Supreme Court, Kings County, July 3, 2024

Krauss Shaknes Tallentire & Messeri LLP, New York City (Eric T. Saar of counsel), for defendant.

Jaspan Schlesinger Narendran, Garden City (Kara K. Miller of counsel), for plaintiff.

Matthew J. Kazansky, Brooklyn, Attorney for the Children.

This court must determine if Domestic Relations Law § 236 (B) (5) (d) (14), as amended on April 3, 2020, which requires the court to consider "whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts" when determining equitable distribution, permits subpoenaed nonparty discovery of a tracking device in a divorce action.

In the instant matter, the plaintiff wife subpoenaed the nonparty to produce records relating to a GPS tracking device that she alleges the defendant husband put or had caused to be put on her automobile, when there was an existing temporary order of protection that specifically provided that he refrain from: "remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, vehicle or property of [plaintiff] by connection to or through any means, including, but not limited to the internet, Bluetooth, a wire or wireless network or other wireless technology."

Upon the foregoing papers in this divorce action defendant husband moved by notice of motion (mot seq No. 8) dated February 20, 2024, seeking the following relief:

"1. Pursuant to CPLR § 2304, quashing the Subpoena Duces Tecum served upon [REDACTED], a non-party, on behalf of the Plaintiff, which directs [REDACTED] to produce various records to the office of Plaintiff's counsel (hereinafter the 'Subpoena');

"2. Pursuant to CPLR § 3103, granting the Defendant a protective order preventing [REDACTED], a non-party, from producing the requested records set forth in the Subpoena Duces Tecum prepared and served by the attorney for the Plaintiff;

"3. To the extent that Plaintiff and/or her counsel receive any records from the Subpoena, directing [Plaintiff] and her counsel to destroy all copies of said records;

"4. To the extent that any records are produced to the Court by the subpoenaed party that is the subject of this application, restraining the Plaintiff{**84 Misc 3d at 694} and her counsel from seeing, reviewing, and/or copying said records;

"5. Directing Plaintiff to pay Defendant the sum of $7,500.00 as an award of sanctions and/or counsel fees for Plaintiff's frivolous conduct; and

"6. Granting such other and further relief as this Court deems just and proper."

Plaintiff wife filed opposition dated February 28, 2024. Defendant husband, though provided an opportunity to do so, did not file a reply. Oral argument was held on March 1, 2024.

The parties were married on July 6, 2014. Plaintiff wife commenced this action for divorce on February 12, 2023 (NY St Cts Elec Filing [NYSCEF] Doc No. 1). Plaintiff is 31 years old: she owns a beauty services business which she avers she started in October 2022. Defendant is 38 years old and owns a dental practice where he works as a dentist. There are two children of the marriage, E.B., age seven; and El.B., age four. The plaintiff and the parties' children currently reside in the marital residence in Brooklyn.^[FN1] The issues of custody and parenting time as well as the financial issues between the parties are currently pending before this court. An attorney for the children was appointed by written order dated March 24, 2023 (NYSCEF Doc No. 28).

Temporary Order of Protection History

There is an extensive history of cross orders of protection between these parties: there have been temporary orders of protection issued by both Kings County Criminal Court and Kings County Family Court. When the Kings County Family Court proceeding was consolidated into this divorce action, on consent, by order dated March 22, 2023 (NYSCEF Doc No. 25), this court issued temporary orders of protection mirroring the existing temporary orders of protection issued by Family Court (NYSCEF Doc No. 26) (see Domestic Relations Law § 252).

Domestic Relations Law § 252 (1) provides:

"In an action for divorce, separation or annulment or in an action to declare the nullity of a void marriage in the supreme court, the supreme court or the family court shall entertain an application for{**84 Misc 3d at 695} an order of protection or temporary order of protection by either party. Such an order may require any party: . . .

"(i) (1) to refrain from remotely controlling any connected devices affecting the home, vehicle or property of the person protected by the order.

"(2) For purposes of this paragraph, 'connected device' shall mean any device, or other physical object that is capable of connecting to the internet, directly or indirectly, and that is assigned an internet protocol address or bluetooth address."

The initial temporary order of protection issued by this court that mirrored the order from Family Court provided that the defendant refrain from committing family/criminal offenses and "not impede the [plaintiff's] access to the common areas of the home" and also specified that the defendant "is not permitted to enter the room [plaintiff] currently uses as her bedroom." A temporary order of protection against the plaintiff in favor of the defendant was also issued by this court dated March 22, 2023 (NYSCEF Doc No. 27), on consent, ordering that plaintiff refrain from committing [*4]family/criminal offenses against the defendant.

