The following papers numbered 1 to 4 read herein:Papers Numbered

Defendant moved by notice of motion [motion sequence No.10] dated July 9, 2015 noticed for August 11, 2015 seeking an order of the Court as follows: "1) pursuant to CPLR 3211(a)(2), dismissing plaintiff's action as plaintiff failed to comply with Domestic Relationship Law Sections [sic] (B)(2) and (5) which requires the commencement of an action for equitable distribution of property following entry of a foreign judgment of divorce, in that plaintiff never filed a pleading in this Court seeking equitable distribution of property following entry of a foreign judgment of divorce; 2) pursuant to CPLR Section 3211(a)(2) dismissing plaintiff's action as plaintiff failed to comply with Domestic Relations Law Sections [sic] (B)(2) and (5) which requires the commencement of an action for equitable distribution of property following entry of a foreign judgment of divorce, in that plaintiff filed her New York divorce action seeking equitable distribution in September 27, 2012, prior to the Jordanian divorce being granted on November 22, 2012, not subsequently as required by statute; 3) pursuant to CPLR Section 3211(a)(2) dismissing plaintiff's action as plaintiff's cause of action is for a divorce but the marriage between the parties has already been dissolved pursuant to a foreign judgment of divorce and therefore the Court lacks jurisdiction to dissolve the parties' marriage in New York; 4) pursuant to CPLR Section 3211(a)(4) dismissing plaintiff's action based upon res judicata as plaintiff's cause of action is for a divorce but the marriage between the parties has already been dissolved pursuant to a foreign judgment of divorce and therefore the Court lacks jurisdiction to dissolve the parties' marriage in New York; 5) precluding the plaintiff from seeking equitable distribution in New York, pursuant to the doctrine of res judicata, where such marital distribution claims were litigated in the foreign divorce proceeding; and 6) Granting such other and further relief as this Court may deem just and proper."^[FN1]

Plaintiff filed a notice of cross-motion [motion sequence #11] dated November 25, 2015 for an order of the Court as follows: "for plaintiff and defendant's deposition to be held on dates certain chosen by the Court; for an Order that defendant supply all [*2]documents requested by Klein Liebman, the valuation company assigned to this case; and for such other and further relief as this Court deems just and proper."

Defendant filed a reply, dated December 8, 2015, in support of defendant's notice of motion and in opposition to plaintiff's cross-motion.

On the return date, December 22, 2015, defendant's counsel represented on the record that twenty (20) minutes before the scheduled appearance he had been notified by defendant that he declared bankruptcy several weeks prior on November 19, 2015. Defendant offered no explanation as to why he had not disclosed this information to his counsel in advance of the court appearance. The matter was adjourned on the record to February 2, 2016 for a status of defendant's pending bankruptcy proceeding.

Counsel for the parties and defendant appeared for oral argument on February 2, 2016. Pursuant to this Court's written decision and order dated July 9, 2013 plaintiff is permitted to appear telephonically from Jordan in this action except for purposes of deposition and trial or pursuant to further order of the Court (see Ahmad v. Khalil, 40 Misc 3d 1206(A), 975 N.Y.S.2d 364). Defendant's counsel provided plaintiff's counsel, on the record, a "Notice of Dismissal of Case" dismissing the bankruptcy filed by defendant on November 19, 2015 in the United States Bankruptcy Court, Eastern District of New York, as of January 15, 2016. A copy was then provided to the Court on consent. As the bankruptcy proceeding was no longer pending there was no basis to continue the stay of the pending motions. The Court heard oral argument on February 2, 2016.

The facts and procedural history are not in dispute. The parties entered into a Jordanian Marriage Contract (herein after referred to as the "Marriage Contract") and were married on March 11, 1993. The Marriage Contract provided for a dowry at the time of marriage and a deferred dowry to be paid upon either a divorce or death of either of the parties. The Marriage Contract did not address or provide for equitable distribution of any marital assets. After the marriage defendant resided in New York and plaintiff in Jordan from 1993 until August 1995 when plaintiff moved to New York to live with defendant. There are three children of the marriage. Plaintiff and the parties' children returned to Jordan in 2003 and they continue to reside there. Defendant remained in New York and continues to reside here.

