A.S., Plaintiff, v. A.B., Defendant. (2025)

Upon the foregoing papers in this divorce action plaintiff-mother moves by order to show cause filed on November 14, 2024 seeking the following relief [NYSCEF #330]:

(a) "Pursuant to D.R.L. 237(a), ordering the Defendant to pay $175,000 in pendente lite counsel fees payable to Krauss Shaknes Tallentire & Messeri LLP within fifteen (15) days of an Order of the Court, and further granting Krauss Shaknes Tallentire & Messeri LLP leave to record a money judgment against Respondent in the event any portion of such an award is not paid within fifteen (15) days of an Order of the Court; and

(b) Pursuant to 22 NYCRR 130-1.1, sanctioning Defendant in the amount $8,034 payable to Krauss Shaknes Tallentire & Messeri LLP within fifteen (15) days of an Order of the Court, and further granting Krauss Shaknes Tallentire & Messeri LLP leave to record a money judgment against Respondent in the event any portion of such an award is not paid within fifteen (15) days of an Order of the Court; and

(c) Granting Plaintiff such other and further relief as this Court may deem just, proper, and equitable under the circumstances."

The Court directed the application to be returnable on November 21, 2024, for an in-person appearance. On November 20, 2024, the parties stipulated and agreed that defendant shall have until December 4, 2024 to file opposition papers, plaintiff shall have until December 9, 2024 at 9:30 a.m. to file reply papers [NYSCEF #344]. Motion sequence #10 was fully briefed and the Court heard oral argument virtually on the motion on January 28, 2025. Notwithstanding this Court's admonishment not to interrupt the oral decision held on January 28, 2025, the defendant proceeded during the virtual proceeding to hold up a sign to the camera while the Court was dictating its decision on the record. The proceeding was thereafter halted, and this written opinion is being issued.

FACTS AND PROCEDURAL HISTORY

The parties' marriage was solemnized in a religious ceremony on July 6, 2014. Plaintiff-Wife commenced this action for divorce on February 12, 2023 [NYSCEF #1]. Plaintiff-Wife is thirty-one (31) years old: she owns a beauty services business which she avers she started in October 2022. Defendant-Husband is thirty-eight (38) year old and owns a dental practice where he works as a dentist. There are two (2) children of the marriage, E. B., age 7, and El. B., age 4. The Plaintiff-Wife and the parties' children currently reside in the marital residence in Brooklyn.¹

On June 12, 2023, this Court issued an Interim Support Order [NYSCEF #71]. In a decision and order dated June 5, 2024, this Court awarded plaintiff $25,000.00 in pendente lite counsel fees [NYSCEF # 285]. On May 17, 2024, plaintiff moved by order to show cause seeking contempt for defendant's failure to comply with various provisions of this Court's June 12, 2023 Interim Support Order. The defendant subsequently satisfied all arrears, and the plaintiff's counsel notified the Court that plaintiff was no longer seeking contempt. In a decision and order dated November 6, 2024, the Court addressed the sole remaining issue of plaintiff's request for counsel fees for enforcement pursuant to DRL 238 related to the contempt application and awarded plaintiff the additional sum of $10,000.00 in counsel fees pursuant to DRL 238 [NYSCEF # 325].

The issues of custody and parenting time was resolved on the date of trial by a custody and parenting time agreement dated December 9, 2024 [NYSCEF #363]. The parties' financial and other ancillary issues remain before the Court.

CONTENTIONS

Plaintiff's contentions

The plaintiff-mother contends that she is in desperate need of an award of counsel and expert fees in this matter. The plaintiff-mother asserts that she has no access to any martial funds or any other funds from which to pay her counsel fees. She contends that she relies entirely on loans from her family thus far to pay her attorneys and that they cannot afford to continue to financially support her litigation fees. Plaintiff-mother asserts that she has just over $4,000 in her checking account as of the date of her affidavit dated November 14, 2024, and is entirely dependent on the $4,500.00 this Court has ordered defendant-husband to pay in monthly child-support.