Kings County Criminal Court Order Excluding Husband from Marital Residence

Subsequently, the defendant was excluded from the marital residence by a Kings County Criminal Court order, dated April 9, 2023, after he was arrested for allegedly violating the temporary order of protection. As part of that temporary order of protection, the Kings County Criminal Court expanded the terms to include that the defendant stay away from the plaintiff's home, school, business and place of employment and to refrain from committing family/criminal offenses.

On April 10, 2023, based on the new terms of the Kings County Criminal Court temporary order of protection, this court issued an updated temporary order of protection mirroring the new Kings County Criminal Court temporary order of protection.^[FN2]

On September 15, 2023, Kings County Criminal Court expanded the temporary order of protection in favor of plaintiff{**84 Misc 3d at 696} against defendant (NYSCEF Doc No. 22),^[FN3] inter alia, to include that the defendant "refrain from remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, vehicle or property of [plaintiff wife] by connecting through any means, including, but not limited to, the internet, Bluetooth, a wired or wireless network, or other wireless technology."

Plaintiff discovers a GPS tracking device on her automobile.

During the court appearance on February 7, 2024, plaintiff's counsel represented, on the record, that plaintiff discovered a tracking device under the rear bumper of her automobile and that she believes that the defendant placed it there in violation of the provision of the temporary order of protection that was issued by Kings County Criminal Court which prohibited defendant from inter alia monitoring or tracking her movements through any means, including technology (NYSCEF Doc No. 298; tr Feb. 7, 2024 at 11, lines 11-18). Plaintiff's counsel represented that the tracking device was turned over to the police and that an investigation is ongoing. Plaintiff's counsel represented that the tracking device had a dedicated IMEI (international mobile equipment identity) number (XXXXXXXXXXX4309) to allow the person or persons who are using the device to monitor the plaintiff to remotely collect the information and, as such, the IMEI information can be traced: counsel contends that tracing this information will show if defendant was involved with the tracking device or whether he may have control over whomever placed the device for him.

Defendant, through counsel on the record, maintains his position that plaintiff's allegation related to the tracking device is, in effect, a vindictive maneuver made after the Kings County District Attorney's Office declined to prosecute her prior allegations that he was stalking her and that he had made verbal threats by telephone in violation of an order of protection.^[FN4] Defendant's counsel has maintained on the record and in her submissions that this allegation by plaintiff that defendant was involved in the tracking device is designed solely to harass him.{**84 Misc 3d at 697}

The Subpoena

On February 8, 2024, plaintiff's counsel issued and served a subpoena on [REDACTED] (hereinafter referred to as the tracking device company), the nonparty company associated with the tracking device. That subpoena called for production of the following information limited to the specific IMEI number XXXXXXXXXXX4309 associated only with the tracking device plaintiff found on her automobile:

"Any and all IP addresses and/or email address used to connect to the services of [REDACTED] (or [REDACTED] that access the device), identifying all users accessing the device;

"Account data for any user of the device including, without limitation, credit card or other payment forms, email addresses, usernames, passwords and/or any other information which may or may not help identify the users of the device or those funding the use of the device;

"All user data for any user that has accessed the device;

"Any and all information relating to other users accounts associated with those who have accessed or used this device including, without limitation, any other devices with different IMEIs used previously or concurrently by those associated to the instant device.

"Any and all logs including, without limitation, all dates and times the users of the device have accessed the service, what they were accessing, and for how long and all data that has been logged by users including coordinated and times."

Plaintiff served a copy of the subpoena on defendant's counsel by email on February 12, 2024. On February 20, 2024, defendant filed a motion to quash the subpoena. The subpoenaed records were provided to plaintiff's counsel by the tracking device company after the motion to quash was filed. Plaintiff's counsel provided a copy of the subpoenaed records to defendant's counsel on February 23, 2024, approximately three days after she filed the motion to quash. On the record, plaintiff's counsel represented that because of the motion to quash he did not review the subpoenaed records prior to providing them to defendant's counsel. Defendant's counsel acknowledged on the record on March 1, 2024, receipt of the subpoenaed records and acknowledged that she [*6]reviewed the subpoenaed records; she{**84 Misc 3d at 698} did not disclose whether she has shown the subpoenaed records to the defendant.

Defendant claims through counsel that the tracking device is not his.

On February 7, 2024, after being confronted with the accusation of placing a tracking device on plaintiff's vehicle, defendant did not admit or deny any involvement in the placement of the tracking device. Defendant through counsel represented "that any time and every time [plaintiff] seeks to rachet up the conflict in the case she makes allegations of a criminal nature against my client and when she sees an outcome that she's not happy with, these allegations are instituted." (NYSCEF Doc No. 298; tr Feb. 7, 2024 at 21-22.)