Plaintiff commenced divorce proceedings in Jordan in 2010 but abandoned the proceeding. On September 27, 2012, plaintiff commenced this New York divorce action and filed an order to show cause seeking pendente lite relief. Thereafter defendant obtained a Jordanian judgment of divorce on November 22, 2012.

Inasmuch as it was not in dispute that the November 22, 2012 Jordanian divorce did not determine any ancillary issues at that time. On January 10, 2013, defendant filed a consent to change attorney from his first to his second attorney. Defendant filed an order to show cause on January 18, 2013 seeking, inter alia, an order of the Court limiting the New York Court's jurisdiction to the issue of equitable distribution of the parties' New York assets.

Defendant subsequently filed a cross-motion in February 2013 for an order of this Court recognizing the Jordanian divorce; dismissing plaintiff's order to show cause seeking pendente lite relief pursuant to CPLR 327(a) and denying all other relief other than equitable distribution of the parties' New York marital property.

This Court issued a written decision dated July 9, 2013 granting defendant's application in as far as it recognized the Jordanian judgment of divorce as terminating the marital status of the parties and finding that plaintiff's requests for relief related to Jordanian property, maintenance and child support were already properly before the Jordanian courts on the basis of forum non conveniens (see Ahmad v. Khalil, 40 Misc 3d 1206(A), 975 NYS2d 364). Based upon that finding, this Court found that plaintiff had a right to seek equitable distribution of the parties' marital assets, if any, located in New York. The Court also ordered, as relevant hereto, that under the facts and circumstances it was appropriate to grant plaintiff's application for a business evaluator for defendant's plumbing business located in New York State and ordered defendant to be fully (100%) financially responsible for a court-appointed neutral business evaluator appointed to value certain business interests in New York; permitted plaintiff to appear by telephone, except for deposition or trial or further court order; and finding that the New York Supreme Court would retain and address the issue of equitable distribution of the parties' New York assets. Since this Court's July 2013 decision and order defendant has steadfastly, through a series of motions and filing in this and other courts, attempted to prevent valuation of these businesses and the possible distribution of any marital assets located within the State of New York.

The parties were provided an opportunity to provide names and curriculum vitaes for proposed neutral business evaluators. The Court subsequently appointed Klein Liebman as a neutral appraiser to perform a valuation certain of defendant's businesses by written order dated September 19, 2013.

Defendant then filed a motion dated September 20, 2013, inter alia, seeking an order of the Court recognizing the parties' Jordanian marriage contract as a valid antenuptial agreement. Plaintiff filed a cross-motion dated February 6, 2014 for an order declaring the parties' marriage contract not a valid antenuptial agreement pursuant to Domestic Relations Law 236(B)(3). This Court issued a written decision and order dated November 17, 2014 finding that the parties' marriage contract was not a valid antenuptial agreement and that the deferred dowry provision in the contract did not preclude plaintiff from seeking equitable distribution of any marital property located in New York. On March 23, 2015 defendant filed a notice of appearance of his third attorney of record. On May 5, 2015 defendant filed a notice of appearance of his fourth attorney of record who remains his attorney of record as of the date of this decision.

In the July 9, 2013 written decision, the Court found that plaintiff was entitled to seek equitable distribution of the parties' New York property in New York despite [*3]defendant's procurement of the Jordanian divorce decree after plaintiff commenced the New York divorce action (see Ahmad v. Khalil, 40 Misc 3d 1206(A) at 11). This Court found, as relevant here, that:

In the present case, since plaintiff claims an interest in New York marital property, she may, in accordance with the plain language of the governing statutes (see Domestic Relations Law § 236 [B] [2], [5]) seek equitable distribution of this New York property following the entry of the ex parte Jordanian divorce decree (see Matter of Sannuto, 32 AD3d at 444; Peterson, 180 AD2d at 262; Nikrooz, 167 AD2d at 335; Braunstein, 114 AD2d at 51). Therefore, plaintiff's economic and property rights in the New York real property may be determined in New York, and so much of her complaint as may be construed as asserting those rights will not be dismissed (see Young, 236 AD2d at 535).

