I. Statement Pursuant to CPLR § 2219 [a]

The following papers, numbered NYSCEF Doc. Nos. 153—167, 173-176 were read on Defendant's motion, made pursuant to CPLR § 3126, seeking to preclude Plaintiff from introducing evidence or testimony at trial relating to his updated financials, credit card statements, debts, loans, or tax returns, and further seeking an award of counsel fees in the amount of $5,000.

[*2]II. Facts

This matrimonial action was commenced in 2022. A preliminary conference was held on September 17, 2024, at which time the parties were directed, pursuant to the Preliminary Conference Stipulation and Order, to exchange tax returns, W-2s, and credit card statements for all credit cards used by either party for the preceding three years, within 45 days of the order. No reference was made therein to loans or other marital debts. (NY St Cts Filing [NYSCEF] Doc No. 70).

On October 15, 2024, Defendant served a Demand for Discovery and Inspection (NY St Cts Filing [NYSCEF] Doc No. 74) and Interrogatories (NY St Cts Filing [NYSCEF] Doc No. 75), seeking complete financial disclosure, including all federal, state, and city income tax returns, W-2s, and documentation concerning debts and credit cards for the period from February 1, 2019, to the present.

Plaintiff submitted a single Statement of Net Worth, dated August 18, 2024, which listed his annual income as $66,416.61. (NY St Cts Filing [NYSCEF] Doc Nos. 53-55) In an annexed rider, Plaintiff alleged that his salary for the first half of 2024 had been "greatly impacted" and projected his 2025 income would be $15,000 less than in 2024. However, Plaintiff did not include any 2024 W-2s, tax returns, or pay stubs. His 2023 W-2 reflected $77,543.40 in income, while his 2022 W-2 reflected $77,256.82.

As to debts, Plaintiff's Statement of Net Worth listed only (i) a loan to "RedactedFinancial" in the amount of $9,557 due in September 2025; (ii) a credit card debt of $20,375.08 incurred in March 2018, with a commencement balance of $10,374.48; (iii) a second credit card balance of $9,299.05 incurred in September 2019 with a commencement balance of $1,709.38; and (iv) "repossession fees assessed" of $3,548.46, with no further detail as to payee, purpose, or date incurred.

On March 10, 2025, Plaintiff filed a Statement of Proposed Disposition (NY St Cts Filing [NYSCEF] Doc Nos. 137-143), which reiterated his assertion of marital debt in the amount of $25,710.37 and annexed his 2021 tax return and 2022 W-2 but again omitted 2024 financial documentation. On that same date, Plaintiff filed a Note of Issue and Certificate of Readiness, declaring discovery complete and attesting to compliance with applicable rules. Defendant emphasizes that Plaintiff did so despite his failure to provide updated 2024 disclosures, and that this Court had already denied Plaintiff's application for an extension of time to file the Note of Issue by Decision and Order dated March 27, 2025 (NY St Cts Filing [NYSCEF] Doc No. 150).

Defendant argues that she has complied with her own disclosure obligations, including filing updated Statements of Net Worth on July 29, 2024 (NY St Cts Filing [NYSCEF] Doc Nos. 38-42), and March 10, 2025 (NY St Cts Filing [NYSCEF] Doc No. 121), each with accompanying 2024 tax returns. Plaintiff, by contrast, has not updated his financial disclosures and continues to press claims of diminished income and marital debt without substantiation. Defendant contends that the failure to comply with repeated disclosure orders, including Orders dated December 9, 2024 (NY St Cts Filing [NYSCEF] Doc No. 88), January 15, 2025 (NY St Cts Filing [NYSCEF] Doc No. 107), and March 28, 2025 (NY St Cts Filing [NYSCEF] Doc No. 151), all directing production of updated financial information pursuant to Uniform Civil Rules § 202.16, demonstrates willful and contumacious conduct. Defendant avers that Plaintiff's conduct has necessitated repeated motion practice and substantial attorney's fees.