Defendant's counsel, who appears to be the only person related to this action who has seen the subpoenaed records at this time, continues to object to the subpoenaed records being allowed in this litigation claiming that to allow the plaintiff to see the subpoenaed records could potentially subject personal information of nonparties to "two counsel and two parties and potentially a Court that they have no involvement with" (NYSCEF Doc No. 299; tr Mar. 1, 2024 at 41, lines 1-4). While positing that the subpoenaed records should not be allowed because they "could potentially" include nonparty information, the defendant has not affirmatively asserted under oath that he had no involvement with the tracking device. Despite having an opportunity to do so, defendant himself did not file an affidavit of facts in support of the motion to quash the subpoena or assert any affirmative denial of any involvement with the tracking device; however, on the record on March 1, 2024, defendant's counsel, with defendant standing next to her, denied that the tracking device belongs to defendant (NYSCEF Doc No. 299; tr Mar. 1, 2024 at 40, line 25 ["this device that I maintain is not my client's" (emphasis added)]).

Defendant's Claim That Subpoena was Not Served Timely

CPLR 3120 (3) provides:

"The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve a copy of the subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each party notice that the items produced in response thereto are available for inspection and copying, specifying the time and place thereof."

{**84 Misc 3d at 699}This procedure is in place to allow a party to move for a protective order pursuant to CPLR 3103 (a) or to move to quash the subpoena pursuant to CPLR 2304 in advance of the actual production of discovery responsive to a nonparty subpoena (see Patrick M. Connors, Prac Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3120:12 at 231 [2005 ed]).

Defendant's counsel alleges that she was first notified of the subpoena by email on Monday, February 12, 2024, at 7:25 p.m. (NYSCEF Doc No. 242). The subject subpoena to the nonparty contains no affidavit of service but it is dated Thursday, February 8, 2024, and indicates that it would be mailed to defendant's counsel's office address and to the tracking device company. Defendant's counsel contends that this does not constitute [*7]service on her "at the same time" as service on the nonparty and that the subpoena is procedurally defective and should be quashed.

CPLR 2103 (b) (2) provides for service of papers upon an attorney by mail and the timing thereof:

"mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address; service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period if the mailing is made within the state and six days if the mailing is made from outside the state but within the geographic boundaries of the United States" (emphasis added).

It is undisputed that plaintiff mailed the subpoena to defendant: by mailing the subpoena to the defendant's attorney there was compliance with CPLR 3120 (3). It is also undisputed that plaintiff's counsel took the additional step of notifying defendant's counsel by email providing her earlier notice than she would have received had it only been sent by regular mail. As such, it appears that plaintiff provided more than sufficient notice to defendant's counsel than even required by the statute and that defendant was in no way prejudiced by this additional and early notice of the proposed subpoena.

Plaintiff's Claim That Defendant was Required to Seek Withdrawal of Subpoena Prior to Filing a Motion to Quash

Plaintiff contends that defendant failed to comply with the strict conditions of CPLR 2304, which requires the party opposing{**84 Misc 3d at 700} a subpoena to request that the issuer of the subpoena withdraw or modify the subpoena prior to bringing a motion to quash. Defendant's counsel contends that she was unable to serve a letter requesting that plaintiff withdraw the subpoena as required by law because she was served with the subpoena after it was served on the nonparty: the subpoena was served on defendant's counsel, by email, on February 12, 2024, but served on the nonparty on February 8, 2024.

CPLR 2304 provides in relevant part: "If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the supreme court."

CPLR 2304 refers to when a nonjudicial subpoena is not issued during litigation such as when a subpoena is issued during an administrative proceeding (see Irizarry v New York City Police Dept., 260 AD2d 269, 271 [1st Dept 1999]). It is undisputed that defendant's counsel did not request that the issued subpoena be withdrawn or modified prior to making the instant application to quash the subject subpoena; however, the subpoena here was issued during litigation and therefore defendant was not required to [*8]request that plaintiff withdraw the subpoena before filing to quash the subpoena.