Defendant now argues that while plaintiff may have the right to seek equitable distribution under DRL 236[B][2] and [5] she cannot do so under the currently pending action because, he argues, plaintiff-wife commenced the action for divorce on September 27, 2012 and that action is now moot because defendant-husband subsequently obtain a foreign divorce on November 22, 2012. He argues that once the Court recognized the foreign judgment of divorce by written decision dated July 9, 2013 the basis of the Court's jurisdiction over defendant was no longer present because plaintiff's cause of action for divorce was moot. Defendant argues that, as a matter of law, this Court must dismiss plaintiff's action pursuant to CPLR 3211(a)(2). Under defendant's theory, to seek equitable distribution now that there is a foreign judgment of divorce pursuant to DRL 236[B][2] and [5], plaintiff must file a new action seeking equitable distribution of the parties' marital assets in New York.

Defendant's counsel argues that Domestic Relations Law 236(B)(2) and (5) "is unambiguous" and requires that any action for equitable distribution of property following a foreign judgment of divorce can only be commenced after a foreign judgment of divorce is obtained.

He also argues that this alleged procedural defect cannot be remedied even if the Court allowed plaintiff to amend her Verified Complaint pursuant to CLPR 3025 because any amended pleading would revert back to the date of the filing of the original pleading which, in this case, would remain September 27, 2012 and defendant obtained the foreign divorce on November 22, 2012.

Plaintiff argues in her cross-motion [motion sequence #11] that this Court has previously and unequivocally determined that she may seek equitable distribution of marital assets located within New York and that there is no legal requirement that an application for equitable distribution can only be commenced after a foreign judgment of divorce is obtained.

In his reply dated December 8, 2015, defendant's counsel does not dispute that this Court has issued numerous decisions on the issue of plaintiff's right to seek equitable [*4]distribution of marital property located within New York; however, he argues that "defendant's prior counsels should have alerted this Court that jurisdiction was lacking in this matter, due to plaintiff's failure to file the appropriate paperwork with the Court." Defendant's counsel again asserts that plaintiff's application for equitable distribution is jurisdictionally defective because she "did not file a pleading seeking equitable distribution following a foreign judgment of divorce" after defendant obtained the November 22, 2012 foreign divorce.

Under defendant's legal theory a defendant can unilaterally defeat the rights of a plaintiff who seeks equitable distribution of property that is located within the State of New York simply by having obtained a foreign judgment of divorce after plaintiff has commenced an action in New York. This Court does not adopt defendant's theory. Most importantly defendant fails to cite that the Appellate Division, Second Department has ruled directly on this issue and, in doing so, did not adopt the theory when it was presented.

The Appellate Division, Second Department case law on this issue is resoundingly clear: where an action of divorced is commenced in New York but a subsequent foreign judgment of divorce is obtained by either party the New York action for divorce may be converted to one for equitable distribution without the need for the Court to dismiss the divorce action and for plaintiff to commence a new action (see Peterson v. Goldberg, 180 AD2d 260, 585 N.Y.S.2d 439 [2 Dept.,1992]; lv to appeal dismissed 81 NY2d 835, 595 N.Y.S.2d 397 [1993]). In Peterson v. Goldberg, the wife-plaintiff commenced an action for divorce and ancillary relief in New York in 1986. In 1987, the husband-defendant obtained a judgment of divorce in Florida and moved in New York for summary judgment dismissing the wife-plaintiff's complaint. The New York court granted the husband-defendant's motion to the extent of dismissing the cause of action for a divorce but converted the action to one, inter alia, for equitable distribution following a foreign judgment of divorce pursuant to Domestic Relations Law 236(B)(2). Thereafter, the wife-plaintiff died. The Appellate Division, Second Department held in Peterson v. Goldberg that "the husband's procurement of an ex parte judgment of divorce dissolved the parties' marital status. The wife's right to equitable distribution vested at the time of the entry of the foreign judgment of divorce. That right, which the wife asserted in her action for divorce and equitable distribution, did not abate upon her death. Accordingly, the Supreme Court correctly denied the husband's motion to dismiss the cause of action for equitable distribution." The Appellate Division, Second Department detailed that it was of "no consequence" that defendant obtained the foreign judgment of divorce after plaintiff commenced the New York divorce because the New York court "clearly had jurisdiction over equitable distribution pursuant to Domestic Relations Law 236(B)(2) and (5), which expressly confer upon the court the authority to distribute property equitably following a foreign judgment of divorce" (Peterson, 180 AD2d at 266).

