Upon the foregoing cited papers, in this matrimonial action, the Decision/Order on this motion is as follows:

Plaintiff moves by notice of motion to vacate the note of issue and reopen discovery or, [*2]in the alternative, to allow post note of issue discovery based upon newly discovered information.

Defendant, through his attorney, opposes the application in all respects.

On February 23, 2012, a Summons and Verified Complaint were filed whereby plaintiff sought to obtain a divorce based on irretrievable breakdown of the parties' marriage pursuant to DRL §170 (7). Thereafter, defendant's attorney filed a Notice of Appearance. It does not appear that a Verified Answer was filed as none is reflected in the minutes of the County Clerk's office. The parties appeared before this court on October 22, 2012 and a preliminary conference ("PC") was held. A review of the PC order indicates that the parties agreed that grounds were resolved and that plaintiff would take the divorce on DRL §170 (7). All other issues including custody, parental access, maintenance, child support and equitable distribution, were unresolved. The parties set forth a schedule to exchange financial documents and engage in further discovery. There was a mutual reservation of rights to depose the parties and any non-party witnesses. The court allowed the parties to reserve their rights to seek the appointment of any necessary expert for purposes of any appraisals or evaluations. The matter was then adjourned to February 19, 2013 for their compliance conference ("CC"). In addition, a parental access schedule was agreed to by the parties.

On February 19, 2013, the parties entered into an agreement whereby defendant granted sole custody of the parties' minor children to the plaintiff. Defendant further waived visitation/parenting time with the children without prejudice to his right to seek such parenting time in the future. The matter was adjourned for further proceedings.

On June 10, 2013, after argument, the court issued the following Order:

It is hereby ordered that in the event that the plaintiff chooses to file for a neutral vocational expert, that motion shall be returnable within 45 days hereof.

All outstanding discovery shall be completed by the next court date, September 9, 2013, at 9:30 a.m.

The September 9th court date was adjourned by the parties due to plaintiff counsel's actual engagement in another case. The parties next appeared in court on October 2, 2013 and a compliance conference was held. The court ordered the parties to file the note of issue by November 15, 2013 and scheduled the start of trial on the economic issues for February 11, 2014.

Sometime in October 2013, defendant filed an Order to Show Cause ("OSC") seeking sole and full custody of the parties' children. The OSC was signed and made returnable on November 21, 2013. Thereafter, plaintiff obtained new counsel and counsel for both parties stipulated to adjourning the OSC to December 5, 2013 in order to allow plaintiff's new counsel time to become familiar with the case as plaintiff's counsel indicated that plaintiff's file had been given to him on November 14, 2013. The files of the court show that defendant filed the Note of [*3]Issue on November 14, 2013.

The parties appeared before the court on December 5, 2013. A change of attorney was filed by plaintiff's incoming attorney on December 5, 2013. After argument on defendant's motion, the court denied defendant's request for custody but indicated that an attorney for the children would be appointed as defendant was now reasserting his right to parenting time.

On January 21, 2014, the court appointed an attorney for the children but subsequently vacated that order as the appointed attorney was conflicted out. The February trial dates were also vacated. Thereafter, in an order dated March 10, 2014, Elaine D. McKnight, Esq. was appointed to represent the children.

On March 10, 2014, plaintiff filed the instant motion and defendant filed papers in opposition. The case is next scheduled before the court for June 2, 2014.

Plaintiff's Contentions

Plaintiff argues that she will be unduly prejudiced if not given a further opportunity to inquire as to defendant's financial affairs, as new facts have come to light since defendant filed the note of issue. Plaintiff argues that defendant has either flagrantly misrepresented his financial status or his financial status has dramatically improved during the ensuing months. Under either scenario, plaintiff argues that further discovery is critical to plaintiff's case.

Plaintiff's counsel indicates that pursuant to the October 2, 2013 compliance order, either party was required to file a note of issue by November 15, 2013. As counsel's law firm had only recently been retained and in light of defendant's motion to change custody, plaintiff sought defendant's consent to extend the note of issue date, subject to court approval, so that counsel would have sufficient opportunity to become familiar with the prior proceedings. Plaintiff reports that defendant's counsel declined to consent to an extension and proceeded to file the note of issue.

Plaintiff alleges that subsequent to the filing of the note of issue, defendant has traveled to Florida on at least three occasions in the past three months. Each of these trips spanned approximately one week. During these trips, he stayed in high quality hotels and sent the children pictures of the hotels. Plaintiff attaches copies of the pictures to her moving papers. Additionally, defendant spent at least two weeks in a hotel in New Jersey and sent the children pictures taken by him at the hotel. Defendant has been driving a late model Mercedes SUV and bragging that the Mercedes belongs to him. Defendant purchased the children gifts worth hundreds of dollars, including Playmobil Spyteam and a new Samsung Galaxy S5 smartphone for the parties' nine year old son. Further, defendant donated $1,800 in cash (in eighteen one hundred dollar bills) to the children's school at the end of December 2013.