Plaintiff-mother argues that it is clear that defendant-father plans to "drag out this case, play dirty, require me to litigate every issue, and use our disparate resources to force me to concede to his demands" [NYSCEF #331, p. 2]. Plaintiff's counsel contends that "in fourteen years of representing exclusively matrimonial litigants, [he has] not encountered a more recalcitrant litigant than the Defendant" [NYSCEF #332, p. 1]. The plaintiff maintains that the defendant-father's conduct during this litigation demonstrates that defendant is "nothing more than a liar and a cheat." Plaintiff's counsel contends that defendant has "willfully and contumaciously violated almost every Order this Court has issued"; "lied to this Court regarding the source of the GPS [tracking] device found on [plaintiff's] vehicle, frivolously [moved] to quash the subpoena to the company who manufactured the device, and [denied] he had anything to do with the placing of the device on [plaintiff's] vehicle (see A.S. v A.B., 84 Misc 3d 692 [Sup Ct 2024]); lied to this Court by intentionally omitting from his statement of net worth ("SNW") as well as from his discovery document production over $984,000 in assets ($734,579.46 of cash); and failed to comply with this Court's June 6, 2024 Order awarding my firm $25,000 in counsel fees, forcing my firm to incur significant fees in entering judgment against [defendant] as well as employing the services of the NYC Marshalls to garnish Mr. [defendant's] bank accounts to collect on the Court Ordered obligation" [NYSCEF #331, p. 1-2]. Plaintiff's counsel maintains that all of defendant's "contemptuous, frivolous, and obstreperous, litigation conduct" has cost plaintiff tens of thousands of dollars in unnecessary counsel fees. Plaintiff's counsel affirms that plaintiff currently owes his firm $72,354.86  ² in counsel fees and will incur significant counsel fees in resolving the financial issues in the instant matter.

The plaintiff-mother maintains that the defendant-father is the monied spouse and has operated his dental practice for years. She avers that his practice involves a substantial cash component, and his underreporting is significant. The plaintiff's counsel argues that the father earns at least $1,470,692  ³ according to his 2022 income tax returns and controls over $1,000,000.00 in liquid assets. However, the plaintiff contends that the defendant-father falsely lowered his income through an entity owned by the defendant called (name omitted) LLC. She maintains that (name omitted) LLC does not engage in any business activities. Moreover, plaintiff alleges that the father has intentionally lowered his earnings by $1,070,000.00 by offsetting his business income against Section 179 depreciation, which she maintains is not out of pocket expenses, and by paying phony management fees in the amount of $195,000.00 to (name omitted) LLC. As proof, plaintiff submitted (name omitted) LLC bank statements commencing from January 1, 2017 through August 31, 2024 and checks issued from Defendant's business to (name omitted) LLC obtained from Citizen Bank by subpoena. [NYSCEF #335]. The Court notes that the business account statement bank statement beginning from August 1, 2024 through August 31, 2024 reflects a balance of $734,582.46. The mother asserts that the father's earnings surpass what he reports to the Internal Revenue and this Court according to his own sworn statement of net worth.

Plaintiff also contends that while defendant failed to disclose the (name omitted) LLC account, which he controls, and contained $734,582.46 in cash as of August 31, 2024, he simultaneously complained that he was unable to afford to abide by the pendente lite stipulation which provided for Comprehensive Family Services (CFS) supervision for his parenting time with his children. In fact, defendant opted to reduce his parenting time with the children from one weekly dinner visit and two visits every other weekend to just one visit every other weekend due to his alleged inability to afford the supervised visitations with CFS.

Plaintiff's counsel contends that depositions have yet to be completed and anticipates depositions to take a minimum of forty (40) hours, including prep time at a cost of approximately $20,600.00. Plaintiff's counsel affirms that he anticipates the need to depose third parties relating to defendant's purchase of the apartment he currently resides in (which he maintains is his mother's apartment), as well as the transfer of hundreds of thousands of dollars from defendant to his aunt when this case commenced (which he maintains was payment of a loan). Additionally, plaintiff's counsel anticipates an additional $50,000 in counsel fees if the financial issue proceeds to trial.

