Defendant husband (hereinafter referred to as the "husband') moves by order to show cause for an order striking the pleading of the plaintiff wife (hereinafter referred to as the "wife') and resolving pending issues in favor of the husband, pursuant to CPLR §3103 and 22 NYCRR 130-1.1, declaring the wife's conduct of stealing documents and work product from the desk of the husband's attorney as sanctionable and imposing sanctions against the wife as appears proper to the court, including the striking of the wife's pleading, resolving issues in favor of the husband and charging the wife with the husband's counsel fees, restraining the wife from discussing the information, writing notes from the information or using any information obtained from the subject documents, directing an award of counsel fees in the sum of $7,000.00 in connection with the instant motion, and directing sanctions against the wife in the sum of $10,000.00 ti be paid to the Lawyers Fund for Client Protection. The wife and her attorney oppose the motion.

In support of the motion, the husband and his counsel allege as follows: that on the morning of June 8, 2011, counsel for the wife (D.D) informed the court that the case had been settled and, instead of continuing the trial, the parties and counsel would be going to the offices of the husband's counsel (G.B. & B.) to resolve the remaining [*2]issues and execute an agreement; that the wife, her attorney, Mr. G. and his associate, Ms. M., all met in Mr. G's office to review the agreement and, after approximately one (1) hour, the wife and the husband were asked to leave the room; that Ms. M. requested that the husband sit in her private office and that the wife wait in the reception area; that the wife refused to comply with that request and, instead, walked up and down the halls of the office; that, at some time when the husband left Ms. M.'s office to use the restroom, the wife entered Ms. M's private office and examined personal documents pertaining to the "P" matter which were on Ms. M's desk, took same from the desk and read the confidential work product pertaining to the husband's future testimony and the testimony of a non-party witness; that Ms. M. witnessed the wife reading the documents, which were in her hand, and took the documents from her grasp; that the wife must be punished for her actions, which have prejudiced the husband and provided information to the wife about the husband's case; that the wife has an unfair advantage and the court should find that her actions are sanctionable and strike her pleadings; that the husband has incurred counsel fees in connection with the motion and an award of $7,000.00 is requested.

In opposition to the motion, the wife and her attorney allege as follows: that when the parties were asked to leave the room, Ms. M. invited both parties to step into her office and wait; that the wife, carrying several documents and her laptop, placed her belongings on Ms. M's desk; that fifteen (15) minutes later, the wife left the office to get a cup of coffee; that thereafter, when Ms. M. returned to her office and requested that the parties rejoin counsel in Mr. G's office, the wife hurriedly picked up her documents and personal belongings and, unbeknownst to her, mistakenly took Ms. M's documents from her desk; that allegations that the wife was attempting to steal confidential documents is misleading and inaccurate; that it is surprising and irresponsible that Ms. M. placed the wife unattended in her private office that was full of confidential documents; that the allegations against the wife are frivolous and without any basis in reality; indeed, the wife alleges that counsel "staged the scenario that lead to this frivolous motion" in order to deprive the wife from using information that could be detrimental to the husband, to discredit her in the eyes of the court, and to generate addition legal fees for the wife.

In reply, counsel for the husband are incensed that the wife's attorney has "blatantly lied' to the court in a sworn affirmation, in which it is alleged that the wife's counsel has fabricated facts of which he has no personal knowledge and sworn to events that occurred outside his presence, all in an attempt to protect his client from her sanctionable behavior; that Ms. M. asserts that she never suggested that the parties wait together in her private office; that, when the wife refused to wait in the reception area but, rather, was standing in the hallway disturbing other attorneys in the office, Ms. M. again asked the wife to sit in the reception area; that the wife cursed at Ms. M. and stated "I can be anywhere I want to be M." ; that, when entering her office, Ms. M. saw that her client, the husband, was not there, but the wife was there reading a trial memoranda and a memo regarding future testimony entitled P. v, P, that Ms. M. informed the wife that she had no business being in her office or handling documents [*3]on her desk; that the wife informed her that she was allowed to read the documents because the husband gave them to her, later denied by the husband; that Ms. M. returned to Mr. G's office and informed him and Mr. D. of what had occurred; that Mr. D.'s affirmation and the wife's affidavit are filled with perjurious statements which are sanctionable as they are both fully aware of the events that occurred on June 8, 2011; that the affirmation of Mr. G. and an affidavit of Ms. B. corroborate Ms. M's factual recitation of events and urge that the wife and counsel be punished and that they be forced to pay sanctions and the husband's counsel fees on the motion.

Part 130 of McKinney's New York Rules of Court grants the court discretion to award costs, including reasonable attorneys fees, and to impose sanctions against a party or an attorney who engage in "frivolous conduct".. Conduct is defined as "frivolous" if, in pertinent part, "it asserts material factual statements that are false" (22 NYCRR §130-1.1 [c][3]).

. . . In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent , should have been apparent, or was brought to the attention of counsel or the party.

CPLR §3103, entitled Protective Orders, authorizes the court to suppress information improperly obtained and directs, as follows:

If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed.

In the case at bar, if the factual allegations of the husband's counsel are, indeed, true, the wife and her attorney's conduct are highly improper and unacceptable . The court notes that the actions of the wife were immediately brought to the attention of her attorney and followed up by letter dated June 9,.2011. Indeed, although CPLR §3103 "does not list dismissal as a remedy for discovery abuse, the court is given wide discretion to fashion an "appropriate order" , including the drastic sanction of dismissal of the complaint when the willful misbehavior of the plaintiff and her attorney are demonstrated (see, Lipin v. Bender, 193 AD2d 424, 597 NYS2d 340 [1st Dept. 1993]).

Based upon all of the foregoing, the court concludes that the instant application cannot be determined without a sanctions hearing. It is therefore [*4]

ORDERED, that upon completion of the trial of the plenary action to set aside the parties' pre-nuptial agreement, which has encompassed ten (10) days of trial to date and is scheduled to resume on September 13, 2011 when it is expected to require no more than one (1) or two (2) additional days of trial, a hearing on sanctions will be scheduled, if still necessary. However, the sanction of striking the wife's pleadings is deemed by the court as unwarranted, even if the allegations on the motion are found to be true. The court is confident that it will be able to rule on any suppression issue raised by the husband during the balance of the pending trial and at any future hearing, where other available sanctions, if warranted, will be determined; and it is further

ORDERED, that both parties and counsel shall appear on September 13, 2011 for continuation of the trial on the plenary action.

This constitutes the decision and order of the Court.

ENTER

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Dated: August 24, 2011Anthony J. Falanga, Justice

Mineola, New YorkSupreme Court, Nassau County