A party may file a plenary action seeking equitable distribution of property located [*5]in New York after a foreign judgment of divorce is obtained where there was no action pending in New York; however, contrary to defendant's assertion, the Appellate Division, Second Department was abundantly clear in Peterson that there is no requirement that the Court must dismiss a pending action and that plaintiff must then commence a separate action seeking equitable distribution where a defendant obtained a foreign judgment of divorce subsequently to plaintiff commencing an action for divorce in New York.

Furthermore, defendant's argument that plaintiff cannot convert her action for divorce into an action for equitable distribution following a foreign judgment of divorce because plaintiff commenced her action for divorce prior to defendant obtaining the foreign judgment of divorce is also clearly inapposite to existing Appellate Division, Second Department case law. The Appellate Division, Second Department ruled on this very argument in Ryan v. Ryan, 123 AD2d 429, 506 N.Y.S.2d 734 [2 Dept.,1986]. In Ryan, plaintiff commenced an action for divorce in New York. Defendant subsequently obtained a foreign divorce in Vermont. Plaintiff did not challenge the Vermont judgment of divorce but sought to enforce her right to equitable distribution in New York in the action she had commenced for divorce. Defendant opposed plaintiff's request for equitable distribution arguing that procedurally plaintiff could not convert her action for divorce to one seeking equitable distribution because she commenced the divorce action prior in time to when he sought and obtained the foreign judgment of divorce in Vermont. The Appellate Division, Second Department ruled that under these circumstances judicial economy required that "plaintiff should be permitted to serve an amended complaint to seek equitable distribution of the parties' marital property and maintenance following a foreign judgment of divorce, pursuant to Domestic Relations Law 236 (B)(2)" (123 AD2d at 734-735).

The Appellate Division, Second Department case law is clear, and judicial economy requires, that in the case at bar, plaintiff's request for equitable distribution proceed under the pending action for divorce notwithstanding that defendant subsequently obtained a foreign judgment of divorce. Defendant's latest theory for why this Court should dismiss plaintiff's case is clearly yet another attempt to deny plaintiff equitable distribution of the parties' marital assets located in New York and is unequivocally inconsistent with the existing Appellate Division, Second Department case law, including the rulings in Peterson and Ryan and, as such, defendant's application is denied. Furthermore, the Court notes that in her Verified Complaint in which she asserts her cause of action for divorce, dated June 19, 2012, plaintiff requested inter alia "her just and equitable share of all marital property".

Defendant further requests an order of the Court "precluding the plaintiff from seeking equitable distribution in New York, pursuant to the doctrine of res judicata, where such marital distribution claims were litigated in the foreign divorce proceeding." The Court notes that in his February 2013 motion defendant sought an order of the Court [*6]"denying all other relief other than equitable distribution of the parties' New York marital property" which this Court granted; however, now defendant seeks to change his position in an attempt to preclude plaintiff from seeking equitable distribution of marital assets located in New York. Defendant cannot now assert a position inapposite to his prior position. Defendant is judicially estopped from taking an adverse or inconsistent position on this issue simply because his interests have changed (see Karasik v. Bird, 104 AD2d 758, 480 N.Y.S.2d 491 [1 Dept.,1984]; see also Anonymous v. Anonymous, 137 AD2d 739, 524 N.Y.S.2d 823 [2 Dept.,1988]; Tilles Inv. Co. v. Town of Oyster Bay, 207 AD2d 393, 615 N.Y.S.2d 895 [2 Dept.,1994]). Judicial estoppel is intended to avoid abuse of the judicial system by preventing a party from obtaining a benefit by taking one position and then asserting a contrary position in the same, or a subsequent proceeding (see D & L Holdings, LLC v. RCG Goldman Co. LLC., 287 AD2d 65, 734 N.Y.S.2d 25 [2 Dept., 2001]; see also Maas v. Cornell Univ., 253 AD2d 1, 683 N.Y.S.2d 634 [3rd Dept.1999]). Defendant's current counsel argues that defendant should have taken different legal positions in this litigation before he was retained and that since he is a new attorney he should be able to assert additional legal theories. That argument is unavailing. Once an issue is judicially determined, that determination is law of the case and binding upon the parties to the litigation (see People v. Bilsky, 712 N.Y.S.2d 84, 95 NY2d 172 [2000]).

