T.I., Plaintiff, v. R.I., Defendant. (2025)

The parties were married in March 2014. This is the second divorce action between the parties. The prior action was commenced in 2015: that extremely contentious litigation continued until late-2018. In that litigation, the Court issued two (2) extensive written decisions: one resolving custody and parenting time (R.I. v. T.I., 51 Misc 3d 1215(A) [Kings County, April 22, 2016]) and a subsequent one deciding all the financial and ancillary issues between the parties (see R.I. v. T.I., 60 Misc 3d 1226(A) [Kings County, August 17, 2018]). After the last trial decision was issued the parties notified the Court that they had reconciled. Given the issues in the case and the allegations raised, the Court conducted a lengthy allocution of the parties on their stipulation to discontinue the action.

Thereafter, plaintiff-wife commenced the instant divorce action on February 7, 2023; however, the defendant-husband filed a motion to dismiss and for summary judgment alleging, inter alia, that no divorce action could be maintained because the parties were allegedly not married. Given the defendant's jurisdictional challenge to the divorce action, the underlying divorce action was paused until the Court issued a written decision and order in which, inter alia, the Court denied the defendant's jurisdictional challenge (see T.I. v. R.I., 83 Misc 3d 800 [Kings County, March 20, 2024]). Thereafter, plaintiff's counsel sought to disqualify defendant's counsel from representing the defendant alleging that there was a conflict of interest. The Court issued a written decision dated January 30, 2025 denying that application (see T.I. v. R.I., 85 Misc 3d 1208(A) [Kings County, January 30, 2025]). The full procedural posture of this litigation is detailed in those written decisions and they must be read in conjunction with this decision.

There is one (1) child of the marriage: a nine (9) year old son.

On November 14, 2023, plaintiff filed an order to show cause [NYSCEF #98; motion seq. #5] seeking an order for the following relief:

Granting Plaintiff an Order of Protection against Defendant requiring Defendant to observe the following conditions: i. stay away from [PLAINTIFF]; ii. stay away from [PARTIES' SON]; iii. stay away from the home, workplace, and schools of [PLAINTIFF] and [PARTIES' SON];. refrain from any communication with [PLAINTIFF] and [PARTIES' SON] by telephone, email, or other means; v. refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats, or any family offense against [PLAINTIFF] and [PARTIES' SON]; B, In the event that the Court is inclined to award Defendant visitation, providing for a carveout in the Order of Protection for supervised therapeutic visitation between [PARTIES' SON] and Defendant, pursuant to the recommendations of the Family Court detailed herein; and C. Granting Plaintiff such other and further relief as the Court deems just and proper.

In support of that order to show cause, plaintiff annexed an affidavit of plaintiff [NYSCEF #71]; an attorney affirmation [NYSCEF #72]; and ten (10) exhibits in support [NYSCEF #74-83] which are as follows:

NYSCEF #74:

This Court's 2018 decision after trial [prior action], dated August 17, 2018.

NYSCEF #75:

ACS Petition Neglect Case to Kings County Family Court

NYSCEF #76:

Motion to Suspend Visitation (In the Matter of [REDACTED], A Child Under the Age of Eighteen Years, Alleged to be Neglected by FATHER [REDACTED] filed by ACS in Kings County Family Court in January 2022;

NYSCEF #77:

Therapeutic Visiting Report dated August 30, 2022;

NYSCEF #78:

Order of Fact-Finding, Kings County Family Court dated September 13, 2022 [Neglect Proceeding];

NYSCEF #79:

Order — General [mental health evaluation], Kings County Family Court, dated November 29, 2022;

NYSCEF #80:

Order of Disposition, Kings County Family Court, dated March 13, 2023;

NYSCEF #81:

Temporary Order of Protection, Kings County Family Court, dated December 9, 2021;

NYSCEF #82:

Order of Protection, Kings County Criminal Court, dated October 16, 2023 for defendant to stay away from plaintiff from October 16, 2023 to October 16, 2024. The Charge is listed as "Rape in the First Degree, et. al.";

NYSCEF #83:

WebCriminal Case Information sheet listing an incident and arrest date; attorney contact information and next appearance information.

Defendant opposed plaintiff's application for an order of protection in favor of her and the parties' child. It is undisputed that defendant-father was indicted in a separate criminal action pending in Kings County, Criminal Court related to an allegation by plaintiff that, inter alia, defendant-father raped her in December 2019.