Defendant's Claim That Plaintiff Failed to File an Affirmation of Good Faith in Attempt to Resolve the Relief Requested

Plaintiff's counsel also argues that defendant's counsel did not comply with the strict conditions of 22 NYCRR 202.7 (a), which requires counsel to submit "an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion" if the motion relates to discovery. Such affirmation "shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions" (see 22 NYCRR 202.7 [c]). "The purpose of this rule is 'to avoid the unnecessary expenditure of limited judicial resources' in circumstances 'where the attorneys for the parties could resolve . . . the issues that would be raised in a motion [through constructive dialogue]' " (Anuchina v Marine Transp. Logistics, Inc., 216 AD3d 1126, 1128 [2d Dept 2023]). Where the discovery dispute could not be resolved without court intervention, courts have excused failure to comply with 22 NYCRR 202.7 (a). (See Moran v Grand Slam Ventures, LLC, 221 AD3d 994, 996 [2d Dept 2023]; Capacity Group of NY, LLC v Duni, 186 AD3d 1482, 1483 [2d Dept 2020]; Baulieu v Ardsley Assoc. L.P., 84 AD3d 666 [1st Dept{**84 Misc 3d at 701} 2011]; Northern Leasing Sys., Inc. v Estate of Turner, 82 AD3d 490 [1st Dept 2011]; Carrasquillo v Netsloh Realty Corp., 279 AD2d 334, 334 [1st Dept 2001]; see also Loeb v Assara N.Y. I L.P., 118 AD3d 457, 458 [1st Dept 2014] [The Court found that even though plaintiff's motion papers were technically noncompliant with 22 NYCRR 202.7 (c), the record established that plaintiff's counsel attempted on numerous occasions, both in and out of court, to resolve the outstanding discovery issues with defendants before filing the motion to strike the answer. The Court concluded that "any further attempt to resolve the dispute nonjudicially would have been futile"].)

In the case at bar, defendant's counsel did not submit an affirmation that she conferred with opposing counsel in good faith to resolve the motion to quash; however, contrary to plaintiff's contentions, it is not, under the facts and circumstances presented, fatally defective for defendant not to submit an attorney's affirmation attesting to a good-faith pre-motion attempt to resolve the dispute with the plaintiff. Prior to serving the subpoena, on the record on February 7, 2024, plaintiff represented that she believed defendant placed the tracking device on her automobile and defendant represented on the record through counsel that plaintiff's accusation is just another litigation tactic intended to harass him. In the case at bar, for the court to require an attorney's affirmation, under these circumstances where both parties have made explicit representations in open court on the record as to their entrenched positions related to this issue, would only force the parties to incur additional counsel fees.

Plaintiff's Claim That Defendant Lacks Standing to Move to Quash Nonparty Subpoena

CPLR 2304, which governs motions to quash, provides in relevant part:

"A motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable. If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the supreme court . . . Reasonable conditions may be imposed upon the granting or denial of a motion to quash or modify."

Plaintiff contends that the defendant does not have standing to move to quash the subject nonparty subpoena. "A motion to {**84 Misc 3d at 702}quash may be made on behalf of a non-party witness by the witness or the witness' lawyer, or by one of the parties or a party's lawyer" (McDaid v Semegran, 16 Misc 3d 1102[A], 2007 NY Slip Op 51227[U], *3 [Sup Ct, Nassau County 2007]; see also Connors, Prac Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3103:1 at 94; Matter of MacLeman, 9 Misc 3d 1119[A], 2005 NY Slip Op 51675[U] [Sur Ct, Westchester County 2005], citing Siegel, Prac Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2304:1 at 274-275 [1991 ed]; see also Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d 186, 195 [2d Dept 2013] [The court held that Hyatt had standing to challenge the subpoenas because he has a propriety interest as the owner of the intellectual property consisting of his patents. The court also determined that Hyatt has standing as a party in the underlying tax proceeding]). Similarly, in this action, as a party in this action, defendant husband has standing to seek a protective order related to a nonparty. As such, the court does not adopt the plaintiff's position that defendant has no standing to move to quash the subpoena.

Notice Requirement of CPLR 3101 (a) (4)

Defendant contends that the subpoena is facially defective because it does not comply with CPLR 3101 (a) (4) which provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: . . . any other person, upon notice stating the circumstances or reasons such disclosure is sought or required."

Defendant argues that because the tracking device company is a nonparty in this action, any subpoena must provide a detailed description of the circumstances for which disclosure is sought or required and that the subject subpoena that was served does not delineate with specificity the reason why the information is sought.