It is undisputed that the parties entered into a Marriage Contract prior to their marriage which provided for a dowry at the time of marriage and a "deferred dowry." Earlier in this litigation before this Court defendant attempted to block plaintiff from asserting any claim to equitable distribution of the parties' marital assets in New York by claiming that the Marriage Contract was a valid prenuptial agreement and that the "deferred dowry" provided therein was binding on any claim plaintiff asserted seeking equitable distribution. By written decision dated November 17, 2014 this Court found that the Marriage Contract was not a valid prenuptial agreement and that plaintiff has the right to seek equitable distribution of the parties' marital assets located in New York in this litigation.

This Court previously found that, under the doctrine of forum non convens, Jordan was the proper jurisdiction for the parties to litigate all issues between them other than equitable distribution of marital assets located in New York. It is undisputed that the parties have engaged in litigation in the Kingdom of Jordan in the intervening months related to those issues, including issues of custody and support and certain rights under the Marriage Contract.

The parties agree that an order of Ghaith Abdel Qader Alakaileg, dated May 15, 2014, was issued by the Hashemite Kingdon of Jordan, Supreme Judge Department, Shair Court of Amman-Execution [hereinafter referred to as the "May 15, 2014 order"]. Defendant annexed a certified translation of the May 15, 2014 order to motion seq. #10. Plaintiff does not dispute the translation of the May 15, 2014 order as presented by defendant. The body of the order, in full, is as follows:

TO WHOM IT MAY CONCERN

After referring to the record of this Court, it has been indicated that there is an execution case under no. 2020/2014, between the Plaintiff Rima Ibrahim Mustafa Ahmad and the Respondent Mousa Abdel Hafiz Mohamad Khaleel, its subject is "The Postponed Dower" and its due value. Nothing that the Respondent Mousa is acquitted from this amount in full, since the case was executed, as per the legal marriage contract No. 114885 dated 11-Mar-1993 issued at the Sharia Court of South Amman, noting that the above named Plaintiff Rima has no right left to claim financial or material liability according to what has been stated in the execution of the marriage contract at this court in respect of this case. Upon request, these [sic] illustration has been given [emphasis added].

Defendant argues that the May 15, 2014 order conclusively addressed and ruled on all issues of equitable distribution between the parties and, as such, plaintiff may not seek equitable distribution of marital assets located in New York under the doctrine of res judicata. Defendant's counsel argues in his affirmation dated July 9, 2015 annexed to motion sequence #10 that "[i]f the Jordanian Court has expressly stated that plaintiff is not entitled to any equitable distribution of the divorce in Jordan, then the New York Court, which obtains its jurisdiction based upon the Jordanian Court's judgment of divorce and directions from the decisions of that Court, has no higher authority to award equitable distribution, even though the res is in New York."

Plaintiff's counsel argues in his affirmation dated November 20, 2015 annexed to motion sequence #11 that the May 15, 2014 order decided only the limited issue of whether plaintiff is entitled to a specific deferred dowry listed in the Marriage Contract and, he argues, the May 15, 2014 order "makes no mention that the issue of equitable distribution was either litigated or resolved." He argues that because the May 15, 2014 order "did not address any issue regarding the distribution of [sic] parties' marital assets, it should not be deemed as a final decision regarding the issue of equitable distribution." He argues that defendant's argument is "based on an incomplete reading and misunderstanding of the Order" which, he contends, only addressed and decided the limited issue of plaintiff's right to the "deferred dowry" in the Marriage Contract and did not address in any way the overall issue of equitable distribution. Plaintiff's counsel further argues that even if the Court determined that the May 15, 2014 order was a decision on the issue of equitable distribution that this Court should deemed the May 15, 2014 order unrecognizable on a public policy basis because, he argues, the Jordan court did not provide plaintiff with due process of law. Plaintiff's counsel argues in his November 20, 2015 affirmation that in Jordan a wife may only obtain a divorce "grounded on a cause such as violence, whereas the husband need only say I divorce you' thrice in order to be then legally divorced, and this is thus a violation [sic] the strong public policy in New York that the law treat both parties in a divorce equally and fairly." [*7]He also argues that plaintiff has no right in Jordan "to contest this divorce or get a lawyer's advice or appear in Court."

