The following documents were considered in connection with a motion by notice of motion of the Defendant, dated December 26, 2025, (hereinafter "Motion Sequence No. 5"), seeking the entry of an Order granting the following relief:

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 Chatelain; and,

10. For such other and further relief for the Defendant as the Court deems just and proper (collectively referred to as "Defendant's Requested Relief").

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 June 13, 2025, this Court entered a second pre-trial conference Order (hereinafter [*2]"Pre-Trial Conference Order #2"),^[FN3] 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."^[FN4]

On December 26, 2025, Defendant timely filed Motion Sequence No. 5,^[FN5] 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 affirmation, albeit titled as an affidavit (hereinafter "Affirmation").^[FN6]

On December 27, 2025, Defendant filed an affirmation of service,^[FN7] 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 ^[FN8] to Motion Sequence No. 5.

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

On January 5, 2026, a Decision and Order was entered pertaining to Motion Sequence Nos. 3-5 (hereinafter "Decision"),^[FN9] which denied without prejudice the relief sought in Motion Sequence No. 5 due to the Affirmation, being the sole submission filed in support of the application, being unsigned and disregarded.

On January 6, 2026, a pre-trial conference was held wherein all parties and counsel appeared and Defendant's counsel made an oral application pertaining to the Decision requesting renewal pertaining only to the determinations made regarding Motion Sequence No. 5. In [*3]support of Defendant's application, Defendant's counsel requested that this Court accept as new information a signed copy of his Affirmation in the same form originally filed, with a justification being that he forgot to execute same prior to filing, and that this Court then make a determination of the motion considering all submissions filed by the parties. The AFC did not oppose the application, while Plaintiff opposed asserting that no reasonable justification for not providing this asserted new information was proffered by Defendant. The Court granted the application having found the signed Affirmation to constitute new information and the asserted law office failure to constitute a reasonable justification for not providing that information with the application (see, City Line Auto Mall, Inc. v. Citicorp Leasing, Inc., 45 AD3d 717 [2d Dept 2007]). Moreover, the granting of such relief is warranted in the interests of justice in the absence of prejudice to the opposing party, as in this case Plaintiff would not experience any prejudice as the application sought that all submissions originally filed pertaining to Motion Sequence No. 5 would be considered by this Court if renewal was granted (see, Roseman v. Goldberg, 181 AD2d 873 [2d Dept 1992]).

The New York State Court of Appeals has confirmed the authority of trial Courts to utilize discretion to permit electronic testimony of witnesses:

"In People v. Wrotten, we held that "the court's inherent powers and Judiciary Law § 2—b vest it with the authority to fashion a procedure" whereby witnesses are permitted to testify via live, two-way television at trial (14 NY3d 33, 36, 896 N.Y.S.2d 711, 923 N.E.2d 1099 [2009] ). Recognizing that "the Legislature has primary authority to regulate court procedure," we further explained that " 'the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute' " (id. at 37, 896 N.Y.S.2d 711, 923 N.E.2d 1099, quoting People v. Ricardo B., 73 NY2d 228, 232, 538 N.Y.S.2d 796, 535 N.E.2d 1336 [1989] ). We observed that "[b]y enacting Judiciary Law § 2—b (3), the Legislature ... explicitly authorized the courts' use of innovative procedures where 'necessary to carry into effect the powers and jurisdiction possessed by [the court]' " and, therefore, "courts may fashion necessary procedures consistent with constitutional, statutory, and decisional law" (Wrotten, 14 NY3d at 37, 896 N.Y.S.2d 711, 923 N.E.2d 1099, quoting Judiciary Law § 2—b [3] ). Inasmuch as "there [wa]s no specific statutory authority evincing legislative policy proscribing televised testimony" in criminal trials, the matter was properly left to Supreme Court's discretion (Wrotten, 14 NY3d at 37—38, 896 N.Y.S.2d 711, 923 N.E.2d 1099)" (see, State v. Robert F., 25 NY3d 448, 453, 34 N.E.3d 829, 832 [2015]).

In exercising this discretion, trial Court determinations denying such requests to testify electronically via telephone have been upheld due to the rationale that permitting such request would make it difficult for the Court to determine credibility of the witness (see, In re Neamiah Harry-Ray M, 127 AD3d 409 [1st Dept 2015]). However, the use of a live, two-way video, which allowed all parties to observe the witness's testimony and demeanor, provides all opposing counsel or self-represented litigants an opportunity to cross-examine the witness, and permitted [*4]the court to make a record of the testimony of the witness, has been upheld (see, In re Arlenys B., 70 AD3d 598 [1st Dept 2010]).

Here, Defendant's counsel seeks leave of this Court to permit remote testimony by two-way live video of witnesses who reside more than one hundred miles from White Plains, New York, and during oral argument advised this Court that certain witnesses may be testifying from as far away as the country of Germany. In opposition to this application, Plaintiff asserts that this request has been made solely for convenience, Plaintiff must be afforded the opportunity to assess witness demeanor and credibility in person, and that remote testimony would dilute Plaintiff's right to cross-examine witnesses.

This Court finds Plaintiff's objections to Defendant's request unpersuasive. As noted by the Appellate Division in In re Arlenys B., supra, the use of a live, two-way video will provide all parties, counsel and this Court the opportunity to assess witness demeanor and credibility, and for counsel and self-represented litigants to engage in cross examination without any limitation. Notably, this Court often affords parties and non-party witnesses the opportunity to appear remotely in this fashion by circulating a Microsoft TEAMS link to all counsel and self-represented litigants which may be forwarded to any witnesses to testify remotely, with Court staff utilizing the Microsoft TEAMS program to display any exhibits marked for identification that have been previously filed on New York State Courts Electronic Filing (NYSCEF) system.

Accordingly, Defendant's request is granted to the extent that any witness called by Plaintiff, Defendant or the attorney for the Child who lives more than one hundred miles from White Plains, New York may testify remotely at trial via Microsoft TEAMS video link to be circulated by this Court. Any counsel or self-represented litigant seeking to call a witness to testify remotely shall forward the link to the witness, ensure that they have the technology available to utilize the link so that they may be fully seen and heard during their testimony, and so that they may simultaneously view any exhibits displayed on the screen during their testimony.

New York State Family Court Act (hereinafter "FCA") § 1011 sets forth the following purposes of child protective proceedings commenced under Article 10 of the FCA:

"This article is designed to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being. It is designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met."

FCA § 1046(a)(vi) provides the following exception to the hearsay rule within abuse and neglect proceedings commenced under that article:

"Previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of [*5]the child shall not be necessary to make a fact-finding of abuse or neglect;"

While this hearsay exception has been applied to actions and proceedings beyond those commenced pursuant to Article 10 of the Family Court Act, including those pertaining to child custody, this may only be done in limited circumstances when the custody request arises out of the asserted abuse and neglect:

"Contrary to the mother's contention, the Family Court properly refused to permit her to admit hearsay testimony pursuant to Family Court Act § 1046(a)(vi). That section, by its own terms, is limited to a "hearing under ... article [10] and article ten-A" of the Family Court Act (Family Ct. Act § 1046[a] ), and although the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family Ct. Act article 6 where the basis of the custody proceeding is founded on neglect or abuse such that the issues are "inextricably interwoven" (see, Khan-Soleil v. Rashad, 108 AD3d 544 [2d Dept 2013] [internal citations omitted]).

Here, there is one issue of the marriage being V. V. (D.O.B.: XX/XX/XXXX) (hereinafter the "Child") and following the commencement of a proceeding in the New York State Family Court, a Stipulation Re Custody and Parenting Time was entered into by the parties and so-ordered by the Hon. Nilda Morales-Horowitz, J.F.C., on January 14, 2025 (hereinafter "Custody Stipulation"), which provided that the parties shall share joint legal and physical custody of the Child.^[FN10]

On February 4, 2025, at the first appearance scheduled in this action, as reflected by the court transcript, Defendant's counsel acknowledged that the parties had resolved custody of the Child in the Family Court:

"MR. STEINBERGER: There is currently pending a child support proceeding before the Support Magistrate in Family Court. Will Your Honor remove and consolidate it?

