Supreme Court, Richmond County, November 1, 2023

Antonio Monaco, Jr., Brooklyn, for defendant.

Mary Grace Elizabeth Condello, Brooklyn, for plaintiff.

Motion sequence No. 024 and motion sequence No. 026 are resolved and therefore, it is hereby ordered that the defendant's request for the court to vacate the order dated June 14, [*2]2023, is granted only as pertaining to the appointment of XX Valuation and Consulting Services, Inc. to appraise the defendant's interest in XXXX, LLC, as owner operator of XXXX Food Group, and it is further

Ordered that the order of this court dated September 27, 2022, is vacated; and the court shall issue a separate order contemporaneously with this memorandum decision and order appointing a neutral forensic expert to be paid 100% by the defendant, subject to reallocation at trial, to appraise the defendant's interest in XXXX, LLC, as owner operator of XXXX Food Group; and it is further{**81 Misc 3d at 940}

Ordered that the defendant's request for the court to vacate the order dated June 14, 2023, is denied with prejudice; and it is further

Ordered that the defendant's request to compel the sale of the marital residence is referred to the trial court for determination; and it is further

Ordered that the defendant's request for a lifestyle analysis of the plaintiff is granted and the court shall issue a separate order contemporaneously with this memorandum decision and order appointing a neutral forensic expert to be paid 100% by the plaintiff, subject to reallocation at trial, to complete a lifestyle analysis of the plaintiff; and it is further

Ordered that plaintiff's request for sanctions against the defendant is denied with prejudice; and it is further

Ordered that the plaintiff's request for an appraisal of XXX of NY, Inc. is granted, and the court shall issue a separate order contemporaneously with this memorandum decision and order appointing a neutral forensic expert to complete the appraisal of XXX of NY, Inc. and to be paid 40% by the plaintiff, subject to reallocation at trial, and 60% by the defendant, subject to reallocation at trial; and it is further

Ordered that the plaintiff's request to amend the complaint to include the third party, T.B., is granted; and it is further

Ordered that the complaint shall be amended to include third-party defendant T.B., within 20 days, or same shall be deemed waived, and service of same shall be effectuated pursuant to the CPLR. The caption shall be amended upon the filing of the amended complaint; and it is further

Ordered that the plaintiff's request to vacate the pretrial conference date of August 17, 2023, is denied as moot; and it is further

Ordered that the plaintiff's request to vacate the trial dates scheduled for September 28, 2023, and September 29, 2023, is denied as moot; and it is further

Ordered that the plaintiff's request for defendant to pay interim counsel fees in the amount of $7,500.00 is referred to the trial court for determination; and it is further

Ordered that the plaintiff is to serve a copy of this memorandum decision and order upon the defendant within 20 days; and it is further

Ordered that the clerk of the court shall enter judgment accordingly.{**81 Misc 3d at 941}

Plaintiff M.B. and defendant K.B. were married on October 7, 1989. There are no minor children of the marriage. The plaintiff commenced this action for divorce on or about May 3, 2018. On June 29, 2023, defendant filed motion sequence No. 024 by notice of motion.

The defendant seeks (1) the vacating of the order dated June 14, 2023, which included [*3]an award to the plaintiff of counsel fees, pendente lite, subject to reallocation at trial in the amount of $55,000.00, a requirement that parties exchange all documentation provided to the forensic evaluator, and a trial order; (2) the vacating of the order dated April 10, 2023, which required the defendant to pay $7,500.00 to the forensic evaluator for forensic services to be provided in this matter; and (3) the immediate market and sale of the marital residence.

Defendant further seeks (4) the forensic evaluator, XX Valuation and Consulting Services, Inc., to be directed to perform a lifestyle analysis of the plaintiff; (5) the immediate recusal of Hon. Ronald Castorina, Jr. and for this matter to be transferred to another judge; and (6) other relief as may be just, proper, and equitable.

