The following documents were considered in connection with the motion by notice of motion of the Plaintiff, dated December 8, 2025, (hereinafter "Motion Sequence No. 3"), seeking the entry of an Order granting the following relief:

1. Reconsidering the designation of "monied spouse" and shifting 100% of all past and future AFC fees to the defendant under DRL § 237(b);

2. Modifying the Court's prior allocation of Attorney for the Child ("AFC") fees, which currently directs the parties to share costs 50/50, and reallocating 100% of said fees to A. A. V.; and,

3. Imposing financial sanctions upon the defendant under 22 NYCRR § 130-1.1; and

1. Precluding the testimony of the Defendant's retained expert witness, Cynthia M. Lischick, Ph.D., regarding Battered Woman Syndrome ("BWS"), Intimate Partner Violence/Battering and Its Effects, pursuant to CPLR § 4515 and the doctrine of Collateral Estoppel, on the grounds that the specific allegations of abuse underlying the opinion have been dismissed with prejudice and affirmed by the Appellate Division;

2. Precluding the introduction of any evidence, testimony, or argument by the Defendant, her counsel, or any witness that alleges, implies, or suggests that the Plaintiff committed acts of domestic violence or abuse, as these factual issues have been finally adjudicated and are barred by Res Judicata;

3. Precluding the Defendant's expert testimony on the further grounds that it lacks a reliable factual foundation and is speculative, as it fails to account for the Plaintiff's Special Operations deployments and the Defendant's voluntary conduct;

4. Alternatively, should the Court permit any testimony from the Defendant's expert, limiting such testimony strictly to the expert's objective clinical findings of High Paranoia scales, which are relevant to the Defendant's capacity to co-parent, while precluding any testimony regarding the alleged cause (abuse) of said paranoia;

5. Precluding the Defendant or her counsel from referring to the Plaintiff as an "abuser," consistent with the prior on-record directive of the Hon. Judge Katz; and,

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

1. Allowing any witness called by Defendant-Wife who lives more than 100 miles from White Plains to testify remotely via video link at the trial in this matter;

2. Allowing Defendant-mother, V. V.'s maternal grandmother M. F., and A. G. to testify to what the parties' son, V. V. told them about his ongoing abuse;

3. Admitting the 6/15/23 testimony of the late J. F. and M. F., Defendant's mother, from the parties' prior trial held in the Family Court, Westchester County;

4. In the event the Court excludes the testimony of M. F., providing a German language translator for her live testimony;

5. Precluding Plaintiff from introducing exhibits at trial that he was required to produce during discovery but did not (like, for example, videos and/or recordings of Defendant)

a. Plaintiff has designated certain movies as exhibits without providing them to Defendant as required by the Court and, therefore, should be precluded from introducing them as evidence at trial.

6. Precluding Plaintiff from introducing economic evidence at trial as a sanction for not producing his financial documents in the Family Court child support proceeding, a motion for which was pending in the Family Court and was explicitly reserved when the parties stipulated to submit this and the other child support issues to this Court;

7. Admitting the reports prepared by Valid8 as representative of the information they purport to represent;

8. Holding that the issues of "trauma bonding" and "battered woman syndrome" are scientifically valid and appropriate issues for expert testimony;

9. So ordering the attached trial Subpoena for V.V.'s prior therapist's notes, Ms. Millie Chetelain; and,

10. For such other and further relief for the Defendant as the Court deems just and proper.

Memorandum of Law in Opposition/Exhibits A-B 5-7

Affirmation in Opposition/Exhibits A-I 5-14

Affirmation in Opposition ^[FN1] /Exhibits 1-4 24-28

This matrimonial action was commenced on September 17, 2024, with the filing of a Summons and Complaint (hereinafter collectively "Complaint").^[FN2] The Complaint asserts that the parties were married on February 9, 2013, in the country of Germany; that there is one child of the marriage, to wit: V. V. (D.O.B.: XX/XX/XXXX) (hereinafter the "Child"); that the parties have resided in the State of New York since October of 2020; and seeks the entry of a judgment of divorce dissolving the parties' marriage pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 170(7).

On February 4, 2025, an initial preliminary conference was held, wherein appearances were made by Defendant, Defendant's counsel and Plaintiff as a self-represented litigant, whereafter Plaintiff made an application for the appointment of pro bono counsel, which was denied as Plaintiff represented that he had a current yearly salary of $135,000.^[FN3] Consequently, this Court found him not to qualify as a person of insufficient means, and the conference was subsequently adjourned to allow Plaintiff time to amend the Complaint based on procedural defects and re-serve Defendant.

On February 7, 2025, Plaintiff filed an Amended Summons and Complaint,^[FN4] which comported substantively with the Complaint.

On February 20, 2025, Defendant's counsel filed a Notice of Appearance.^[FN5]

On February 20, 2025, Defendant filed her statement of net worth ^[FN6] indicating a current gross yearly income of $156,340.00, with monthly expenses of $16,246.00.

On February 20, 2025, Plaintiff filed his first statement of net worth (hereinafter [*2]"Plaintiff's First Statement of Net Worth"),^[FN7] indicating a current gross yearly income (including veterans benefits of $4,201.35) of $133,528.13, and with monthly expenses of $19,327.03.

On February 21, 2025, a second Preliminary Conference was held wherein appearances were made by Defendant, Defendant's counsel and Plaintiff as a self-represented litigant, after which an order was entered (hereinafter "Preliminary Conference Order").^[FN8] Moreover, as custody of the Child remained an open issue, as reflected by the court transcript (hereinafter "Court Transcript"),^[FN9] the Court appointed a privately-paid attorney for the Child as follows:

"THE COURT: I am appointing an attorney to represent your child. Custody is now completely an issue. Plaintiff, how much did you make last year?