This Court has previously ruled that New York is the proper venue for plaintiff to seek equitable distribution of marital assets located in the State of New York (see Ahmad v. Khalil, 40 Misc 3d 1206(A), 975 NYS2d 364 [July 9, 2013]). Subsequently, by written decision and order dated November 17, 2014 this Court ruled that the parties' Marriage Contract was not a valid prenuptial agreement pursuant to DRL 236(B)(3) and that the deferred dowry did not govern or preclude plaintiff from seeking equitable distribution of the parties' marital assets, if any, located in the State of New York.

Defendant now seeks, yet again, to block plaintiff from seeking equitable distribution of marital assets located in New York. This Court finds that defendant's theory of res judicata as presented here is based upon, at best, a selective reading of the Mary 15, 2014 order. Defendant appears to have selectively overlooked the plain language in the May 15, 2014 order which provides that the order relates to " The Postponed Dower' and its due value [emphasis added]."Nowhere in the May 15, 2014 order does the Jordanian court refer to any equitable distribution or to marital assets whether located in Jordan or the State of New York. There is nothing before this Court to indicate that plaintiff did or could have litigated before the Jordanian court the issue of equitable distribution of marital assets located within New York State or that the Jordanian court addressed the issue of equitable distribution of the parties' marital assets in any way, much less any marital assets that are located within the State of New York.

It is clear from a full and complete reading of the Mary 15, 2014 order relied upon by defendant that it relates solely to the issue of plaintiff's rights related to the "deferred dowry" in the Marriage Contract. This Court previously ruled in the November 17, 2014 written decision that the deferred dowry provision in the Marriage Contract did not preclude plaintiff from seeking equitable distribution of marital property located in New York. Defendant offered no documentation other than the May 15, 2014 order or any additional representation that the issue of equitable distribution of marital assets located in New York were determined or ruled upon but the Jordanian court. As such, defendant failed to substantiate his latest claim that res judicata applies to the issue of plaintiff's right to seek equitable distribution of marital assets located in New York.

It is evident to this Court that defendant is intent on attempting to deprive plaintiff from her right to seek equitable distribution of marital assets located in New York. He has brought multiple applications during this litigation seeking to block plaintiff from seeking equitable distribution under numerous legal theories.^[FN2] This Court has denied [*8]these applications by defendant by written decisions. Defendant's latest theories as to why plaintiff should be blocked from seeking equitable distribution of marital assets located in New York are also unsupported by law and, as such, the relief requested by defendant in motion sequence #11 is denied.

Plaintiff's notice of cross-motion [seq. #11] seeks an order of this Court scheduling depositions for plaintiff and defendant. In his reply dated December 3, 2015, defendant objects to plaintiff's application solely on procedural grounds arguing that "plaintiff has failed to serve a specific notice of cross-motion'" and as such, he argues, the Court should deny the affirmative relief requested by plaintiff. The notice of cross-motion filed by plaintiff seeks the following relief:

for an Order by this Court for plaintiff's and defendant's depositions to be held on dates certain chosen by this Court; for an Order that defendant supply all documents requested by Klein Liebman, the valuation company assigned to this case; and for such other and further relief as this Court deems just and proper.

This Court rejects defendant's procedural objection to plaintiff's notice of cross motion. Defendant argues that plaintiff's notice of cross motion is "not specific" and therefore allegedly does not comply with CPLR 2215. CPLR 2215 provides:

At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:

(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule; and

(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in this rule. Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party.

Defendant's counsel also cites to N.Y.S. Div. Of Human Rights v. Oceanside Cove, 39 AD3d 608, 835 N.Y.S.2d 246 [2 Dept.,2007], as a procedural basis to deny the relief requested by plaintiff; however, in N.Y.S. Div. Of Human Rights the Appellate Division, Second Department held that affirmative relief must be sought in a formal notice of cross motion not merely by requesting it in opposition papers. The case cited by defendant's counsel is not applicable here. Here, the affirmative relief requested by plaintiff was made by formal notice of cross-motion [motion seq. #11] in compliance with CPLR 2215.

