SM v VD

Supreme Court, Richmond County

Decided on March 5, 2026

Index No. Redacted

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 002) numbered 71-82, 95-96 and (Motion No. 003) numbered 83-94 were read on this motion. Pursuant to CPLR § 2219 [a], the Court states that it has considered the following papers in connection with Defendant's Order to Show Cause seeking, inter alia, preservation and production of surveillance recordings, regulation of communications between the parties, disclosure of relocation information, and sanctions, together with Plaintiff's cross motion seeking a protective order and temporary exclusive use and occupancy of the marital residence.

The Court has reviewed the Order to Show Cause dated February 9, 2026 together with [*2]the Affirmation of Karen B. Soren, Esq., Defendant's Affirmation and supporting exhibits annexed thereto, the Affidavit of Service, Plaintiff's Notice of Cross Motion, the Affirmation of SM submitted in support of the cross motion and in opposition to Defendant's application, the Affirmation of Nicholas A. Pedersen, Esq. submitted in support of the cross motion and in opposition to Defendant's motion, and the Reply Affirmation of Karen B. Soren, Esq. submitted in further support of Defendant's motion and in opposition to Plaintiff's cross motion, together with all exhibits annexed thereto and the entire record before the Court.

Upon the foregoing cited papers, the Decision and Order on these motions is as follows.

II. Findings of Fact

This matrimonial action between Plaintiff SM and Defendant VD arises from the dissolution of the parties' marriage and remains pending before this Court. The parties are the parents of unemancipated children, and disputes concerning parenting arrangements, the marital residence, and the parties' interactions during the pendency of this litigation have been the subject of repeated applications before the Court.

On August 14, 2025, Plaintiff moved by Order to Show Cause seeking, among other relief, exclusive use and occupancy of the marital residence. (NY St Cts Filing [NYSCEF] Doc Nos. 14-18) By Decision and Order dated September 23, 2025, this Court denied that application. (NY St Cts Filing [NYSCEF] Doc No. 25). In that determination the Court concluded that although tension existed between the parties, the evidence then before the Court did not establish that the safety of persons or property required exclusion of either spouse from the marital residence or that such relief was warranted in the best interests of the parties' children.

Thereafter, on November 4, 2025, Plaintiff commenced a Family Offense proceeding in the Richmond County Family Court seeking relief relating to the parties' living arrangements. By So Ordered Stipulation dated November 25, 2025, the Family Offense proceeding was consolidated with the instant matrimonial action. (NY St Cts Filing [NYSCEF] Doc No. 34).

On December 10, 2025, the parties entered into a So Ordered Parenting Agreement pursuant to which they share joint legal custody of the parties' unemancipated children with residential custody to the Plaintiff subject to Defendant's parenting time. (NY St Cts Filing [NYSCEF] Doc No. 66). The Parenting Agreement further provides that communications concerning the children shall occur through the Our Family Wizard platform.

The present motion practice arises from Defendant's Order to Show Cause dated February 9, 2026. (NY St Cts Filing [NYSCEF] Doc Nos. 71-81). Defendant asserts that surveillance cameras exist in and around the marital residence and that recordings generated by those cameras are stored on a digital recording device under Plaintiff's control. (NY St Cts Filing [NYSCEF] Doc No. 84). Defendant contends that such recordings may capture interactions between the parties and may therefore constitute relevant evidence concerning disputes arising between them. (NY St Cts Filing [NYSCEF] Doc No. 95).

Defendant therefore seeks orders directing Plaintiff to preserve all surveillance recordings, disable any automatic deletion settings associated with the surveillance system, produce the storage device associated with the surveillance system for forensic imaging by a neutral expert, disclose login credentials and remote access information associated with the surveillance system, and produce all recordings depicting Defendant since the commencement of the action together with associated metadata.

Defendant further seeks an order directing Plaintiff to confirm the address of the residence to which she intends to relocate following the sale of the marital residence and to provide information concerning the anticipated timing of that relocation. Defendant asserts that disclosure of such information is necessary in order to enable him to secure housing in proximity to the children and their schools.

Plaintiff opposes Defendant's motion and cross moves for relief pursuant to CPLR § 3103 [a]. Plaintiff seeks a protective order denying Defendant's request for forensic imaging and seizure of surveillance equipment and limiting disclosure to narrowly tailored production of specific recordings. Plaintiff also seeks temporary exclusive use and occupancy of the marital residence pursuant to Domestic Relations Law § 234.

Plaintiff asserts that the surveillance system located at the marital residence is a Hikvision IVMS-4500 system accessed through the Hik-Connect application and that recordings generated by that system have been preserved. (NY St Cts Filing [NYSCEF] Doc No. 84; 85). Plaintiff further asserts that automatic deletion settings have been disabled and that no recordings have been deleted or altered. (see id). Plaintiff contends that Defendant's request for forensic imaging constitutes an unnecessary and disproportionate discovery demand. (see id).

Defendant has submitted reply papers opposing the cross motion and asserting that Plaintiff's opposition and cross motion were untimely pursuant to CPLR § 2214 [b] because they were filed only days before the return date despite the Order to Show Cause having been served more than sixteen days earlier. Defendant therefore contends that the cross motion should be rejected as procedurally improper.

These motions are now before the Court for determination.