On August 3, 2023, plaintiff filed cross-motion sequence No. 026 seeking (a) the denial of defendant's motion dated June 29, 2023, in its entirety; (b) the sanctioning of the defendant for filing of the notice of motion on June 29, 2023, without prior court approval; (c) a finding that the notice of motion filed by the defendant is a frivolous motion pursuant to 22 NYCRR 130-1.1; and (d) the appraisal of XXX of NY, Inc. to be paid solely by the defendant.

Plaintiff further seeks (e) permission to amend the complaint to include third-party defendant, T.B.; (f) the vacating of the pretrial conference of August 17, 2023; (g) the vacating of the trial dates scheduled for September 28, 2023, and September 29, 2023; (h) the defendant pay interim counsel fees in the amount of $7,500.00 for the expense of this motion; and (i) other and further relief that the court deems just and proper.

On September 15, 2023, defendant filed opposition to cross-motion sequence No. 026 and reply on motion sequence No. 024. On September 29, 2023, plaintiff filed reply on motion sequence No. 026. On October 19, 2023, parties appeared on{**81 Misc 3d at 942} the record and defendant withdrew prong (5) of motion sequence No. 024 seeking the immediate recusal of Hon. Ronald Castorina, Jr. and for this matter to be transferred to another judge and parties appeared. Parties further waived oral argument on the record on October 19, 2023.

This is a decision and order on motion sequence No. 024 and cross-motion sequence No. 026.

This matter has been pending before this court for more than five years and two judges. Twenty-six motions have been filed to date. On September 27, 2022, the court ordered the appointment of XX Valuation and Consulting Services to appraise the defendant's interest in XXXX, LLC, XX Bennett Avenue, Staten Island, NY 10312, as owner operator of XXXX Food Group (NY St Cts Elec Filing [NYSCEF] Doc No. 258). The defendant, having previously been determined to be the monied spouse, was ordered to pay 100% of the cost of this appraisal, subject to reallocation at trial (see id.). As of November 7, 2022, the defendant had not complied with this order of the court (NYSCEF Doc No. 451).

On March 2, 2023, following the resolution of four motions, the court ordered, "If there is no settlement, Defendant to bring payment in the form of a bank check made payable to XX Valuation and Consulting Services, Inc. in the amount of $7,500.00 [Seven Thousand Five Hundred Dollars and No Cents] for forensic services on the next adjourn date" (NYSCEF Doc No. 396).

On April 10, 2023, motion sequence No. 021, a motion brought by the plaintiff for contempt, was resolved with "Defendant Ordered to pay in the form of a bank check made payable to XX Valuation and Consulting Services, Inc., the amount of $7,500.00 [Seven Thousand Five Hundred Dollars and No Cents] for forensic services no later [than] April 20, [*4]2023" (NYSCEF Doc No. 416).

On June 14, 2023, this matter was scheduled for trial to commence on September 28, 2023, and continuing through September 29, 2023. Accordingly, the court issued a trial order, which included an award to the plaintiff as the non-monied spouse of counsel fees, pendente lite, subject to reallocation at trial, in the sum of $20,000.00 which was to be paid within two weeks directly to plaintiff's counsel (NYSCEF Doc No. 415). The court further ordered the defendant to pay, as the monied{**81 Misc 3d at 943} spouse, the plaintiff's trial retainer counsel fees, pendente lite, subject to reallocation at trial and without prejudice to renew, in the sum of $35,000.00 to be paid no later than August 15, 2023, directly to plaintiff's counsel (see id.). Parties were also ordered to provide opposing counsel with copies of all documentation provided to XX Valuation and Consulting (see id.).

"CPLR 5015 (a) authorizes a court to relieve a party from an order or judgment, on motion, based on the existence of specified grounds: excusable default (see CPLR 5015 [a] [1]); newly discovered evidence (see CPLR 5015 [a] [2]); fraud, misrepresentation, or other misconduct of an adverse party (see CPLR 5015 [a] [3]); lack of jurisdiction (see CPLR 5015 [a] [4]); or upon the reversal, modification, or vacatur of a prior judgment or order upon which it is based (see CPLR 5015 [a] [5])" (see Bank of N.Y. Mellon Trust Co., N.A. v Thonfeld, 172 AD3d 665, 666 [2d Dept 2019]).

