Statement Pursuant to CPLR § 2219

The following e-filed documents listed on NYSCEF (Motion No. 012) numbered 325-336, 375-394, 413-418; and (Motion No. 013) numbered 354-369, 395-402, 419-439 were read on these motions. This is a final Decision and Order on Motion Sequence No. 012 and Motion Sequence No. 014.

In Motion Sequence No. 012, wherein the Defendant, ES, by Notice of Motion dated March 6, 2025, seeks pendente lite relief pursuant to Domestic Relations Law § 237 [a]. Specifically, Defendant requests (i) an award of interim counsel fees in the amount of $270,000.00; (ii) a directive compelling Plaintiff to pay a trial retainer on Defendant's behalf in the amount of $75,000.00; and (iii) a directive compelling Plaintiff to pay 100% of the costs of the trial testimony of the custody forensic evaluator, the business valuation expert, and both attorneys for the children. Plaintiff, NS, appears in opposition.

In Motion Sequence No. 014, wherein the Plaintiff, NS, by Notice of Cross-Motion, seeks (a) the denial of Defendant's application for interim counsel fees in the amount of $270,000.00; (b) the denial of Defendant's application for Plaintiff to pay a trial retainer on Defendant's behalf in the amount of $75,000.00; (c) the denial of Defendant's application for a directive compelling Plaintiff to pay 100% of the costs of the custody forensic evaluator; (d) the denial of Defendant's application for a directive compelling Plaintiff to pay 100% of the costs of the trial testimony of the business forensic evaluator; and (e) the denial of Defendant's application for a directive compelling Plaintiff to pay 100% of the costs of both attorneys for the children.

Plaintiff further seeks (f) Plaintiff to pay pendente lite counsel fees in the amount of $64,622.14; (g) Defendant to pay pendente lite $50,000.00 to Plaintiff for a new counsel or co-counsel retainer; (h) the Defendant to pay pendente lite $14,622.24 to the Law Offices of Mangi & Graham, LLP; and (i) Dr. Yohananoff, forensic psychologist, to provide Plaintiff with a full written report.

A copy of the forensic report by Dr. Yohananoff has been provided to Plaintiff's counsel on May 23, 2025, rendering prong (i) of Plaintiff's Motion Sequence No. 014 moot.

Having fully reviewed the voluminous submissions, affirmations, financial disclosures, deposition excerpts, forensic reports, and tax documentation, and upon due deliberation, the Court renders the following:

The parties were married on XX X, 2008. Their marital union produced three children: CHILD#1 (b. XX/XX/2011), CHILD#2 (b. XX/XX/2014), and CHILD#3 (b. XX/XX/2016). This matrimonial action was initiated by the Plaintiff on November 7, 2022, under the auspices of Domestic Relations Law § 170 [7], asserting an irretrievable breakdown in the marital relationship.

At the inception of these proceedings, the parties purportedly intended to proceed amicably through collaborative law. That aspiration, however, swiftly eroded following disagreements over residential arrangements. In December 2022, Plaintiff obtained a temporary Order of Protection, which precipitated a pivot from collaborative resolution to intensive litigation. Since that time, the record evinces that the litigation has been marred by obfuscatory conduct, conflicting narratives regarding income, extensive discovery disputes, and contentious custody dynamics.

Defendant asserts that he has incurred counsel fees and litigation expenses in excess of $332,000.00, excluding trial-related costs. His legal representation has changed twice during this period, with the current counsel of record being the Law Offices of Francine Pickett Cohen, LLC. Defendant's legal expenditures span multiple law firms, forensic experts, child representatives, appraisers, and deposition costs.

Defendant attributes the inflation of his legal costs to Plaintiff's deliberate litigation strategy, which, he contends, is designed to weaponize her superior financial position. Among the conduct alleged are: failure to produce complete tax returns; submission of misleading financial disclosures; filing and pursuing of protective orders later rendered unnecessary or baseless; unilateral interference in parenting access; opposition to reunification therapy; and submission of privileged recordings to third-party evaluators without consent.

Defendant further contends that Plaintiff has deliberately underreported her income while simultaneously paying personal and litigation expenses from business funds, thus distorting the economic landscape of the litigation. Plaintiff owns and operates two dental practices—Practice No. 1 and Practice No. 2—both of which are situated in properties owned or co-owned during the marriage. The business valuation conducted by KLG Business Valuators indicated that Plaintiff's adjusted income from Practice No. 1 alone exceeded $581,000.00, even as she reported only $435,000.00 on her W-2.

By contrast, Defendant, a W-2 wage earner, reported gross income of approximately $289,636.00 in 2023 and $272,202.00 in 2024. He also receives marginal net income from rental properties, including assets held in a self-directed IRA. Defendant has submitted that he was compelled to withdraw from his retirement accounts and encumber pre-marital assets in order to fund his defense, leading to a debt accrual exceeding $300,000.00 and incurrence of additional tax liabilities.

