This is the second motion necessitated by Plaintiff's ongoing refusal to engage in the discovery process in this matrimonial action. For the reasons stated below, the Court grants Defendant's motion to compel and awards monetary sanctions and a conditional order of preclusion with respect to Plaintiff's non-compliance with the Court's prior Order to produce, as specified below. The Court also grants Defendant's motion for temporary child support.

Plaintiff E.J. ("Plaintiff") commenced this action for divorce in October 2024. On January 8, 2025, Defendant A.J. ("Defendant") served Plaintiff with a notice to produce certain records pursuant to CPLR 3120 (NYSCEF Doc No. 31) (the "First Notice to Produce"). Having received neither written objections nor any production of records in response to the First Notice to Produce, Defendant filed a motion to compel production on May 27, 2025 (see NYSCEF Doc. No. 42) (the "First Motion to Compel"). Plaintiff filed no opposition to this motion, and at oral argument on September 9, 2025, did not oppose the entry of an order directing production of responsive records within 30 days.

On September 29, 2025, the Court entered an Order granting the First Motion to Compel and awarding Defendant $2,187.50 in attorneys' fees incurred in bringing the motion (NYSCEF Doc. No. 60) (the "September 29 Order"). The September 29 Order directed Plaintiff to "produce the documents requested in Defendant's January 8, 2025 demand to produce no later than 30 days from the date of this Order" and also directed payment of the attorneys' fees within 30 days (id.). The Court denied Defendant's application for an order of preclusion based on Plaintiff's discovery non-compliance, without prejudice to a future application (id.).

While the First Motion to Compel was pending, the Court issued its First Amended Scheduling Order (NYSCEF Doc. No. 54). This Order extended the deadline to complete discovery from July 15, 2025 (see NYSCEF Doc. No. 40) to December 31, 2025 (NYSCEF Doc. No. 54). This extension was necessary due to Plaintiff's delay in engaging in discovery.

Separate and apart from the First Motion to Compel, Defendant served a second notice to [*2]produce on September 17, 2025 (NYSCEF Doc. No. 55) (the "Second Notice to Produce"). The Second Notice to Produce requested additional records, primarily concerning financial issues, beyond those requested in the First Notice to Produce (id.).

Defendant filed the instant motion on November 4, 2025 (NYSCEF Doc. Nos. 63-65) (the "Second Motion to Compel"). As of that date, more than 30 days had passed since the September 29 Order. During this time, Plaintiff did not produce any records in response to the First Notice to Produce, in defiance of the September 29 Order, and likewise did not pay the award of attorneys' fees directed by the September 29 Order. Furthermore, Plaintiff did not produce any records in response to the Second Notice to Produce.

As a result, Defendant now seeks a range of preclusion orders pursuant to CPLR 3126. Defendant also seeks an additional award of attorneys' fees as a result of the delay and expense incurred due to Plaintiff's continued discovery violations. Additionally, Defendant seeks an order directing Plaintiff to pay temporary child support and maintenance. (See NYSCEF Doc. Nos. 63, 64.) Plaintiff filed affidavits in opposition to the motion (NYSCEF Doc. Nos. 67, 68),^[FN1] and Defendant filed reply affidavits in further support of the motion (NYSCEF Doc. Nos. 69, 70). The Court held oral argument on the Second Motion to Compel on December 5, 2025.

A. Disclosure In Matrimonial Actions

"It is well settled that, absent an unreasonable request, parties to a divorce are entitled to full financial disclosure spanning the entire marriage" (MacKinnon v. MacKinnon, 245 AD2d 690, 691 [3d Dept. 1997]; see generally Dom. Relations Law § 236[B]). This is essential so that both parties may "obtain necessary information regarding the value and nature of the marital assets" to allow the trial court "to properly distribute the marital assets" (Trafelet v. Trafelet, 150 AD3d 483, 485 [1st Dept. 2017] [internal quotation marks omitted]). Disclosure may entail "a searching exploration of each other's assets and dealings at the time of and during the marriage, so as to delineate the extent of marital property, distinguish it from separate property, uncover hidden assets of marital property, discover possible waste of marital property, and in general gain any information which may bear on the issue of equitable distribution, as well as maintenance and child support" (Jaffe v. Jaffe, 91 AD3d 551, 554 [1st Dept. 2012], quoting Kaye v. Kaye, 102 AD2d 682, 686 [2d Dept. 1984]).

