Raville v. Elnomany

• Citation: 906 N.Y.S.2d 586,76 A.D.3d 520
• Parties: Adrienne RAVILLE, respondent, v. Salah ELNOMANY, appellant.
• Decision Date: 03 August 2010
• Court: New York Supreme Court Appellate Division

906 N.Y.S.2d 586 76 A.D.3d 520 Adrienne RAVILLE, respondent, v. Salah ELNOMANY, appellant. Supreme Court, Appellate Division, Second Department, New York. Aug. 3, 2010.

Salah Elnomany, Brooklyn, N.Y., appellant pro se.

Farber, Pappalardo & Carbonari, White Plains, N.Y. (Karen M. Jansen of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Martin, J.), entered December 30, 2008, as, upon an order of the same court dated May 30, 2007, granting the plaintiff's application to preclude him from offering financial evidence at a hearing on equitable distribution, awarded the plaintiff a divorce on the ground of constructive abandonment and awarded the plaintiff certain equitable distribution.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff wife proffered sufficient evidence to support a finding that for a period of at least one year prior to the commencement of the divorce action, the defendant husband willfully and unjustifiably refused to engage in sexual relations with her despite her repeated requests ( see Silver v. Silver, 253 A.D.2d 756, 757, 677 N.Y.S.2d 593; Gunn v. Gunn, 143 A.D.2d 393, 395, 532 N.Y.S.2d 556). Contraryto the husband's claim, improperly raised for the first time on appeal ( see Hwang v. Tam, 72 A.D.3d 741, 898 N.Y.S.2d 474; Unger v. Unger, 62 A.D.3d 986, 881 N.Y.S.2d 442; BTJ Realty, Inc. v. Caradonna, 65 A.D.3d 657, 885 N.Y.S.2d 308), there was no evidence that the parties engaged in sexual relations within this period.

CPLR 3126 states that a court may sanction a party for willfully failing to comply with discovery, including precluding the party from "producing in evidence designated things or items of testimony" (CPLR 3126[2] ). "Generally, the nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court" ( Duncan v. Hebb, 47 A.D.3d 871, 850 N.Y.S.2d 610 [internal quotation marks omitted]; see Byam v. City of New York, 68 A.D.3d 798, 801, 890 N.Y.S.2d 612). Here, there was no evidence in the record showing that the Supreme Court improvidently exercised its discretion in issuing the order dated May 30, 2007, granting the wife's application to preclude the defendant from offering financial evidence at the hearing on equitable distribution based on his willful failure to comply with discovery.

The trial court "is vested with broad discretion in making an equitable distribution of...