Plaintiff argues that since defendant provides no support to her and claims to have only twenty five dollars ($25) worth of assets and no income, an inquiry is necessary to uncover the source of the funds used to facilitate defendant's extravagant purchases, travels, and lifestyle that he is currently enjoying with impunity.

Plaintiff seeks to submit supplemental discovery requests and a further deposition of defendant and any necessary third party. Plaintiff also seeks the appointment of a neutral vocational expert to determine defendant's earnings capabilities. Plaintiff argues that defendant appears to be an able bodied individual capable of working, and his decision not to work should not be held against plaintiff and her children. Plaintiff argues that the court should allow a neutral expert to determine the earning potential of defendant and should impute income to defendant thereby requiring him to pay child support and maintenance.

[*4]Defendant's Contentions

Defendant's attorney submits an affirmation in opposition to plaintiff's motion. Defendant does not submit an affidavit/affirmation responding to plaintiff's allegations. Counsel for defendant recites the history of the case including the court appearances and the course of discovery that the parties undertook. Defendant indicates that after the court appearance on October 2, 2013, counsel's office was served with a Consent to Change Attorney dated November 6, 2013, indicating that Ms. Epstein Hersko was being substituted out as attorney for plaintiff by the firm of Snitow, Kanfer & Holtzer. The February 2014 scheduled trial dates were vacated due to the unavailability of plaintiff's counsel and a conference was scheduled for March 10, 2014. On March 10, 2014, plaintiff's counsel served defendant's counsel with a copy of the instant Notice of Motion which was returnable on April 3, 2014.

Defendant's counsel urges the court to deny the motion arguing that this matter was commenced on February 22, 2012, there have been several court appearances, and the parties have engaged in extensive discovery. Defendant further argues that plaintiff's new counsel has been on this case since November 2013 and waited four months till the case has been certified trial ready to serve a motion to set aside the Note of Issue and allow plaintiff additional discovery. Counsel argues that plaintiff is looking for a second bite at the discovery apple. Defendant argues that the case is already two years old and were the court to grant plaintiff's motion, we would be going back to square one rather than finally bringing this matter to closure.

In addition, once the note of issue has been filed and discovery presumably completed, the applicable standard for allowing discovery is governed by the decidedly less liberal requirements of 22 NYCRR §202.21(d), which provides, in relevant part, as follows:

Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings.

The note of issue itself may be vacated pursuant to 22 NYCRR §202.21(e) if the following circumstances are present:

Within 20 days after service of a note of issue and certificate of readiness, any party to the action [*5]or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in any material respect. . . . After such period . . . no such motion shall be allowed except for good cause shown. At any time, the court on its own motion may vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. If the motion to vacate a note of issue is granted, a copy of the order vacating the note of issue shall be served upon the clerk of the trial court.

Herein, whether using either the standard set forth under 22 NYCRR §202.21(d) [unusual or unanticipated circumstances developing subsequent to the filing of the note of issue] or 22 NYCRR 202.21(e) [ no such motion shall be allowed except for good cause shown], some relief must be afforded plaintiff. Plaintiff's allegations concerning defendant's sudden indicia of economic prosperity, (i.e. photos of the trips and hotel; the money for the children's gifts including an expensive cell phone; cash gift to the children's school, and ownership and financing of the Mercedes SUV), has gone unanswered by defendant. Plaintiff has offered evidence which raise questions of fact warranting allowing plaintiff to conduct some limited post note of issue discovery. (Compare Shumakah v Shumakah, 21 Misc 3d 1142[A] (Sup Ct, Kings County 2008)[the court declined to vacate the note of issue or allow post note of issue discovery upon new attorney's bare allegation that prior counsel's discovery was inadequate]).

The court is mindful of the necessity for full and broad disclosure in matrimonial cases especially where child support and maintenance are unresolved. This is made even more important where one litigant refuses to remove barriers to the remarriage of the other litigant and the court must determine the effect of this fact on the distribution of assets or the determination of a maintenance award. (See DRL §236[B][5][h] [6][d]).

Plaintiff is granted 90 days to do supplemental discovery including, but not limited to, depositions of defendant and any necessary third party.

Plaintiff's request for the appointment of a neutral vocational expert is denied. Plaintiff's prior counsel was given an opportunity to pursue this request and chose not to do so. This failure does not fall under either of the exceptions regarding post note of issue discovery. This denial, however, is without prejudice to plaintiff's right to hire her own vocational expert for trial to evaluate defendant's earning potential as long as the provisions of 22 NYCRR §202.16(g) are complied with.

The matter is adjourned to June 2, 2013 at 9:30 a.m. for conference so that the court can monitor the progress of the post note of issue discovery.

ORDERED that plaintiff's request for the appointment of a neutral vocational expert to evaluate defendant's earning capability is denied without prejudice to plaintiff's right to retain her own expert for trial so long as the requirements of 22 NYCRR §202.16(g) are complied with; and it is further [*6]

ORDERED that any issues raised and not addressed herein are denied.

This constitutes the decision and order of the court.

E N T E R :

HON. DELORES J. THOMAS, J.S.C.