed that the marital debts enumerated in exhibit B were joint obligations from the marriage and each party is contractually bound by the separation agreement to pay their 50% share.
The amounts which Plaintiff and Defendant have already paid towards satisfying these marital debts, however, is relevant to this action since it impacts the amounts to which they should be credited and the amounts still owed by them. Furthermore, the separation agreement expressly provided that if the loan did not take place, the marital debts would continue to be paid 50% by Plaintiff and 50% by Defendant until such time as refinancing takes place, at which time an adjustment to the balance of the marital debts would be recalculated. Thus, any additional amounts paid by either party towards the marital debt is relevant to this action since neither party should be required to pay more than his or her 50% share of the marital debt. Since the refinancing has not taken place, there must be an adjustment in the amount owed by each party based on what they have already paid towards the marital debt.
Here, Plaintiff has demonstrated that Defendant failed to comply with the compliance conference order by not producing the additional disclosure required therein. The willful and contumacious character of Defendant's conduct may be inferred from his repeated failure to comply with the discovery directed pursuant to the preliminary conference order and the compliance conference without proffering a reasonable excuse (see Ritornato, 186 A.D.3d at 1424; Rosenstock, 149 A.D.3d at 888). The reasons asserted by Defendant in defense of this motion, namely, that the discovery requested had already been provided to Plaintiff, that the documents sought do not exist, or that certain discovery is not in his possession are insufficient to negate Plaintiff's showing (cf. McGroarty v Long Is. Coll. Hosp., 37 A.D.3d 431 [2d Dept 2007]). The court addresses each of Defendant's arguments in turn.
As it relates to the motorcycle, Defendant has stated that the bill of sale for the motorcycle is not in his possession. Defendant has not provided the amount for which he sold the motorcycle or the date on which he sold it. However, the motorcycle was designated as Defendant's separate property in the separation agreement and Defendant was within his rights to sell his own property and retain the proceeds.
Furthermore, a party may respond to a notice for discovery and inspection by providing a sworn statement that certain information is not in his or her possession (see Cap Rents Supply, LLC v Durante, 167 A.D.3d 700, 702 [2d Dept 2018]). It is unclear on these papers if Defendant has failed to produce information as to the amount that he paid on the loan for the motorcycle prior to its sale or has failed to produce information as to how much was owed and paid on the loan prior to its sale. In any event, Defendant necessarily was required to pay off the loan of $9,500 prior to its sale to give the buyer clear title. Per the separation agreement, Plaintiff and Defendant each agreed to pay 50% of this $9,500 marital debt. Defendant's failure to provide information in his possession regarding his payments of this marital debt precludes him from later offering proof regarding that information at trial (see Bivona v Trump Mar. Casino Hotel Resort, 11 A.D.3d 574, 575 [2d Dept 2004]; Corriel v Volkswagen of Am., 127 A.D.2d 729, 731 [2d Dept 1987]). Thus, Defendant, to the extent that he has not produced the amounts paid by him, is precluded from seeking recovery from Plaintiff in excess of Plaintiff's 50% share of this debt.
With respect to Defendant's failure to produce information as to his deferred compensation plan loans, Defendant has provided a sworn affidavit that these documents are not in his possession and that he has made in-person trips to the office that addresses deferred compensation and was advised that such statements are unavailable. Defendant does not provide the dates of these visits or explain why he cannot obtain account statements regarding his deferred compensation plan online. However, the separation agreement specifically set forth the amounts owed on these loans. Defendant's failure to produce these documents does not relieve Plaintiff of her obligation to pay 50% of the amount of the marital debt with respect to these loans as stated in the separation agreement and agreed to be paid by her in such separation agreement. Notably, article 11 of the separation agreement provides that Defendant's 457 deferred compensation plans and Defendant's NYPD pension plan would remain Defendant's separate property and that Plaintiff waived her rights to the equitable distribution of these assets. Since Defendant would solely remain liable to the extent that these amounts are unpaid, Defendant's failure to show that he made the loan payments would not absolve Plaintiff from paying her 50% share of this marital debt. However, Defendant, to the extent that he has not produced the amounts paid by him, is precluded from asserting that he has paid more than his 50% share of this marital debt (see Bivona, 11 A.D.3d at 575; Corriel, 127 A.D.2d at 731).