THE COURT: I need you to provide me with a memo. You can copy the plaintiff. I need to understand when it was brought, where it is pending in the State of New York, what the Family Court file number is, what the docket number is, and where you are. I like to consolidate cases here from the Family Court when it makes sense. However, sometimes it doesn't. So every case is different. What I will do is I will pull up the Family Court file and review it and I will make that decision. Any other family Court proceedings pending?

MR. STEINBERGER: We just settled the custody proceeding."^[FN11]

On February 20, 2025, in this action Defendant's counsel filed a proposed preliminary [*6]conference stipulation and order ^[FN12] which in section A(8)(a) acknowledged the existence of the Custody Stipulation noting, "Parties' 1/14/25 stipulation regarding custody and parenting time So-ordered by the Family Court, Westchester County under docket nos. X-XXXXX-XX & X-XXXXX-XX," and thereafter in section C noted custody as resolved.

On February 21, 2025, a preliminary conference was held wherein all parties and counsel appeared, after which a preliminary conference stipulation and order was thereafter entered by this Court inclusive of the language pertaining to the Custody Stipulation.^[FN13] The court transcript reflects that the parties entered into a stipulation resolving all custody disputes between them pertaining to the Child modifying the terms of the Custody Stipulation:

"THE COURT: . . . It is my understanding after having met with my law clerk, you are in a position to resolve all of the outstanding custody and access issues by placing a stipulation on the record today. To the extent you do so, the parties will be allocuted, meaning I will swear you both in, and ask you a series of questions that would prevent the need for any attorney for the child to be appointed. Defendant's counsel, is that correct?

MR. STEINBERGER: That is correct.

THE COURT: Plaintiff, do you concur?

Z. J. V.: Yes.

[THE COURT]: I am going to ask that the Defendant's attorney put the settlement on the record. After he is done, I will ask the plaintiff if that conforms with what the resolution is.

MR. STEINBERGER: The parties agree that the January 8, 2025 stipulation regarding custody and parenting time that was So Ordered by the Honorable Nilda Morales-Horowitz, a Judge of the Family Court, State of New York, is modified in the following respects: Paragraph six currently reads (Reading:) Unless the parties otherwise agree V. V., shall spend holidays and school recesses with the respective parents according to the schedule below. The rest of that paragraph is stricken. The parties' holiday schedule remains as it is with the caveat that "entire school holiday," shall mean for a period of time beginning from the last day of school preceding the holiday period and lasting until the beginning of the next school day. I believe that is the entirety of the stipulation between the parties.

THE COURT: Before I turn to the plaintiff, it is your understanding that with that resolution, all custody and access issues are resolved and there is no need for the appointment of an attorney for the child in this action?

MR. STEINBERGER: Yes, Your Honor, we are hopeful no further intervention or AFC or forensics will be required.

THE COURT: I need to be more definitive. So, it is my understanding that resolves all custody and access issues before this court and that I will not be appointing an attorney for the child with the understanding that the parties under New York State law have the ability to go to the Family Court or to go to this court at any point in time after the stipulation to raise any other issues that exist; is that correct?

MR. STEINBERGER: Yes, Your Honor.

THE COURT: Plaintiff, is that your understanding?

Z. J. V.: Yes, Your Honor."^[FN14]

The parties were then placed under oath and subject to an allocution which included the following:

"THE COURT: Do you understand that by resolving these issues in the court here today, that these agreements will be incorporated by reference into a transcript which will be so ordered by the court, sir?

Z. J. V.: Yes.

THE COURT: Ma'am?

A. A. V.: Yes.

THE COURT: And you understand that will then be a binding court order which will modify the terms set forth in prior custody and access orders entered either by the Family Court or this court, sir?

Z. J. V.: Yes.

THE COURT: Ma'am?

A. A. V.: Yes.

THE COURT: You understand that by entering into this agreement, all custody and access issues that are pending before this court have now been resolve[d] and the Court will not be appointing an attorney to represent your child in this particular action, sir?

Z. J. V.: Yes.

THE COURT: Ma'am?

A. A. V.: Yes.

THE COURT: Thank you. This Stipulation of Settlement is intended to incorporate into but not merge with the final Judgment of Divorce. This means that the Stipulation will become part of the final Judgment of Divorce, and enforceable both as a contract between the parties and as a Court Order or Judgment. As a Court Order or Judgment, it will be enforceable with all the powers of the court including but not limited to contempt proceedings. Sir, do you understand that?

Z. J. V.: Yes.

THE COURT: Ma'am?

A. A. V.: Yes."^[FN15]

Following the allocution, this Court accepted the parties' resolution of any then outstanding custody disputes and directed the submission of a proposed order containing the terms set forth on the record.^[FN16]

On February 26, 2025, a proposed order was submitted by Defendant's counsel with notice of settlement served upon Plaintiff,^[FN17] which was entered on March 5, 2025 (hereinafter "Amended Custody Stipulation"),^[FN18] which provides the following:

"IT IS HEREBY ORDERED that, pursuant to the stipulation of the parties in open court and upon the record at their appearance on February 21, 2025 in the above-captioned matter, that their January 8, 2025 STIPULATION RE CUSTODY AND PARENTING TIME that was So-Ordered by the Hon. Hilda Morales-Horowitz of the Family Court of the State of New York, County of Westchester under docket numbers X-XXXXX-XX and X-XXXXX-XX (the "Stipulation"), is hereby modified in the following respect:

1. The first sentence of Paragraph "6" of the Stipulation is modified to read: Unless the Parties otherwise agree, V. V. shall spend the holidays and school recesses/holidays with the respective parent according to the schedule below. "School holiday/recesses" shall mean the period beginning from when V. V. is last dismissed from his school before the [*7]holiday/recess and shall continue until the morning of the school day next following the holiday recess.

The language beginning with "provided, however," until the end of the sentence is hereby stricken and omitted. The table with the parents' respective parenting time schedule remains unchanged.

2. All other provisions of the Stipulation remain in effect and are incorporated by reference, and the Court hereby directs that each of the parties comply with those provisions as if they were fully set forth herein."

On May 2, 2025, the Court held a status conference wherein, the Court-appointed attorney for the child Donna Abrams, Esq., appeared, and the Court again inquired as to the position of the parties with respect to any applications pertaining to custody of the Child. Defendant's counsel asserted that his client sought a modification of the Amended Custody Stipulation:

"THE COURT: . . . Counsel, are there any — I just want to confirm with you, with respect to custody, okay, is your client looking to modify custody at this point or is she looking for things to remain as they are?

MR. STEINBERGER: Right now, there's an agreement, my client has not made a decision to challenge the agreement at this point in time.

THE COURT: When you say that your client hasn't made the decision, I have Ms. Abrams here and Ms. Abrams is the attorney that's been appointed for the child. One of the difficulties I've had in this case is to find out what people's respective positions are and that's why Ms. Abrams's is here. So what is your client's position regarding custody?

(Whereupon, counsel is conferring with his client.)

MR. STEINBERGER: Your Honor, since the Court is requiring us to make a decision right now, we'd like to modify the stipulation of settlement that settled the custody issue.

THE COURT: So I'm assuming then that you're, as an officer of the court, claiming that your client's prepared to prove that there's been a substantial change in circumstances that warrants a modification of the agreement and that requires the Court to revisit the best interest of the child, is that what I'm hearing?

MR. STEINBERGER: Yes, your Honor.

THE COURT: I'd like you to tell me on the record what the substantial change of [*8]circumstances is.^[FN19]

* * * *

MR. STEINBERGER: And so at every stage of the proceedings, Z. J. V. interferes and doesn't allow A. A. V. — doesn't inform her of what steps he's taken, what medications he administers, doesn't cooperate with her to make health decisions for V. V., and interferes with A. A. V.'s access and discussions with V. V. He makes sure that V. V. can't close the door so that he could monitor their discussions.