In her affidavit in support [NYSCEF #71] of her application for a civil order of protection, plaintiff detailed numerous incidents of allegations of domestic violence and asserted that "[d]efendant also subjected me to sexual abuse, coercive control, financial abuse, and verbal abuse and harassment on an ongoing basis" [NYSCEF #71, p. 1]; however, there is no specific allegation to rape in plaintiff's affidavit in support of her application or to any allegations related to any December 2019 incident which is the subject of the pending criminal action against defendant-father.

In the attorney affirmation in support, plaintiff's counsel asserts that "[u]pon information and belief, Defendant has exhibited a pattern of physical, sexual, emotional, and verbal abuse against Plaintiff, causing her to fear for her safety and the safety of her son" [NYSCEF #72] and that:

...[u]pon information and belief, Defendant's abusive behavior escalated after the parties reconciled in late 2018, as is common in relationships with vast power differential dynamics. Several weeks ago, the Kings County District Attorney charged Defendant with multiple felonies for injuries Plaintiff suffered after their reconciliation. Those charges remain pending and are extremely serious, [sic] and include rape in the first degree. See Exhibit 9, 10 [emphasis in original]."

Exhibit 9 is an Order of Protection issued by the Kings County, Criminal Court that lists "rape in the first degree" in the procedural header [NYSCEF #82] and Exhibit 10 is a WebCrims Summary [NYSCEF #83] with Notice of a Criminal proceeding pending against defendant by the Kings County D.A. that does not reference a specific charge or allegation and only appears to provide a future court appearance information.

On November 15, 2023, the prior assigned justice transferred the matter to this Court because of the prior action between the parties before this Court under a prior index number. On November 15, 2023, on consent of the parties, this Court issued a temporary order of protection without prejudice against the defendant in favor of the plaintiff and that parties' son to the adjourn date of November 22, 2023 [NYSCEF #96]. This Court has issued a series of temporary orders of protection, on consent of the parties, since the application while the defendant's jurisdictional challenges (detailed above) were pending because a hearing on the application for the order of protection could not be determined until jurisdiction had been established.

Hearing on Plaintiff's Application for Order of Protection

The hearing on plaintiff's request for an order of protection [predicated on mot. seq. #5] began on April 2, 2025, and continued June 13, 2025, with the plaintiff's direct testimony [NYSCEF #224]. During her direct testimony, plaintiff testified to several alleged incidents between the parties in support of her request for a five (5) year order of protection in favor of herself and the parties' child. Plaintiff testified to physical and verbal acts by the defendant on direct examination [NYSCEF #224 (April 2, 2025 transcript); NYSCEF #226 (June 13, 2025 transcript)]. It is not in dispute that plaintiff did not offer any direct testimony related to any alleged rape in December 2019 or at any other time. The Court, at defendant's counsel's request, vacated a July trial date after application was made on the record.

June 13, 2025 Cross-Examination

Defendant's counsel began cross-examination of plaintiff on June 13, 2025 [NYSCEF #226]. During that cross-examination, defendant's counsel began questioning plaintiff related to an alleged rape of plaintiff by defendant in December 2019 which is the subject of a separate pending criminal proceeding against the defendant in Kings County, Criminal Court: [NYSCEF #226, p. 149-150]:

DEFENDANT'S COUNSEL: A lot of those counts dealt with having sexual intercourse with you by forcible compulsion on December 27, 2019, is that right?

THE COURT: Are you inquiring as to what the plaintiff testified at the grand jury?

DEFENDANT'S COUNSEL: Right now I am inquiring about her allegation about the indictment, itself. But I will do that, yes. I'm going to. Would you like me to go right to that[emphasis added]?

THE COURT: No, actually.

DEFENDANT'S COUNSEL: Okay.

On the record, defendant's counsel repeatedly represented that plaintiff annexed the criminal indictment against the defendant to her November 2023 order to show cause seeking the order of protection. Defendant's counsel argued that because plaintiff annexed the indictment to her November 2023 order to show cause seeking an order of protection that plaintiff opened the door to cross-examination related to the alleged incident(s) that resulted into the indictment even though plaintiff offered no direct testimony during the hearing related to the alleged rape. Defendant's counsel argued that it would violate defendant's right to due process if plaintiff was permitted to annex the indictment in support of her November 2023 order to show cause seeking an order of protection in order to obtain a hearing but then, in effect, avoid cross-examination related to that allegation by choosing subsequently not to testify on direct examination related to that alleged incident. Defendant's counsel argues that since plaintiff allegedly attached the indictment to her application to get the hearing that she can be cross-examined about the alleged incident even though she chose to testify about other alleged incidents during her direct case seeking the order of protection and did not testify about the alleged rape.