Similarly, with respect to Defendant's NYPD pension loan, while Defendant has not produced his current statement, Plaintiff remains responsible for her 50% share of the $18,500 agreed to be paid by her as marital debt in the separation agreement. Since Plaintiff has waived her right to equitable distribution of Defendant's NYPD pension and there will be no QDRO, Defendant would be solely responsible for paying the remaining balance owed on the pension loan and Plaintiff is only required to pay her 50% share of the $18,500. Defendant, to the extent that he has not produced the amounts paid by him, is precluded from asserting that he has paid more than his 50% share of this marital debt (see Bivona, 11 A.D.3d at 575; Corriel, 127 A.D.2d at 731). As to the other marital debts, Plaintiff does not assert that Defendant has failed to comply with the requested disclosure.
The court further notes that the drastic remedies of resolving all financial issues in Plaintiff's favor pursuant to CPLR 3126 (1) or the striking of Defendant's answer pursuant to CPLR 3126 (3) are not warranted. Rather, the court finds that a preclusion order, to the extent set forth above, with respect to the documents which Defendant has failed to produce is the appropriate remedy (see CPLR 3126 [2]; Benedict v Benedict, 169 A.D.3d 1522, 1524 [4th Dept 2019]; Maliah-Dupass, 166 A.D.3d at 875).
Plaintiff's motion, insofar as it seeks an order deeming that the marital debt is uncollectible, must be denied. Plaintiff is bound by the terms of the separation agreement which requires that she pay 50% of the marital debt and she does not assert that she has paid more than 50% of the marital debt. Plaintiff is entitled to a credit for any sums already paid by her.
Plaintiff's motion, insofar as it seeks an order granting her fees associated with her motion, must be denied. The separation agreement does not provide for the recovery of any fees and Plaintiff has not shown any other basis for such relief.
Motion Sequence Number Five
Under motion sequence number five, Plaintiff seeks leave to amend her complaint.
"Leave to amend a pleading shall be freely given absent prejudice or surprise resulting directly from the delay 'unless the proposed amendment is palpably insufficient or patently devoid of merit'" (Ruland v Leibowitz, 209 A.D.3d 1051, 1052 [2d Dept 2022], quoting Lucido v Mancuso, 49 A.D.3d 220, 222 [2d Dept 2008], appeal withdrawn 12 N.Y.3d 804 [2009] and 12 N.Y.3d 813 [2009]; see also CPLR 3025 [b]; Bank of Am., N.A. v Green, 208 A.D.3d 1143, 1145 [2d Dept 2022]; Tavor v Lane Towers Owners, Inc., 197 A.D.3d 584, 586 [2d Dept 2021]). Thus, the court must deny leave to amend where the proposed amendments are palpably insufficient or patently lack merit (see Ruland, 209 A.D.3d at 1053; Tavor, 197 A.D.3d at 586). Any motion to amend is required to "be accompanied by the proposed amended . . . pleading clearly showing the changes or additions to be made to the pleading" (CPLR 3025 [a]). However, a failure to annex a proposed amended pleading alone in compliance with the requirements of CPLR 3025 is not necessarily fatal to a motion to amend where the opposing party is not prejudiced (see Greene v Esplanade Venture Partnership, 36 N.Y.3d 513, 549 n 3 [2021]; Holst v Liberatore, 105 A.D.3d 1374, 1375 [4th Dept 2013]).