"Pursuant to CPLR 3101 (a) (4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure" (Bianchi v Galster Mgt. Corp., 131 AD3d 558, 559 [2d Dept 2015]). "The notice requirement of CPLR 3101 (a) (4) 'obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, "the circumstances or reasons such disclosure is sought or required" ' " (id.; Matter of Kapon v Koch, 23 NY3d 32, 39 [2014], quoting CPLR 3101 [a] [4]; see Velez v Hunts [*10]Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 111 [1st Dept 2006]).{**84 Misc 3d at 703}

Contrary to defendant's contention, the court finds that plaintiff satisfied the notice requirement. On the subpoena to the nonparty, dated February 8, 2024, it states that the reasons or circumstances for seeking or requiring disclosure is that "we believe you have information material and relevant to the legal issues in the above-captioned action." Given the inherent confidential nature of matrimonial actions, for privacy reasons it would not be appropriate to list details about the parties' matrimonial action, including the allegations here of one spouse tracking another. (See generally Domestic Relations Law § 235.)

Additionally, the nonparty did not object to the notice provided in the subpoena and provided the requested disclosure; therefore, the notice requirement is in effect waived. (See Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 111 [1st Dept 2006].)

Defendant's Claim That Subpoenaed Information is Not Relevant

Defendant maintains that the tracking device and the requested records are irrelevant to this matrimonial litigation, so it is impermissible for plaintiff to use a nonparty subpoena issued in this litigation to obtain discovery related to the tracking device, and contends that the subpoena is a "fishing expedition" and serves no purpose but to harass the defendant. Defendant's counsel maintains that this is an attempt by plaintiff to "rachet up," what she characterizes as, an "already very contentious, heated litigation" (tr Mar. 1, 2024 at 33, lines 13-14). Defendant's counsel contends that plaintiff has made numerous criminal complaints against the defendant which her client maintains were all meritless so, she contends, this one is also meritless.

Defendant maintains that the subpoena does not "demonstrate, describe, or even suggest a relationship between the non-party and/or the device for which underlying records are sought and the litigation and/or the [d]efendant." (NYSCEF Doc No. 240 at 2.) Defendant's counsel argues that identifying the device by the IMEI number does not correlate it to the defendant and maintains that because the nonparty is a "nationwide company," it is unclear "how many people have been provided this exact tracking device by this nationwide company over what period of time the company's been in existence." (Tr Mar. 1, 2024 at 40, lines 17-19.) Defendant did not address{**84 Misc 3d at 704} how this argument relates to the subpoena issued inasmuch as the subpoena specifically limits production of information limited to the user or users with access to the tracking information linked to the specific coded device placed on plaintiff's automobile and does not call for production of information linked to any other tracking device(s) or any other IMEI numbers.

Plaintiff disputes defendant's claim that the information related to the tracking device is not relevant to this matrimonial action; she contends that if defendant violated the terms of the temporary order of protection by using a tracking device—or caused someone else to place it—to monitor her it is an act of domestic violence as defined by section 459-a of the Social Services Law and acts of domestic violence are specific enumerated factors that the court is required to consider in determining awards of equitable distribution and/or maintenance (see Domestic Relations Law § 236 [B] [5] [d] [14]; see also Domestic Relations Law § [*11]236 [B] [6] [e]). This is particularly relevant here, plaintiff contends, where there was a temporary order of protection in place specifically providing that defendant refrain from: "remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, vehicle or property of [plaintiff] by connection to or through any means, including, but not limited to the Internet, [B]luetooth, a wireless network or other wireless technology." (Tr Mar. 1, 2024 at 35, lines 19-24 [emphasis added].)

"A subpoena duces tecum may not be used for the purpose of general discovery or to ascertain the existence of evidence. Rather, the purpose of a subpoena duces tecum is 'to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding' " (Fugazy v Fugazy, 210 AD3d 653, 657 [2d Dept 2022]; Capacity Group of NY, LLC v Duni, 186 AD3d 1482, 1483 [2d Dept 2020]; Matter of Terry D., 81 NY2d 1042, 1044 [1993]).

The New York Court of Appeals held in the seminal case of Matter of Kapon v Koch (23 NY3d at 39) that it is the party or nonparty moving to vacate the subpoena who has the initial burden of establishing either that the information sought is "utterly irrelevant" to the action or that "the futility of the process to uncover anything legitimate is inevitable or obvious" (Matter of Kapon v Koch, 23 NY3d 32, 38-39 [2014]; see{**84 Misc 3d at 705} Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331 [1988]; Ferolito v Arizona Beverages USA, LLC, 119 AD3d 642, 643 [2d Dept 2014]; Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 201; Velez v Hunts Point Multi-Serv. Ctr., Inc.; see New Hampshire Ins. Co. v Varda, Inc., 261 AD2d 135 [1st Dept 1999]; Matter of Reuters Ltd. v Dow Jones Telerate, 231 AD2d 337, 341 [1st Dept 1997]; Ayubo v Eastman Kodak Co., 158 AD2d 641, 642 [2d Dept 1990]).