Plaintiff's counsel objected to cross-examination of plaintiff related to the alleged rape as beyond the scope of direct examination arguing that plaintiff offered no testimony about that alleged incident and that plaintiff chose to base her direct case seeking the order of protection on other incidents, so any cross-examination was limited to the incidents that plaintiff testified about.

Plaintiff's counsel did not challenge defendant's counsel's representation that the indictment was annexed in support of plaintiff's November 2023 order to show cause seeking the order of protection.

THE COURT: Defendant's counsel, do you have any case law which would say that it is in the petition,

there was no testimony on direct, but it was the foundation for bringing the petition as the court has ruled?

DEFENDANT'S COUNSEL: Right.

THE COURT: But it would be proper to ask based upon that on cross-examination even though there was no direct.

DEFENDANT'S COUNSEL: Well, yes. I don't have case law in front of me, but obviously if she's bringing a petition for an order of protection making allegations of rape and menacing, an indictment claiming she was sexually abused and to get on the stand to avoid being inconsistent because she knows a criminal trial is around corner [emphasis added], and to be, I just don't want to talk about that. There is no legal justification for that. Obviously, a defendant facing a criminal charge can take the fifth and refuse to answer. We are not here on his petition. We are here on her application for an order of protection based on a sexual assault that she claims occurred and for me to stand here and not be able to question the witness would be a complete violation of due process.

THE COURT: Plaintiff's counsel.

PLAINTIFF'S COUNSEL: I would just say, again, this is beyond the scope of the cross-examination.

THE COURT: Of the direct examination.

PLAINTIFF'S COUNSEL: Of the direct examination, excuse me. This subject matter of sexual abuse or assault was not raised during the direct testimony. And, therefore, we would argue that it is outside the scope and inappropriate to pursue here.

Based upon defendant's counsel's representation on the record that plaintiff annexed the criminal indictment to her order to show cause seeking the order of protection and that, in effect, the indictment was the plaintiff's predicate to obtaining the hearing on her application for an order of protection [NYSCEF #226, p. 135], the Court allowed defendant's counsel to continue cross-examination of the plaintiff but noted on the record that plaintiff's counsel could "make an application to strike the testimony if you have appellate case law that you think substantiates that" [NYSCEF #226, p. 132]. Defendant's counsel continued to cross-examine plaintiff related to specific details about the alleged rape including specific physical acts clearly referring to the indictment which she asserted was an exhibit to plaintiff's order to show cause.

The matter was scheduled for continued hearing on July 22, 2025; however, the day before the continued hearing, on July 21, 2025, plaintiff's counsel filed an order to show cause [NYSCEF #231] seeking the following relief:

A. Precluding Defendant's use of Plaintiff's grand jury testimony from the related criminal proceeding' for any purpose in the instant hearing on Plaintiff's motion for an Order of Protection on behalf of herself and the Subject Child; and

B. Granting such other relief as the Court deems just and proper.

On July 22, 2025, counsel and the parties appeared as did the attorney for the child. When the Court inquired as to the application being made right before the continued hearing date, plaintiff's counsel indicated that the filing of the order to show cause the day before the continued hearing was necessitated because of the time it took to obtain the June 13, 2025 minutes and to prepare the application [NYSCEF #239]. Defendant's counsel opposed the Court signing plaintiff's order to show cause and argued that she believed the application "is nothing but a delay tactic" [NYSCEF #239, p. 4] and that:

DEFENDANT'S COUNSEL: We're ready to go forward with a hearing today, and now I'm slammed with this, which is basically going to interfere with my ability to cross-examine because if she gets on that stand and starts saying inconsistent statements to what she said in a prior proceeding, obviously, to do my job effectively, I would need the ability to pull out the grand jury testimony, and then impeach the witness. I oppose the Court signing that. I'm ready to go forward. I would like to continue my cross-examination. It's not even ripe at this point [emphasis added].

THE COURT: Can you just slow down?

DEFENDANT'S COUNSEL: Sorry. Because, you know, the only way that comes about in any event is if the witness says something inconsistent with her grand jury [sic] would then open the door to impeachment with a prior inconsistent statement. We haven't gotten to that point yet because I haven't even finished with her, so I'm seriously opposed to the Court signing such a belated untimely intactly [sic] inappropriate order at this juncture.