Here, Defendant was given an opportunity at oral argument, following Plaintiff's filing of her proposed amended complaint, to state how he has been prejudiced, and Defendant has failed to make any adequate showing of prejudice by Plaintiff's late filing of her proposed amended complaint (tr at 13-16; see Amica Mut. Ins. Co. v Hart Alarm Sys., 218 A.D.2d 835, 836 [3d Dept 1995]; Messersmith v Tate, 59 Misc.3d 203, 207 [Sup Ct, Warren County 2018] [noting that a Plaintiff could have easily corrected the defect of failing to submit a proposed amended complaint in his reply papers]). Thus, the court will not deny Plaintiff's motion solely based on this technical ground.
As to the merits of Plaintiff's proposed amended complaint, the court notes that Plaintiff's original complaint alleges that Defendant agreed, in the separation agreement, to pay her the sum of $76,202 for her equitable share of the marital residence. It further alleges that Defendant breached the separation agreement by refusing to comply with the refinancing terms of the separation agreement and by failing to provide her with a deed to sign in compliance with the separation agreement. It sought $76,202 plus statutory interest from 2018, together with attorney's fees.
Plaintiff now seeks to amend her complaint to assert a claim for her equitable share of the marital residence in the amount of $112,500 plus whatever appropriate statutory interest was in effect at the time of the separation agreement and all sequential years. The basis for Plaintiff's proposed amendment is that Defendant did not apply for the HELOC within seven days of the execution of the separation agreement and four years have passed. Plaintiff asserts that the entire amount of the marital debt should be removed from the amount to be subtracted from her $112,500 equitable share of the marital residence and that she should receive the full amount of $112,500 plus interest upon her transfer of the marital residence. Plaintiff argues that Defendant has not shown the amount of marital debt that still exists or that the marital debt stated in the separation agreement ever existed.
" 'A separation agreement or stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract, the terms of which are binding on the parties,' and are subject to the principles of contract interpretation" (Kirk v Kirk, 207 A.D.3d 708, 711 [2d Dept 2022], quoting Matter of Moss v Moss, 91 A.D.3d 783, 783 [2d Dept 2012]; see also Matter of Gravlin v Ruppert, 98 N.Y.2d 1, 5 [2002]; Van de Walle v Van de Walle, 200 A.D.3d 1095, 1098 [2d Dept 2021], lv denied ____NY3d___, 2023 NY Slip Op 61748 [Feb. 9, 2023]). "A court should interpret a contract such as a separation agreement in accordance with its plain and ordinary meaning" (Kirk, 207 A.D.3d at 711; see also Colucci v Colucci, 54 A.D.3d 710, 712 [2d Dept 2008]; see also Herzfeld v Herzfeld, 50 A.D.3d 851, 851 [2d Dept 2008]), and "should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized" (Matter of Schiano v Hirsch, 22 A.D.3d 502, 502 [2d Dept 2005]; see also Shkreli v Shkreli, 186 A.D.3d 638, 639 [2d Dept 2020], lv dismissed 37 N.Y.3d 1024 [2021]).
" 'Agreements are construed in accordance with the parties' intent, and the best evidence of intent is the written instrument'" (Kirk, 207 A.D.3d at 711, quoting Van de Walle, 200 A.D.3d at 1098)." 'A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract's apparent meaning'" (Kirk, 207 A.D.3d at 711, quoting Cohen-Davidson v Davidson, 291 A.D.2d 474, 475 [2d Dept 2002]; see also Berlin v Berlin, 192 A.D.3d 856, 857 [2d Dept 2021])." 'Accordingly, where the language of the agreement is clear and unambiguous, the court should determine the intent of the parties based on that language without resorting to extrinsic evidence'" (Kirk, 207 A.D.3d at 711, quoting Schaff v Schaff, 172 A.D.3d 1421, 1423 [2d Dept 2019]; see also Colucci, 54 A.D.3d at 712).