Z. J. V.: 130 plus Veteran's benefits, 185.

THE COURT: So, you made approximately about $185,000?

Z. J. V.: Correct.

THE COURT: Great. Defendant's counsel, how much did your client make?

MR. STEINBERGER: 162 and half.

THE COURT: I am appointing an attorney to represent the child. The attorney will get $450 an hour. It will be split 50/50 subject to reallocation at trial."^[FN10]

On March 10, 2025, Defendant filed an answer with counter-claims,^[FN11] which included a denial of certain allegations and legal conclusions unrelated to the subject motion practice.

On March 12, 2025, an Order appointing an attorney for the Child (hereinafter "AFC Appointment Order"),^[FN12] was entered appointing Donna E. Abrams, Esq., as the attorney for the Child (hereinafter "AFC"), wherein fees and disbursements made to the AFC were directed to be paid equally by the parties, subject to reallocation at trial or further order of the Court.^[FN13]

On March 23, 2025, Plaintiff filed an amended statement of net worth (hereinafter "Plaintiff's Second Statement of Net Worth"),^[FN14] indicating the same yearly income and monthly expenses as included in Plaintiff's First Statement of Net Worth, totaling from all sources $133,528.13.

On April 16, 2025, a compliance conference was held before the undersigned wherein appearances were made by Plaintiff as a self-represented litigant, Defendant's counsel, [*3]Defendant, and the AFC, whereafter an Order ^[FN15] was entered granting certain interim relief, a pre-trial conference order was issued (hereinafter "Pre-Trial Conference Order #1"),^[FN16] and the parties were directed to comply with the discovery schedule set forth within the Preliminary Conference Order.

On April 30, 2025, Defendant filed a letter (hereinafter "Defendant's Deficiency Letter"),^[FN17] outlining certain deficiencies within responses received from Plaintiff, and consequently requested an adjournment of the Court's deadline to complete depositions. In response to Defendant's Deficiency Letter, this Court entered an Order ^[FN18] the same day, directing that Pre-Trial Conference Order #1 was vacated, and directing a status conference be held on May 2, 2025.

On May 2, 2025, a conference was held before the undersigned wherein appearances were made by Plaintiff as a self-represented litigant, Defendant's counsel, Defendant, and the AFC whereafter an Order ^[FN19] was entered directing that a note of issue and certificate of readiness for trial be filed on or before June 9, 2025.

On June 3, 2025, Defendant filed a letter (hereinafter "Defendant's Request Letter"),^[FN20] submitting a judicial subpoena duces tecum to be so-ordered, requesting the appointment of a forensic evaluator, and a request to resume therapy for the Child.

On June 4, 2025, in response to Defendant's Request Letter, this Court issued an Order,^[FN21] directing that all parties and counsel appear for a pre-motion conference be held on June 12, 2025, related to the requested judicial subpoena duces tecum, and other ancillary relief.

On June 9, 2025, Defendant's counsel filed a note of issue and certificate of readiness for trial (hereinafter "Note of Issue"),^[FN22] which confirmed "all discovery proceedings now known to be necessary [have been] completed" and certified this matter trial ready.

On June 12, 2025, a pre-motion conference was held before the undersigned wherein appearances were made by Plaintiff as a self-represented litigant, Defendant's counsel, Defendant, and the AFC, regarding the relief sought in Defendant's Request Letter.

On June 13, 2025, this Court entered a second pre-trial conference Order (hereinafter [*4]"Pre-Trial Conference Order #2"),^[FN23] which inter alia certified that this matter was ready for trial, that no further discovery would be permitted except upon a showing of compelling and unanticipated circumstances, that a pre-trial conference would take place on January 5, 2026 at 9:00 a.m., and that trial in this matter would commence on January 20, 2026, proceeding day-to-day through January 30, 2026. Of note, Pre-Trial Conference Order #2 included the following directives regarding motions in limine:

"8. Motions in limine must be in writing and made returnable on the day of the Pre-Trial Conference. Such motions must be made no less than ten (10) days' notice to opposing counsel and/or self-represented parties. Opposition submissions must be made no less than five (5) days' notice to opposing counsel and/or self-represented parties. No reply submissions may be made. To the extent possible, the Court will decide such motions prior to commencement of the Trial. To the extent that any Motions in Limine are not made timely as set forth herein, such applications will be waived."^[FN24]

On December 8, 2025, Plaintiff timely filed Motion Sequence No. 3,^[FN25] seeking the above-referenced relief, noticing a return date of January 5, 2026, same being the pre-trial conference.

On December 10, 2025, Defendant filed opposition ^[FN26] to Motion Sequence No. 3, inclusive of a memorandum of law in opposition (hereinafter "Motion 3 Memo in Opposition"),^[FN27] and supporting exhibits including an expert report from Dr. Cynthia M. Lischick, Ph.D., D.V.S. (hereinafter "Defendant's Expert Report").^[FN28]

On December 10, 2025, Plaintiff timely filed Motion Sequence No. 4,^[FN29] seeking the above-referenced relief, noticing a return date of January 5, 2026, same being the pre-trial conference.

On December 25, 2025, Defendant filed opposition ^[FN30] to Motion Sequence No. 4.