"In order to succeed on a motion pursuant to CPLR 5015 (a) (2) to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish, among other things, that the evidence could not have been discovered earlier through the exercise of due diligence" (see HSBC Bank USA, N.A. v Walker, 201 AD3d 795, 797 [2d Dept 2022], citing US Bank N.A. v Eisler, 188 AD3d 1288 [2d Dept 2020], and Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 AD3d 1088 [2d Dept 2017]).

Where "a defendant seeks to vacate a default pursuant to CPLR 5015 (a) (3) based on extrinsic fraud, the defendant must demonstrate 'some device, trick, or deceit that led him [or her] to believe that he [or she] need not defend this action' " (see U.S. Bank N.A. v Nunez, 208 AD3d 711, 713 [2d Dept 2022], quoting HSBC Bank USA, N.A. v Walker, 201 AD3d 795 [2d Dept 2022], and citing LaSalle Bank N.A. v Oberstein, 146 AD3d 945 [2d Dept 2017]).

The defendant has failed to provide the court any credible evidence that would meet the requirements of CPLR 5015 (a) to relieve the defendant from orders of the court dated April 10, 2023, and June 14, 2023, respectively. In its determination, the court considered the very credible evidence provided, including a court filing (NYSCEF Doc No. 289), pertaining to the defendant's ownership interest in XXXX, LLC, XX Bennett{**81 Misc 3d at 944} Avenue, Staten Island, NY 10312, as owner operator of XXXX Food Group. Defendant was unable to provide any credible evidence to refute this. In the order dated September 27, 2022, the defendant was ordered to pay the cost of XX Valuation, subject to reallocation at trial. The requirement for the defendant to pay XX Valuation the amount of $7,500.00 in the order dated April 10, 2023, was a reiteration of the September 27, 2022 order and subject to reallocation as well.

[1] In this motion practice, the defendant did not provide any evidence that would demonstrate newly discovered evidence or evidence of fraud, misrepresentation, or other misconduct of the plaintiff or any other adverse party to warrant the vacating of the previous order of the court dated April 10, 2023.[*5]

Defendant's counsel has provided in his combined affirmation and memorandum of law in opposition the image of a check dated July 8, 2021, made out to XX Valuation and Consulting Services, by the plaintiff in the amount of $5,000.00 (NYSCEF Doc No. 464). The memo line of the check appears to read, "part of retainer" (see id.). Defendant's counsel contends, "this disclosure was never made—not in any statement of net worth nor any document" (see id.). Defendant's counsel continues, "There was no expert disclosure pursuant to the CPLR." While the court has complete confidence in the abilities of XX Valuation and Consulting Services as a neutral expert, in this particular matter, where the defendant has provided documentation of the neutral expert's previous purported transaction with the plaintiff the court finds it to be prudent to exercise its discretion and appoint another neutral forensic expert. Accordingly, the defendant's request for the court to vacate the order dated June 14, 2023, is granted only as pertaining to the appointment of XX Valuation and Consulting Services, Inc. to appraise the defendant's interest in XXXX, LLC, as owner operator of XXXX Food Group; and it is further

Ordered that the order of this court dated September 27, 2022, is vacated; and the court shall issue a separate order contemporaneously with this memorandum decision and order appointing a neutral forensic expert to be paid 100% by the defendant, subject to reallocation at trial, to appraise the defendant's interest in XXXX, LLC, as owner operator of XXXX Food Group.{**81 Misc 3d at 945}

Defendant has failed to offer any evidence that the defendant is not the monied spouse and that plaintiff should not have been awarded counsel fees as ordered in the trial order dated June 14, 2023.

Pursuant to Domestic Relations Law § 237 (a), "There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite." "An award of reasonable counsel fees in a matrimonial action is a matter within the discretion of the trial court" (see Guzzo v Guzzo, 110 AD3d 765, 765 [2d Dept 2013], citing Domestic Relations Law § 237, DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987], and Quinn v Quinn, 73 AD3d 887 [2d Dept 2010]).