THE COURT: Anything else?

(Whereupon, counsel is conferring with his client.)

MR. STEINBERGER: He interferes. He has been — he has caused V. V.'s therapist to quit. He's interfered with A. A. V.'s ability to arrange new therapy for him and so it's been impossible for them to coparent the children. The law in New York, as your Honor knows, is that if parents can't agree, joint custody isn't appropriate."^[FN20]

"To modify an existing custody order, the parent seeking the modification must establish a substantial change in circumstances since the initial custody determination such that the modification is necessary to protect the best interests of the child" (see, Moore v. Gonzalez, 134 AD3d 718 [2d Dept 2015]). Moreover, in situations where there has already been a modification from the initial custody determination, trial Courts are directed to review whether or not a substantial change in circumstances has taken place between the last modification and the current modification application. (see, Newton v. McFarlane, 174 AD3d 67 [2d Dept 2019] [internal citations omitted] ["While it is true that child custody orders are generally not given res judicata effect because they are subject to modification, in determining whether there is an appropriate predicate for modification, a primary consideration is whether there has been a change in circumstances since the order sought to be modified was made (see Matter of Hugee v. Gadsden, 172 AD3d 863, 100 N.Y.S.3d 297, 2019 NY Slip Op. 03596; Matter of Richard GG. v. M. Carolyn GG., 169 AD3d 1169, 94 N.Y.S.3d 644; Matter of McKenzie v. Williams, 165 AD3d 673, 85 N.Y.S.3d 205)"] [emphasis added]).

Furthermore, the Appellate Division, Second Department in Newton v. McFarlane, Supra, went a step further, holding that the Family Court should have confined its analysis regarding a substantial change in circumstances for a custody modification, to the timeframe between attempted petitions for custody modification, notwithstanding that the prior petition for modification was denied:

"In this case, the Family Court, if a hearing was required at all, should have confined the scope of the testimony to the changes alleged to have occurred between the determination of the second modification petition and the filing of the third, at least until it was in a position to assess whether a material change in circumstances had [*9]occurred sufficient to warrant a full inquiry into whether the existing custody arrangement was in the child's best interests" [emphasis added].

Here, the parties entered into the Custody Stipulation in January of 2025 and then the Amended Custody Stipulation in March of 2025. Notably, both were so-ordered by the presiding justice and the latter incorporated the terms of the former. Accordingly, with respect to the application to modify the Amended Custody Stipulation by both parties, this Court must evaluate if a substantial change in circumstances has occurred since the prior custody determination, which in this case is the date of the Amended Custody Stipulation. Upon inquiry set forth above as to the basis for Defendant's asserted substantial change in circumstances, Defendant's counsel set forth his client's position largely asserting claims that the parties cannot effectively engage in joint legal custody of the Child due to inability to communicate effectively and make joint decisions pertaining to the Child. None of the claims is "inextricably interwoven" with allegations of abuse and/or neglect of the Child by Plaintiff which would permit the hearsay exception for out of court statements made by the Child to be admitted. Accordingly, Defendant's request must be denied.

In making this determination, the Court recognizes that claims of domestic violence made in the context of matrimonial actions must not only be considered by when making custody determinations pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 240(1)(a), but also must be evaluated when making financial determinations pursuant to DRL § 236(B)(5)(d)(14), and that such allegations of domestic violence may include those rooted in claims of abuse and neglect of the children of the subject marriage. Therefore, a question arises as to if a litigant asserting domestic violence, inclusive of asserted child abuse and neglect, as a factor to be considered by a trial court in a matrimonial action for the sole purpose of evaluation of financial factors should be permitted to utilize the hearsay exception pertaining to out-of-court statements by a child set forth in FCA § 1046(a)(vi). For the reasons set forth below, this Court determines that such use of the hearsay exception would be improper, and this shall not be permitted here.

The hearsay exception set forth in FCA § 1046(a)(vi) is statutory in nature and while the appellate courts of this State have reasoned that the use of this exception shall be permitted to extend beyond proceedings commenced under Article 10 of the FCA, to custody proceedings (Khan-Soleil v. Rashad, Supra), this Court has not identified any precedent for this extension to apply to solely financial determinations to be made arising out of domestic violence allegations in a matrimonial action. Accordingly, this Court must turn to the applicable statute to determine the legislative intent through examination of the statutory text (see, Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998]).

A plain reading of FCA § 1011 provides no ambiguity that the clear intent of the legislature in adopting Article 10 was to "establish procedures" to address abuse and neglect of children, while being "designed to provide due process of law" to address proceedings to be commenced in the New York State Family Court. Turning to FCA § 1046(a)(vi) it likewise is clearly intended by the Legislature to apply only to proceedings commenced pursuant to Article 10 of the FCA as it addresses not only the hearsay exception admissibility of such out-of-court statements of children, but the use of such statements requiring corroboration for a fact-finding of abuse or neglect, directing: "Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this [*10]subdivision shall be sufficient corroboration." Accordingly, this Court finds no evidence of legislative intent for this statutory hearsay exception to extend to matrimonial actions commenced pursuant to the DRL in the context of financial determinations to be made therein.

In support of Defendant's application to permit the admission of testimony of J. F. and M. F., Defendant's mother, from the parties' prior trial held in the Family Court, Westchester County, Defendant's counsel directs this Court to New York State Criminal Procedure Law (hereinafter "CPL") § 670.10[1], which is titled "Use in a criminal proceeding of testimony given in a previous proceeding; when authorized," which provides:

"1. Under circumstances prescribed in this article, testimony given by a witness at (a) a trial of an accusatory instrument, or (b) a hearing upon a felony complaint conducted pursuant to section 180.60, or (c) an examination of such witness conditionally, conducted pursuant to article six hundred sixty, may, where otherwise admissible, be received into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of death, illness or incapacity, or cannot with due diligence be found, or is outside the state or in federal custody and cannot with due diligence be brought before the court. Upon being received into evidence, such testimony may be read and any videotape or photographic recording thereof played. Where any recording is received into evidence, the stenographic transcript of that examination shall also be received" [emphasis added].

In addition to the caption itself, indicating that this provision only applies to criminal proceedings, the next provision (and only other provision) of this statute confirms that the authorization to use prior testimony is limited to subsequent criminal proceedings:

"2. The subsequent proceedings at which such testimony may be received in evidence consist of:

(a) Any proceeding constituting a part of a criminal action based upon the charge or charges which were pending against the defendant at the time of the witness's testimony and to which such testimony related; and

(b) Any post-judgment proceeding in which a judgment of conviction upon a charge specified in paragraph (a) is challenged."

Moreover, CPL § 1.10, captioned "Applicability of chapter to actions and matter occurring before and after the effective date," further confirms that all provisions of the chapter, including CPL § 670.10(1), only apply to criminal proceedings:

"1. The provisions of this chapter apply exclusively to:

(a) All criminal actions and proceedings commenced upon or after the effective date thereof and all appeals and other post-judgment proceedings relating or attaching thereto; and

(b) All matters of criminal procedure prescribed in this chapter which do not constitute a part of any particular action or case, occurring upon or after such effective date.

2. The provisions of this chapter apply to (a) all criminal actions and proceedings commenced prior to the effective date thereof but still pending on such date, and (b) all appeals and other post-judgment proceedings commenced upon or after such effective date which relate or attach to criminal actions and proceedings commenced or concluded prior to such effective date; provided that, if application of such provisions in any particular case would not be feasible or would work injustice, the provisions of the code of criminal procedure apply thereto.

3. The provisions of this chapter do not impair or render ineffectual any proceedings or procedural matters which occurred prior to the effective date thereof."

Upon review of the FCA only one section thereof includes a provision which applies CPL § 670.10(1) which is limited to juvenile delinquency proceedings commenced pursuant to Article 3 of the FCA:

"1. The provisions of article six hundred twenty of the criminal procedure law concerning the securing of attendance of witnesses by material witness order shall apply to proceedings under this article.

2. Article six hundred sixty, six hundred seventy and six hundred eighty of the criminal procedure law concerning the securing of testimony for use in a subsequent proceeding, the use of testimony given in a previous proceeding and the examination of witness by commission shall apply to proceedings under this article.

3. The provisions of the uniform act to secure attendance of witnesses from without the state in criminal cases, as incorporated in article six hundred forty of the criminal procedure law, shall apply to proceedings under this article." (see also, In re Jaquan A., 45 AD3d 305 [1st Dept 2007]; 10 NY Prac., New York Family Court Practice § 10:6 [2d ed.]).

As this action does not involve a consolidated juvenile delinquency proceeding and CPL § 670.10(1) is not applicable to any other sections of the FCA, such as those pertaining to custody, this Court now turns to any applicable law pertaining to civil litigation that may afford Defendant the relief she is seeking. Notably, the CPLR is the statute that augments the procedural requirements of the FCA pursuant to FCA § 165, while the CPLR augments the procedural requirements of the DRL (see, CPLR § 101 ["The civil practice law and rules shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute."]; see also, St. Germain v. St. Germain, 25 AD2d 568 [2d Dept 1966] ["When a particular statute conflicts with a general one, [*11]the particular statute will be deemed an exception where it is incompatible with the provisions of the general statute (McKinney's Cons. Laws of NY, Book 1, Statutes, § 238)"]).

CPLR § 4517 provides the following provision pertaining to the possible use of prior testimony:

"(a) Impeachment of witnesses; parties; unavailable witness. In a civil action, at the trial or upon the hearing of a motion or an interlocutory proceeding, all or any part of the testimony of a witness that was taken at a prior trial in the same action or at a prior trial involving the same parties or their representatives and arising from the same subject matter, so far as admissible under the rules of evidence, may be used in accordance with any of the following provisions:

1. any such testimony may be used by any party for the purpose of contradicting or impeaching the testimony of the same witness;

2. the prior trial testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee, or managing or authorized agent of a party, may be used for any purpose by any party who is adversely interested when the prior testimony is offered in evidence;

3. the prior trial testimony of any person may be used by any party for any purpose against any other party, provided the court finds:

(i) that the witness is dead; or

(ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the testimony; or

(iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or

(iv) that the party offering the testimony has been unable to procure the attendance of the witness by diligent efforts; or

(v) upon motion on notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court;

4. the prior trial testimony of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances subject to the right of any party to move for preclusion upon the ground that admission of the prior testimony would be prejudicial under the circumstances.

(b) Use of part of the prior trial testimony of a witness. If only part of the prior trial [*12]testimony of a witness is read at the trial by a party, any other party may read any other part of the prior testimony of that witness that ought in fairness to be considered in connection with the part read.

(c) Substitution of parties; prior actions. Substitution of parties does not affect the right to use testimony previously taken at trial."

CPLR § 4517(a)(3) has been applied to circumstances wherein prior statements were made in the context of custody proceedings (D.M. v. E.C., 70 Misc 3d 747 [Sup. Ct. NY Cnty 2020]).

[1] Request Pertaining to J. F.

In support of the application pertaining to J. F. and M. F., the affirmation of Defendant's counsel provides only the following to support such request:

"Here, Defendant had prosecuted a Family Offense petition against Plaintiff. One of her witnesses, J. F., has since deceased and is, therefore, unavailable. V. V.'s maternal grandmother, M. F., lives in Munich, Germany, and may not be able to travel to New York for the trial. For each of these two witnesses, Plaintiff had a full opportunity to cross examine them. As a result, Defendant should be permitted to introduce their prior testimony into trial and have it admitted into evidence."^[FN21]

Initially, this Court will note that Defendant failed to provide this Court with admissible proof of the death of J. F. such as a certified death certificate in order to provide proof that admission or any prior testimony of J. F. would be warranted pursuant to CPLR § 4517(a)(3)(i) (see, Matter of Christina A., 216 AD2d 928 [4th Dept 1995] ["In this abuse and neglect proceeding, Family Court erred during the fact-finding hearing in taking "judicial notice" of the testimony of two witnesses at a prior hearing pursuant to Family Court Act § 1028 without first determining that they were unavailable (see, CPLR 4517)"]; see also, In re Kinara C., 89 AD3d 839 [2d Dept 2011] ["Initially, the *841 father is correct that the Family Court erred in incorporating into the fact-finding hearing the testimony from the hearing, without first determining that the witnesses were unavailable" [internal citations omitted]).

Further, Defendant failed to provide this Court with the substance of the testimony of J. F. in any admissible form, such as a certified copy of the court transcript wherein the asserted prior testimony was offered, to provide proof that the subject testimony was offered at a prior trial involving the same parties or their representatives and arising from the same subject matter (see, Thousand v. Prack, 139 AD3d 1212 [3rd Dept 2016] ["As the witnesses were not unavailable, we discern no error in the Hearing Officer's denial of petitioner's request to admit into evidence, as direct proof, the purported transcript of the testimony of these witnesses at the first hearing offered by petitioner, which the Hearing Officer was not able to authenticate (see CPLR 4517[a][3])"]).

Accordingly, based upon the foregoing, the request for the entry of an order admitting the 6/15/23 testimony of J. F. must be denied.

[2] Request Pertaining to M. F.

Similarly, while Defendant's counsel affirms that M. F. "lives in Munich, Germany, and may not be able to travel to New York for the trial" Defendant's counsel does not assert that he has direct knowledge of the residence of the potential witness to provide support that admission or any prior testimony of M. F. would be warranted pursuant to CPLR § 4517(a)(3)(ii) (see, 527 Smith Street Brooklyn Corp. v. Bayside Fuel Oil Depot Corp., 262 AD2d 278 [2d Dept 1999]; see also, General Staple Co., Inc. v. Amtronics, Inc., 81 AD3d 877 [2d Dept 1981]). Nor does Defendant's counsel annex to the application proof of the residence of M. F. (see, Healy v. Rennert, 9 NY2d 202 [1961]).

Further, Defendant failed to provide this Court with the substance of the testimony of M. F. in any admissible form, such as a certified copy of the court transcript wherein the asserted prior testimony was offered, to provide proof that the subject testimony was offered at a prior trial involving the same parties or their representatives and arising from the same subject matter (see, Thousand v. Prack, Supra).

Accordingly, based upon the foregoing, the request to admit for the entry of an order admitting the 6/15/23 testimony of M. F. must be denied. However, as set forth herein, the Defendant shall suffer no prejudice as a result of this determination as this Court has granted Defendant's alternate relief requested to permit M. F. to testify remotely via a live two-way video with the assistance of a German Language court interpreter if warranted.

The United States Supreme Court has noted, "The fundamental requisite of due process of law is the opportunity to be heard" and that such hearing must be "at a meaningful time and in a meaningful manner" (see, Goldberg v. Kelly, 90 S.Ct. 1011 [1970] quoting, Grannis v. Ordean, 34 S.Ct. 779 [1914] and quoting, Armstrong v. Manzo, 85 S.Ct. 1187 [1965]).

The Uniform Rules for the New York State Trial Courts § 217.1 provides the following pertaining to the obligation to appoint an interpreter in court proceedings brought in the trial courts:

"(a) In all civic and criminal cases, when a court determines that a party or witness, or an interested parent or guardian of a minor party in a Family Court proceeding, is unable to understand and communicate in English to the extent that he or she cannot meaningfully participate in the court proceedings, the clerk of the court or another designated administrative officer shall schedule an interpreter at no expense from an approved list maintained by the Office of Court Administration. The court may permit an interpreter to interpret by telephone or live audiovisual means. If no pre-approved interpreter is available, the clerk of the court or another designated administrative officer shall schedule an interpreter at no expense as justice requires. This rule shall not alter or diminish the court's authority and duty to assure justness in proceedings before it.