Plaintiff's request to sanction Defendant

During the course of this litigation, a GPS tracking device was discovered underneath the plaintiff-mother's vehicle. Plaintiff's counsel avers that the records his office obtained from Spytech, the company who manufactured the GPS tracking device, revealed that defendant allegedly paid a private investigator, D.K.⁴ , to place the GPS tracking device under the plaintiff's vehicle in violation of the now expired Order of Protection. Plaintiff's counsel states that the records revealed that the GPS tracking device was purchased by D.K., whom Defendant allegedly paid $23,100.00. In support of plaintiff's claim, plaintiff submitted excerpts of the bank records [NYSCEF # 340] obtained by Subpoena from JPMorgan Chase showing payments from defendant's business check account ending x8687 to D.K.via Zelle in the amount of: $5,000 on October 10, 2023; $5,000 on October 26, 2023; $5,000 on October 27, 2023; $5,000 on December 8, 2023; and $3,100 on January 3, 2024.

In response to plaintiff's subpoena to Spytech, plaintiff argues that defendant then proceeded to file a "frivolous" motion to quash the subpoena. Plaintiff argues that defendant's motion to quash was undertaken to delay or prolong the resolution of this matter, and defendant lied in open court and in his papers that he had nothing to do with placing the device under plaintiff's vehicle.

Plaintiff's counsel argues that an incredible amount of time was spent by his office relating to the GPS tracking device found under plaintiff's vehicle. In opposing defendant's motion to quash the plaintiff maintained that the information received from Spytech should show if defendant was involved with the tracking device or whether he may have control over whomever placed the device for him. Plaintiff notes that the information discovered does in fact show that defendant was involved in having the tracking device placed on her vehicle. Plaintiff's counsel affirms that he spent approximately 15.6 hours attending to defendant's motion to quash the Spytech Subpoena, at his reduced hourly rate of $515 per hour, which amounts to $8,034. Thus, plaintiff's counsel requests that this Court issue sanctions against Defendant and award plaintiff additional fees payable to his firm based upon defendant's frivolous conduct in the amount of $8,034.

Defendant's contentions

Defendant acknowledges that he is the monied spouse in this matter. However, he questions the financial picture that the plaintiff-wife is attempting to paint for the Court. Defendant-father maintains that the plaintiff-mother continues to obfuscate her true finances from the Court. Defendant contends that although the mother runs her own cash business, she claims to have no income. Defendant points to plaintiff's updated statement of net worth which states that she has monthly expenses in the amount of $9,539.00, with allegedly no income. Defendant-father avers that the mother's business provides a variety of spa-related services and upon information and belief, plaintiff earns approximately $3,000.00 to $4,000.00 per week in cash. In support of his claim, defendant submitted an Instagram post from plaintiff's business services [NYCSEF #352] which, inter alia, shows a promotion for hydration facial which cost $180.00 instead of $300.00, lash and brow lift which cost $100.00 each instead of $120.00, combo of RF facial and dermaplaning for $130.00.

Defendant asserts that plaintiff's counsel's invoice which lists the outstanding amount as 72,354.86 does not credit him for the $10,000 he paid on November 18, 2024, which should reduce the outstanding balance to $62,354.86. The Court notes that plaintiff's counsel affirmation dated November 14, 2024, did in fact reference that the plaintiff's outstanding balance would be reduced. Further, the defendant argues that the mother has sustained thousands of dollars unnecessarily which he should not be responsible for such as the preparation of the opposition of his motion to quash the subpoenas, the daily emails, calls and texts between plaintiff and her counsel. Additionally, the defendant contends that plaintiff's counsel has blacked out various charges for significant amounts of money, which he has no idea of what they are for such as a charge for six (6) hours which resulted in a charge of $3,090.00 with no indication of what work was completed. Thus, defendant is requesting that the Court deny plaintiff's application due to plaintiff's refusal to disclose her true income and given the scope of this matter he finds that the requested counsel fee to be outrageous.

The plaintiff-mother rebuts defendant's contentions and maintains that she has been transparent with the Court about her finances. She asserts that the defendant-father is in possession of "every single record from my business as well as my personal finances via the business valuation being conducted" [NYSCEF #360, p.1]. The plaintiff-mother argues that it is difficult for her to accumulate significant income as she is the primary caretaker of the parties' children, and with them one hundred percent of the time that they are not in school, which includes the weekends. As a result, plaintiff contends that she is forced to book her clients' appointments when the children are not in school. She further contends that because the weekends are when most of her clients' desire to schedule their treatments, and the defendant refuses to pay for childcare, she is unable to schedule more appointments and generate more income.