"For matrimonial actions such as this one, commenced on or after October 12, 2010, there is a statutory 'rebuttable presumption that counsel fees shall be awarded to the less monied spouse' " (see Weidman v Weidman, 162 AD3d 720, 726 [2d Dept 2018], quoting Domestic Relations Law § 237 [a], and citing Teaney v Teaney, 138 AD3d 1301 [3d Dept 2016], and Vantine v Vantine, 125 AD3d 1259 [3d Dept 2015]). "[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case" (see id., quoting DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]).

Defendant has not provided any newly discovered evidence or evidence of fraud, misrepresentation, or other misconduct of the plaintiff or any other adverse party to demonstrate that the defendant is not the monied spouse or that the amount of counsel fees awarded to the plaintiff, pendente lite, subject to reallocation at trial, and the amount of the trial retainer awarded to the plaintiff, pendente lite, subject to reallocation at trial, was not a reasonable award.

While " '[e]very court retains a continuing jurisdiction generally to reconsider any prior [*6]intermediate determination it has made' during the pendency of an action" (see Daniels v Howell, 9 AD3d 442, 443 [2d Dept 2004], quoting Aridas v Caserta, 41 NY2d 1059 [1977], and citing Liss v Trans Auto Sys., 68 NY2d 15 [1986], Matter of Budihas v Board of Educ. of City of N.Y., 285 AD2d 549 [2d Dept 2001], and Matter of Burns, 228 AD2d{**81 Misc 3d at 946} 674 [2d Dept 1996]), this court can find no justification for doing so in this instance.

Accordingly, the defendant's request for the court to vacate the order dated June 14, 2023, is denied with prejudice.

Defendant seeks an order to compel the sale of the marital residence. The issue of the defendant's request for an order to compel the sale of the marital residence is referred to the trial court for determination.

Defendant has raised issues pertaining to the sources of income and expenses of the plaintiff. Defendant contends that the plaintiff has not only been coy about her sources of money, but she has also lied outright on many occasions (see NYSCEF Doc No. 414). Defendant alleges plaintiff's statements of net worth are replete with information that belies her claim to need any support from defendant (see id.). Defendant's allegations include plaintiff having more than $3,400.00 a month in credit card debt, plus all her other expenses, international and interstate travel, frequent lavish dinners and nights out (see id.). Defendant further contends plaintiff's exploits from the metropolitan area to the Jersey Shore are usually logged in her E-ZPass account or an apparently alternate E-ZPass account.

Defendant's credible allegations raise legitimate concerns pertaining to the credibility of the plaintiff's finances. Accordingly, the defendant's request for a lifestyle analysis of the plaintiff is granted and the court shall issue a separate order contemporaneously with this memorandum decision and order appointing a neutral forensic expert to be paid 100% by the plaintiff, subject to reallocation at trial, to complete a lifestyle analysis of the plaintiff.

"Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party's attorney for frivolous conduct" (see Cassagnol v Village of Hempstead, 214 AD3d 766, 768 [2d Dept 2023], quoting Genco v Genco, 124 AD3d 580 [2d Dept 2015]).

"Conduct is frivolous if (1) it is completely without{**81 Misc 3d at 947} merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" (see id. at 768-769, quoting Matter of Congregation Ahavas Moische, Inc. v Katzoff, 134 AD3d 934 [2d Dept 2015], and citing 22 NYCRR 130-1.1).

"The decision whether to impose costs or sanctions against a party for frivolous conduct, and the amount of any such costs or sanctions, is generally entrusted to the court's sound discretion" (see id. at 769, quoting Strunk v New York State Bd. of Elections, 126 AD3d 779 [2d Dept 2015]).

While the defendant did not seek the court's permission to file the motion of June 29, 2023, in the court's discretion, the court chooses to retroactively accept the motion and finds that the conduct of the defendant's attorney was not frivolous as within the meaning of 22 NYCRR 130-1.1 (c) in filing this motion. Accordingly, plaintiff's request for sanctions is denied with prejudice.[*7]

Plaintiff seeks the appraisal of XXX of NY, Inc. and to have said appraisal be paid solely by the defendant. Plaintiff contends in her statement of net worth that she holds a 40% owner's interest in the subject business (NYSCEF Doc No. 248). Accordingly, the plaintiff's request for an appraisal of XXX of NY, Inc. is granted, and the court shall issue a separate order contemporaneously with this memorandum decision and order appointing a neutral forensic expert to complete the appraisal of XXX of NY, Inc. and to be paid 40% by the plaintiff, subject to reallocation at trial, and 60% by the defendant, subject to reallocation at trial.