(b) A person with limited English proficiency, other than a person testifying as a witness, may waive a court-appointed interpreter, with the consent of the court, if the person provides his or her own interpreter at his or her own expense."

The appointment of an interpreter is within the sound discretion of a trial court (see, People v. DeArmas, 106 AD2d 659 [2d Dept 1984]; see also, New York State Judiciary Law (hereinafter "Judiciary Law") §§ 386, 387, 389; New York State County Law § 218]. The need to afford litigants due process by ensuring their ability to understand what is transpiring within court proceedings has been extended to litigants with hearing impairments through the appointment of sign language interpreters (Judiciary Law § 390) and facilitators for those who are suffering from mental or physical impairment (Matter of Luz P., 189 AD2d 274 [2d Dept 1993]).The Appellate Division, Second Department has noted:

" 'As a corollary to the right to counsel, non-English speaking individuals have the right to an interpreter to enable them to participate meaningfully in their trial and assist in their own defense' (citations omitted) (Matter of Er—Mei Y., 29 AD3d 1013, 816 N.Y.S.2d 539). '[W]here a court is put on notice that a defendant **662 has severe difficulty in understanding the English language, it must inform him [or her] that he [or she] has a right to a competent translator to assist him [or her], at State expense, if he [or she] cannot afford one' (People v. De Armas, 106 AD2d 659, 660, 483 N.Y.S.2d 121). 'The determination whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court, which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive the defendant of his or her constitutional rights' (People v. Warcha, 17 AD3d 491, 493, 792 N.Y.S.2d 627)" (In re Ejoel M., 34 AD3d 678 [2d Dept 2006]).

Here, Defendant requests that in the event this Court excludes the prior testimony of M. F. that she be provided a German language interpreter for her live testimony. As this Court has denied the use of the prior testimony of M. F. for the reasons set forth herein, this Court must determine if the appointment of an interpreter is warranted. Notably, the answering submission of Plaintiff has failed to present a position on this requested relief and the attorney for the Child did not provide any answering submission.

The only document submitted in support of the instant application is an Affirmation of Defendant's counsel which asserts in paragraph 14 that M. F. "lives in Munich, Germany, and may not be able to travel to New York for the trial," and makes no other reference to this relief. Specifically, Defendant failed to provide, from a person with direct knowledge, a statement that M. F. has a language barrier requiring the appointment of a German Language interpreter as she is not fluent in the English Language, and is fluent in the German Language, noting any particular dialect used. However, in the interests of justice, this Court will direct that a German Language interpreter be present at the date M. F. is scheduled to provide testimony, at which time the Court will assess if the continued appointment of the interpreter is warranted and if so, in what language and dialect.

New York State Civil Practice Law and Rules (hereinafter "CPLR") § 3126 sets forth the manner within which penalties may be directed in the event a litigant fails to comply with discovery directives:

"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:

1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or

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

3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party."

However, "The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is generally a matter left to the discretion of the trial court," and "The penalty of preclusion is extreme and should only be levied when the failure to disclose has been willful or contumacious" (Garcia v. Kraniotakis, 232 AD2d 369 [2d Dept 1996] citing, Moran v. Franklin General Hosp., 214 AD2d 707 [2d Dept 1995]). Here, based upon the submissions made to this Court, it is determined that preclusion is not warranted as no compelling arguments were set forth in movant's submissions made in support of this relief that Defendant has been prejudiced in any manner due to the asserted late disclosure of the materials sought to be precluded, and this Court must consider the strong public policy that favors the resolution of actions on their merits (Pizzo v. Lusting, 216 AD3d 38 [2d Dept 2023]).

Without providing any legal basis by way of court rule statute or otherwise, movant requests that this Court impose the drastic sanction of precluding Plaintiff from offering any economic evidence at trial due to the asserted misconduct of Plaintiff during a proceeding commenced before the New York State Family Court, commenced under File Number XXXXXX and Docket Numbers X-XXXXX-XX and X-XXXXX-XX (hereinafter "Family [*13]Court Proceeding") wherein the parties reserved their rights to make claims before this Court. Notably, while the only issue before the Family Court Proceeding pertained to child support, Defendant now seeks to preclude any economic evidence at trial, despite this action and the scheduled trial to involve significant financial issues in addition to child support, such as spousal support, equitable distribution of marital property, declaration of separate property, allocation of marital debt, and so forth.

Defendant's counsel asserts in his affirmation submitted in support of this relief:

"Ultimately, the Support Magistrate chose to not deal with this [these] issues, opting instead to encourage the parties to withdraw their petitions in Family Court and present them in this divorce action. The parties stipulated that their petitions would be withdrawn without prejudice and with leave to renew, that the Supreme Court's child support order would relate back to January 26, 2023, that W would retain in the Supreme Court the same rights for counsel fees that she had in the Family Court proceeding, and that she could seek, in the Supreme Court, the same remedy of prelusion, that was available to her in the Family Court. Nyscef # 67 at 20:15-25-9."^[FN22]

While the statement of Defendant's counsel noted above is correct to the extent that the parties agreed to withdraw their petitions filed in the Family Court Proceeding, it is not accurate that Defendant would retain her rights to the claims for counsel fees and preclusion against Plaintiff that she had asserted in the Family Court Proceeding in this action, but instead that the withdrawal would be without prejudice for the parties to file motions before the Family Court to restore the Family Court Proceeding to seek relief sought therein. The transcript of proceedings before the Family Court ^[FN23] (hereinafter "Family Court Transcript"), confirmed that the parties withdrew the pending petitions before the Family Court:

"THE COURT: Okay, so and, I'm sorry, counsel, your client's withdrawing this petition at this time with the caveat that was placed on the record at this juncture. Is that correct?

MR. STEINBERGER: Yes, Your Honor.

THE COURT: Okay.

MR. STEINBERGER: At the Court's urging.

THE COURT: Yes, and it is without prejudice, so you know, you can refile and get, come back to Family Court if you need to and you preserve your filing date. No one has forced you, threatened you, coerced you in any way sir, to agree to this.

Z. J. V.: Negative.

THE COURT: Okay. How about you, ma'am? No one has forced you, threated you, coerced you in any way to agree to this.

A. A. V.: No.

THE COURT: No. Neither one of you has consumed any drugs, any alcohol, medication in the last 24 hours that would affect your ability to understand, you know, what was placed on the record, what we've decided to do in this matter, which is the withdrawal without prejudice and the Supreme Court action.

Z. J. V.: Absolutely not.

THE COURT: Okay. Ma'am?

A. A. V.: No.

THE COURT: No. And I know you gave up your right to counsel. You had enough time to speak to your attorney at this time, Ma'am.

A. A. V.: Yes.

THE COURT: Okay. You're satisfied with the representation that your attorney has provided to you, ma'am, throughout this proceeding.

A. A. V.: Yes.

THE COURT: Okay I will accept that settlement. It's really just a withdrawal because you're in Supreme, and you know, there's the order to show cause that you're free to address. Counsel fees is reserved if appropriate and thank you, all. You're excused."^[FN24]

With respect to the "caveats" placed upon the record pertaining to the withdrawal of the Family Court Proceeding, the Family Court Transcript provides the following after a discussion on the possible withdrawal:

"MR. STEINBERGER: Is the question of preclusion for Z. J. V.'s contumacious refusal to produce the documents in proper format after being instructed time and time again.

THE COURT: Okay.

MR. STEINBERGER: Even though the papers he submitted —

Z. J. V.: There was no specific format.

MR. STEINBERGER: At 8:30 last night —

THE COURT: So can I say the following? So if the matter is withdrawn without prejudice to your right to get the matter before the Court on an order to show cause I will restore it. We'll have a hearing and any relief, any remedies that you would seek would be available to your, counsel. I would address those things. My hope is that once you're before Judge Hyer that you should be able to resolve a lot of these issues. And any claims perhaps even on the issues of, you know, you can reserve your right on counsel fees up to the proceedings, up to today.