B. Disclosure Sanctions

Where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to [CPLR Article 31]," a court may impose a range of sanctions, including deeming a particular issue resolved, precluding the offending party from introducing certain evidence, or striking pleadings, dismissing an action, or granting a default judgment (CPLR 3126). The supervision of pretrial [*3]disclosure, and the imposition of sanctions for non-compliance with a party's discovery obligations, are committed to the sound discretion of the trial court (see Hall v. Integrity Real Est. Props., Inc., 124 AD3d 1270, 1271 [4th Dept. 2015]). A discovery sanction should be "commensurate with the particular disobedience it is designed to punish, and go no further than that" (Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Glob. Strat Inc., 22 NY3d 877, 880 [2013] [internal quotation marks omitted]).

"[C]ompliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully" (Kihl v. Pfeffer, 94 NY2d 118, 123 [1999]). Although the "nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of the Supreme Court's discretion," stronger sanctions are warranted when "the failure to comply with discovery demands is willful, contumacious, or in bad faith" (Hill v. Tejbir Singh Oberoi, D.D.S., 13 AD3d 1095, 1096 [4th Dept. 2004]). It may be inferred that a party's conduct was "willful and contumacious . . . from their failure to comply fully with the discovery orders or offer a reasonable excuse therefor" (Leone v. Esposito, 299 AD2d 930, 931 [4th Dept. 2002]).

It has now been almost a year since Defendant served her First Notice to Produce. Plaintiff has failed to produce any records in response, to serve written objections pursuant to CPLR 3122, to move for a protective order, or to respond in any other appropriate manner. At oral argument on this motion, Plaintiff's counsel did not dispute his failure to produce records or provide written discovery responses.

In responding to the Second Motion to Compel, Plaintiff and his counsel argue that they could not produce records because they were located in the marital residence, which Plaintiff cannot visit due to an order of protection (NYSCEF Doc. No. 67, ¶¶ 7-9; NYSCEF Doc. No. 68, ¶¶ 5-7). This excuse is overbroad, unpersuasive, and untimely. Plaintiff fails to specify what records he claims he does not have access to, and what discovery requests he therefore could not respond to. It is implausible that he did not have access to any of the information sought in the First Notice to Produce, including, for example, electronic records regarding peer-to-peer mobile payment services or cryptocurrency transactions, or other records he could have obtained from financial institutions (see NYSCEF Doc. No. 31). Further, the time to raise this issue was in January 2025, when Plaintiff could have served objections pursuant to CPLR 3122, not December 2025, in response to the second of two motions to compel. The belated nature of Plaintiff's excuse is underscored by the fact that Plaintiff never requested access to the marital residence to obtain records (NYSCEF Doc. No. 70. ¶ 4) and never served an objection arguing that his lack of access to records prevented a complete response.^[FN2]

The record is clear that Plaintiff has ignored his discovery obligations for the past year. It is particularly troubling that he has continued to ignore them since the September 29 Order of the Court, by which he was directed to produce records within thirty days. In so doing, Plaintiff [*4]has frustrated Defendant's entitlement to broad discovery concerning financial issues relevant to this proceeding (see Jaffe, 91 AD3d at 554), and has thereby prejudiced and imposed costs upon Defendant. The Court finds Plaintiff's misconduct to be willful in light of his complete failure to respond to the First Notice to Produce, his failure to engage in any meaningful response to the September 29 Order, and his lack of any reasonable excuse for doing so (see Leone, 299 AD2d at 931). There is no question that discovery sanctions are appropriate. What remains is to craft a sanction that is responsive and proportionate to the misconduct (see Merrill Lynch, 22 NY3d at 880).

To start, an additional award of attorneys' fees, beyond what was already awarded in the September 29 Order, is appropriate (see Figdor v. City of New York, 33 AD3d 560, 561 [1st Dept. 2006] [imposing fees for discovery sanctions while noting that "the cavalier attitude of defendant, resulting as it has in substantial and gratuitous delay and expense, should not escape adverse consequence"]). Defendant has been forced to incur additional fees in bringing this Second Motion to Compel. Accordingly, the Court orders Plaintiff to pay Defendant $4,316.35 in attorneys' fees,^[FN3] in addition to the fees directed in the September 29 Order.