The Court concluded that "the subpoenaing party's notice obligation was never intended by the legislature to shift the burden of proof on a motion to quash from a nonparty to the subpoenaing party" (Matter of Kapon v Koch, 23 NY3d at 39). Therefore, once "the subpoenaing party has established compliance with the CPLR 3101 (a) (4) notice requirement, disclosure from a nonparty requires no more than a showing that the requested information is relevant to the prosecution or defense of the action" (Bianchi v Galster Mgt. Corp., 131 AD3d 558, 559 [2d Dept 2015]; see Matter of Kapon v Koch, 23 NY3d at 38; Ferolito v Arizona Beverages USA, LLC, 119 AD3d 642, 643 [2d Dept 2014]).

Contrary to defendant's position it is not plaintiff's burden to establish that the requested disclosure is material and necessary; rather, once plaintiff established that she provided the nonparty with adequate notice of the circumstances or reason requiring the disclosure, which the court finds she did, the burden shifted to defendant to establish that the disclosure sought was irrelevant to the instant action. The court finds that based upon the facts and circumstances herein, the defendant failed to show that the requested information sought from the nonparty is "utterly irrelevant" (see DiBuono v Abbey, [*12]LLC, 163 AD3d 524, 525 [2d Dept 2018]). Defendant's self-serving proclamation that the information requested from the nonparty is a "fishing expedition" is insufficient to establish that as a legal reality.

Additionally, defendant argued that if law enforcement authorities believed that there was a correlation between the defendant and the tracking device, they would take steps to secure the information and, therefore, plaintiff should not be permitted to obtain any information related to the device directly through subpoena in this divorce. The court rejects defendant's contentions that the records demanded under the subpoena are solely a matter only for law enforcement and{**84 Misc 3d at 706} that the records have no bearing on any issues in this divorce action.

Unauthorized Tracking of a Person's Movements

Under Penal Law § 120.45 (2),^[FN5] "the unauthorized tracking of such person's movements or location through the use of a global positioning system or other device" is considered stalking in the fourth degree.^[FN6] The court notes that even if the District Attorney allegedly declined to prosecute, the plaintiff may still seek the information in a separate civil proceeding. A violation of the penal code is often the basis for a civil order of protection in a Family Court or matrimonial proceeding. "In 1994 the Legislature enacted the Family Protection and Domestic Violence Intervention Act to help ensure that victims of family offenses receive 'the fullest protections of our civil and criminal laws' " (Matter of Kampa v Kampa, 268 AD2d 432, 433 [2d Dept 2000]). Therefore, if an act would constitute a basis for a civil order of protection it certainly would constitute a basis, if proven, to consider in maintenance and equitable distribution due to the amendments to the statute. (See again Domestic Relations Law § 236 [B] [5] [d] [14]; see also Domestic Relations Law § 236 [B] [6] [e].)^[FN7]

As detailed hereinbelow, consideration of domestic violence impacts the court's determination of issues of equitable distribution and maintenance as well as issues of custody and parenting time and is therefore well within the general compulsory disclosure provisions of the Domestic Relations Law as detailed below.{**84 Misc 3d at 707}

Domestic Violence: Equitable Distribution

In determining equitable distribution, the court is required to consider 14 specific factors and may take into account any other factor the court finds just and proper (see Domestic Relations Law § 236 [B] [5] [d]). The court notes that in recognizing the serious impact of domestic violence the Legislature amended Domestic Relations Law § 236 (B) (5) (d) (14), as of April 2020, to add that domestic violence, as enumerated in section 459-a of the Social Services Law,^[FN8] is a factor that courts "shall" consider when determining equitable distribution.

Domestic Relations Law § 236 (B) (5) (d) (14) provides: "whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts."

Since this court must consider the effects of any domestic violence when determining equitable distribution, the information requested from the nonparty, based on the allegations presented and the facts presented, is relevant. Equitable distribution is an issue that this court must determine in this contested divorce action: as such, plaintiff has established the relevance of the discovery sought in relation to her claim for equitable distribution.

Domestic Violence: A Factor the Court May Consider in Maintenance

Spousal maintenance is also an issue that this court must determine in this contested divorce action. The court notes that issues of domestic violence may be considered as a deviation{**84 Misc 3d at 708} factor in awarding maintenance beyond the calculated guideline amount.