Here, the language of the separation agreement is clear and unambiguous. Article 4 of the separation agreement, entitled "Responsibility For Debts," provided that the parties had incurred certain bills, debts, and obligations, which were described in exhibit B, and that Plaintiff and Defendant agreed to each pay 50% of these items designated in exhibit B as obligations of the marriage. Thus, Plaintiff expressly agreed to pay 50% of the marital debts listed in exhibit B. Article 4 of the separation agreement simply provided that the marital debts would be paid at the time that the HELOC was taken on the marital residence and the marital residence transferred to Defendant in order to provide the funds for such payment by subtracting Plaintiff's 50% share of the marital debts from the amount that she was to receive for her equitable interest in the marital residence. The fact that the HELOC was not obtained did not absolve Plaintiff from paying her 50% of the marital debts, which she agreed to pay in the separation agreement.
Indeed, the separation agreement contemplated the situation where the HELOC was not obtained and set forth that the parties would continue to each pay 50% of the marital debts until refinancing took place. It set forth that at the time of such refinancing, an adjustment to the balance of the marital debt would be recalculated since the amount owed would be less based on the amount that the parties had continued to pay during the time period between the execution of the separation agreement and the refinancing.
Thus, Plaintiff is entitled to her equitable share in the marital residence ($112,500) less half of the marital debt ($36,298), with a credit for the amount that she has already paid towards that marital debt. Plaintiff does not allege that she has paid the full amount of $36,298 of the marital debts and, thus, Plaintiff is not entitled to seek the full amount of $112,500 as sought by her in her proposed amended complaint. Plaintiff also is only entitled to payment upon a simultaneous transfer of her interest in the marital residence to Defendant. Since Plaintiff's complaint only seeks a judgment in the amount of $76,202 plus interest, Plaintiff should be granted leave to amend her complaint to add to this sum any amount that she has already paid towards the marital debt (see CPLR 3025 [b]).
Plaintiff also seeks to amend her complaint to assert a claim for a temporary restraining order prohibiting Defendant from liquidating any equity from the marital residence. Such an amendment is unnecessary since Plaintiff's name remains on the deed and, as such, Defendant cannot liquidate any equity or affect Plaintiff's interest in the marital residence without Plaintiff's consent.
Plaintiff further seeks to amend her complaint to assert a claim for the reimbursement of all fees associated with the filing of this action and all attorney's fees associated with her prior attorney's attempt to settle this action. This proposed amendment is patently without merit since Plaintiff has appeared pro se in this action. There is no proof attached to this motion to indicate that Plaintiff has incurred any counsel fees in this action. Thus, Plaintiff cannot request reimbursement of attorney's fees in this action.
Motion Sequence Number Six
Defendant, in his cross motion, seeks the imposition of sanctions against Plaintiff for frivolous conduct (motion sequence no. 6). This court has discretion to award any party reasonable attorney's fees for frivolous conduct (22 NYCRR 130-1.1 [a]). 22 NYCRR 130-1.1 (c) defines frivolous conduct as conduct which is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law"; "undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another"; or "asserts material factual statements that are false." "In determining if sanctions are appropriate, the court looks at the broad pattern of conduct by the offending attorneys or parties" (Muhametaj v Town of Orangetown, 144 N.Y.S.3d 637, 638 [2d Dept 2021]).
Defendant argues that Plaintiff's motion to amend her complaint was frivolous because she previously moved for the same relief without submitting a proposed amended complaint and she has now brought the same motion and again did not timely submit a proposed amended complaint. Defendant also argues that Plaintiff's motion was frivolous because she seeks to revisit the validity of the separation agreement and asks for relief that is unsupportable, and because she seeks attorney's fees when she is pro se. Defendant thus contends that Plaintiff's conduct is "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" pursuant to 22 NYCRR 130-1.1 (c). Defendant requests that the court sanction Plaintiff in the amount of $10,000 with $5,000 in the form of reimbursement for his reasonable attorney's fees for defending this motion and $5,000 to be deposited with the clerk of the court for transmittal to the Commissioner of Taxation and Finance as sanctions.