On December 26, 2025, Defendant timely filed Motion Sequence No. 5,^[FN31] seeking the above-referenced relief, noticing a return date of January 5, 2026, same being the pre-trial conference. Of note, in support of Motion Sequence No. 5, Defendant submitted an attorney [*5]affirmation, albeit titled as an affidavit (hereinafter "Motion 5 Affirmation in Support").^[FN32]

On December 27, 2025, Defendant filed an affirmation of service,^[FN33] confirming proof of service of Motion Sequence No. 5 on "Ms. Millie Chatelain, LMHC/Mindset Counseling, LLC" related to an application included within Motion Sequence No. 5 seeking an Order from this Court to issue a Judicial Subpoena Duces Tecum addressed to same.

On December 29, 2025, Plaintiff filed opposition ^[FN34] to Motion Sequence No. 5.

No other submissions were submitted with respect to Motion Sequence Nos. 3-5.

On January 5, 2026, a pre-trial conference was held wherein all parties and counsel appeared, all parties confirmed the subject motions were fully submitted and the Court entertained oral argument.

This Court will now address each of the respective motions individually herein-below.

Plaintiff seeks an Order modifying this Court's prior AFC Appointment Order, specifically regarding allocation of fees between the parties associated with such appointment and an Order granting sanctions based on the alleged frivolous conduct of the Defendant. For the reasons set forth herein-below, Motion Sequence No. 3 must be denied in its entirety.

A. Plaintiff's Request To "Reconsider" And Modify The Allocation Of AFC Fees.

In ascertaining the position of the child, the Court may appoint an attorney for the child whose role is to be an advocate for and represent the subject child (Luizzi v. Collins, 60 AD3d 1062 [2d Dept 2009]). Such an appointment is in the discretion of the Court and while not mandatory is the strongly preferred practice (Keen v. Stephens, 114 AD3d 1029 [3d Dept 2014]). "If the court believes that appointment of an attorney for the child will enhance its ability to make a decision in that child's best interests, acting as a 'wise, affectionate, and careful parent,' then it must exercise its discretion to appoint an attorney and allocate the cost reasonably between the parties (or, as in the case at bar, among them) [internal citations omitted]" (People ex rel. KM v. SF, 31 Misc 3d 505 [Sup. Ct. New York Cnty 2011]).

The Appellate Division, Second Department has followed this rationale regarding the Court's discretion to allocate costs of an appointed attorney for the child between the parties, holding in Pascazi v. Pascazi, 65 AD3d 1202 [2d Dept 2009] that the trial Court properly approved the final compensation request of a privately-paid attorney for the child, "since courts are authorized to direct that 'a parent who has sufficient financial means to do so pay some or all of the [attorney for the child]'s fees' the Supreme Court properly approved the final compensation request of the attorney for the child, requiring the husband to pay one half of the total counsel fees at the rate set forth in the private-pay appointment order" (Id. at 1203 [internal citations omitted]).

Plaintiff now seeks herein, an Order from this Court to "reconsider" and/or modify its allocation of fees included within the AFC Appointment Order, without citing to any applicable [*6]court rules, statutes, case law or other legal basis regarding modification, renewal/reargument, or vacatur in order to effectuate such change.^[FN35] Here, the procedural history of this proceeding makes clear that following the appointment of the AFC this Court previously exercised its discretion to allocate the costs associated with such appointment based on the information provided by each party in sworn submissions to this Court and upon sworn statements of the parties made in Court.

Throughout the course of these proceedings, Plaintiff has provided this Court by way of sworn testimony and submission of sworn documents, three separate representations of his annual gross income from all sources, being $135,000;^[FN36] $133,528.13;^[FN37] and, $185,000.^[FN38] Defendant has provided this Court with two separate representations of her annual gross income from all sources, being $156,340.00;^[FN39] and, $165,000.^[FN40] This Court previously took the parties' income into consideration, as well as the substantially different annual gross income represented by Plaintiff (Strohli v. Strohli, 174 AD3d 938 [2d Dept 2019] "[t]he court may impute income to a party based on, among other things, her employment history, future earning capacity, and educational background"; see also, Racquel L.J. v. Derwin J.J., 64 Misc 3d 1221, 2019 NY Slip Op 51219 [Sup Ct, Kings County 2019] wherein the Court found when there are inconsistencies or outright misrepresentations among financial records, sworn affidavits, and testimony, and a party is recalcitrant in providing financial document disclosure, the Court may find that the party lacks credibility and draw a negative inference related to those discrepancies).

This Court further took into consideration that Plaintiff's representations as to his income was either substantially the same, or higher than the Defendant's, and instead of directing Plaintiff to pay a higher pro rata share of the AFC fees, elected to direct the allocation of fees to be split equally by the parties, having determined for pendente lite purposes Plaintiff's income to be the same as Defendant's, subject to reallocation at trial.

None of the submissions made by Plaintiff to this Court within Motion Sequence No. 3 are new factual allegations not previously mentioned regarding his alleged financial hardships, and to the extent he can provide new information related to his financial circumstances at trial, the Court has the ability at that time to reallocate the AFC fees accordingly. However, Plaintiff has not shown any circumstance in law or fact within the subject application that would require a [*7]modification of the AFC Appointment Order and as such this prong of Motion Sequence No. 3 must be denied in its entirety.

B. Request For Sanctions.

The Rules of the Chief Administrator of the Courts, specifically 22 NYCRR § 130-1.1(a) states in pertinent part:

"(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part . . . " [emphasis added].

22 NYCRR § 130-1.1(c) defines frivolity as follows:

"(c) For purposes of this Part, conduct is 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.

Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party."