MR. STEINBERGER: So with those to caveats I would reserve my rights for the counsel fees —

THE COURT: Yeah, yes.

MR. STEINBERGER: And reserve the rights to get an order of preclusion against Z. J. V.

THE COURT: The issue of the order of preclusion, right, I'm not addressing it because it's being withdrawn, but if you have to come back on an order to show cause because, you know, the judge didn't grant retroactivity then you can address that, but counsel fees I can certainly address by order to show cause with a caveat that it's being withdrawn at this time. You're addressing everything in Supreme. If things are not addressed, your client, if for some reason although Z. J. V. is very clear that he and I—I'm happy to cut an order that will address it. The matter's being withdrawn without—because the matter's currently pending before the Supreme Court, Z. J. V. agrees to have the issue of support addressed retroactive to January 26, 2023 when the petitioner filed her petition before the Court. At this time matter is to be addressed before the Supreme Court in terms of support. It's withdrawn without prejudice to the petitioner's right to seek an application for counsel fees in terms of what's been pending before the Family Court or to have the matter restored for, you know, whatever reason, you know —

MR. STEINBERGER: With the same, without her waiving her rights for the relief that she's previously requested.

THE COURT: Yes that works?

MR. STEINBERGER: That'll work."^[FN25]

Notably, during the Family Court appearance where the withdrawal of the Family Court [*14]Proceeding was made by the parties, prior to that withdrawal Defendant's counsel acknowledged that, "Whether the matter gets removed and consolidated is completely up to the discretion of the Supreme Court Justice," and continued, "I can't control it. I haven't heard Z. J. V. say he will agree to have it removed and consolidated."^[FN26]

At the preliminary conference held in this action, the Court transcript (hereinafter "Supreme Court Transcript")^[FN27] reflects that the withdrawal of the Family Court Proceeding was addressed, this Court confirmed that it could not consolidate any Family Court Proceeding that had been withdrawn and Defendant's counsel acknowledged his right to file a motion to restore the Family Court Proceeding, and that this Court would review any applications stemming from stipulations made by the parties before the Family Court with respect to enforcement in this action:

"MR. STEINBERGER: So, the Family Court two days ago urged us very strongly to withdraw without prejudice A. A. V.'s petition for child support with the stipulation that Z. J. V. agrees that Your Honor's ultimate child support order would relate back to January 26 of 2023 and with her request for legal fees would continu[e] [to] be pending, and I think there was a one-third issue, legal fees, because we were required to make three motions to get Z. J. V. to comply with the discovery order that the Support Magistrate completely reiterated that Z. J. V. has to comply. In his final time, he took pictures of a cover page of a financial — of his credit card statement and he sent that to me as if that somehow complies with his discovery applications. So we had to make multiple motions on that. There was a third issue that I am not recalling right now. I can go through my notes and check.

THE COURT: I want to stop you there for a minute. That's important. To the extent, that the litigants entered into a stipulation either in writing, which was signed by them, and should be signed, notarized and acknowledged in the form required to record a deed in order for it to be enforceable or a stipulation on the record pertaining to those issues, I will need a copy of that stipulation now or a copy of the transcript to reflect their stipulation because what you are asking for is for — this action was only commenced a short time ago, to be clear, it was commenced on September 17th of 2024 pursuant to the filing of Summons With Complaint, NYSCEF Document Number 1. So to the extent you are looking for an application for support to go back to an earlier date, that would not be warranted under all of the law that I am aware of, unless there is a stipulation between the parties. In addition, to your point earlier, an application for legal fees, I do not have jurisdiction pertaining to legal fees that were assessed in actions or proceedings that were not before me. So, do you have a written stipulation or transcript that you would like to present to the Court?

MR. STEINBERGER: We are waiting for the transcript. We have not received it yet.

THE COURT: Was there an allocution on the record with respect to that stipulation?

MR. STEINBERGER: Yes, Your Honor.

THE COURT: So please submit that when you get it. And can you please ask that the judge that presided over that hearing or proceeding, that they so order it. Thank you much. I am not making any rulings or findings with respect to that. I need to look at stipulation, to determine if it is legally enforceable, then I will address that at a later conference. Anything else?

MR. STEINBERGER: However, we would still ask for child support. We would ask that the child support proceeding be removed and consolidated and that this court enter a pendente lite child support order, and based on Z. J. V.'s new income which according to his last pay stub would be $152,750.00. Plus, what we believed the military benefits of $50,416.00.

THE COURT: So earlier in the proceeding, I asked if there were any Family Court proceedings that were pending. We discussed plaintiff's proceeding that he agreed to consolidate and to then simultaneously withdraw. Are you telling me now that there is a separate support proceeding?

MR. STEINBERGER: Well, the support proceedings, the support magistrate had us withdraw A. A. V.'s petition, with a stipulation that Z. J. V. would agree that it be moved and consolidated before us.

THE COURT: There is a difference. If it was withdrawn, it can't be consolidated, because there is nothing to [be] consolidated. However, I do need a copy of that stipulation that was so ordered. If it wasn't withdrawn, and there was an interim stipulation entered into, with the understanding that it would be consolidated, then I can enter an order of consolidation so which is it?

MR. STEINBERGER: It was withdrawn with the understanding and agreement that it could be restored by an Order to Show Cause if Your Honor needs it to be restored.

THE COURT: I don't need it to be restored. I have the jurisdiction over all child custody and support issues. What I am understanding now, it was withdrawn. There is a purported stipulation. I am going to go back to section 8 of the preliminary conference order and indicate here that there is a purported stipulation that was entered into between the parties at the Family Court before a support magistrate. And at that time certain agreements were alleged to make on the record. The validity and the enforceability of that stipulation is to be determined by this court.

MR. STEINBERGER: Thank you, Your Honor.

THE COURT: You're welcome."^[FN28]

Based upon the foregoing, this Court determines that the parties did not enter into any stipulations in the Family Court proceeding wherein the Defendant would retain in the Supreme Court the same rights for counsel fees and preclusion that was available in the Family Court. Instead, the parties agreed with the approval of the presiding Support Magistrate that a motion to restore could be made to the Family Court as to these issues while they would withdraw the Family Court Proceeding to continue litigation in the matrimonial action before this Court. While this Court acknowledges that it has the Constitutional authority to consolidate proceedings filed in the Family Court and to continue orders entered by the Family Court pertaining to support (NY Const. Art. VI, §§§ 7, 13, 19, see also, FCA § 462), the record clearly reflects that this did not occur and the parties were keenly aware of this. Therefore, they may proceed with any rights before the Family Court that they are legally permitted pertaining to the Family Court Proceeding, but this Court is under no obligation to, nor will it, grant the requested relief arising out of an entirely separate litigation before another Court and presiding justice.

Without providing any legal basis by way of court rule statute or otherwise, and more importantly without attaching to Motion Sequence No. 5 the subject reports he seeks to be admitted into evidence, Defendant seeks an Order from this Court admitting reports generated and produced by a third-party company, "Valid8", which purport to provide summaries and organized listing of financial statements produced by the Plaintiff in this matter. Notwithstanding Defendant's failure to identify any legal basis for the relief requested, this Court looks to the best evidence rule and its exceptions to provide analysis for admission of the documents sought herein.

1. The Best Evidence Rule & Voluminous Writing Exception.

The "best evidence rule" requires that whenever a party seeks to prove the contents of a writing, the party must produce the original writing or satisfactorily account for its absence. (Schozer v. William Penn Life Ins. Co. of NY, 84 NY2d 639 [1994]; Mahaney v. Carr, 175 NY 454 [1903]; Butler v. Mail Express Pub. Co., 171 NY 208 [1902]; Dependable Lists v. Malek, 98 AD2d 679 [1st Dept 1983], appeal dismissed 62 NY2d 645).

