G.S., Plaintiff, v. K.K., Defendant. (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 004) 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 175, 176, 177, 178, 216, 217 were read on this motion to/for INTERIM RELIEF.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 149, 150, 151, 152, 153, 154, 155, 156, 157, 158 were read on this motion to/for DISCOVERY.

On April 5, 2022, this Court issued a Decision and Order on Motion Sequence 002 issuing a conditional preclusion against Defendant K.K. and providing him 30 days to cure the defect by 1) producing any and all responsive documents and information regarding a $1,442,000 wire transfer, otherwise the Court would deem as true Plaintiff's contention that the monies for the wire transfers came from Defendant's own overseas account; and 2) producing any and all responsive documents and information relating to any inheritance and all related requests in Demand # 35.

Here, plaintiff in Motion Sequence 004 seeks a full preclusion arguing that Defendant has not provided the requisite documentation to show that the $1.4 million did not originate from his own overseas accounts. In Motion Sequence 005, defendant seeks to remove the preclusion order arguing that Defendant has produced the documentation he could obtain in response to both the wire transfer and the inheritance issue of Demand #35.

PRECLUSION

CPLR 3126 vests in this Court broad discretion to impose discovery sanctions for those who disobey discovery orders or obligations. More specifically, the statute permits the Court to, inter alia, 1) "issue 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) issue "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."

ORIGINATION OF THE $1,442,000 WIRE TRANSFER

On the issue of the origination of the $1.4 million dollar transfer, defendant argues that they have provided all the relevant documents to demonstrate that the money transferred to Plaintiff's account was wired from Defendant's parents' account. As noted in Defendant's Exhibit F, a May 3, 2022 [European Bank] letter indicates that disclosing the source of the funds may be a violation of various (Greek) rules and regulations but that "the recorded notes during account opening... mention[ed that] the stated majority of wealth has been derived from the sale of raw lands in the 1980's and 1990's" (See Defendant's Exhibit F/ Doc 168 on NYSCEF). While this may be true, there is still an insufficient accounting of the origin of the funds. Similarly, the previously provided letters explaining the Swiss Bank Account, [Redacted] and/or any other brokerage accounts related to this wire transfer are insufficient to show the origins of the $1.4 million and whether those funds belonged to Defendant's parents or not. Accordingly, defendant has not sufficiently complied with discovery and is precluded from offering any evidence or testimony regarding the $1,442,000 in transfers by Defendant to Plaintiff made on or about February 3, 2017. Additionally, the Court now deems as true the fact that the $1,442,000 in transfers made to plaintiff on or about February 3, 2017 emanated from defendant's overseas assets.

DEMAND #35 / INHERITANCE

Information regarding inheritance is plainly relevant to this matrimonial action (see DRL 240 [1-b][e][4]). Here, in response to Plaintiff's Demand # 35, Defendant does provide a letter dated April 29, 2022 regarding the intestacy of his late mother. In that letter, the author reports that the administrator of the estate is resigning from that position and the heirs are likely to replace him and the new administrator will distribute the assets and submit a report to the District Court. The delay regarding the production of discovery regarding the inheritance is not necessarily based on defendant's willful failure to comply with Demand 35 but that discovery related to Demand 35 is not yet available. Accordingly, the branch of plaintiff's motion seeking to preclude testimony related to the inheritance is denied and similarly, defendant's branch of the motion seeking to deny preclusion as it relates to Demand 35 is granted. However, within 45 days of this Order Defendant must provide an update regarding the distribution of any inheritance assets related to Demand 35.

CONFIDENTIALITY OF DIVORCE PROCEEDINGS

Plaintiff argues that the Defendant's financial advisor D.T. has been hostile and threatening toward her. In her affidavit, Plaintiff alleges that while on vacation, where she ran into Mr. D.T., he showed her a screenshot of the court papers filed in this action and stated that she should "back off from the money." Defendant notes that this is a slanderous accusation, and that Mr. D.T. should be permitted to provide an affidavit to the court to defend himself.

Divorce proceedings are private and confidential in nature. Unauthorized third parties should not have access to court filings without express permission from the court (See DRL § 235). The court will not consider affidavits from third parties that are irrelevant to the issues at hand. Accordingly, defendant is enjoined from sharing any of the court filings with his financial advisor, D.T..

Accordingly, it is

ORDERED that Motion sequence 004 is granted in part and denied in part; and it is further

ORDERED that Motion sequence 005 is denied in part and granted in part; and it is further

ORDERED that Defendant is precluded from offering any evidence or testimony regarding the $1,442,000 in transfers by Defendant to Plaintiff made on or about February 3, 2017; and it is further

ORDERED that the Court grants and deems as true the fact that the $1,442,000 in transfers made to plaintiff on or about February 3, 2017 emanated from defendant's overseas assets; and it is further

ORDERED that the portion of the motion seeking to preclude Defendant from providing testimony on the inheritance / DEMAND 35 is denied; and it further

ORDERED that Defendant shall provide an update as to the distribution of any inheritance assets related to Demand #35 within 45 days; and it is further

ORDERED that Defendant is enjoined from sharing these motion papers or the contents of the motion papers with his financial advisor, D.T., without prior and express leave from the Court to do so.

DATE 9/12/2022

ARIEL D. CHESLER, J.S.C.

Ariel D. Chesler, J.