In regard to how she is able to afford the $9,539.00 in monthly expenses, plaintiff-mother refers to the $4,500 per month in support she currently receives. Plaintiff contends that whatever expense is not covered by the monthly support she receives is covered by borrowing money from her family and by incurring credit card debt. The mother asserts that almost half of her annual expenses are covered by support, while the remainder is used to pay off credit card debt and borrow funds from her family.

Further, plaintiff's counsel contends that defendant does not deny any of the allegations raised in his affirmation or plaintiff's affidavit. Her attorney maintains that there is still a substantial amount of work left to be done in this litigation that seems endless. He contends that this prolonged course of litigation will cost the mother a considerable amount of money in counsel fees.

Discussion

Counsel Fees

Pursuant to Domestic Relations Law § 237 (a) in pertinent part provides:

"There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses." NY DOM REL § 237

"An award of counsel fees pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case" (Fugazy v Fugazy, 210 AD3d 653, 655 [2d Dept 2022]). It is well-established that the purpose of "[a]n award of interim counsel fees is designed to create parity in divorce litigation by enabling the nonmonied spouse to litigate the action on equal footing with the monied spouse" (Palmeri v. Palmeri, 87 AD3d 572, 572 [2d Dept 2011]). "[A]n award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties" (Id. quoting Prichep v. Prichep, 52 AD3d 61, 65 [2d Dept 2008]). The court in Prichep v. Prichep recognized that "courts should not defer requests for interim counsel fees to the trial court, and should normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause—for example, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case—articulated by the court in a written decision." Id. "[U]nlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to the award of interim counsel fees" (Isaacs v. Isaacs, 71 AD3d 951, 951 [2 Dept., 2010]; see also Prichep, 52 AD3d at 65; Singer v. Singer, 16 AD3d 666, 667 [2 Dept., 2005]; Flach v. Flach, 114 AD2d 929, 929 [2 Dept., 1985]).

"In Frankel v. Frankel, the Court of Appeals recognized that "the realities of contentious matrimonial litigation require a regular infusion of funds", and "that more frequent interim counsel fee awards would prevent accumulation of bills" (Frankel v. Frankel, 2 NY3d 601, 607, 605 n 1 [2004])." "[W]hen considering an application for interim counsel fees, the court must consider the relative financial circumstances of both parties"(Charpie v. Charpie, 271 AD2d 169, 171 [1st Dept 2000])."An appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances" (Grumet v. Grumet, 37 AD3d 534, 536 [2d Dept 2007]).

In addition, "[a] court may consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation" (Vitale v Vitale, 112 AD3d 614, 615 [2d Dept 2013]; see also Cohen-McLaughlin v McLaughlin, 132 AD3d 716, 717 [2d Dept 2015]; Guzzo v Guzzo, 110 AD3d 765, 766 [2d Dept 2013]; Chesner v Chesner, 95 AD3d 1252, 1253 [2d Dept 2012]; Baron v Baron, 71 AD3d 807, 810 [2d Dept 2010]). (See Culen v Culen, 157 AD3d 930, 933 [2d Dept 2018] [The court determined that the plaintiff was entitled to an award of counsel fee due to "the relative merits of the parties' positions and the defendant's obstructionist tactics, which unnecessarily prolonged the litigation." The court referenced tactics such as "unnecessarily [prolonging] the litigation by attempting to obstruct the plaintiff from obtaining discovery regarding an inheritance that the defendant was entitled to receive from his aunt's estate, even though it is well established that parties to a divorce action are entitled to liberal and broad discovery from one another, including with respect to separate property that is not subject to equitable distribution.")

In the case at bar, Plaintiff-Wife is seeking an award in pendente lite counsel fees in the amount of $175,000. The Court established in its decision and order dated June 5, 2024 [NYSCEF #285] that defendant-husband is the monied spouse in the instant matter. Plaintiff's updated statement of net worth dated November 14, 2024, states that plaintiff-wife has no income, that she has a current balance of $6,004 in the checking accounts, a current balance of $752.00 in her savings account, and liabilities in totaling $118,652.00.