It is well-settled, that the voluminous writing exception to the best evidence rule, commonly referred to as the "voluminous record rule", permits the admission of summaries of voluminous records or entries where, if requested, the party against whom it is offered can have access to the original data (Gary G. V. Elena A.G., 77 Misc 3d 760 [Sup. Ct. Kings Cnty 2022]; citing to Ed Guth Realty, Inc. v. Gingold, 34 NY2d 440 [1974]; Matter of Thomma, 232 AD2d 422 [2d Dept 1996]). "To establish the result of voluminous records or entries, an accountant, or [*15]other qualified person, may testify to a summary of the documents, provided the books or entries are in evidence or have been made available to the adversary for inspection" (See Prince, Richardson on Evidence § 10-101; citing to Von Sachs v. Kretz, 72 NY 548 [1878]; People v. Potter, 255 AD2d 763 [3d Dept 1998]; R & I Electronics v. Neuman, 81 AD2d 832 [2d Dept 1981]).

Moreover, the Appellate Division, First Department in Public Operating Corp. v. Weingart, 257 A.D. 379 [1st Dept 1939] sets forth a clear standard regarding the discretion of the trial Court when approaching situations wherein a party seeks to offer evidence at trial based on the voluminous record rule:

"[w]hen documents introduced in evidence at a trial are voluminous and of such a character as to render it difficult for the jury to comprehend material facts without schedules containing abstracts thereof, it is within the discretion of the judge to admit such schedules provided they are based on facts in evidence, verified by the testimony of the person by whom they were prepared, and provided that the adverse party is permitted to examine them to test their correctness and to cross examine upon them before the case is submitted to the jury" (Id., at 382) [emphasis added].

In the context of matrimonial actions, Courts have upheld the use of the voluminous records rule in offering charts, spreadsheets and summaries (See, Gary G. v. Elena A.G., 77 Misc 3d 760 [Sup. Ct. Kings Cnty 2022] ["This is especially so in a matrimonial action: the voluminous record rule, when used properly, is an efficient method of expediting trials which conserves parties' financial resources and judicial resources while ensuring efficacious presentation of relevant information"]).

2. Application.

Initially, this Court takes note that the purported Valid8 reports referenced within Motion Sequence No. 5 are neither attached as exhibits for review and consideration herein, nor are they hyperlinked to any documents filed prior to Motion Sequence No. 5 for reference, and while counsel references them by proposed trial exhibit numbers, these proposed trial exhibits were not filed with the Court at the time of or in connection with the subject motion. This begs the question, how can this Court make a determination regarding the admissibility of documents which were not presented for consideration. To be clear, the only exhibit annexed to Motion Sequence No. 5 related to the purported Valid8 reports is a statement of evidentiary method and data integrity (hereinafter "Statement of Integrity"),^[FN29] which attempts to certify Valid8's reputation and methods of review and correlation of information, but does not provide copies of any work-product produced.

Notwithstanding this defect in Defendant's request for relief, counsel contends that the purported reports produced by Valid8 as a third-party company hired to review, organize, correlate, and summarize Plaintiff's "financial statements" should be deemed by this Court to be admitted at the time of trial. It remains unclear from Defendant's motion papers what specific documents Valid8 was provided, the extent or volume of those documents, or when they were [*16]provided. Further, while the purported reports sought to be admitted were not attached to Motion Sequence No. 5 for review and consideration, Defendant generally claims the Valid8 reports provide all transactions of Defendant's bank account statements in chronological and bank account order; and, a listing of all transfers between accounts.

Defendant fails to meet the burden for the voluminous record rule as an exception to the best evidence rule, in several respects. First, it is unclear from Defendant's submissions in Motion Sequence No. 5, what documents were provided to Valid8, the volume of those documents, and any affirmation by an individual with knowledge that both the Plaintiff and the AFC were provided access to those documents. Further, while Defendant submits the Statement of Integrity, the Defendant did not identify an individual(s) who actually prepared the purported reports, nor did he provide an affirmation or affidavit of said individual(s) contemplating any expertise, knowledge or experience, in order for this Court to determine whether or not such individual(s) are either an "accountant or other qualified person". Moreover, the case law cited herein-above which established the voluminous record rule is clear that such "accountant or other qualified person" must appear and testify to the summary of the identified documents which generated the purported reports. Here, no such testimony has taken place as the trial has not commenced. More importantly, as required under this exception, the testimony of the qualified individual who prepared these summaries or reports must be subject to cross-examination, which clearly has not taken place.

This Court further takes note that while the voluminous record exception applies only to the summary of voluminous records, Defendant appears to seek the use of this exception to hire a third-party to review, re-organize, and summarize the entirety of Plaintiff's financial discovery. It appears to this Court that the work purportedly generated and produced by Valid8 goes well beyond the scope of succinctly summarizing voluminous records. Consequently, and for the reasons set forth herein-above, this Court cannot make a determination regarding the admissibility of the Valid8 reports sought to be admitted, and must deny Defendant's application to deem such reports admissible.

For the reasons set forth in the Decision and Order pertaining to Motion Sequence No. 4,^[FN30] the Court reserved determination as to this issue for trial.

Defendant's counsel asserts in his affirmation a request for the entry of the proposed trial [*17]subpoena,^[FN31] annexed as exhibit T to the motion,^[FN32] which includes a directive for Ms. Millie Chetelain to produce:

"Your files, records, and documents relating to the treatment of V. V. (date of birth XX/XX/XXXX, social security number [Redacted])."

In support of the request for the mental health records of the parties' child, counsel confirms that the requested records being sought are only from a six-month period from October 2023 through May 2024:

"Ms. Chatelain treated V. V. for about six months, from about October 2023 to about May of 2024. Thereafter, she withdrew from treating V. V. and recommended additional therapy from more specialized therapists. Ms. Chatelain has not treated V. V. since about May of 2024, twenty months ago.^[FN33]

* * *

Here too, V. V.'s therapeutic relationship with Ms. Chatelain has ended twenty months ago. The records of Ms. Chatelain, who witnessed the parties interactions with one another and heard V. V. recount that he was hit, that he received full-body massages, that he was exposed to pornography, are all likely to shed much needed light in this matter where the parties' accounts diverge so significantly from one another."^[FN34]

Defendant's counsel cites one case to support his requested relief which pertained to abuse and neglect proceedings commenced pursuant to Article 10 of the FCA, wherein the Appellate Division, Second Department held:

"The Family Court improvidently exercised its discretion in denying the appellant's motions for the production of certain records by Heartland and Dr. Ravitz. Family Court Act § 1038(d) provides that the provisions and limitations of CPLR article 31 shall apply to proceedings under this article. Moreover, CPLR 3101(a) provides that there shall be full disclosure of all matter "material and necessary in the prosecution or defense of an action." The words "material and necessary" are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist in preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. If there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or for cross-examination or in rebuttal, it should be considered material. In seeking discovery of records relating to the abuse or neglect of a child, the court must exercise sound judgment and weigh the need of the [*18]party for the discovery to assist in the preparation of the case against any potential harm to the child from the disclosure" (see, Matter of Elliot P.N.G., 181 AD3d 961 [2d Dept 2020] [internal citations omitted]).

In applying the legal analysis set forth in Matter of Elliot P.N.G., this Court must determine if the relief requested and the disclosure sought is material and necessary to the prosecution or defense of the pending matrimonial action upon examination of usefulness and reason, and upon weighing the need for the discovery in the preparation of the case versus any potential harm to the child from the disclosure.

[1] Application for Custody Modification

As noted above, the last order pertaining to the custody of the parties' child was entered in March of 2025 and while modification of that order is being sought, this Court may only consider if a substantial change in circumstances existed from the date of entry of that order. While Defendant has sought modification, her own counsel set forth the basis for such modification on the record before this Court, and no claims were made that a substantial change in circumstances arose from the abuse and/or neglect of the subject child. Moreover, the affirmation of Defendant's counsel clearly notes that the sought records were for a three-month period ending in March of 2024, being a year before the last custody order. Accordingly, for purposes of the application for modification of the Amended Custody Stipulation, the requested relief may not be granted.

