The Plaintiff moves by Order to Show Cause for an order (1) permitting her and her authorized computer forensic experts to impound, clone or inspect the computer servers, hard drives, individual workstation P.C.'s, laptops, and other items containing digital data including but not limited to 1) electronic mail, 2) any information in the Defendant's business or personal computer or computer equipment, 3) word processing files, calendars and/or schedules, 4) electronic data containing memory and/or storage devices on standalone microcomputers and/or network workstations, and 5) electronic data contained on network servers, mini computers and mainframe computers in directories or subdirectories, located at the Defendant's residence, Variety Accessories Inc. (hereinafter "Variety") in its business location, Metro Shipping and [*2]Warehousing Inc. (hereinafter "Metro") in its business location, and any other location where it is known that the Defendant, RAFAEL ETZION, Variety or Metro conducts business and may have computers or computer equipment, and (2) directing that the Plaintiff and/or her authorized computer forensic experts gain access into the Defendant, RAFAEL ETZION's residence, and any of Variety's and Metro's business locations where computers or computer equipment may be found; (3) directing that deputy sheriffs of the Nassau County Sheriff's Department shall accompany the Plaintiff and/or her computer forensic experts and take whatever steps necessary, including but not limited to breaking down, breaking open, searching for, and/or removing any obstacles that may impede such entrance, to ensure that the order of the court is complied with; (4) directing that the Nassau County Sheriff's Department be held harmless from any liability occasioned from obtaining control of the Defendants' computers or computer equipment and access into the Defendant, RAFAEL ETZION's residence, Variety's offices, and any of Variety's and Metro's other business locations where computers or computer equipment may be found; (5) directing the Defendant, RAFAEL ETZION, to immediately cease the rotation, alteration and/or destruction of electronic media located at his residence, Variety's offices, and any other business offices of Variety and Metro, that may result in an inability to recover 1) electronic mail, 2) any information in the Defendant's business or personal computer equipment, 3) word processing files, calendars and/or schedules, 4) electronic data containing memory and/or storage devices on standalone microcomputers and/or network workstations, 5) electronic data contained on network servers, mini computers and mainframe computers in directories or subdirectories regarding the re-zoning and sale of the property located at 145 West Street, Brooklyn, New York (hereinafter "the Subject Property"); (6) granting the Plaintiff, pursuant to DRL 234, a temporary injunction against the Defendants from transferring any monies or assets under their ownership or control to the extent of the proceeds received from the sale of the subject property; and (7) granting the Plaintiff, pursuant to Article 63 of the CPLR, a temporary injunction against the Defendants and each of them from transferring any monies or assets under their ownership or control to the extent of the proceeds received from the sale of the Subject Property.

On April 10, 2007, this Court issued a temporary restraining order, immediately restraining the Defendants from and ceasing the rotation, alteration, and/or destruction of electronic media located at Defendant, RAFAEL ETZION's residence, any of Variety's and Metro's business locations, or any of Defendant, RAFAEL ETZION's other business locations, that may result in an inability to recover 1) electronic mail, 2) any information in the defendant's business or personal computer or computer equipment, 3) word processing files, calendars and/or schedules, 4) electronic data containing memory and/or storage devices on standalone microcomputer and/or network workstations, and 5) electronic data contained on network servers, mini computers and mainframe computers in directories or subdirectories regarding the rezoning and sale of the Subject Property. Thus, that branch of the Plaintiff's motion seeking an order directing the Defendants to immediately cease the rotation, alteration and/or destruction of electronic media located at the Defendant, RAFAEL ETZION's residence, Variety's offices, and any other business offices of Variety and Metro, was granted.

The Defendants submitted a Cross-Motion for an order (1) dismissing the Complaint in its entirety and dismissing each cause of action of the Complaint pursuant to CPLR 3211(a)(1) and 3211 (a)(7), on the grounds that each claim fails to state a cause of action against the Defendants, Rafael Etzion, Metro shipping and Warehousing, Inc., and Variety Accessories, [*3]Inc.; (2) dismissing the Complaint's first cause of action for fraud, the second cause of action for rescission and/or reformation, the third cause of action for mutual mistake, and the fourth cause of action for unilateral mistake for failing to plead with the particularity required by CPLR 3016(b); and (3) for an award of attorney's fees.

The parties entered into a Stipulation of Settlement on June 8, 2005 resolving all matters in their matrimonial action under Index No.: 202179/02, including the division of marital assets and obtained a Judgment of Divorce on August 23, 2005 in Nassau County (J. Stack). Pursuant to the provisions of the Stipulation of Settlement, the Plaintiff received a payment of $9.7 million dollars, and the marital residence was valued at approximately $3 million. The Defendant, in the matrimonial action, RAFAEL ETZION, received the Plaintiff's interest in their jointly owned business, Variety Accessories, Inc. (hereinafter "Variety"), and retained control of Metro Shipping and Warehouses, Inc. (hereinafter "Metro"). The Settlement also provided that the Plaintiff waived any claims against the Defendant for properties held in his sole name or jointly with others, and specifically included Metro and "any and all real estate and/or personal property including the property located at 145 West Street, Brooklyn, New York" (hereinafter "subject property").