Defendant offers no other opposition to plaintiff's requests for the Court to schedule deposition dates and for defendant to provide all requested documents to Klein Leibman, the Court ordered neutral business evaluator other than to again assert that the Court lacks jurisdiction over the issues of equitable distribution because defendant obtained a foreign judgment of divorce. This Court herein-above rejected defendant's jurisdictional argument. Defendant offered no other legal argument to this Court as a basis to deny plaintiff's application for the Court to set deposition dates.

The Court notes that in the preliminary conference order dated April 11, 2013 the dates for depositions of the parties were stayed pending resolution of prior motions. Those motions were resolved by this Court's prior written decisions. This Court has ruled in those decisions that plaintiff has the right to seek equitable distribution of marital assets located within New York. The litigation on this limited issue has now spanned several years because of defendant's vigorous attempts to block plaintiff from seeking equitable distribution of certain plumbing supply businesses which, the Court notes, defendant previously asserted in this litigation were worthless. This matter must proceed to resolution. It is evident that, at this time, the matter must proceed along a trial schedule. Plaintiff's application for the Court to set dates certain for depositions of plaintiff and defendant as to the issues of equitable distribution of marital assets located within New York is granted.

This Court hereby orders that deposition of defendant shall begin on Monday, May 16, 2016 and shall continue each day thereafter until concluded. Deposition of plaintiff shall begin the next business day after deposition of defendant concludes. Plaintiff must appear for depositions. The parties shall not adjourn this Court ordered deposition schedule without prior Court approval.

Plaintiff's notice of motion [seq. #11] seeks an order of this Court directing defendant to "supply all documents requested by Klein Liebman, the valuation company assigned to this case." Defendant opposes plaintiff's application procedurally arguing lack of specificity in the notice of cross-motion. This Court herein-above rejected defendant's procedural objection to plaintiff's notice of cross-motion.

Inasmuch as the parties are already bound to comply with the court-ordered business evaluation pursuant to the September 19, 2013 court order appointing Klein Leibman this Court deems plaintiff's application that defendant produce documents to Klein Leibman as an application for conditional preclusion.

The Court notes that where one party fails to provide information pursuant to discovery, the appropriate sanction, at the court's discretion, is to hold what the other party says to be true regarding the information being withheld (Miceli v. Miceli, 233 AD2d 372, 373, 650 N.Y.S. 2d 241, 242 [2 Dept., 1996] ["The sanction of preclusion imposed by the court is not a satisfactory remedy in this case. Unlike a negligence action where a preclusion order may foreclose presentation of a prima facie case or defense, the [*9]preclusion of proof in an equitable distribution action could permit a party to secrete the very property the other party is seeking to discover. If the defendant persists in his failure to comply with discovery requests, a more appropriate sanction in this case would be to deem true the defendant's allegations regarding the property about which discovery has been withheld.])

There has been no order of this Court staying the September 19, 2013 appointment order. That appointment order remains in full force and effect. The parties shall fully comply with any document demands and information requests, in any form, made by the court-ordered business evaluator pursuant to the September 19, 2013 court order absent another Court order. Counsel shall notify the Court by conference call on Wednesday, April 13, 2016 at 4:30 p.m. with a status update on the evaluation and the anticipated date when the Klein Leibman report will be available.

Inasmuch as neither plaintiff's counsel's affirmation nor plaintiff's affidavit details what document requests from Klein Liebman with which defendant has allegedly failed to comply and no document demands are annexed to plaintiff's application the Court will not, at this time, issue a conditional preclusion order against defendant. Plaintiff's application is denied without prejudice with right to renew upon proper application if appropriate.

Defendant's relief requested in motion sequence #10 is denied.

Plaintiff's motion sequence #11 is granted to the extent detailed herein.

The Court hereby directs that the Note of Issue be filed by Tuesday, May 31, 2016. This matter is hereby scheduled for a pretrial conference on Tuesday, June 7, 2016 at 9:30 a.m.