The Appellate Division, Second Department has consistently held that Courts have providently exercised discretion in imposing sanctions and costs due to frivolity, where parties engaged in the filing of motions which were "completely without merit in law or fact, and were made primarily to harass or maliciously injure another" (Tercjak v. Tercjak, 49 AD3d 773 [2d Dept 2008]).

Moreover, the Appellate Division, Second Department has consistently looked to the following factors in determining the amount of sanctions to be imposed on an attorney or a party: (1) if the attorney/party has abused the judicial process; (2) if the attorney/party has caused the unnecessary expense of the court's resources to respond to a wholly frivolous motion, on that is completely without merit in law and which cannot be supported by any reasonable argument; and, (3) there is a need to prevent the attorney/party from engaging further frivolous motion practice in this or any future matter (Drummond v. Drummond, 305 AD2d 450 [2d Dept 2003] where the Appellate Division, Second Department found that a $5,000 sanction was proper for frivolous motion practice which satisfied the three factor test, citing to, Bell v. State of New York, 727 N.Y.S.2d 377 [2001].

Here, Plaintiff seeks sanctions from the Defendant based on "frivolous conduct", which he describes generally as unnecessary delays, dilatory tactics and wasteful expenditure of [*8]judicial resources. However, this Court finds that Defendant has not engaged in such actions throughout the course of this litigation. The parties have no obligation to resolve their issues by settlement, and a failure to do so or a choice not to resolve any outstanding issues before the Court does not constitute frivolity as defined by applicable law. Similarly, this Court does not find Defendant has intentionally prolonged the litigation as described by Plaintiff. Consequently, this prong of Motion Sequence No. 3 must be denied in its entirety.

C. Defendant's Defective Opposition Papers.

In opposition to Motion Sequence No. 3, Defendant submits Motion 3 Memo in Opposition, being solely a memorandum of law, without submitting an affidavit/affirmation in appropriate form.

It is well-settled in New York State that "moving papers generally consist of three items: (1) a notice of motion or order to show cause; (2) affidavits and affirmations with exhibits; and (3) a memorandum of law" (David D. Siegel, New York Practice § 246 [6th ed 2018]). Failure to include "an affidavit by someone with personal knowledge of the pertinent facts" compels summary denial of the motion (Yaffe v. Shkreli, 187 AD3d 592 [1st Dept 2020]; United Talmudic Academy of Kiryas Joel v. Khal Bais Halevi Religious Corp., 232 AD2d 547 [2d Dept 1996]).

Pursuant to New York Civil Practice Law and Rules (hereinafter "CPLR") § 2106, the statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

"I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)" (CPLR § 2106).

"Subsequent to January 1, 2024, courts have found that a statement simply affirming the following under the penalties of perjury fails to acknowledge the laws of New York and the possibility of fines or imprisonment and as a result is not in admissible form and cannot be relied upon. Inasmuch as the oath is not something the court is permitted to infer and the purpose of the requirement impresses on the witness the gravity of his factual account, an affirmation lacking the language that CPLR 2106 now requires fails to demonstrate an appreciation for that gravity and is ultimately not a verification at all. It is both well settled that a matter brought pursuant to Article 16 must be commenced with a verified petition and that as a result a defectively verified petition must be dismissed" (Gransard v. Hutchinson, 2024 WL 1957086 [Supreme Court NY County, Latin J.][internal citations and quotation marks omitted] affd for the reasons stated by Latin, J., Gransard v. Hutchinson, 227 AD3d 491 [1st Dept 2024]).

In opposition to Motion Sequence No. 3, Defendant submits Motion 3 Memo in Opposition, which fails to contain the language mandated by CPLR § 2106, and while titled as a memorandum of law still cannot be considered a properly sworn to affirmation. Consequently, it cannot be considered "competent evidence" (Pasquaretto v Long Island Univ., 150 AD3d 1129 [2d Dept 2017]) and is not considered by this Court to have been submitted in admissible form (see Akhmedova v Akhmedov, 189 AD3d 602 [1st Dept 2020], lv denied 37 NY3d 911 [2021] where counsel's affidavit submitted to support his claim that the court lacked personal jurisdiction, was found to be inadmissible as it did not contain the language required by CPLR [*9]§2106; see also, Calliste v. Williams, 32 Misc 3d 1236[A] [Sup. Ct. Kings Cnty 2011]; Daus v. Cassavaugh, 17 AD3d 837 [3rd Dept 2005]; Shinn v. Catanzaro, 1 AD3d 195 [1st Dept 2003]).

This Court notes that it is generally acceptable to submit a memorandum of law in support or opposition to a pending motion, when such memorandum provides only legal arguments in support of a parties' position on a pending application. However, in the case at bar Defendant's Motion 3 Memo in Opposition attempts to act as both an affirmation as well as a memorandum of law, providing not only legal arguments, but factual allegations regarding the parties' marriage and procedural history of the pending litigation. As set forth herein-above, relevant case law is clear that these factual allegations advanced within Defendant's Motion 3 Memo in Opposition require either a proper admonition pursuant to CPLR § 2106 or a duly executed affidavit, neither of which were provided herein by Defendant. Accordingly, Defendant's Motion 3 Memo in Opposition was not considered by this Court.

However, notwithstanding these procedural defects within Defendant's opposition papers, Motion Sequence No. 3 must be denied in its entirety for the reasons set forth herein-above.

D. Other Relief.

To the extent relief is not granted or otherwise addressed herein, it is hereby denied.