Defendant's counsel then asserted at that time that plaintiff's order to show cause to preclude her from using the grand jury minutes was "not even ripe" because she did not know if she would have reason to use the minutes of plaintiff's testimony before the grand jury yet and that she would only know that when and if the plaintiff testified in response to defendant's cross-examination related to the indictment inconsistently with her testimony before the grand jury. Notwithstanding that assertion that the issue was not "ripe" defendant's counsel took the inconsistent position that she had "notified" the Court on June 13, 2025 that she would be using the grand jury minutes. The Court notes that on June 13, 2025, defendant's counsel asked if the Court wanted her to proceed to questioning based on the grand jury minutes and it was the Court indicated that it did not. As noted prior, according to defendant's counsel, the issue of using the grand jury minutes was ripe on June 13, 2025 when she asked the Court [NYSCEF #226, p. 149-150]:

DEFENDANT'S COUNSEL: Right now I am inquiring about her allegation about the indictment, itself. But I will do that, yes. I'm going to. Would you like me to go right to that[emphasis added]?

Yet on July 22, 2025, defendant's counsel argued that the application to preclude her from using the grand jury minutes was not ripe because she did not know what plaintiff may testify to on cross-examination even though defendant's counsel asked the Court if she should proceed to questions about the indictment on June 13, 2025.

It is undisputed that plaintiff's counsel and the attorney for the child do not have access to the transcript of the plaintiff's grand jury testimony. Defendant's counsel took the position that because she already had a copy of the grand jury testimony because she is defendant's criminal defense attorney in the pending criminal action, that she has no obligation to seek permission of the Court in any civil matter before attempting to use the grand jury minutes and that she does not have to provide a copy of the grand jury minutes to plaintiff's counsel or the attorney for the child.

DEFENDANT'S COUNSEL: I don't have to provide a copy of impeachment material to my adversary because I don't have a crystal ball. I don't know -- no one knows when a witness gets on the stand if they're going to testify inconsistently with prior testimony. In terms of the confidentiality nature of grand jury testimony, like anything, there's exceptions. My client, unlike a regular civil case, where grand jury testimony has been taken out or improperly obtained and used, my client is a criminal defendant in a rape in the first-degree prosecution. As a matter of law, he is entitled to a copy of the grand jury minutes, the testimony in this case, so it's a very unique situation in that he has a right to see that grand jury testimony, and there is caselaw from the New York Court of Appeals, which I'm happy to brief, which says if a witness says something on the stand, and there's prior grand jury testimony that's inconsistent, that I can then use it to cross-examine that witness. So this puts me in a very bad position because I can't effectively do my job with their belated application, a witness who can potentially lie on the stand here, and then I can't pull out prior inconsistent statements if that's the Court's ruling to impeach her . . . .

Defendant's counsel requested that the Court permit her to continue with her cross-examination of the plaintiff that day and to decline to sign the plaintiff's proposed order to show cause.

Plaintiff and the Attorney for the Child objected to defendant's counsel's continued cross-examination of plaintiff on the issue of the alleged December 2019 rape that they concede resulted in the criminal indictment that is the subject of the separate pending criminal action until the Court had ruled on the issue of whether the line of questioning was beyond the scope of direct testimony and whether the Court would grant plaintiff's counsel's application to preclude defendant's counsel from using the grand jury minutes.

After hearing from all counsel, including the Attorney for the Child, on the issue of whether to proceed that day with cross-examination, the Court signed the order to show cause and directed that it be served on the Office of the District Attorney of Kings County and on the Assistant District Attorney assigned to the criminal case pending against the defendant and adjourned the matter for oral argument on plaintiff's application. The Court set an expedited briefing schedule and scheduled oral argument for August 1, 2025, just a week later, on consent of all counsel.

The attorney for the child submitted an affidavit in support of plaintiff's order to show cause seeking to preclude defendant from using the plaintiff's grand jury testimony [NYSCEF#236]. Defendant's counsel submitted an affirmation in opposition to plaintiff's application [NYSCEF #237]. Plaintiff's counsel submitted a reply [NYSCEF #238].

Plaintiff's counsel served the order to show cause on the Assistant District Attorney assigned to the case [NYSCEF #234 & #235]: no one from the Office of the Kings County District Attorney appeared or submitted any response.