Plaintiff seeks permission to amend the complaint to include the third party, T.B., the father of the defendant. Plaintiff provides no case law or statutory support for her request, but alleges that the defendant uses his father T.B.'s Signature Bank account ending in 0469 to divert funds from the business XXX of NY, Inc. to lower his income (NYSCEF Doc No. 442).

[2] Plaintiff provides in exhibit A, copies of checks made out to defendant, in which K.B.'s name "K" was crossed out and {**81 Misc 3d at 948}the name of "T" was written in on the check (NYSCEF Doc No. 443). Plaintiff alleges that over a period of four years, the defendant deposited into his father's account the sum of $308,000.00 (NYSCEF Doc No. 442). Plaintiff further provided a copy of the deposits into the XXX accounts (NYSCEF Doc No. 444). These deposits demonstrate that the clothing business clients are the signatories of the checks deposited in T.B.'s Signature Bank account (see id.).

Plaintiff provides credible evidence that T.B. opened the TD Bank account ending in 7053 on November 28, 2018, during the pendency of the divorce action commenced on May 3, 2018 (NYSCEF Doc No. 472). Plaintiff contends that the defendant deposited both checks and cash into the TD Bank account ending in 7053 for the period of November 28, 2018, to August 11, 2023, in the sum of $415,814.11 (NYSCEF Doc No. 473). In support of plaintiff's contention, on September 15, 2020, a check for $2,200.00 was deposited at the TD Bank located at Hylan Boulevard, Staten Island, New York (NYSCEF Doc No. 474). This check was drawn on the account of A.D. and M.T., who are allegedly clients of XXX of NY, Inc. (see id.).

Plaintiff has provided credible evidence of the defendant's conduct which indicates a comingling of his assets with those of his father, T.B. Defendant responds to these allegations as follows, "Ms. Condello has accused me of not reporting/documenting my debts. Please see my sixth statement of net worth (CEF Doc. 261) for repeated documentation of money owed to T.B." (NYSCEF Doc No. 465). Defendant further contends the inclusion of T.B. as a litigant would be a significant burden due to his age and health (see id.).

"CPLR 3025 (b) allows a plaintiff to amend his or her complaint, with leave of court, to add a party defendant" (see Pensabene v City of New York, 172 AD3d 1396, 1397 [2d Dept 2019], citing Sabatino v 425 Oser Ave., LLC, 87 AD3d 1127 [2d Dept 2011], Sinistaj v Maier, 82 AD3d 868 [2d Dept 2011], and WMC Mtge. Corp. v Vandermulen, 63 AD3d 1050 [2d Dept 2009]).

"A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances" (see CPLR 3025 [b]).

{**81 Misc 3d at 949}"[I]n the absence of prejudice or surprise to the opposing party, leave to amend a [*8]pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (see Gurewitz v City of New York, 175 AD3d 655, 657 [2d Dept 2019], quoting Marcum, LLP v Silva, 117 AD3d 917 [2d Dept 2014], and citing CPLR 3025 [b], Bernardi v Spyratos, 79 AD3d 684 [2d Dept 2010], and Lucido v Mancuso, 49 AD3d 220 [2d Dept 2008]).

"Only an excuse, not a reasonable excuse, is necessary to support the plaintiff's application to add a new defendant, as long as the delay was not intentional" (see Pansini Stone Setting, Inc. v Crow & Sutton Assoc., Inc., 46 AD3d 784, 787 [2d Dept 2007], citing Buran v Coupal, 87 NY2d 173 [1995], Davis v Larhette, 39 AD3d 693 [2d Dept 2007], and DeLuca v Baybridge at Bayside Condominium I, 5 AD3d 533 [2d Dept 2004]).

