KC v. JC (2025)

The Plaintiff, KC, moves by Order to Show Cause seeking pendente lite relief consisting of: (1) a conditional order of preclusion pursuant to CPLR § 3126, based on Defendant's persistent failure to comply with the Preliminary Conference Order and specific discovery demands; and (2) an award of interim counsel fees in the amount of Fifteen Thousand Dollars ($15,000.00). The motion is supported by the affirmation of Plaintiff's counsel, Mary Grace Condello, Esq., and accompanying exhibits. Defendant, JC, has submitted a written opposition through counsel.

Findings of Fact

This matrimonial action was commenced on October 15, 2024. Following a Preliminary Conference held on December 4, 2024, the Court issued a binding Preliminary Conference Order, which delineated in precise terms the discovery obligations of both parties, including the production of financial documentation.

Defendant submitted a Net Worth Statement on November 7, 2024, which included only a 2023 tax return and omitted all supporting documentation. On December 19, 2024, Plaintiff served a formal Notice for Discovery and Inspection, along with a Request for Expert Witness Disclosure, seeking financial records from 2019 to the present. To date, those requests remain largely unanswered.

Plaintiff submits that defense counsel made multiple representations—in open court on January 8, 2025, February 24, 2025, and again via email on March 14, 2025—promising imminent production of the outstanding documentation. Those promises went unfulfilled.

Plaintiff avers that Defendant is the monied spouse, receiving proceeds from a 9/11 settlement, a FDNY disability pension, and possibly Social Security Disability benefits. However, due to Defendant's noncompliance, she remains uninformed as to his true financial status. Plaintiff also contends that Defendant has failed to respond to a January 31, 2025 custody and parenting proposal, and has refused to address the expressed wishes of the subject child, necessitating trial.

In opposition, Defendant submits no personal affidavit. Instead, defense counsel offers an affirmation stating that the delays were not willful but the result of administrative issues, including a change in representation and difficulties in obtaining third-party records. Counsel attaches a partial production of recent documents and states that additional compliance is forthcoming. However, no sworn statement from the Defendant himself is provided to explain or justify the ongoing failure to comply with court-ordered discovery.

Conclusions of Law

Pursuant to CPLR § 3126, the Court may impose sanctions where a party refuses to obey a discovery order or willfully fails to disclose information. A sustained and unexcused pattern of noncompliance, when coupled with the failure to provide a sworn explanation, supports an inference of willfulness.

Here, the Defendant has not disputed the material chronology of events. More critically, the Defendant has failed to submit any affidavit of his own, notwithstanding that the allegations concern matters squarely within his personal knowledge. The absence of a sworn statement renders his opposition procedurally and substantively deficient. Courts have repeatedly held that an attorney's affirmation alone is insufficient to rebut factual assertions of willful noncompliance. This omission deprives the Court of any competent evidence explaining the default and permits the inference that the failure to comply is deliberate.

While the Defendant contends that efforts are underway to comply, he has been afforded ample opportunity to cure the deficiency. The Court finds that Plaintiff has acted in good faith, repeatedly seeking compliance without judicial intervention, and that Defendant's conduct has delayed the progress of this action. Nonetheless, the Court acknowledges the preference for adjudication on the merits and finds that a conditional order of preclusion—rather than immediate imposition—is warranted. The Defendant shall have one final opportunity to produce all outstanding discovery within the timeframe set forth below.

As to interim counsel fees, Plaintiff has demonstrated need, and her counsel has submitted appropriate documentation of services rendered and a valid retainer agreement. However, the Court exercises its discretion to grant partial relief at this stage and awards $7,500.00, without prejudice to renewal upon further showing.

Decretal Paragraphs

NOW, THEREFORE, it is hereby

ORDERED, that Defendant JC shall, within twenty (20) days of service of this Decision and Order with notice of entry, produce all documents and discovery responses as required by the Preliminary Conference Order dated December 4, 2024, and Plaintiff's Discovery and Inspection Notice dated December 19, 2024; and it is further

ORDERED, that should Defendant fail to fully comply within said twenty (20) day period, he shall be precluded from introducing at trial any testimony or documentary evidence relating to financial matters that were the subject of the discovery requests referenced herein. Such preclusion shall be self-effectuating, and no further application shall be required; and it is further

ORDERED, that Defendant JC is directed to pay to Plaintiff's counsel, Mary Grace Condello, Esq., the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) as and for interim counsel fees, within twenty (20) days of service of this Decision and Order with notice of entry; and it is further

ORDERED, that said award is granted without prejudice to renewal upon a more complete record demonstrating additional need or continued noncompliance; and it is further

ORDERED, that Plaintiff shall serve a copy of this Decision and Order with notice of entry upon Defendant's counsel within five (5) days of entry; and it is further

ORDERED, that all relief not expressly granted herein is denied, without prejudice.

This constitutes the Decision and Order of the court and the clerk shall enter judgment accordingly.

Ronald Castorina, Jr., J.