August 1, 2025 Oral Argument

The Court heard extensive oral argument on August 1, 2025 [NYSCEF #241] during which defendant's counsel again made an unequivocal representation on the record that plaintiff predicated her November 2023 application for an order of protection on the alleged rape in December 2019 and that she annexed the criminal indictment to her November 2023 order to show cause:

DEFENDANT'S COUNSEL: ...[Plaintiff] comes to this Court with an Emergency Order to Show Cause application, telling this Court that she was raped, attaching the very indictment from that rape in the December of 2019 as an exhibit [emphasis added]. [NYSCEF #241, p. 12].

She continued:

DEFENDANT'S COUNSEL: . . . In paragraph I think it's 28 and 29 of her affirmation, she references this very rape. She annexes the indictment for this very alleged rape, then she asks this Court based on these facts to grant her an order of protection [emphasis added]. Now we come in here, and my adversary says but she got on the stand and didn't utter a word about it, so now she can't be cross-examined about it. Well, if that's the case, then their entire application should be thrown out. It should be dismissed. There should be no order of protection going forward. She has no right to bring my client into this Court for an order of protection alleging rape two months after she went in front of the grand jury where she reasonably . . . [NYSCEF #241, pp. 12-13].

Plaintiff's application to preclude the defendant from using the grand jury minutes to impeach any future testimony of the plaintiff related to the facts and circumstances surrounding the alleged incidents in the indictment is based, in effect, on a theory that defendant failed to proactively seek permission to use the grand jury minutes prior to the hearing and that plaintiff's counsel does not have access to the grand jury minutes and has not seem them. Defendant's counsel argues, inter alia, that since she already possesses the grand jury minutes because she is also defendant's defense attorney in the criminal action she has a de facto right to use the grand jury minutes and that she has no obligation to seek Court permission to use grand jury testimony in a civil action to impeach a witness. The attorney for the child argued that defendant had an obligation "prior to the commencement of this hearing [to seek permission] to use the minutes" and that because she did not do so that she should be precluded from doing so mid-trial if there was any such application [NYSCEF #241, p. 7]. Defendant's counsel contends that when she asked the Court on June 13, 2025 if she should proceed to her questions about the indictment that was sufficient notice to all parties that she intended to use the grand jury minutes. Defendant's counsel asserted that she would have no obligation to provide a copy of the grand jury minutes to plaintiff's counsel if she were permitted to use them in cross examination and that, in effect, if she did so plaintiff's counsel may violate the prohibition of consulting with their client mid-cross examination.

The Law

"[T]he scope of cross-examination and the determination of the evidence which may be introduced for impeachment purposes lies within the sound discretion of the trial court and its ruling will not be disturbed unless there was an improvident exercise of discretion" (Abdenki v Walgreen Co., --- NYS3d ---, 2025 WL 2055273 [2 Dept.,2025], citing Linker v. Sears Roebuck & Co., 232 AD2d 613, 613, 648 NYS2d 1002 [2 Dept. 1996]). "Indeed, the trial court has broad discretion in controlling the scope of direct, cross, and redirect examination" (id.) It is well-established that the Court is within its discretion to foreclose attempts to cross-examine a witness on issues that are irrelevant, collateral and immaterial to the issue between the court and that are beyond the scope of direct examination and not directly relevant to the issues at trial (see Feldsberg v Nitschke, 49 NY2d 636 [1980]; see also generally Mark C. v Jasmin H., 55 AD3d 344 [1 Dept.,2008]; People v Griffin, 194 AD2d 738 [2 Dept.,1993]). The Court of Appeals has ruled that "absent an abuse of discretion", a trial court's determination as to the scope and manner of cross-examination is beyond appellate review (Salm v Moses, 13 NY3d 816, 817 [2009]).

Plaintiff Did Not Open the Door to Cross-Examination Related to the Alleged Rape

The line of cross-examination related to the alleged rape was allowed based upon the representation by defendant's counsel that plaintiff attached the indictment to her November 2023 application, that this indictment was the "predicate" for plaintiff seeking the order of protection. A careful and thorough review of the submissions related to motion sequence #5 [plaintiff's order to show cause seeking the order of protection] reveals that these representations do not comport with the record. Plaintiff did not annex a copy of the indictment to her application for the order of protection [motion sequence #5] or to her reply to the affidavit in opposition and this hearing is limited to that application.