The subject property, located in the Greenpoint section of Brooklyn, had been valued at $6.5 million in 2003 by a neutral appraiser. In May, 2005, during the course of the settlement negotiations, the property was re-zoned so as to permit re-development. Approximately two months after the Judgment of Divorce, the Defendant entered into a contract for the sale of the subject property for $84,000,000.00 and closed on the sale on May 2, 2006.

With regard to the branch of the Plaintiff's motion seeking an order permitting her and her authorized computer forensic experts to impound, clone or inspect the computer servers, hard drives, individual workstation P.C., laptops, and other items containing digital data in the Defendant, RAFAEL ETZION's residence as well as the Defendant's business computers, the motion is denied.

In support of her motion, the Plaintiff alleges that as a result of the sale of the subject property, the Defendant received more than $80,000,000.00 more than he represented the value of the subject property to be in his net worth statement, and $78,000,000.00 more than the 2003 appraisal and the value of the property (after adjusting for inflation) computed during the parties' settlement negotiations. The Plaintiff alleges that the Defendant committed a fraud against her when he was not forthcoming about the subject property's true value throughout the divorce proceedings and March, 2005 settlement negotiations and/or that he had commenced negotiations for the sale of the subject property. Such negotiations for the sale of the subject property would have been in direct contradiction to the Defendant's express declaration in the Stipulation of Settlement that "as of the date of execution of the March 22, 2005 agreement, there were no active deals or pending negotiations relating to the sale or reorganizing of Variety, in part or in whole, or any related entity, in part of in whole."

Thus, the Plaintiff seeks evidence relating to the circumstances surrounding the negotiations for, and the sale of, the subject property. Such evidence includes, but is not limited to, communications between the Defendant, real estate agents, brokers and potential buyers, and documentation of the re-zoning process and the sale of the subject property, located in the Defendant's personal and business computers. The Plaintiff alleges that only by cloning the computer records she seeks, will the records be preserved without destruction, or deletions. The [*4]Plaintiff maintains that based on the Defendant's alleged fraudulent conduct, there is a likelihood that he will continue this behavior, obfuscate the discovery process, and destroy any evidence of his wrongful acts.

In addition, the Plaintiff's forensic computer expert maintains that where indicia of fraud has already been clearly established, and one party has a good faith basis to believe that material, relevant evidence exists within the computer systems of the other party, it is absolutely imperative to acquire that electronic evidence through forensically sound methods, as soon as possible and without warning. The Plaintiff maintains that the request will cause no prejudice to the Defendant and/or his business operations because the process can be completed in a matter of hours, and can occur off-hours during the evening or on the weekends so as not to disrupt business operations.

In opposition, the Defendant states that impounding of his personal and business computers will have an extremely disruptive effect on his business as his business would come to a halt should the computers be unavailable or otherwise compromised, or should any data be lost during the "cloning" process. The Defendant contends that the Plaintiff is not entitled to access to the totality of his proprietary business information as it is personal, privileged and confidential data, and any disclosure to competitors could be devastating to the businesses. Furthermore, the Defendant alleges that during the divorce action, the Plaintiff's current counsel or current computer expert lost a computer back-up tape for many months and disclosed Variety's proprietary information to an unauthorized third party. The Defendant maintains that in the event that the Court orders discovery, any such relevant documentation that may exist will be produced.

With regard to the allegations of misrepresentation, the Defendant claims that the proposed and actual re-zoning of the Greenpoint area was publicly disclosed in City newspapers and in public records, and had been approved by the New York City Planning Commission and adopted by the New York City Council prior to the signing of the Stipulation of Settlement. The Defendant contends that the Plaintiff, along with her financial and legal advisors, had ample opportunity to update the appraisal or make inquiry concerning the appreciation in the property or the re-zoning of the neighboring area.

Generally, pursuant to the CPLR § 3101(a), courts have discretion to allow "full disclosure of all matter that is material and necessary' in the prosecution or defense of an action." In re Maura, 17 Misc 3d 237, 245, 842 NYS2d 851 (NY Sur., 2007). Further, the terms "material and necessary are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy." In re Maura, 17 Misc at 245. However, in matrimonial matters, parties are entitled to full disclosure of all financial information concerning marital assets held during the marriage, including business records, real estate transactions, examinations of accounting procedures, financial records, both hard copy and computer stored data." Etzion v. Etzion, 7 Misc 3d 940, 796 NYS2d 844 (Nassau Cty., Supreme Ct., 2005), citing Byrne v. Byrne, 168 Misc 2d 321, 650 NYS2d 499 (Kings Cty., Supreme Ct., 1996).

In the instant case, the Court agrees with the Defendant. Although documentary evidence may prove that the Defendant had some knowledge of the potential increase in value of the subject property after its re-zoning, the Court finds that the Defendant was not the only party privy to such information or projections. The Plaintiff, her counsel, and/or her financial advisors could have easily availed themselves of any number of valuation and discovery procedures [*5]during the March, 2005 settlement negotiations to determine the true or projected value of the subject property once the re-zoning of the Greenpoint area became freely discoverable public information. In fact, prior to entering in to the Stipulation of Settlement, the Court in Etzion v. Etzion, 7 Misc 3d 940, 796 NYS2d 844 (Nassau Cty., Supreme Ct., 2005), (J. Stack), allowed the Plaintiff in the instant case ample discovery by granting a disclosure request for electronic data from the Defendant's personal and businesses computers.