Plaintiff seeks preclusion and alternatively limitation of Defendant's Expert Report at the time of trial. The crux of Plaintiff's request for relief is based in two parts, first that Defendant's Expert Report is based in speculation and conjecture, specifically the claimed scientific effects of domestic violence between intimate partners and more generally "battered women syndrome" (hereinafter "BWS"), and that Defendant's claims of domestic violence by Plaintiff are barred by the doctrine of res judicata, stemming from the dismissal of a prior family offense proceeding in the New York State Family Court. For the reasons set forth herein-below, this Court denies Plaintiff's application within Motion Sequence No. 4 in its entirety.

A. Plaintiff's Request For Preclusion And Limitation of Defendant's Expert Testimony.

Generally, Courts have permitted preclusion of expert testimony and opinion at the time of trial, or during dispositive motion practice, based on either a failure to provide notice to the opposing side, commonly seen as a failure to properly and/or timely disclose an expert's retention, or based on the substance of that particular expert's opinion, the need for that expert's specialty to help the fact-finder reach a determination, and whether the expert opinion is based upon facts in the record or personally known to the witness.

1. Preclusion Based On A Failure To Disclose

New York Civil Practice Law & Rules (hereinafter "CPLR") § 3126(2) sets forth the following regarding precluding admission of information based on a failure to disclose:

"If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:

* * * *

2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of [*10]testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses" [emphasis added].

To be sure, this Court directed in the Preliminary Conference Order that retained experts must be disclosed as follows:

"2. Experts to be Retained by a Party:

Each party shall select his/her own expert to value any assets or address any other issue. The expert shall be identified to the other party by letter with their qualifications and retained no later than 5/2/25 . . . "

However, Plaintiff fails to raise any issue as to Defendant's compliance with this Court's prior directives within the Preliminary Conference Order, and no documents have been provided by either party, either in support or opposition to Motion Sequence No. 4, which discuss when the retention of Defendant's expert was made, and when/if Defendant identified such expert to Plaintiff.

Furthermore, CPLR § 3101(d)(1) sets forth directives regarding disclosure of expert witnesses even after the deadline set forth by the trial Court, given a showing of "good cause":

"(d) Trial preparation.

1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph" [emphasis added].

This Court is not in receipt of any expert witness exchanges pursuant to CPLR § 3101(d), and again Plaintiff does not challenge Defendant's Expert Report based on timeliness of the disclosure, substance of the disclosure, or a failure to notify. Consequently, this Court cannot make a determination at this time on preclusion of Defendant's expert and Defendant's Expert Report based on these grounds.

2. Preclusion Based On Substance Of Expert Testimony

"The admission of expert opinion evidence is a matter which rests within the discretion of the Trial Judge. Generally, an 'expert' should be permitted to offer an opinion on an issue which involves 'professional or scientific knowledge or skill not within the range of ordinary training or intelligence' (Selkowitz v. County of Nassau, 45 NY2d 97, 102, 408 N.Y.S.2d 10, 379 N.E.2d 1140, quoting Dougherty v. Milliken, 163 NY 527, 533, 57 N.E. 757). The test is one of need as applied to the unique circumstances of each case. If the jury requires the benefit of the [*11]expert's specialized knowledge, the expert's opinion should be allowed even when it bears on an ultimate question (Fisch, New York Evidence § 413, at 264 [2d ed.])" (Dufel v. Green, 84 NY2d 795 [1995]). "Opinion evidence must be based on facts in the record or personally known to the witness" (Samuel v. Aroneau, 270 AD2d 474 [2d Dept 2000] where the Court further held that an expert's conclusions which lacked foundation in the record were speculative, declining to allow such opinion to be considered in opposition to a motion for summary judgment).

In the context of matrimonial actions, the applicable law requires that in making both child custody and financial determinations, the trial court must take into consideration if domestic violence exists, and if so, the nature and extent of same.

[A] Custody

"[P]ursuant to Domestic Relations Law § 240(1)(a), in any action or proceeding concerning custody or parental access where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interests of the child along with all the other relevant factors when the allegations of domestic violence are proven by a preponderance of the evidence" (Scott v. Thompson, 166 AD3d 627 [2d Dept 2018]).

[B] Finances

DRL § 236(B)(5)(d)(14) requires that a Court also take into consideration "whether either party has committed an act or acts of domestic violence . . . " in determining equitable distribution of the parties' martial assets. "If the court determines that one spouse engaged in domestic violence against the other that has impacted the spouse emotionally, financially, and reputationally, the court can provide the spouse who engaged in the domestic violence a decreased distributive award of the martial assets (J.N. v T.N., 77 Misc 3d 894 at 931 [Sup Ct, NY County 2022]['Husband's verbal and emotional abuse of wife throughout the marriage constituted harassment — his threats to take custody of the children and degrading comments alarmed her, were made without provocation, and served no legitimate purpose. The prior jurist, upon a complete trial record, expressly found that husband engaged in 'domestic violence of an emotional nature' against wife, and this court finds the same. Wife was subject to consistent, persistent verbal and emotional abuse. Husband called her names and degraded her in all aspects of her life. He told her to her face and in front of her family that she was diseased and an unfit parent who could not be around her children. He called her 'bitch' and 'cunt' at will and then callously blamed her for his despicable speech. As to her professional skills, he called her 'different flavors of you're an idiot. You're stupid. You don't know what you're doing.' This conduct continues unabated, albeit in a different form, caused emotional injury to wife and has the potential for destroying her ability to make a living.'])" (See, C.N. v. R.N., 84 Misc 3d 1236(A), 222 N.Y.S.3d 907 [Sup. Ct. Westchester Cnty 2024]).