Domestic Relations Law § 236 (B) (6) (e) provides that the court shall order the post-divorce maintenance guideline obligation up to the income cap, unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate. Such finding shall be based upon consideration of any one or more of the 15 enumerated factors, and adjusts the post-divorce maintenance guideline obligation accordingly based upon such consideration. Factor (g) provides consideration for "acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law." (See Domestic Relations Law § 236 [B] [6] [e] [1] [g].) As such, plaintiff has established the relevance of the discovery sought in relation to her claim for spousal support.

Domestic Violence: Awarding Custody and Visitation

Additionally, where there are allegations that a party had committed an act of domestic violence, the court is mandated to consider the effect of such domestic violence upon the best interest of the child when awarding custody or visitation (see Domestic Relations Law § 240 [1] [a]; Matter of Wissink v Wissink, 301 AD2d 36, 39 [2d Dept 2002]; Bressler v Bressler, 122 AD3d 659, 660 [2d Dept 2014]).

Protective Order: Material and Necessary

Defendant contends that the court should issue a protective order denying plaintiff's use of the nonparty subpoena arguing that even if the court determines that the discovery sought from the nonparty is material and necessary, the court should limit the scope of the discovery because the subpoena seeks information related to a device which plaintiff has not shown has a connection to the instant matrimonial proceeding or to the defendant. He contends that the subpoena does not limit itself to records related to the parties and argues that the subpoena seeks information "pertaining to any and all persons who may have used the device, whether or not they ar[e] parties to this action." (NYSCEF Doc No. 240 at 7.) Defendant maintains that the nonparty is a nationwide organization and if the court does not limit the scope of the subpoena, it may return discovery revealing personal information of nonparties. Plaintiff, in effect, contends that she must have the discovery as requested to{**84 Misc 3d at 709} know whether defendant put or had someone else put the tracking device on her automobile.

CPLR 3103 (a) provides that

"[t]he court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."

" 'It is a fundamental principle in civil litigation that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." ' However, a ' "party is not entitled to unlimited, uncontrolled, unfettered disclosure, and the [*14]supervision of discovery is generally left to the trial court's broad discretion" ' " (Kopelevich & Feldsherova, P.C. v Geller Law Group, P.C., 222 AD3d 956, 957-958 [2d Dept 2023] [citations omitted]).

The words, "material and necessary," are to be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).

Courts have determined that the "material and necessary" standard includes not only relevant evidence, but also discovery of matters "reasonably calculated to lead to the discovery of information bearing on the claims." (Foster v Herbert Slepoy Corp., 74 AD3d 1139, 1140 [2d Dept 2010]; H.R. Prince, Inc. v Elite Envtl. Sys., Inc., 107 AD3d 850, 850 [2d Dept 2013]; Cronin v Gramercy Five Assoc., 233 AD2d 263 [1st Dept 1996].) This court finds that plaintiff's opposition papers sufficiently articulated the need for the discovery sought (see Alumil Fabrication, Inc. v F.A. Alpine Window Mfg. Corp., 151 AD3d 667, 668 [2d Dept 2017]).

"For a protective order to be issued, the party seeking such an order must make a 'factual showing of "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice" ' " (Nunez v Peikarian, 208 AD3d 670, 671 [2d Dept 2022]). "In determining whether to issue a protective order, the court must balance the 'competing interests of the parties and {**84 Misc 3d at 710}the truth-finding goal of the discovery process' " (Gonzalo v Fragomeni, 221 AD3d 586, 587 [2d Dept 2023]; Nunez v Peikarian, 208 AD3d at 671).

Here, defendant failed to make the requisite showing pursuant to CPLR 3103 (a) to warrant the issuance of a protective order. Defendant unwaveringly maintains that there is no connection between him and the device described in the subpoena; as such, defendant cannot also assert that any information related to the device will cause "unreasonable annoyance, expense, embarrassment, disadvantage, or prejudice" (emphasis added) to him. If defendant had nothing to do with the tracking device, then these records should pose no prejudice to him: defendant has failed to establish that he is entitled to a protective order and that application is denied. Furthermore, based on the statutory and case law, the issue of domestic violence is one that is certainly material and necessary to the issues before the court.

The court notes that given the allegations, it appears that defendant, who denies placement of the tracking device through his counsel, would also want to obtain these subpoenaed records to support his claim that he had no responsibility or association with the tracking device allegedly found on plaintiff's automobile and inasmuch as it is presumably an automobile in which the parties' children are transported. It appears that both parties—given their respective claims—have an interest in obtaining these records which they both contend will vindicate their claims.