While the court has rejected some of Plaintiff's arguments, Plaintiff's requested relief is not completely without merit and the court does not find that Plaintiff's conduct in making these arguments rises to the level of frivolous conduct so as to justify an award of costs or sanctions pursuant to 22 NYCRR 130-1.1. Thus, the court denies Defendant's cross motion, under motion sequence number six, insofar as he seeks an award of costs and sanctions against Plaintiff.
Defendant, in his cross motion, further seeks an order providing that Plaintiff cannot file further motions without prior court approval. In this regard, it is noted that while public policy mandates free access to the courts, "a litigant can forfeit that right 'by abusing the judicial process through vexatious litigation'" (Rossrock Fund II, L.P. v Toledo, 186 A.D.3d 1441, 1442 [2d Dept 2020], quoting Dimery v Ulster Sav. Bank, 82 A.D.3d 1034, 1035 [2d Dept 2011], appeal dismissed 17 N.Y.3d 774, [2011]; see also Matter of Marion C.W. [Lisa K.], 135 A.D.3d 777, 779 [2d Dept 2016], lv dismissed in part, denied in part 28 N.Y.3d 1130 [2017])." 'In such cases, it is not improper for the court to enjoin a litigant from bringing any further motions without its permission'" (CitiMortgage, Inc. v Weaver, 197 A.D.3d 1090, 1091 [2d Dept 2021], quoting Rossrock Fund II, L.P., 186 A.D.3d at 1442; see also DiSilvio v Romanelli, 150 A.D.3d 1078, 1080 [2d Dept 2017]; Mees v Stibbe New York B.V., 195 A.D.3d 569, 570 [1st Dept 2021]; Pfeiffer v Imperatore, 158 A.D.3d 497, 497 [1st Dept 2018], lv denied 32 N.Y.3d 908 [2018]; Matter of Marion C.W. [Lisa K.], 135 A.D.3d at 779; Banushi v Law Off. of Scott W. Epstein, 110 A.D.3d 558, 558 [1st Dept 2013]; Dimery, 82 A.D.3d at 1035).
Here, the court does not find that Plaintiff has abused the judicial process through vexatious litigation against Defendant. Plaintiff only filed two motions to compel discovery because Defendant did not fully comply with her discovery requests following her first motion, and she filed two motions to amend her complaint in this action to clarify the relief sought by her. Thus, an order requiring Plaintiff to obtain court approval prior to filing motions in this action is not warranted.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Plaintiff's motion (motion sequence no. 4) is granted to the extent indicated herein; and it is further
ORDERED that Plaintiff motion (motion sequence no. 5) is granted to the extent indicated herein; and it is further
ORDERED that Defendant's motion (motion sequence no. 6) is denied in its entirety; and it is further
ORDERED that Plaintiff's motion, under motion sequence number four, for an order imposing discovery sanctions upon Defendant is granted to the extent that Defendant is precluded from asserting that he has paid more than his 50% share of any marital debts for which he has failed to produce documents showing the amounts paid by him in response to Plaintiff's notice for discovery and inspection; and it is further
ORDERED that Plaintiff's motion, insofar as it seeks to deem the marital debts uncollectible and seeks an order granting her fees associated with her motion, is denied; and it is further
ORDERED that Plaintiff's motion, under motion sequence number five, for leave to amend her complaint, is granted solely to the extent that Plaintiff may seek to recover, in addition to the $76,202 plus interest sought, the amount of any monies that she has already paid towards her 50% share of the marital debts. Plaintiff's motion for leave to amend her complaint is denied in all other respects; and it is further
ORDERED that Defendant's cross motion, under motion sequence number six, for sanctions, pursuant to 22 NYCRR part 130, and an order requiring Plaintiff to obtain court approval prior to filing any further motions in this action, is denied.
Plaintiff shall serve a copy of this decision and order, with notice of entry, upon Defendant within seven (7) days of such entry and e-file an affidavit of said service to the NYSCEF system.
Any issue raised and not addressed in this decision and order is denied.
This constitutes the decision and order of the court.