Here, Plaintiff's central argument is that the substance of Defendant's Expert Report includes opinions which are speculative and as such should be precluded at the time of trial on those grounds. However, Plaintiff again fails to offer any support by way of supporting exhibits to the application, or case law on point wherein Court's have held such opinions to be speculative, and instead argues through his own opinion that the Defendant's Expert Report is not based in sound scientific data or facts within the record. These are all arguments that Plaintiff may, if he chooses, present at the time of trial in this matter; and, which he may present upon cross-examination of the Defendant's expert to the extent he chooses to do so. However, while this Court has not recognized Dr. Cynthia M. Lischick as an expert in any filed at this juncture, this Court finds that Defendant's Expert Report may include a professional or scientific opinion [*12]which this Court as the fact-finder could benefit from in reaching a determination regarding the open issues of custody of the parties' Child and equitable distribution of the marital property.

Based on this Court's need to evaluate allegations of domestic violence when taking into consideration both custody and equitable distribution of marital assets, and the potential need as the fact-finder to understand the potential effects of such abuse through scientific review and psychological expertise, this Court in its discretion will not preclude Defendant's expert and the Defendant's Expert Report based on the substance of the purported expert opinion. Therefore, this prong of Motion Sequence No. 4 is hereby denied in its entirety.

3. Preclusion based on Res Judicata

"Conceptually, 'res judicata' is an umbrella term encompassing both claim preclusion and issue preclusion, which are described as two separate aspects of an overarching doctrine [internal citations omitted]. Claim preclusion, the primary aspect of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties [internal citations omitted]; issue preclusion, the secondary aspect, historically called collateral estoppel, pertains to the bar on relitigating issues that were argued and decided in the first suit (Buechel v. Bain, 97 NY2d 295, 303, 740 N.Y.S.2d 252, 766 N.E.2d 914 [2001] [citation omitted], cert denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 [2002])" (Rojas v. Romanoff, 186 AD3d 103 [1st Dept 2020]).

"Claim preclusion prevents relitigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions that either were raised or could have been raised in the prior proceeding. As the Court of Appeals has stressed, this 'identity' requirement is a 'linchpin of res judicata,' which applies 'only when a claim between the parties has been previously 'brought to a final conclusion.' Stated differently, the 'doctrine of res judicata only bars additional actions between the same parties on the same claims based upon the same harm' [internal citations omitted] (Rojas v. Romanoff, 186 AD3d 103 [1st Dept 2020]).

"Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action (Buechel v. Bain, 97 NY2d at 303, 740 N.Y.S.2d 252, 766 N.E.2d 914; Ryan v. New York Tel. Co., 62 NY2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984]). Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action (Buechel v. Bain, 97 NY2d at 303—304, 740 N.Y.S.2d 252, 766 N.E.2d 914). There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party [internal citations omitted]) . . . Thus, issue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) the issue was necessary to support a valid and final judgment on the merits (Conason v. Megan Holding, LLC, 25 NY3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 [2015])" (See, Rojas v. Romanoff, 186 AD3d 103 [1st Dept 2020]).

While unclear based on the interchangeable terms used within Plaintiff's notice of motion and supporting affidavit, this Court gleans that Plaintiff is seeking issue preclusion or collateral estoppel, based on the dismissal of a prior family offense proceeding brought by Defendant in the matter of A. A. V. v. Z. J. V., New York State Family Court, County of Westchester, bearing File No.: [Redacted], Docket No.: [Redacted] (hereinafter "Prior Family Offense Proceeding"). Generally, the Prior Family Offense Proceeding was based on allegations of abuse by Plaintiff [*13]on Defendant and the Child within a time-period from 2014-2018,^[FN41] and sought orders of protection against Plaintiff in favor of Defendant and the Child.

Based on submissions made to this Court, the Prior Family Offense Proceeding was dismissed by Order ^[FN42] on September 27, 2023 by Hon. Arlene E. Katz, incorporating by reference an oral decision made on the record during a prior appearance before the Family Court on September 26, 2023:

"A. A. V. filed a family offense petition against Z. J. V. on January 25, 2023. The petitioner in a family offense proceeding has the burden of establishing by a fair preponderance of the evidence that the respondent committed the enumerated family offenses set forth in the petition. This Court has heard testimony from M. C., J. F., A. S., M. F. and the petitioner herself. The first three witnesses' testimony did not add support to an of the alleged family offenses in the petition. M. F.'s testimony did not support the brutal and violent beatings of the subject child, V. V., that A. A. V. continues to allege. A. A. V.'s testimony combined with her conduct during this fact finding hearing, specifically related to her unexcused and unsubstantiated causing the loss of trial time this past Thursday and Friday, lacks sufficient credibility to warrant sustaining the petition. The only incidents which would remotely fall within the enumerated family offenses occurred five or more years ago. Even if taken as true, which this Court does not, such isolated incidents five years ago is insufficient to sustain the petition or warrant the issuance of an Order of Protection. While much of the testimony demonstrates that the party had an unhappy and unfulfilling marriage the conduct about which this Court heard testimony is insufficient to establish by a preponderance of the evidence any of the family offenses set forth in A. A. V.'s petition. Even in this, even if this Court permitted A. A. V.'s proposed final witness, a domestic violence expert, which it is not permitting, no expert could provide context for family offenses which were not credibly testified to. This Court is not dismissing the petition or denying an Order of Protection solely on the basis that the facts or events allegedly are not relatively contemporaneous with the date of the petition. In addition to the remoteness of the allegations constituting family offenses those allegations, quote, do not bear on the existence of an immediate and ongoing danger to the petitioner or parties' child, close paren, close quote. Aupre versus Patch Fitzharris [ph.] 84 AD 3rd 1092-1093, Second Department, 2011. After care consideration based upon this Court's assessment of the petitioner's credibility, her disrespect for this Court, these proceedings, the other parties and attorneys as well as a consideration of all testimony and evidence adduced in this hearing the family offense petition is dismissed upon application of the AFC."^[FN43] [emphasis added].