Moreover, the court notes that pursuant to Domestic Relations Law § 236 (B) (4) "[i]n all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states." (See [*15]generally Jaffe v Jaffe, 91 AD3d 551, 553 [1st Dept 2012] [In a divorce action, "(b)road pretrial disclosure which enables both spouses to obtain necessary information regarding the value and nature of the marital assets is critical if the trial court is to properly distribute the marital assets"], quoting Kaye v Kaye, 102 AD2d 682, 686 [2d Dept 1984].) The court notes that although the information requested from the nonparty does not directly relate to the parties' financial state, inasmuch as the information relates to necessary and material information that the court must consider when determining equitable distribution (especially since the amendment to Domestic Relations Law § 236 [B] [5] [d] [14]), maintenance disclosure is necessary.{**84 Misc 3d at 711}

Protective Order: Defendant's Claim that Subpoena is Overly Broad

Plaintiff argues that the subpoena is already limited in scope as it only seeks information relating to the 15-digit IMEI number assigned to the specific device she allegedly found attached to her automobile not, as defendant contends, to all tracking devices that the nonparty may have records for so there is no risk that the subpoena will return endless personal information for people all over the nation.

When "discovery demands are palpably improper in that they are overbroad, lack specificity, or seek irrelevant or confidential information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Matter of Cheryl LaBella Hoppenstein 2005 Trust, 186 AD3d 1230, 1233 [2d Dept 2020]; Star Auto Sales of Queens, LLC v Filardo, 216 AD3d 839, 840 [2d Dept 2023]; H.R. Prince, Inc. v Elite Envtl. Sys., Inc., 107 AD3d at 850; JPMorgan Chase Bank, N.A. v Levenson, 149 AD3d 1053, 1054 [2d Dept 2017]; Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621 [2d Dept 2005]).

The court does not find that the subject subpoena is overbroad or unduly burdensome. The information subpoenaed from the nonparty is specifically limited to the information relating to one device bearing IMEI number XXXXXXXXXXX4309 allegedly found on the plaintiff's vehicle and is clearly not a "fishing expedition."

Defendant's Request for Sanctions against Plaintiff

Defendant seeks sanctions against plaintiff in the amount of $7,500.00 pursuant to 22 NYCRR 130-1.1 arguing that the subpoena was issued only to harass him and that there is no meritorious basis in law for plaintiff to seek this discovery. Defendant maintains that a considerable amount of time was spent preparing this written application and additional time will be spent reviewing the opposition filed by the plaintiff and responding to same.

Plaintiff contends that no award of sanctions is appropriate because the subpoena seeks production of information directly related to the financial issues of equitable distribution and maintenance which are before the court in this litigation. Plaintiff also requests in her opposition to the motion to quash that the court consider imposing sanctions on defendant for allegedly bringing a frivolous application to quash the subpoena.

22 NYCRR 130-1.1 (a) in pertinent part provides, a court in its discretion may [*16]impose financial sanctions upon any party or {**84 Misc 3d at 712}attorney in a civil action or proceeding who engages in frivolous conduct. (See 22 NYCRR 130-1.1 [a]; Finkelman v SBRE, LLC, 71 AD3d 1081, 1081-1082 [2d Dept 2010].) Conduct is considered frivolous if

"(1) it is completely without merit in law and cannot be supported by a reasonable argument for an 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." (22 NYCRR 130-1.1 [c] [1], [2], [3]; Glenn v Annunziata, 53 AD3d 565, 566 [2d Dept 2008]; Ofman v Campos, 12 AD3d 581, 582 [2d Dept 2004].)

"In making that determination, the court must consider 'the circumstances under which the conduct took place' and 'whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent' " (Glenn v Annunziata, 53 AD3d at 566, quoting 22 NYCRR 130-1.1 [c]). Here, neither side has demonstrated that the other's conduct rose to the egregious level of frivolous within the meaning of 22 NYCRR 130-1.1.

Defendant's motion to quash the subject subpoena and the application for a protective order (mot seq No. 8) is denied.

The records received from the nonparty may be reviewed and utilized by either side and shall be forwarded by plaintiff's counsel to the attorney for the children.

Any relief requested but not granted above is denied.

"A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct . . . causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person . . . , and the actor was previously clearly informed to cease that conduct . . . . For the purposes of subdivision two[, the term] 'following' shall include the unauthorized tracking of such person's movements or location through the use of a global positioning system or other device." (Penal Law § 120.45 [2].)

"any person over the age of sixteen, any married person or any parent accompanied by his or her minor child or children in situations in which such person or such person's child is a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, strangulation, identity theft, grand larceny or coercion; and

"(i) such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person's child; and

"(ii) such act or acts are or are alleged to have been committed by a family or household member."