In support of his claim for counsel fees, plaintiff's counsel submitted the retainer agreement dated December 1, 2023 [NYSCEF #337] which shows that his hourly rate for his services is $515.00 per hour, invoices for services provided from October 18, 2023 through October 31, 2024. The invoice dated November 4, 2024, shows an outstanding invoice balance in the amount of $72, 354.86. In plaintiff's counsel reply papers dated December 8, 2024 he averred that the outstanding balance owed by plaintiff increased to $126,236.97, and during oral argument held on January 28, 2025, counsel stated on the record that plaintiff's outstanding balance to his firm increased to $134,922.60. Plaintiff's counsel professional qualifications are outlined in his affirmation in support dated November 14, 2024. Contrary to defendant's assertions, plaintiff's counsel did comply with the requirements set forth in 22 NYCRR § 202.16 (k) by stating in his affirmation that "no third person has promised to make payment of legal fees on behalf of [plaintiff], and she is solely responsible for the payment of her own legal fees herein" [NYSCEF #332 p. 9].

The Court notes defendant did not submit a statement of net worth with his opposition papers in accordance with the Uniform Rules for Trial Courts 22 NYCRR 202.16 (k)(4)(i). Further, Uniform Rules for Trial Courts 22 NYCRR 202.16 (k)(5)(i) provides that the Court in its discretion may draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by failure to comply with the provisions of the subdivision. Notably, defendant's affidavit does not address plaintiff's claims in regard to the allegations that he controls the (name omitted) LLC account, which he failed to disclose containing $734,582.46, that subpoenaed records reveals that he allegedly paid Mr. D.K. $23,100.00 to place a GPS tracking device under plaintiff's vehicle in direct violation of an order of protection that was in effect at the time.

Based on the plaintiff-wife's updated statement of net worth, it still appears that there is a disparity of income between the parties, where the defendant-husband's financial resources far exceed the plaintiff-wife's financial resources. Additionally, the defendant has engaged in delay tactics such as failing to comply with discovery which caused plaintiff to use subpoenas in order to uncover undisclosed accounts and assets, failed to comply with court orders causing plaintiff to obtain judgment and enforcement applications. The Court notes the extraordinary amount of time that plaintiff has incurred in seeking enforcement.

Furthermore, although the parties were able to resolve the custody portion of this matter, which undoubtedly saved the parties money, the parties reached a resolution at the eleventh hour so preparations for trial still had to be conducted. Both parties in this matter accuse each other of not revealing their true income to the Court, and there have been allegations that defendant is hiding and/or transferring assets since the commencement of this matter which defendant does not deny. This Court appointed a forensic evaluator, Harold Deiters III, in this matter on November 2, 2023 to evaluate the value and income analysis of the parties' business entities and that report would need to be reviewed by the attorneys once received.

The Court finds that under the facts and circumstances presented here, including the nature and complexity of the issues raised, the parties' income and assets and liabilities, as sworn to in their respective affidavits of net worth, the retainer agreements, the qualifications of Plaintiff's counsel and the fact that Defendant is clearly the monied spouse as contemplated by DRL § 237(a) that an award of pendente lite counsel fees in the sum of $125,000.00 is just and appropriate. The plaintiff is the less monied spouse, and the award of interim counsel fees will permit her to carry on the litigation (Gonzalez-Furtado v Furtado, 221 AD3d 975, 977 [2d Dept 2023]). The award of $125,000.00 will permit plaintiff to prepare for trial and/or resolve the outstanding financial and ancillary issues.

Plaintiff-wife's award for pendente lite attorney's fees is without prejudice to future applications for additional counsel fees, as necessary at the time of trial or sooner, upon the requisite showing (see DRL § 237; Prichep v. Prichep, 52 AD3d 61, 858 N.Y.S.2d 667 [2nd Dept.2008]; Kesten v. Kesten, 234 AD2d 427, 650 N.Y.S.2d 807 [2nd Dept.1996]; Dodson, 46 AD3d at 305; Jorgensen v. Jorgensen, 86 AD2d 861, 861 [2 Dept.,1982]).

The payment in this award of pendente lite counsel fees of $125,000.00 shall be made directly from the Defendant to the Plaintiff's counsel within thirty (30) days of service of notice of entry of this decision and order. If the Defendant fails to make the payment in compliance with this decision and order the Plaintiff's attorney may enter a judgment for the full amount due and owing, plus statutory costs and interest, retroactive to the date of the default, with the Office of the County Clerk upon ten (10) days written notice by certified and regular mail to the plaintiff and without further application to this Court.

Sanctions

Pursuant to 22 NYCRR 130—1.1(a):

"[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part." In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart".