It appears to this Court that the Prior Family Offense Proceeding was dismissed based on [*14]two grounds. First, that the alleged family offenses had taken place "five or more years ago", and second that the allegations regarding the alleged family offenses "do not bear on the existence of an immediate and ongoing danger to the petitioner or the parties' child." It is clear that the decision did not, in and of itself, make a definitive determination that the Plaintiff had or had not committed these acts, only that the Defendant (the Petitioner) failed to establish that the then alleged family offenses occurred.

[A] Claim Preclusion

It is undisputed that the Prior Family Offense Proceeding involved the same parties as are now litigating the subject matrimonial action, however importantly Defendant is not seeking the entry of an order of this Court to determine that the Plaintiff has committed certain enumerated family offenses, and/or the entry of an order of protection in favor of her and the Child, as was the claim sought within the Family Court. Therefore, this Court determines that any basis for preclusion based on the doctrine of claim preclusion must fail.

[B] Issue Preclusion

There was a final adjudication of the Prior Family Offense Proceeding as set forth herein-above, however the issue adjudicated was not an "identical issue" to the claims being presented within the subject matrimonial action. The Prior Family Offense Proceeding was dismissed based on the timeline of when the alleged conduct took place, that the allegations did not bear immediate and ongoing danger to the Defendant or the parties' Child, and that Petitioner failed to establish that the alleged family offenses occurred.

Importantly, a family offense petition seeking an order of protection brought in the Family Court is not subject to the defense of laches or statute of limitations, which would bear on the timeline of when particular abuse allegedly occurred (Opray v. Fitzharris, 84 AD3d 1092 [2d Dept 2011]). Instead, "the issue in family offense matters is not the age of the threat but the imminence of the danger" (Id. at 1093; see also Leslie G. v. Simon B., 33 Misc 3d 1235[A] [Family Ct. Kings Cnty 2011]). This appears to be the basis for which the Prior Family Offense Proceeding was dismissed, as the Family Court focused on the "imminence of danger" in relation to the timeline of alleged conduct. Again, there was no final determination by the Family Court regarding whether or not the alleged acts had been committed by Plaintiff or constituted domestic violence against Defendant and/or the Child.

Here, based on this Court's obligations pursuant to the DRL, it must make such a determination. After review of the relevant statutes, this Court finds that there is no durational or contemporaneous component which should be taken into account when applying DRL § 240(1)(a) and DRL § 236(B)(5)(d)(14), in determining whether or not domestic violence has taken place throughout the course of the marriage of parties engaged in a matrimonial action, and further for consideration in determining both custody and finances.

For example, DRL § 240(1)(a) states in pertinent part as follows: "Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court mustconsider the effect of such domestic violence upon the best interests of the child" (emphasis added).

Likewise, DRL § 236(B)(5)(d)(14) specifically states: "In determining an equitable [*15]disposition of property under paragraph c, the court shall 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" (emphasis added).

This Court interprets these statutes to mean it must, regardless of timeline of the allegations, consider all allegations of domestic violence claimed to have occurred during at least the course of the parties' marriage as a factor when determining both custody of the Child and equitable distribution of the martial assets. Looking for further direction, a review of the New York State Legislature's Bill Jacket regarding the inclusion of DRL § 236(B)(5)(d)(14) provides no further guidance regarding any timeline, durational component or "imminent" threat, as was considered in the Family Court's determination to dismiss the Prior Family Offense Proceeding.^[FN44]

Supporting this Court's position was the decision in J.N. v T.N., Supra, wherein the trial Court, in determining equitable distribution of martial assets, reviewed not only domestic abuse during the entire duration of the marriage (starting in 2007) but considered prior verbal abuse of the husband two years prior to the marriage, " '[v]ictimized' by Wife's purchase of a home for her parents in 2005, Husband 'relentlessly' harassed and berated her. According to Wife, Husband felt that she had made a unilateral financial commitment without his consent and that his parents did not get equal treatment. The parties, however, were not married in 2005, did not have a financial partnership in 2005, and Wife used her own money for the home purchase. Nonetheless, Husband was relentless on this issue throughout the marriage and was verbally abusive toward her for this perceived harm" (Id. at 914).

Therefore, even if Plaintiff's application was successful, and issue preclusion was warranted based on the dismissal of the Prior Family Offense Proceeding, this Court must still consider all allegations regarding potential domestic violence, throughout the entire duration of the parties' marriage, and potentially consider abuse prior to the marriage that continued throughout, separate and apart from any allegations brought within the Prior Family Offence Proceeding, and the effect of such alleged domestic violence upon the best interests of the child and in consideration of equitable distribution of the parties' marital assets (See, Scott and C.N., Supra; see also, DRL § 240[1][a] and DRL § 236[B][5][d][14]). Consequently, the issues determined by the Family Court, given their limitations based on the "imminent threat" of the alleged allegations, are not identical to the one present before this Court, and as such Plaintiff's application for preclusion based on issue preclusion must fail.

This Court denies Plaintiff's application to preclude the Defendant's Expert Report based on the doctrine of res judicata.

B. Other Relief.

To the extent relief is not granted or otherwise addressed herein, it is hereby denied.

