STOLPER v. BURBACKI (2021)

The following e-filed documents, listed by NYSCEF document number (Motion 010) 124, 125, 126, 127, 128, 129, 130, 142 were read on this motion to/for DISCOVERY.

The following e-filed documents, listed by NYSCEF document number (Motion 011) 133, 134, 135, 136, 137, 138, 139, 140, 143, 144, 145 were read on this motion to/for STRIKE PLEADINGS.

Upon the foregoing documents, Stella Stolper's motion to compel Yonathan Shimrony's compliance with the subpoenas duces tecum and ad testificandum is granted, and Zarina Burbacki's motion to strike Ms. Stolper's pleadings or to compel a forensic examination of Mr. Stolper's phone is denied without prejudice. Reference is made to this court's Order and Decision, dated October 5, 2021 (NYSCEF Doc. No. 123; see also NYSCEF Doc. No. 132) where this court granted leave to the parties to brief the issues in order to develop the record. Familiarity with the facts is presumed.

Having reviewed the submissions, the subpoenas at issue were served on Jonathan Neuman, Mr. Shimrony's attorney, after he agreed to accept service (NYSCEF Doc. No. 127). In fact, previously, Mr. Newman agreed to reschedule Mr. Shimrony's deposition following resolution of the then pending motion (NYSCEF Doc. No. 128). Having done so, he can not now take that back and argue that service of the subpoena was not proper or was only with respect to the deposition. Additionally, the court notes that, at that time, Mr. Newman did not agree to accept service for Avi Shimrony (id.). Stated differently, having agreed to accept service for Ms. Burbacki's husband, Mr. Yonathan Shimrony, Mr. Neuman's assertion that service of Mr. Shimrony is in violation of the Uniform Interstate Depositions and Discovery Act is specious at best. Mr. Neuman argument that the understanding would only be for depositions, and not documents, is equally without merit. There has been no valid objection to the subpoena duces tecum for the two years that it has been outstanding—only non-compliance. Undeniably, the information sought and Mr. Shimrony's testimony is material and necessary to the prosecution of this case (Matter of Kapon v. Koch, 23 NY3d 32, 36 [2014]). For completeness, the court notes that the spousal privilege does not otherwise provide a shield to Mr. Shimrony as he is being deposed on ordinary business matters that were not induced by the marital relation itself. (CPLR 4502(b); People v Melski, 10 NY2d 78, 80 [1961]; Poppe v Poppe, 3 NY2d 312, 315 [1957]). Therefore, Ms. Stolper's motion to compel is granted and Mr. Shimrony will comply with the subpoena duces tecum no later than December 3, 2021 and appear at a deposition no later than December 20, 2021.

The motion to strike Stolper's complaint for tampering with evidence, or alternatively, to compel her phone for forensic examination, must be denied. The evidence of Ms. Stolper's unsent draft text message, in the text entry field of the screenshot text messages, does not constitute tampered evidence warranting striking her pleadings or forensic examination. On the record before the court, there is no evidence of spoliation or similar conduct warranting either remedy. She can simply be cross-examined as to this unsent text message.

Although it may be unclear when the unsent text message “who cares please stop” was added, Ms. Burbacki fails to demonstrate how the presence of the unsent text message impairs the ability to properly review the text message conversations, any prejudice, or any evidence of destruction warranting striking the pleadings or forensic examination of the cell phone (Melcher v Apollo Med. Fund Mgt. L.L.C., 105 AD3d 15 [1st Dept 2013]). Accordingly, the motion to strike Ms. Stolper's pleadings, or alternatively to compel forensic examination of her phone must be denied.

ORDERED that Ms. Stolper's motion to compel is granted; and it is further

ORDERED that Mr. Shimrony shall comply with Ms. Stolper's subpoena duces tecum by December 3, 2021 and appear for a deposition on or before December 20, 2021; and it is further

ORDERED that Ms. Burbacki's motion to strike Ms. Stolper's pleadings is denied.

Andrew Borrok, J.