"The decision whether to impose costs or sanctions for frivolous conduct is generally entrusted to the court's sound discretion" (Tamburello v Tamburello, 165 AD3d 1006, 1008 [2d Dept 2018]). Conduct is frivolous if "(1) it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" (see 22 NYCRR 130—1.1[c]; see also Weissman v Weissman, 116 AD3d 848, 849 [2d Dept 2014]). "A party seeking the imposition of a sanction or an award of an attorney's fee pursuant to 22 NYCRR 130—1.1(c) has the burden of proof" (Matter of Lebron v Lebron, 101 AD3d 1009, 1010-11 [2d Dept 2012]). A formal evidentiary hearing is unnecessary where the opposing party had the opportunity to review the application and had the opportunity to be heard on the motion. (see Grasso v Mathew, 187 AD2d 758, 758 [3d Dept 1992]). Moreover, 22 NYCRR 130—1.2 "mandates that the award of costs or imposition of sanctions only be made upon a written decision setting forth the offending conduct, why the court finds the conduct frivolous, and why the amount awarded or imposed was appropriate, and it requires that the award of costs or the imposition of sanctions or both be entered as a judgment of the court"(see Breslaw v Breslaw, 209 AD2d 662, 663 [2d Dept 1994])

Here, the plaintiff's attorney is requesting that the defendant should be sanctioned because defendant's motion to quash plaintiff's subpoena issued to Spytech was completely without merit and was undertaken to delay or prolong the resolution of this matter. Plaintiff further contends that defendant asserted material factual statements that were false in his papers and on the record in open court, namely, that he had nothing to do with placing the GPS tracking device under plaintiff's vehicle. However, plaintiff argues that defendant's statements were "bald face lies", because after this Court denied defendant's motion to quash, the records obtained from Spytech revealed that the GPS tracking device discovered under plaintiff's car was purchased by D.K. It was also discovered that Mr. K. received $23,100 via Zelle from defendant's business checking account as reflected in the bank records obtained via subpoena from JPMorgan Chase. Thus, plaintiff's counsel is seeking sanctions against defendant as well as an award of counsel fees payable to his firm in the amount of $8,034.

Here, defendant was given sufficient notice of his alleged frivolous conduct and was given a reasonable opportunity to address the request for sanctions pursuant to 22 NYCRR 130—1.1(d) (see LeBoeuf v Greene, 216 AD3d 1149 [2d Dept 2023]. The Court notes that although defendant submitted an affirmation and affidavit in opposition and participated in oral argument on the motion on January 28, 2025, he did not particuraly address plaintiff's request for sanctions. The Court recognizes that it was not defendant's present counsel who brought forth the motion to quash. Contrary to plaintiff's assertions that defendant falsely affirmed in his papers and stated in open court that he did not place or cause to be placed the tracking device discovered under plaintiff's vehicle, the Court notes that defendant did not affirmatively assert under oath that he had no involvement with the tracking device nor did he file an affidavit of facts in support of the motion to quash the subpoena or asserted any affirmative denial of any involvement with the tracking device. However, on the record on March 1, 2024, defendant's counsel, with defendant standing next to her, denied that the tracking device belonged to defendant.

The issue of sanctions requires a hearing and is referred to the trial court to determine if sanctions are warranted, and if so, the amount of costs and sanction.

CONCLUSION

Plaintiff's motion seq. #10 is granted to the extent.

The issue of sanctions is referred to the trial court.

Any relief requested but not granted above is denied.

This shall constitute the decision and order of the court.

ENTER:

HON. JEFFREY S. SUNSHINE

J. S. C.

FOOTNOTES

1.   It is undisputed that the marital residence was purchased during the marriage.

2.   Plaintiff counsel states that this amount will be reduced to $62,354.86 if defendant pays the $10,000.00, he is required to pay pursuant to this Court's November 6, 2024 Order (see NYSCEF Doc. No. 325).

3.   Plaintiff avers that this amount consists of defendant's salary of $200,000.00, ordinary business income of $1,073,864 plus $195,000 of "management fees" paid to Stratford and Everton LLC.

4.   Plaintiff's counsel affirms that he has issued a subpoena to depose Mr. K.. However, Mr. K. failed to appear for his deposition.

Jeffrey S. Sunshine, J.