Defendant now seeks an order precluding Plaintiff from offering any evidence or [*3]testimony relating to updated financials, debts, loans, or tax returns; precluding him from supporting claims of reduced income or inability to pay support; directing that all reasonable inferences on disputed financial issues be drawn in her favor; and awarding her $5,000.00 in counsel fees incurred in making the motion.

Plaintiff, by affirmation of counsel, opposes the motion. Plaintiff asserts that he has withdrawn his claim for marital debt, rendering Defendant's preclusion application moot. He argues that any delay in producing updated financial documentation resulted not from willful noncompliance but from a misunderstanding between himself and counsel regarding the scope of disclosure obligations, only clarified after counsel's motion to withdraw. Plaintiff further contends that he did, in fact, provide notice of his financial position by filing his Statement of Net Worth on August 18, 2024 (NY St Cts Filing [NYSCEF] Doc No. 53-55), and his Statement of Proposed Disposition on March 10, 2025 (NY St Cts Filing [NYSCEF] Doc Nos. 137-143), both of which referenced his alleged marital debts in the amount of $25,710.37. He emphasizes that he filed a Note of Issue (NY St Cts Filing [NYSCEF] Doc No. 144), representing that discovery was complete, and contends that Defendant's failure to move to vacate the Note of Issue within twenty days under 22 NYCRR 202.21(e) constitutes a waiver of any objection to outstanding discovery.

Plaintiff maintains that his conduct was not frivolous within the meaning of 22 NYCRR 130-1.1, as his filings were sworn and made in good faith. He contends that sanctions are unwarranted, distinguishing the case law relied upon by Defendant, and argues that his assertion of marital debt is supported by controlling precedent, including Lynch v Lynch, 168 AD3d 700 [2d Dept 2019], and Bogdan v Bogdan, 260 AD2d 521 [2d Dept 1999].

III. Conclusions of Law

The gravamen of Defendant's motion rests upon CPLR § 3126, which authorizes the Court, in its discretion, to sanction a party who willfully fails to disclose information required by court order or discovery demand. Sanctions may include (1) deeming certain issues resolved in favor of the movant, (2) precluding the disobedient party from introducing designated evidence, or (3) striking pleadings in whole or in part. The Second Department has repeatedly held that willful and contumacious noncompliance may be inferred from repeated failures to comply with disclosure obligations without adequate excuse. (see Ndulo v Ndulo, 66 AD3d 1263 [3d Dept 2009]; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201 [2d Dept 2012]). Similarly, in Sherril R.D. v. Alfred B.D., 8 Misc 3d 1015(A) [Sup Ct Queens County 2005], the court held that a party's failure to provide complete and readily available financial information constituted bad faith and justified adverse inferences.

Defendant demonstrates that Plaintiff was ordered on multiple occasions, by Orders dated December 9, 2024 (NY St Cts Filing [NYSCEF] Doc No. 88), January 15, 2025 (NY St Cts Filing [NYSCEF] Doc No. 107), and March 28, 2025 (NY St Cts Filing [NYSCEF] Doc No. 151), to produce updated financial disclosures pursuant to Domestic Relations Law § 236 [B] [4] and Uniform Civil Rules § 202.16, yet failed to do so. Plaintiff's sole Statement of Net Worth, dated August 18, 2024 (NY St Cts Filing [NYSCEF] Doc Nos. 53-55), lacked 2024 tax returns, current pay stubs, and substantiation for asserted debts. Despite repeated requests, Plaintiff did not produce the demanded documentation, but instead filed a Note of Issue declaring discovery complete on March 10, 2025 (NY St Cts Filing [NYSCEF] Doc No. 144). These circumstances [*4]evince a persistent disregard for discovery obligations.