The court providently exercises its discretion in granting leave to file and serve an amended complaint where the proposed amendment is not palpably without merit and would result in no surprise or prejudice to the nonmoving party (see Hines v City of New York, 43 AD3d 869 [2d Dept 2007], citing CPLR 3025 [b], and Francis v Nassau Health Care Corp., 22 AD3d 715 [2d Dept 2005]).

Plaintiff has presented credible evidence of bank drafts being made out to the defendant that were deposited into the account of T.B. Plaintiff has further presented evidence that drafts were issued to T.B. for significant amounts of funds from known clients of the defendant's business. Defendant has not denied these deposits but implies in a most circumspect manner that the deposits in question relate to some form of loan repayment.

The request by the plaintiff to amend the complaint to include T.B. as a third party certainly has merit given the evidence thus far provided. The plaintiff has not only an excuse to amend the complaint, but it is a very reasonable excuse based on the financial transactions of T.B. In this matter that has been pending for more than five years and where there have been numerous allegations and questionable financial dealings, allowing the plaintiff to amend the complaint to include the proposed third party, T.B., would cause neither prejudice nor surprise.

Accordingly, plaintiff's request to amend the complaint to include the third party, T.B., is granted.{**81 Misc 3d at 950}

Plaintiff's request to vacate the pretrial conference date of August 17, 2023, is denied as moot.

Plaintiff's request to vacate the trial dates scheduled for September 28, 2023, and September 29, 2023, is denied as moot.

Plaintiff's request for defendant to pay interim counsel fees in the amount of $7,500.00 is referred to the trial court for determination.

Decretal Paragraphs

It is hereby ordered that the defendant's request for the court to vacate the order dated June 14, 2023, is granted only as pertaining to the appointment of XX Valuation and Consulting Services, Inc. to appraise the defendant's interest in XXXX, LLC, as owner operator of XXXX Food Group, and it is further

Ordered that the order of this court dated September 27, 2022, is vacated; and the court shall issue a separate order contemporaneously with this memorandum decision and order appointing a neutral forensic expert to be paid 100% by the defendant, subject to reallocation at trial, to appraise the defendant's interest in XXXX, LLC, as owner operator of [*9]XXXX Food Group; and it is further

Ordered that the defendant's request for the court to vacate the order dated June 14, 2023, is denied with prejudice; and it is further

Ordered that the defendant's request to compel the sale of the marital residence is referred to the trial court for determination; and it is further

Ordered that the defendant's request for a lifestyle analysis of the plaintiff is granted and the court shall issue a separate order contemporaneously with this memorandum decision and order appointing a neutral forensic expert to be paid 100% by the plaintiff, subject to reallocation at trial, to complete a lifestyle analysis of the plaintiff; and it is further

Ordered that plaintiff's request for sanctions against the defendant is denied with prejudice; and it is further

Ordered that the plaintiff's request for an appraisal of XXX of NY, Inc. is granted and the court shall issue a separate order{**81 Misc 3d at 951} contemporaneously with this memorandum decision and order appointing a neutral forensic expert to complete the appraisal of XXX of NY, Inc. and to be paid 40% by the plaintiff, subject to reallocation at trial, and 60% by the defendant, subject to reallocation at trial; and it is further

Ordered that the plaintiff's request to amend the complaint to include the third party, T.B., is granted; and it is further

Ordered that the complaint shall be amended to include third-party defendant T.B., within 20 days, or same shall be deemed waived, and service of same shall be effectuated pursuant to the CPLR. The caption shall be amended upon the filing of the amended complaint; and it is further

Ordered that the plaintiff's request to vacate the pretrial conference date of August 17, 2023, is denied as moot; and it is further

Ordered that the plaintiff's request to vacate the trial dates scheduled for September 28, 2023, and September 29, 2023, is denied as moot; and it is further

Ordered that the plaintiff's request for defendant to pay interim counsel fees in the amount of $7,500.00 is referred to the trial court for determination; and it is further

Ordered that the plaintiff is to serve a copy of this memorandum decision and order upon the defendant within 20 days; and it is further

Ordered that the Clerk of the Court shall enter judgment accordingly.