Plaintiff subsequently did annex a copy of the indictment approximately a year after filing her November 2023 application for the order to show cause but that was as an exhibit to her opposition to defendant's separate, subsequent application for parenting time with the child which is not part of this hearing. The limited hearing before this Court is plaintiff's order to show cause seeking the order of protection [motion sequence #5]. Any subsequent submissions related to later, unrelated motions is not before the Court in this hearing.

Plaintiff, both in her order to show cause, and in her case in chief for an order of protection chose to seek an order of protection for herself and the parties' child based on certain alleged incidents and not on others. Whether the incidents as alleged by plaintiff support the requested orders of protection is the subject of this hearing: not whether other alleged incidents which were not testified to by plaintiff on direct may or not have occurred or would have been a basis for an order of protection. Contrary to defendant's position, just because there is a separate criminal case pending against him related to yet another alleged incident does not mean that plaintiff was required to also include that alleged incident in her application for an order of protection in this civil action. Furthermore, the People of the State of New York raising the additional alleged incident in a separate criminal proceeding does not mean that that allegation is now ipso facto part of this proceeding: the alleged facts and circumstances that plaintiff testified to during the hearing as her basis for an order of protection did not include any testimony about an alleged rape.

Plaintiff did not base her case in chief on the alleged rape in December 2019 and she did not offer any direct testimony as to that alleged incident. As such, while the alleged rape and the indictment appear to be the subject of the criminal action, that alleged incident is wholly collateral to plaintiff's direct case in this limited hearing on her application for an order of protection. Defendant's attempt even further to "expand" the scope of plaintiff's direct testimony to incidents that she did not testify to and an indictment she did not attach to her request for an order of protection in this limited hearing is well beyond the scope of plaintiff's direct testimony and, as such, any further cross-examination related thereto is beyond the scope.

Plaintiff's direct examination is over. She did not offer testimony as to the alleged rape or the facts that defendant now seems intent on attempting to raise on cross-examination.

The alleged rape and the indictment are collateral and well beyond the scope of the application before the Court and, as such, any further cross-examination related thereto is also well beyond the scope and will not be permitted. Since any incidents not testified to by plaintiff are collateral there can be no further cross-examination as to those allegations, the Court need not reach the issue of whether the grand jury minutes could be used to impeach any inconsistent statements between testimony that may be elicited on cross-examination and anything that may be in the grand jury transcript because this line of cross-examination is beyond the scope.

Defendant's Potential "Future" Door Opening Argument

Additionally, the Court need not reach the issue of whether plaintiff could have opened the door to cross-examination on the indictment if she had attached it to her November 2023 application without subsequently offering direct testimony as to that allegation, because those are not the facts presented here. As noted, significantly, plaintiff did not attach the indictment to her application as represented by defendant or to her reply to the opposition to her application.

Attempt To Use This Hearing For Discovery In The Criminal Action

During oral argument on August 1, 2025, defendant's counsel, argued that [NYSCEF #241, pp. 18-19]:

. . . the interest that nobody wants to talk about, which is the most important interest, is DEFENDANT [REDACTED]'s interest. This man stands charged with a crime second only to murder. Okay? Rape in the first degree is next in line in severity to murder. It's a 25-year jail sentence. This woman has gone and made a criminal allegation, then walked over to this Court with the same exact accusation. Now he has rights, too, aside from the chilling effect and so-called public interest. There's a private interest here. This man is accused of heinous disgusting crimes. He has an absolute right to meaningfully defend himself, to meaningfully cross-examine his accuser if she's going to have the audacity to get on the stand and lie, and if there's grand jury testimony that shows this witness is inconsistent or has given diverging stories, absolutely his right is going to override her right, and what makes this case distinct from every single case that's cited is the allegation in the criminal case is the exact same allegation that's before your Honor. I have no idea what my adversary was saying when she wrote yesterday, oh, they are different rape allegations. That's just nonsense. If you read the papers and the sworn statement of her client, there's one rape allegation, and it's an indictment attached to the emergency application before this Court for an order of protection [emphasis added]. We should have an absolute right to delve into those things. That's what I wanted to say. Thank you.