Plaintiff responds that the motion is moot because he has since withdrawn his claim for marital debt. While that withdrawal may obviate the need to litigate the allocation of such debt at trial, it does not nullify the prejudice already occasioned by his failure to comply with prior court orders. Defendant expended substantial resources pursuing disclosure, including the preparation and filing of motions and opposition papers. That expense is directly traceable to Plaintiff's noncompliance. The Court thus rejects Plaintiff's contention that the motion is entirely moot; although the specific relief of precluding debt evidence may be mooted by Plaintiff's withdrawal, the broader issues of financial disclosure, evidentiary preclusion, and counsel fees remain live.

With respect to the request for preclusion, the Court notes that the extraordinary remedy of preclusion is reserved for willful or contumacious conduct. The record reflects that Plaintiff has not produced 2024 tax returns or updated pay documentation despite multiple orders directing him to do so, and that he has continued to maintain claims of reduced income and marital debt without substantiating documentation. Such conduct is consistent with the type of dilatory and obstructive behavior that has warranted preclusion in cases such as Arpino and Sherril R.D. Plaintiff's explanation, that his noncompliance was due to a misunderstanding with counsel, does not sufficiently account for his repeated failures over the course of nearly a year, particularly in light of the Court's prior orders.

Nonetheless, given Plaintiff's representation in opposition that he has now withdrawn his claim for marital debt, the narrow branch of Defendant's motion seeking to preclude Plaintiff from introducing evidence of such debts at trial is academic. To the extent Plaintiff seeks to introduce evidence of a reduction in income or other updated financial documentation that has not been timely produced, however, CPLR § 3126 authorizes the Court to preclude such evidence in order to prevent prejudice to Defendant. The Court finds that preclusion of any untimely-produced financial evidence, including but not limited to 2024 tax returns, credit card statements, and alleged debts, is warranted. Furthermore, consistent with Richter v Richter, 131 AD2d 453 [2d Dept 1987], and Serdaroglu v Serdaroglu, 209 AD2d 606 [2d Dept 1994], any factual inferences regarding Plaintiff's finances shall be resolved in Defendant's favor.

On the issue of counsel fees, Domestic Relations Law § 237 and the cases cited in Defendant's affirmation permit the Court to award reasonable attorney's fees where one party's conduct has unnecessarily prolonged litigation. Defendant has provided her retainer agreement (Exhibit B) (NY St Cts Filing [NYSCEF] Doc No. 157) and billing statements (Exhibit C) (NY St Cts Filing [NYSCEF] Doc No. 158), reflecting six hours already expended in preparing the instant motion and an anticipated ten additional hours, for a total of $6,000.00 [SIX THOUSAND DOLLARS AND NO CENTS] in counsel fees. Plaintiff's persistent refusal to comply with discovery obligations, despite repeated orders of this Court, compelled Defendant to seek judicial intervention and to incur the very fees for which she now seeks reimbursement. The Court deems this conduct to be dilatory and unjustified. Under these circumstances, an award of counsel fees is appropriate.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is hereby

ORDERED, that the branch of Defendant's motion seeking to preclude Plaintiff from offering evidence or testimony at trial relating to any updated financials, credit card statements, [*5]debts, loans, or 2024 tax returns not previously disclosed is GRANTED, and Plaintiff is precluded from introducing such evidence at trial; and it is further

ORDERED, that any disputed issues of fact pertaining to Plaintiff's finances shall be resolved by drawing all reasonable inferences in favor of Defendant, pursuant to CPLR § 3126 and the authorities cited; and it is further

ORDERED, that the branch of Defendant's motion seeking to preclude Plaintiff from presenting evidence or testimony specifically concerning alleged marital debts is denied as academic, in light of Plaintiff's withdrawal of such claim; and it is further

ORDERED, that Defendant's application for counsel fees is granted in part. Plaintiff is directed to pay Defendant's counsel the sum of $5,000.00 [FIVE THOUSAND DOLLARS AND NO CENTS] for legal services rendered in connection with the preparation, filing, and defense of the instant motion, without prejudice to any future application for additional fees; and it is further

ORDERED, that the Clerk shall enter judgment accordingly.