Defendant seeks a plethora of different relief within Motion Sequence No. 5, relating to the admission and/or preclusion of certain witness testimony, expert witness opinion, admission of third-party reports related to reviewing document production from Plaintiff, and the issuance by this Court of a so-ordered judicial subpoena duces tecum related to the Child's prior therapist's notes. However, Defendant fails to submit, in admissible form, an affidavit or [*16]affirmation with knowledge in support of the applications for relief. For the reasons set forth herein-below, Motion Sequence No. 5 is hereby denied in its entirety.

A. Failure To Provide Signature On Motion Papers.

Pursuant to the Rules of the Chief Administrator of the Courts (hereinafter "NYCRR"), specifically 22 NYCRR §130-1.1a: "(a) Signature. Every pleading, written motion, and other paper, served on another party or filed or submitted to the court shall be signed by an attorney, or by a party if the party is not represented by an attorney, with the name of the attorney or party clearly printed or typed directly below the signature. Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party."

Furthermore, Pursuant to the Uniform Rules For The New York State Trial Courts (hereinafter "NYCRR"), specifically 22 NYCRR § 202.16(e), " '[e]very paper served on another party or filed or submitted to the court in a matrimonial action shall be signed as provided in section 130—1.1a of this Title' (22 NYCRR 202.16[e] ). Section 130—1.1a (a) requires a party's attorney to sign every pleading, motion or other paper served on a party or submitted to the court, and section 130—1.1a (b) provides that the attorney thereby 'certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the paper or the contentions therein are not frivolous as defined in section 130—1.1(c) of this Subpart.' The rule requiring certification does not impose a new ethical obligation, but is meant to impress upon the matrimonial bar the necessity for compliance with the ethical obligations previously in place (Rosen v. Rosen, 161 Misc 2d 795, 799, 614 N.Y.S.2d 1018). '[T]he implication of the rule is also clear, that the court should not grant relief in the absence of the certification' (Rosen v. Rosen, supra, at 800, 614 N.Y.S.2d 1018)" (Hunt v. Hunt, 273 AD2d 875 [4th Dept 2000]).

New York State Technology Law § 304 pertains to the use of electronic signatures:

"1. The electronic facilitator shall establish rules and regulations governing the use of electronic signatures and authentication. The electronic facilitator shall not establish rules or regulations that seek to apportion fault or impose or limit liability relating to the use of electronic signatures.

2. In accordance with this section unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand."

22 NYCRR § 202.5-b provides rules for electronic filing within the New York State Supreme Court:

"(a) Application. (1) On consent, documents may be filed and served by electronic means in Supreme Court in such civil actions and in such counties as shall be authorized by order of the Chief Administrator of the Courts and only to the extent and in the manner provided in this section.

* * *

(ii) NYSCEF shall mean the New York State Courts Electronic Filing System and the [*17]NYSCEF site shall mean the New York State Courts Electronic Filing System website located at www.nycourts.gov/efile;

* * *

(e) Signatures.

(1) Signing of a document. An electronically filed document shall be considered to have been signed by, and shall be binding upon, the person identified as a signatory, if:

(i) it bears the physical signature of such person and is scanned into an electronic format that reproduces such signature; or

(ii) the signatory has electronically affixed the digital image of his or her signature to the document; or

(iii) it is electronically filed under the User ID and password of that person; or

(iv) in a tax certiorari action in which the parties have stipulated to this procedure, it is an initiating document that is electronically filed without the signature of the signatory in a form provided above in this subparagraph, provided that, prior to filing, the document is signed in full in hard copy (which hard copy must be preserved until the conclusion of all proceedings, including appeals, in the case in which it is filed); or

(v) in a small claims assessment review proceeding, it is a petition recorded by the NYSCEF site upon the filing of a text file as provided in subdivision (b)(1) of this section, provided that prior to filing, the document was signed in full in hard copy (which hard copy must be preserved until the conclusion of all proceedings in the matter, including article 78 review and any appeals, and must be made available during the proceeding upon request of the respondent or the court); or

(vi) it otherwise bears the electronic signature of the signatory in a format conforming to such standards and requirements as may hereafter be established by the Chief Administrator."

We turn to Defendant's Motion 5 Affirmation in Support, which upon review was not signed as required by 22 NYCRR § 130-1.1a, and 22 NYCRR § 202.16(e), as there is no signature whatsoever included on the blank signature line provided on page 17 of the document, and fails to comply additionally with the filing rules set forth in 22 NYCRR § 202.5-b. Further, Defendant fails to provide an electronic signature of any kind at his signature line, also failing to comply with the directives pursuant to New York State Technology Law § 302(3). Tellingly, the failure to include a signature within Defendant's Motion 5 Affirmation in Support departs from the Defendant's notice of motion (hereinafter "Notice of Motion"),^[FN45] of Motion Sequence No. 5, which does comply with the applicable rules.

Based upon the foregoing, the Court must strike Defendant's Motion 5 Affirmation in Support, and must further disregard the supporting exhibits annexed to same based on the defects of Defendant's underlying application. As the submission struck was the only filing made in support of the instant application, Motion Sequence No. 5 is hereby denied in its entirety.

B. Other Relief.

To the extent relief is not granted or otherwise addressed herein, it is hereby denied.

ORDERED that Motion Sequence Nos. 3-5 are denied; and it is further

ORDERED that by January 6, 2026, Defendant's counsel shall serve a copy of this Order with Notice of Entry on Plaintiff, via NYSCEF filing and e-mail, and file proof of service with the Court on the same day.

The foregoing constitutes the Decision and Order of the Court.