Nevertheless, the Plaintiff failed to engage in further discovery regarding the effect of the re-zoning on the value of the subject property once it was public information, and chose voluntarily to rely on the existing 2003 appraisal of the subject property. This cannot now be grounds to permit further discovery when the Plaintiff was fully aware of the parties's assets and chose to forego an updated appraisal. See Cosh v. Cosh, 45 AD3d 798, 847 NYS2d 136, (2nd Dept. 2007), citing Kojovic v. Goldman, 35 AD3d 65, 68 (1st Dep't 2006). Thus, the branches of the Plaintiff's motion seeking further electronic discovery, and the involvement of the Nassau County Sheriff's Department are hereby denied.

With regard to the Plaintiff's request for a temporary injunction against the Defendants to enjoin them from transferring, hypothecating, selling, mortgaging, or in any other manner disposing of any and all assets, under their ownership or control, that branch of the motion is denied as the Plaintiff failed to meet her burden to prove all of the necessary elements required to be granted such relief. Generally, "[t]he party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor." Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 NY3d 839, 833 NE2d 191 (2005); Ingenuit, Ltd. v. Harriff, 33 AD3d 589, 822 NYS2d 301 (2nd Dept 2006). The movant has the burden of showing a "clear" and "undisputed" right to preliminary relief "upon the moving papers." See Ishaq v. Batra, 170 AD2d 436, 566 NYS2d 523 (2nd Dept. 1991).

In her Order to Show Cause, the Plaintiff submits that unless a temporary injunction is imposed, she will suffer irreparable harm. The Plaintiff contends that the Defendants will take measures to transfer money or assets received from the sale of subject property, as was done during the divorce action, to place these assets in offshore trusts or other entities which he manages and controls. The Plaintiff alleges that without such controls, she may never be able to recover an award of the Court in this proceeding. However, the court does not find this argument convincing because an "irreparable injury is found where an award for monetary damages is not adequate compensation." See Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 NY2d 541, 544-545 (2000). Here, a final monetary judgment against the Defendant would prove to be a sufficient remedy.

With regard to the Plaintiff's likelihood of success on the merits, the Plaintiff's Order to Show Cause alleges that due to the Defendant's attempts to secrete assets and place them beyond the reach of the Court, she has more than a reasonable likelihood of success to win this lawsuit. However, such conclusory statements are insufficient to prove a prima facie case of success on the underlying causes of action. Further, the Plaintiff fails to address the element requir ing that the balance of equities be in her favor. It is generally well settled that the remedy of a preliminary injunction is "a drastic one which should be granted sparingly." See McLaughlin Piven Vogel, Inc v. W.J. Nolan & Co., Inc., 114 AD2d 165, 172, 498 NYS2d 146, 151 (2nd Dept. 1986). Further, "such relief will not be granted unless a clear right is established under the [*6]law and undisputed facts, and the burden of demonstrating such undisputed right rests upon the movant." County of Orange v. Lockey, 111 AD2d 896, 897, 490 NYS2d 605, 606, (2nd Dept 1985). In the instant case, the Plaintiff's moving papers have failed to clearly establish her right to this relief and her motion for a preliminary injunction is hereby denied.

With regard to the Defendant's Cross-motion, the Defendant seeks to dismiss the complaint in its entirety pursuant to CPLR § 3211(a)(1) based upon the existence of documentary evidence, and § 3211 (a)(7), on the grounds that each claim fails to state a cause of action against the Defendants, and on the grounds that first cause of action for fraud, second cause of action for rescission and/or reformation, third cause of action for mutual mistake, and fourth cause of action for unilateral mistake, are not pleaded with the particularity required by CPLR § 3016(b). The Court finds that the Plaintiff's moving papers have alleged sufficient questions of fact with regard to potential fraudulent behavior on the part of the Defendant to survive a motion to dismiss. Thus, the Defendant's motion to dismiss is hereby denied.

Lastly, the Defendant's request for attorney's fees is also denied. Generally, "an attorney's fee may be awarded when a party seeks by a plenary action to enforce a separation agreement" or "provisions of a judgment of divorce." Fine v. Fine, 26 AD3d 406, 810 NYS2d 211, (2nd Dept. 2006). However, the Court, in its discretion has the ability to deny counsel fees upon a finding that a party has the financial means to pay for his/her own defense. Maimon v. Maimon, 178 AD2d 635 (2nd Dept. 1991). Thus, the Court finds that because the Defendant is gainfully employed and has considerable assets, his motion for attorney's fees in the instant action is denied.

All matters not decided herein are hereby denied.

This constitutes the decision and order of this court.

DATED:Mineola, New York

January 15, 2008

________________________

Hon. Randy Sue Marber

J.S.C.