MM v. DM (2025)

I. Statement Pursuant to CPLR § 2219 [a]

Upon the reading and filing of the following papers in connection with Plaintiff's Motion in Limine:

1. Notice of Motion in Limine dated November 6, 2025;

2. Affidavit of MM sworn to November 6, 2025, together with annexed exhibits;

3. Affirmation of Michael A. Coscia, Esq., in support thereof;

4. Defendant's Affirmation in Opposition dated December 2, 2025;

5. Plaintiff's Reply Affirmation dated December 16, 2025;

6. All prior pleadings and proceedings had herein;

the motion is determined as follows.

II. Facts

The parties were married on XX XX, 1978, and remained married for more than forty-four years prior to the commencement of this matrimonial action. Two children were born of the marriage, both of whom are now emancipated. Plaintiff commenced this action on October 3, 2022.

During the marriage, the parties acquired two income-producing residential properties located in Israel. The first property, located at Redacted Property No. 01, Tel Aviv, Israel (the “Redacted Property No. 01”), was purchased in or about 1989. The Redacted Property No. 01 is titled jointly in the names of the parties. It is undisputed that the Redacted Property No. 01 was acquired during the marriage and that it generated rental income continuously from the time of its acquisition through at least December 2022.

The second property, located at Redacted Property No. 02, Ramat Gan, Israel (the “Redacted Property No. 02”), was purchased in or about 2009. Although titled solely in Defendant's name, the Redacted Property No. 02 was likewise acquired during the marriage and functioned exclusively as a rental property. By stipulation entered into by the parties on February 28, 2025, the Redacted Property No. 02 has been expressly acknowledged as marital property subject to equitable distribution.

Plaintiff contends, and Defendant does not materially dispute, that from the inception of ownership of both properties until the commencement of this action, Defendant exclusively collected and controlled all rental income generated by the Redacted Property No. 01 and the Redacted Property No. 02. Plaintiff further avers that she had no access to the bank accounts into which such rental income was deposited, and that Defendant failed to disclose either the rental income or the accounts holding same in his Statements of Net Worth.

With respect to the Redacted Property No. 01, Plaintiff asserts that rental income collected from 1989 through December 2022 totaled $792,000.00. Plaintiff further asserts that she received only $100,000.00 of that sum, following litigation commenced in Israel, and that Defendant retained exclusive control over the remaining balance.

With respect to the Redacted Property No. 02, Plaintiff asserts that Defendant collected rental income totaling $364,800.00 from 2009 through the present, all of which was deposited into a private account solely under Defendant's custody and control. Defendant has admitted, in sworn statements submitted in related proceedings, that he alone received and deposited the rental income generated by the Redacted Property No. 02.

Plaintiff further seeks a determination limiting the issues for trial by declaring marital in nature certain business interests and real estate interests transferred by Defendant to the parties’ son, Golan Marom, in or about June 2020. Plaintiff relies upon Defendant's sworn pleadings in a separate Supreme Court action, wherein Defendant admitted that the transfers were made for no consideration and for the express purpose of avoiding equitable distribution in the event of divorce.

Defendant opposes the motion, contending that the rental income was used for marital and household expenses and that the transfers to the parties’ son occurred with Plaintiff's knowledge and consent. Defendant further argues that Plaintiff's application improperly seeks to resolve factual disputes prior to trial.

III. Conclusions of Law

A. The Court's Authority to Resolve Threshold Classification Issues

The classification of property as marital or separate is a legal determination entrusted to the Court. Where the underlying facts concerning acquisition, ownership, and control are not genuinely disputed, such determinations may be resolved prior to trial in order to narrow the issues to be tried and to ensure an efficient and orderly adjudication of the parties’ economic claims.

In matrimonial actions, this authority is particularly important. Equitable distribution presupposes a clear understanding of what constitutes the marital estate. The Court is not required to defer legal determinations until trial where doing so would serve no purpose other than delay.

Here, the motion presents discrete legal questions concerning the character of income and assets whose material facts are established by the record. Accordingly, the Court addresses those questions as a matter of law.

B. Rental Income Generated by the Israeli Properties

It is well settled that real property acquired during the marriage gives rise to equal rights in the rents and profits generated therefrom. Where property is held by spouses jointly, each is entitled to an equal share of the income produced. As the Appellate Division has held, “each tenant by the entirety is entitled to one-half of the rents and profits generated by the jointly owned real estate.” (see Stepakoff v. Stepakoff, 96 AD2d 1097 [2d Dept 1983]).