While plaintiff's counsel in her affirmation in support notes that there is a criminal proceeding pending against defendant for rape, plaintiff's application for an order of protection in favor of herself and the parties' child is silent as to the criminal indictment and does not mention the alleged facts and circumstances surrounding the alleged rape in December 2019. Rather, in her order to show cause, plaintiff's affirmation in support does not mention the rape and — significantly — plaintiff's testimony at the hearing rests largely on an alleged incident in November 2021 and she never testified to any alleged rape or incidents in December 2019. The only exhibit annexed to the application that even includes the word "rape" is a procedural header on a temporary order of protection from Kings County Criminal Court that lists "Charges: Rape in the First Degree" [Exhibit 9]. That procedural information alone, which was not used as the predicate to plaintiff's application, is not sufficient under the facts presented to open the door to extensive cross-examination on the facts and circumstances related to the separated allegations that are the subject of the criminal case. That proceeding is collateral, at this time, to the limited hearing pending before this Court. As detailed above, plaintiff did not open the door by her testimony to cross-examination related to that collateral issue especially where no indictment was annexed in support of her application contrary to defendant's counsel's representation.

It is defendant's counsel — who is also defendant's criminal defense attorney in the pending criminal action — who is seeking to expand the testimony on cross-examination by questioning plaintiff about the alleged rape and who proposes that "if" plaintiff testified during that cross-examination inconsistent with her grand jury testimony that defendant could use this proceeding as a source of discovery for the separate criminal action.

While defendant's counsel may be correct the defendant may be facing serious and substantial sentencing if found guilty as charged in the separate action: that issue is not before this Court and defendant cannot, under the facts and circumstances presented, in effect expand plaintiff's direct testimony by cross-examining her on the issue he wants her to testify to beyond the scope of her direct testimony and use this proceeding as a discovery tool for the criminal case that is also pending against defendant who she also represents as his criminal defense attorney in that action.

As such, the Court finds that any further inquiry into the alleged rape and or the testimony before the grand jury related thereto that were not part of plaintiff's direct case are not before this Court as part of the pending hearing as beyond the scope of this limited hearing. Plaintiff is not basing her application on those separate allegations and defendant cannot, in effect, attempt to "expand" the scope of the hearing to include those separate allegations in a thinly veiled attempt to use this civil action as a form of discovery or deposition of plaintiff in advance of the upcoming criminal trial which is inappropriate especially since there is no discovery permitted on fault absent Court permission in the Appellate Division, First Department or in the Appellate Division, Second Department (see generally Agulnick v Agulnick, 191 AD3d 12 [2 Dept.,2020]; Howard S. v Lillian S., 14 NY3d 431, 902 NYS2d 17 [2010]; Mujahid v Mujahid, 110 AD3d 855 [2 Dept.,2013]).

While defendant may have a desire to use this civil hearing as a "fishing expedition" in advance of the pending criminal trial: the alleged incident that resulted in that separate case is collateral and not the subject of the pending application for an order of protection before this Court.

Notice Of Intent To Use Grand Jury Minutes

Plaintiff contends that defendant could not use the grand jury minutes because defendant did not seek Court permission to do so. Defendant contends that he provided notice to the Court and to the plaintiff that he intended to use the grand jury minutes on the record on June 13, 2025; however, the defendant also took the position that the issue was not "ripe". The Court need not reach the issue of whether defendant's counsel provided sufficient notice of intent to use the grand jury minutes because the Court herein finds that further cross-examination on the issue is beyond the scope of direct or the papers submitted in support of the application for the order of protection.

Defendant's Allegation Of Potential Misuse of Grand Jury Minutes By Plaintiff

The Court rejects defendant's counsel insinuation that providing plaintiff's counsel with a copy of the grand jury minutes in the middle of cross-examination would allow them to prepare their client improperly in the middle of cross- examination assumes -- improperly and without proof -- that plaintiff's counsel would violate a court order related to such discussions.

CONCLUSION

Plaintiff's order to show case [motion seq. #9] is granted to the extent.

The hearing was scheduled to continue on September 12, 2025 at 9:30 a.m.; however, on September 11, 2025, defendant's counsel requested an adjournment due to medical reasons which was consented to by plaintiff and the attorney for the child. On September 11, 2025, counsel selected November 17, 2025 at 2:15 p.m. and November 19, 2025 at 9:30 a.m. on consent to continue the hearing; however, defendant's counsel subsequently notified the Court on notice to all counsel that defendant was not available on November 17, 2025 and requesting that that date be vacated which was granted on consent. As such, the hearing shall continue on November 19, 2025 at 9:30 a.m.

Inasmuch as there is no formal request at this time to strike part of the cross-examination, the Court need not reach that question.

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.

Jeffrey S. Sunshine, J.