The remaining sanctions must be tied to the specific items sought in the First Notice to Produce. Central to the dispute on this Second Motion to Compel, as well as the First Motion to Compel, is Plaintiff's claim that the marital residence is his separate property (see NYSCEF Doc. Nos. 43, 63, 64 67, 68). The First Notice to Produce plainly requested information related to this issue, including "[a]ll documentation substantiating your separate property claims" for the marital residence, as well as information regarding real estate transactions, mortgage applications, and any separate property claim generally (NYSCEF Doc. No. 31, ¶¶ 3, 4, 9, 10).

Plaintiff claims that the marital residence, although acquired during the marriage, is his separate property because it was acquired as a gift from his family (NYSCEF Doc. Nos. 67, 68) and Defendant is "not in the chain of title" (NYSCEF Doc. No. 68, ¶ 14). This argument does not excuse Plaintiff's complete lack of engagement in the discovery process. There is a statutory presumption in favor of marital property, regardless of how that property is titled (Fields v. Fields, 15 NY3d 158, 165-66, 168 [2010]; Jolley v. Lando, 187 AD3d 1530, 1531 [4th Dept. 2020]). Plaintiff thus cannot excuse his non-production of records by simply pointing to the title of the marital residence. Plaintiff was obligated to provide fulsome discovery to permit the parties to distinguish marital from separate property (see Jaffe, 91 AD3d at 554). Instead, Plaintiff has left Defendant in the dark and delayed meaningful progress in this case for almost a year.

Accordingly, the Court finds that a conditional order of preclusion regarding the marital residence is appropriate (see Marzilliano v. Place to Beach, 229 AD3d 617, 618 [2d Dept. 2024]; [*5]Legarreta v. Neal, 108 AD3d 1067, 1068 [4th Dept. 2013]). Plaintiff shall be precluded from offering any evidence at trial in support of his claim that the marital residence located at XX XXXXXX in the Town of Greece is his separate property unless on or before December 31, 2025, he both produces all records in support of his separate property claim and pays Defendant the $2,187.50 in fees directed by the September 29 Order (see Figdor, 33 AD3d at 561 [entering conditional order striking pleading unless party paid fees by date-certain]).

Relatedly, the Court finds that similar sanctions are appropriate with respect to both a mortgage Plaintiff took out on the marital residence from Equity Trust Co. (see NYSCEF Doc. No. 44) and any other separate property claims from Plaintiff. Again, documents with respect to both of these issues were clearly requested in the First Notice to Produce (NYSCEF Doc. No. 31, ¶¶ 3, 10) and were at issue in both the First and Second Motions to Compel (NYSCEF Doc. Nos. 42, 43, 63, 64). Again, Plaintiff has made no effort to respond to discovery concerning these issues. Accordingly, Plaintiff shall be precluded from offering any evidence at trial that he is not solely responsible for the debt associated with the mortgage on XX XXXXXX from Equity Trust Co. entered into on March 10, 2022, unless on or before December 31, 2025, he both produces all records in his actual or constructive possession regarding this mortgage and pays Defendant the $2,187.50 in fees directed by the September 29 Order. Plaintiff shall also be precluded from offering any evidence at trial in support of any separate property claim, except for claims related to personal items, unless on or before December 31, 2025, he both produces all records in support of any such claim and pays Defendant the $2,187.50 in fees directed by the September 29 Order.

Defendant's other applications for preclusion, which either seek broader orders of preclusion or orders with respect to issues less specifically tied to the First Notice to Produce (see NYSCEF Doc. No. 63) are denied without prejudice to subsequent applications at the time of trial or before.

It is undisputed that Plaintiff has also failed to respond to the Second Notice to Produce. The Second Notice to Produce was served on September 17, 2025 (NYSCEF Doc. No. 55), thereby requiring a response on or before October 7, 2025 (CPLR 3122). Again, Plaintiff has failed to offer any reasonable excuse for his failure to timely respond. Because this is the first motion concerning the Second Notice to Produce,^[FN4] and because the Court is already ordering Plaintiff to pay Defendant's fees in bringing this motion as described above, the Court will not [*6]impose an additional sanction related to the Second Notice to Produce. The Court directs Plaintiff to produce records responsive to the Second Notice to Produce within thirty days of the date of this Order. The denial of an order of preclusion is without prejudice to a subsequent application by Defendant if Plaintiff does not respond in a timely manner.