The marital character of income derived from marital property is not altered by unilateral conduct. Income does not lose its marital nature simply because one spouse collects it, controls it, or expends it. In Rose v. Rose, (305 AD2d 578 [2d Dept 2003]), the Second Department rejected the argument that marital income may be excluded from equitable distribution based upon unilateral control or use, reaffirming that such income remains marital property.

Courts have consistently applied this principle, holding that the unilateral use of marital income, whether for household expenses or otherwise, does not extinguish the other spouse's equitable interest (see Martinucci v Martinucci, supra; Lekutanaj v Lekutanaj, 234 AD2d 429 [2d Dept 1996]; Adinolfi v. Adinolfi, 168 AD2d 401 [2d Dept 1990]; Wong v. Wong, 161 AD2d 710 [2d Dept 1990].

Here, both the Redacted Property No. 01 and the Redacted Property No. 02 were acquired during the marriage. One is jointly titled; the other has been stipulated to be marital property. Defendant does not dispute that he alone collected the rental income from both properties, deposited the proceeds into accounts solely within his control, and failed to disclose those accounts in his financial disclosures.

Defendant's contention that the rental income was used to support the marital household does not alter its legal classification. The issue presently before the Court is not how the income was ultimately spent, but whether it constitutes marital property. Under controlling law, it does.

Accordingly, the Court finds, as a matter of law, that all rental income generated by the Redacted Property No. 01 and the Redacted Property No. 02 during the marriage constitutes marital property subject to equitable distribution. The precise allocation of such income remains for trial; its character does not.

C. Assets Transferred to the Parties’ Son

The record further establishes that Defendant transferred multiple business interests and real estate interests to the parties’ son in or about June 2020 for no consideration. Defendant's own sworn pleadings in a separate Supreme Court action expressly state that the transfers were undertaken out of concern that Plaintiff would otherwise receive an equitable share of those assets in a divorce proceeding, and that the transfers were made pursuant to an understanding that the assets would be returned to Defendant at a later time.

The dissipation or secreting of marital assets for the purpose of defeating a spouse's equitable distribution rights constitutes a recognized form of economic fault. As the Appellate Division has held, “the dissipation or secreting of marital assets constitutes a form of economic fault which should be considered in making an equitable distribution” (Goldberg v. Goldberg, 172 AD2d 316 [1st Dept 1991]).

Further, where assets are transferred in bad faith to frustrate equitable distribution, courts are empowered to treat those assets as though they remained part of the marital estate (see Hirsch v Hirsch, 148 AD3d 997 [2d Dept 2017]).

Defendant's admissions eliminate any ambiguity as to the nature and purpose of the transfers. They were not arms-length transactions. They were deliberate acts designed to remove marital assets from the marital estate. Whether those assets will ultimately be included in an equitable distribution award is a matter for trial. However, their marital character is a legal determination appropriately resolved now.

IV. Conclusion and Decretal Paragraphs

The issues raised by Plaintiff's motion concern the legal classification of income and assets whose essential facts are not in dispute. Resolving those issues at this stage promotes judicial economy and ensures that the trial is confined to matters properly reserved for factual determination.

Accordingly, it is hereby

ORDERED, that the rental income received and collected by Defendant from the property located at Redacted Property No. 01, Tel Aviv, Israel, is declared marital property subject to equitable distribution; and it is further

ORDERED, that the rental income received and collected by Defendant from the property located at Redacted Property No. 02, Ramat Gan, Israel, is declared marital property subject to equitable distribution; and it is further

ORDERED, that the total rental income alleged to have been collected from the Redacted Property No. 01 and the Redacted Property No. 02, as set forth in the motion papers, is deemed marital in nature, with the ultimate equitable distribution thereof to be determined at trial; and it is further

ORDERED, that the business interests and property transferred by Defendant to the parties’ son, GM, are declared marital property subject to equitable distribution; and it is further

ORDERED, that the issues for trial shall be limited in accordance with this Decision and Order; and it is further

ORDERED, that all relief not expressly granted herein is denied.

This constitutes the Decision and Order of the Court.

Ronald Castorina, Jr., J.