[2] Financial Relief Requested

Unlike the time limitations pertaining to Defendant's request for modification of the Amended Custody Stipulation, Defendant's requests for financial relief arising out of the requested dissolution of the parties' marriage have no such time constraint, and as noted above, require this Court to take into consideration any allegations of domestic violence during the course of the parties' marriage which may include claims of abuse and/or neglect of the parties' child. Accordingly, the information sought is material and necessary to the prosecution or defense of the pending matrimonial action, and may be useful to Defendant as evidence-in-chief or for cross-examination or in rebuttal. Further, this Court has weighed the need for such disclosure versus the potential harm to the Child stemming from same, and determined that any harm to the Child would be outweighed by the need for the subject discovery, especially given the fact that the Child no longer receives treatment from Ms. Chatelain. Accordingly, for purposes of the application for financial relief, the requested relief must be granted and the proposed subpoena shall be so-ordered and filed simultaneously with this decision.

The affirmation of Defendant's counsel asserts the following pertaining to this request:

"Consequently, Defendant seeks an award of $5,985 as her costs and expenses in bringing Motion # 1, $9,187.50 for Motion # 5, $10,290 for Motion # 6, $13,177 for Motion #7, and $9,750 for Motion # 8, in all totaling $48,390. In addition, Defendant claims $1,575 as the costs and expenses she incurred in investigating and obtaining evidence of Plaintiff's undisclosed receipt of an offer of employment from Morgan Stanley."^[FN35]

In addition to the reasons set forth above, Defendant's requested relief (hereinafter "Defendant's Additional Relief") must be denied for numerous reasons noted herein.

[1] Failure to Comply with CPLR § 2214(a) and NYCRR § 202.8-a

Pursuant to New York State Civil Practice Law and Rules (hereinafter "CPLR") § 2214(a) pertaining to the manner within which parties may seek relief by way of motions filed with the Court, clear instructions are provided as to movants specifying the relief requested:

"Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded."

The New York State Uniform Civil Rules for the Supreme Court & The County Court (hereinafter "NYCRR") § 202.8-a, provides similar directives requiring clarity of relief sought by a movant:

"(a) Form of Motion Papers. The movant shall specify in the notice of motion, order to show cause, and in a concluding section of a memorandum of law, the exact relief sought."

In denying a request to reverse a trial decision on the basis that the underlying notice of motion from which the decision was made was defective, the Appellate Division noted:

"As before Supreme Court, the husband argues that the wife's notice of motion was defective because it failed to specify the grounds on which the motion was based, thus prejudicing the husband. "A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds *1146 therefor" (CPLR 2214[a]), but "there is no requirement that the notice of motion list the statute or regulation that is the basis of the ... motion as long as some grounds are mentioned" (Shields v. Carbone, 99 AD3d 1100, 1102, 955 N.Y.S.2d 216 [2012]). In practice, "[t]he notice of **574 motion specifies the time and place of the hearing as well as the relief requested while the affidavits, affirmations, and memorandum of law state the grounds for the relief" (David D. Siegel & Patrick M. Connors, NY Prac § 246 at 471 [6th ed 2018]). Where "there is no misunderstanding or [*19]prejudice, a court may grant relief that is warranted by the facts plainly appearing on the [motion] papers on both sides" (Matter of Blauman—Spindler v. Blauman, 68 AD3d 1105, 1106, 892 N.Y.S.2d 143 [2009] [internal quotation marks and citation omitted])" (Rosenheck v. Schachter, 194 AD3d 1144 [3d Dept 2021]).

Here, a plain reading of the relief requested in Defendant's notice of motion for Motion Sequence No. 5 confirms that Defendant's Requested relief does not include Defendant's Additional Relief, but instead is buried within the text of an eighteen page affirmation, with the opposing party from which the relief is sought being a self-represented litigant and subject to prejudice if this Court overlooked the defective notice of motion.

Accordingly, the relief must be denied due to Defendant failure to comply with CPLR § 2214(a) and NYCRR § 202.8-a.

[2] Failure to Comply with CPLR § 2221

The affirmation of Defendant's counsel appears to suggest that this relief is being sought in the form of a motion to renew as he notes in footnote one on page twelve that:

"The Support Magistrate authorized Defendant to renew her application for attorneys' fees on Motion 5, at this time as well. 'Petitioner's request for counsel fees is denied with leave to renew upon conclusion of the proceedings.' 2/23/2024 Order on Motion (Motions 1, 4, & 5), Ex. 'H' at 2."

CPLR § 2221 sets forth the procedure by which a motion to renew may be made by a litigant pertaining to a prior order:

"(a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that:

1. if the order was made upon a default such motion may be made, on notice, to any judge of the court; and

2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court.

(b) Rules of the chief administrator of the courts. The chief administrator may by rule exclude motions within a department, district or county from the operation of subdivision (a) of this rule.

(c) A motion made to other than a proper judge under this rule shall be transferred to the proper judge.

* * * *

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion."

Here, Defendant's motion runs afoul of the directives in CPLR § 2221 in multiple ways. First, to the extent this motion constitutes a motion to renew, it "shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it . . . " In this situation, as the Family Court Proceeding was not consolidated in this action, any motion to renew decisions and orders entered in that proceeding should have been made to the Support Magistrate that presided in that proceeding. Further while this Court acknowledges that this provision requires that, "[a] motion made to other than a proper judge under this rule shall be transferred to the proper judge," as the Family Court Proceeding was withdrawn by the parties on consent, the parties may without action by this Court file any motions they would like in the Family Court.

Second, to the extent that this motion constitutes a motion to renew, it was not specifically identified as such.

Third, Defendant's counsel fails to provide new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and a reasonable justification for the failure to present such facts on the prior motion.

Accordingly, the relief must be denied due to Defendant failure to comply with CPLR § 2221.

[3] Failure to Provide Engagement Agreement and Billing Statements

Even if the above procedural errors had not been made, and the Family Court Proceeding had not been withdrawn and was consolidated in this action, this Court would still be unable to grant the relief requested due to the failure of Defendant to include as exhibits to Motion Sequence No. 5, her engagement agreement and billing statements.

The Appellate Division Second Department has noted how a trial court should determine if an award of attorneys' fees is warranted in a matrimonial action:

"In a matrimonial action, an award of attorney's fees is a matter committed to the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case (see Prochilo v. Prochilo, 165 AD3d 1304; Patete v Rodriguez, 109 AD3d 595, 599). The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former (see Chesner v. Chesner, 95 AD3d 1252, 1253; Finnan v. Finnan, 95 AD3d 821; Prichep v. Prichep, 52 AD3d 61, 64—65).

* * * *

In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Prochilo v. Prochilo, 165 AD3d 1304; Chesner v. Chesner, 95 AD3d 1252; Prichep v. Prichep, 52 AD3d at 64—65)" (Brockner v. Brockner, 174 AD3d 567, 568 [2d Dept 2019]).

When seeking an award of attorneys' fees, parties are required to submit itemized billing statements as proof of the attorneys' fees incurred, both to demonstrate substantial compliance with 22 NYCRR §§ 1400.2 and 1400.3 and to establish the "extent and value of [the] services" rendered (Yakobowitz v. Yakobowicz, 217 AD3d 733 [2d Dept 2023] [internal citations omitted]).

Here, Defendant's counsel filed an affirmation in support of the instant application which failed to annex either the engagement agreement entered into between he and his client pertaining to the Family Court Proceeding, and failed to annex any of the billing invoices arising out of services rendered by Defendant's counsel to Defendant in such proceeding. Accordingly, for the foregoing reasons, the relief must be denied.

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

Accordingly, it is hereby:

ORDERED that Motion Sequence No, 5 is determined as set forth herein; and it is further

ORDERED that by January 13, 2026, Defendant's counsel shall serve a copy of this Order with Notice of Entry on Plaintiff and the attorney for the Child, 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.