III. Conclusions of Law

A. Timeliness of Plaintiff's Cross Motion

Defendant argues that Plaintiff's cross motion should be rejected as untimely pursuant to CPLR § 2214[b]. While CPLR § 2214 establishes deadlines for motion practice, courts retain discretion to consider late submissions where doing so will facilitate resolution of issues on the merits. The issues raised in Plaintiff's cross motion are intertwined with those raised by Defendant's application and involve overlapping factual and legal questions concerning electronic discovery and the parties' living arrangements. In the absence of demonstrated prejudice sufficient to warrant rejection of the papers, the Court exercises its discretion to consider Plaintiff's submissions.

B. Communication Through Our Family Wizard

Defendant seeks an order directing that communication between the parties occur exclusively through the Our Family Wizard platform with respect to matters pertaining to the parties' children. The record reflects that the parties entered into a So Ordered Parenting Agreement providing that communications concerning the children shall occur through that platform. Under these circumstances the Court finds that reiteration of that requirement in an order of this Court will promote clarity and reduce unnecessary conflict between the parties.

C. Preservation of Electronically Stored Information

The Court next addresses Defendant's request relating to preservation of surveillance recordings. The law governing electronically stored information imposes upon parties a duty to [*3]preserve evidence that may be relevant to pending litigation once such litigation is reasonably anticipated.

The record demonstrates that surveillance cameras exist at the marital residence and that recordings generated by those cameras may capture interactions between the parties. Preservation of those recordings is therefore appropriate and consistent with the parties' obligations to preserve potentially relevant evidence.

D. Forensic Imaging and Extraordinary Discovery Remedies

Defendant seeks forensic imaging of the surveillance system's storage device together with disclosure of login credentials and access information. Forensic imaging of electronic devices is recognized as an extraordinary form of discovery that should be ordered only where a party demonstrates a substantial risk that relevant evidence has been destroyed or is otherwise unavailable.

Courts have consistently held that forensic imaging should not be ordered based upon speculation or mere suspicion (see U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., 94 AD3d 58 [1st Dept 2012]). Similarly, the Court of Appeals has emphasized that discovery must be tailored and proportionate and that intrusive discovery should not be permitted absent a demonstrated necessity (see Forman v Henkin, 30 NY3d 656 [2018]).

Here, Defendant has not established that Plaintiff deleted, altered, or destroyed any recordings. Plaintiff has represented that recordings have been preserved and that automatic deletion settings have been disabled. On this record the Court finds that the extraordinary remedy of forensic imaging is not warranted.

E. Protective Order and Proportional Discovery

CPLR § 3103 [a] authorizes the Court to issue a protective order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or prejudice. Courts are required to balance the requesting party's need for discovery against the burden and intrusiveness imposed on the responding party.

Given the absence of proof of spoliation and the availability of less intrusive means of obtaining relevant recordings, the Court concludes that a protective order limiting disclosure to recordings relating to identified incidents is appropriate.

F. Exclusive Use and Occupancy of the Marital Residence

Plaintiff seeks temporary exclusive use and occupancy of the marital residence pursuant to Domestic Relations Law § 234. An award of exclusive occupancy is appropriate only where exclusion of a spouse is necessary to protect the safety of persons or property or where the circumstances of the parties' relationship render continued cohabitation untenable (see Amato v Amato, 133 AD3d 695 [2d Dept 2015]; Taub v Taub, 33 AD3d 612 [2d Dept 2006]).

This Court previously denied Plaintiff's request for exclusive use and occupancy by Decision and Order dated September 23, 2025. Although Plaintiff now alleges escalating conflict within the residence, the present record consists primarily of competing allegations by the parties. On this record the Court cannot conclude that exclusion of either party from the marital residence is presently warranted.

G. Sanctions

Defendant seeks sanctions pursuant to 22 NYCRR 130-1.1. Conduct is deemed frivolous where it is completely without merit in law, undertaken primarily to delay or harass, or asserts material factual statements that are false.

The Court has carefully reviewed the submissions of both parties. Although the litigation between the parties is clearly contentious, the Court does not find that either party has engaged in conduct meeting the regulatory definition of frivolous conduct. Sanctions remain a discretionary remedy (see Bridgeport Capital Services, Inc. v Ruby Tuesday, Inc., 6 Misc 3d 50 [App Term 2004]). On the record before this Court, the Court declines to exercise its discretion to impose sanctions.

H. Conclusion and Decretal Paragraphs

Based upon the foregoing findings of fact and conclusions of law, and after due deliberation upon the record before the Court, it is hereby

ORDERED that the branch of Defendant's motion seeking to direct that communications between the parties concerning the parties' children occur exclusively through the Our Family Wizard platform is granted; and it is further

ORDERED that Plaintiff shall preserve all audio and video recordings generated by any surveillance systems located at or formerly located at the marital residence and shall not delete, alter, overwrite, edit, or otherwise modify any such recordings pending further order of this Court; and it is further

ORDERED that Defendant's request directing forensic imaging of surveillance hardware and disclosure of login credentials is denied; and it is further

ORDERED that Plaintiff shall produce surveillance recordings relating to specific dates and incidents identified by Defendant upon formal demand; and it is further

ORDERED that Plaintiff shall provide written confirmation of the residence to which she intends to relocate upon the sale of the marital residence, or if such residence has not yet closed, the anticipated location and expected timeframe for relocation, within ten days of service of this Decision and Order with notice of entry; and it is further

ORDERED that Plaintiff's cross motion seeking temporary exclusive use and occupancy of the marital residence is denied; and it is further

ORDERED that the requests of both parties for sanctions and counsel fees are denied; and it is further

ORDERED that any relief requested but not expressly granted herein is denied.

This constitutes the Decision and Order of the Court.

Dated: March 5, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT