JT v. GT

• Decision Date: 28 October 2022
• Docket Number: Index No. 55515/2021
• Parties: JT, Plaintiff, v. GT, Defendant.
• Court: New York Supreme Court

2022 NY Slip Op 51155(U)

JT, Plaintiff,
v.
GT, Defendant.

Index No. 55515/2021

Supreme Court, Richmond County

October 28, 2022

Unpublished Opinion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...