Plaintiff, in opposition, asserts that she is in fact the less monied spouse, citing Defendant's purported adjusted gross income of over $400,000.00 when inclusive of rental receipts and depreciation offsets. She disputes the reliability of the KLG report, contending that it reflects post-COVID recovery rather than consistent income. She maintains that her 2023 adjusted gross income was approximately $275,000 and insists that her ability to fund ongoing litigation has been severely compromised, citing outstanding obligations of over $65,000 and loss of legal counsel due to inability to fund retainers.

Plaintiff also challenges the necessity and scale of Defendant's legal expenditures, branding them as excessive and avoidable. She accuses Defendant of failing to comply with prior financial orders, of violating automatic orders by liquidating retirement accounts, and of obstructionist conduct in both discovery and custody matters.

Domestic Relations Law § 237 [a] governs interim awards of counsel fees in matrimonial litigation. It vests the trial court with discretion to direct one spouse to pay counsel fees on behalf [*2]of the other, "to enable the other party to carry on or defend the action." The statute was amended in 2010 to create a rebuttable presumption that counsel fees should be awarded to the less monied spouse, to ensure meaningful access to representation and parity of litigation power.

In exercising this discretion, the Court is obligated to consider the financial circumstances of the parties, the relative merits of their respective claims, the complexity of the litigation, and whether either party has unnecessarily delayed or protracted the proceedings. See O'Shea v O'Shea, 93 NY2d 187 [1999]; Prichep v Prichep, 52 AD3d 61 [2d Dept 2008].

The policy underlying § 237 is remedial: to correct economic imbalance and to ensure that one party's superior access to funds does not leverage unjust advantage in litigation. The remedy is designed to be prophylactic and not punitive, recognizing that unchecked financial disparity can undermine the fairness of judicial proceedings.

Upon a detailed examination of the record, this Court concludes that Defendant has met his burden to establish that he is, in fact, the less monied spouse for purposes of this application. The evidence before the Court reveals a significant disparity between the parties' financial positions. While Defendant's gross W-2 income is not insubstantial, Plaintiff's actual earnings, as revealed through forensic analysis and admissions at deposition, demonstrate far greater economic access. The KLG valuation of her Staten Island practice alone far exceeds her reported earnings, and Plaintiff acknowledged the use of gross business revenues to cover personal and litigation expenses—an option unavailable to Defendant, who has had to incur debt and liquidate retirement funds to stay engaged in this litigation.

Plaintiff's assertion that she is financially constrained is undermined by her documented payment of hundreds of thousands of dollars in litigation expenses and her access to business revenues not reported as personal income. Moreover, her failure to produce tax returns post-2021, despite demands, is a factor the Court weighs heavily in determining her credibility and the completeness of her disclosures.

The record further supports the conclusion that Plaintiff has engaged in a pattern of conduct that has unnecessarily increased litigation costs. These actions include but are not limited to: failure to comply with discovery obligations; improper submission of confidential marital counseling recordings; interference with court-appointed experts; and serial substitution of counsel. Such conduct has materially increased the burden on Defendant, who has been compelled to respond to a series of unnecessary motions and procedural maneuvers.

The scope and nature of the anticipated trial—including issues of custody, multiple expert witnesses, and complex financial questions—will require continued robust representation. Without intervention by the Court in the form of interim relief, Defendant's ability to meaningfully participate in his own defense and assert his equitable claims would be jeopardized.

The Court declines, however, to grant the full amount requested by Defendant. While the Court recognizes the exigency of the circumstances, a fee award must remain reasonable in scope and calibrated to the legitimate needs of the litigation.

In light of the financial disparity between the parties, the demonstrated necessity of the expenditures, and Plaintiff's conduct throughout this litigation, the Court finds that a substantial interim award of counsel fees is warranted to ensure parity of representation and to redress the imbalance created by Plaintiff's superior access to resources.

It is therefore:

ORDERED, that the Defendant's Motion Sequence No. 012 is GRANTED IN PART and DENIED IN PART as follows:

1. Pendente Lite Counsel Fees: Plaintiff shall pay to Defendant the sum of $125,000 (One hundred twenty-five thousand Dollars and No Cents) as and for pendente lite counsel fees, as a contribution toward legal expenses incurred through the date of this order. Said amount shall be paid within 7 (seven) days of service of this order with notice of entry;

2. Trial Retainer: Plaintiff is directed to pay to Defendant the sum of $50,000 as a trial retainer for forthcoming proceedings, to be paid within 7 (seven) days of service of this order with notice of entry;

3. Expert Costs:

• Plaintiff shall bear 100% of the cost of the trial testimony of the custody forensic evaluator;

• Plaintiff shall bear 100% of the cost of the trial testimony of the business valuation expert;

• Plaintiff shall bear 100% of the trial retainers for both attorneys for the children;

4. Remaining Relief: All other relief not expressly granted herein is DENIED without prejudice to renewal upon further factual development or upon conclusion of trial.

It is further ORDERED, that the Plaintiff's Motion Sequence No. 014 is DENIED in its entirety.

Trial shall commence in this matter without delay on July 1, 2025 at 10:30AM.

This shall constitute the Decision and Order of the Court.