In the present motion, Defendant also seeks temporary child support and maintenance (NYSCEF Doc. No. 63). The parties' three children currently reside with Defendant (see NYSCEF Doc. No. 25). Because Plaintiff has not produced records concerning his income, Defendant requests that the Court impute income to Plaintiff in the amount of $68,360, the expected annual wages of an experienced mason according to the New York State Department of Labor (NYSCEF Doc. No. 64, ¶¶ 14-15). Plaintiff disputes the imputation of income at that level and urges the court to hold a hearing prior to awarding temporary support (NYSCEF Doc. Nos. 67-68).

Plaintiff cannot hide behind his refusal to engage in the discovery process in seeking to avoid support payments. When there is a lack of reliable direct evidence as to a party's income, it is appropriate for the Court to impute an income amount based on available statistical information (Kasbian v. Chichester, 72 AD3d 1141 [3d Dept. 2010]; Commr. of Social Servs. v. Monica, 10 AD3d 260 [1st Dept. 2004]; Harry T. v. Lana K., 217 AD3d 537 [1st Dept. 2003]).

The Court will not, however, impute Plaintiff's income in the amount of $68,360, which is the amount proffered by Defendant as the expected annual wages of an experienced mason. With there being no evidence in the record that Plaintiff earns wages at that level, the Court will impute to Plaintiff the amount proffered by Defendant as the median wage for masons in New York according to the New York State Department of Labor: $46,700. Using this amount, and imputing to Defendant annual earnings of $32,240, which Defendant suggests and Plaintiff does not oppose, the Court determines the presumptively correct amount pursuant to the Child Support Standards Act to be $1,042.25 monthly. The Court does not find that any temporary maintenance is owed. Accordingly, the Court directs Plaintiff to pay Defendant $1,042.25 in child support on the first of each month, effective December 1, 2025, with the December amount immediately payable and future payments to be made on the first day of each subsequent month. Such payments shall be made through the Monroe County Child Support Enforcement Unit. The Court reserves decision as to the retroactivity of support until trial.

For all the reasons stated above, and based upon the papers submitted and the oral argument held on December 5, 2025, and upon due deliberation it is hereby

ORDERED, that Plaintiff pay Defendant $4,316.35 in attorneys' fees within 45 days of the date of this Order; and it is further

ORDERED, that Plaintiff shall be precluded from offering any evidence at trial in support of his claim that the marital residence located at XX XXXXXX in the Town of Greece is his separate property unless on or before December 31, 2025, he both produces all records in support of his separate property claim concerning XX XXXXXX and pays Defendant the $2,187.50 in fees directed by the September 29 Order; and it is further

ORDERED, that Plaintiff shall be precluded from offering any evidence at trial that he is not solely responsible for the debt associated with the mortgage on XX XXXXXX from Equity [*7]Trust Co. entered into on March 10, 2022, unless on or before December 31, 2025, he both produces all records in his actual or constructive possession regarding this mortgage and pays Defendant the $2,187.50 in fees directed by the September 29 Order; and it if further

ORDERED, that Plaintiff shall be precluded from offering any evidence at trial in support of any separate property claim, except for claims related to personal items, unless on or before December 31, 2025, he both produces all records in support of any such claim and pays Defendant the $2,187.50 in fees directed by the September 29 Order; and it is further

ORDERED, that Plaintiff is directed to produce records responsive to the Second Notice to Produce within thirty days of the date of this Order; and it is further

ORDERED, that Plaintiff shall pay Defendant $1,042.25 in child support on the first of each month, effective December 1, 2025, with the December amount immediately payable and future payments to be made on first day of each subsequent month, with such payments to be made through the Monroe County Child Support Enforcement Unit; and it is further

ORDERED, that any relief sought on this motion by Defendant not granted herein is denied without prejudice.

This constitutes the Decision and Order of the Court.