MJ v. MJ (2026)

The following papers have been read on these motions:

Plaintiff's Order to Show Cause dated May 6, 2026 x

Defendant's Notice of Cross-Motion dated June 26, 2026 x

INTRODUCTION

In this case, the Court considers the appropriate action for a litigant's unexplained failure to appear for a duly scheduled conference and return date of a motion interposed by that litigant. There is no dispute in this Record that the Plaintiff - a lawyer and the litigant who failed to appear - had actual knowledge of a scheduled court appearance on August 14, 2026. For the reasons that follow in this Decision and Order, the Court determines that the appropriate action at this time is dismissal of the Plaintiff's application. The Court additionally awards the Defendant counsel fees.

PRELIMINARY STATEMENT

The Plaintiff moves by Order to Show Cause dated May 6, 2026 (Motion Sequence No.: 007) seeking an Order: (i) Striking Defendant's reply papers and exhibits (NYSCEF Docs. No. 262, 263, 264, 265, 266, 267, 268 and 269) from the record of this matter, and from the records of Motion Sequences 005 and 006, as untimely; (ii) Severing Plaintiff's Motion Sequence 005 from Defendant's Cross-Motion (Motion Sequence 006), and deeming Plaintiff's Motion “Fully Submitted” as of February 23, 2026, to be decided independently of the instant Motion to Strike; (iii) Pursuant to 22 NYCRR 130-1.1, imposing financial sanctions upon Defendant for his willful and contumacious disregard for the CPLR and this Court's directives in the form of costs and reasonable attorney's fees incurred by Plaintiff as a result of Defendant's frivolous and obstructionist conduct, in an amount to be determined by the Court; and (iv) Granting such other and further relief as this Court may deem just and proper.

The Defendant cross-moves by Notice of Cross-Motion dated June 26, 2026 (Motion Sequence No.: 008) seeking an Order: (A) Denying the relief requested in Plaintiff's, MOIRA JABIR's, “Order to Show Cause”, dated May 6, 2026 (Motion Seq. #007) in its entirety; (B) Pursuant to Domestic Relations Law § 237 and 22 NYCRR § 130.1, directing the Plaintiff, MOIRA JABIR, to pay the sum of at least $7,500.00 for the benefit of the Defendant herein as and for counsel fees, costs, and/or sanctions based upon her ongoing frivolous and dilatory conduct, with leave for counsel to apply for additional counsel fees if warranted; (C) Granting Defendant such other and further relief as this Court may deem fair, just and proper.

BACKGROUND

A thorough discussion of the background of the parties' litigation is a necessary component of this Decision and Order. The Court initially notes that this matter is post-judgment.

The Underlying Divorce Action

These parties were married on XXXX, 2005. These parties have two children together, S, born XXXX and L, born XXXX. The parties' matrimonial action was commenced on August 27, 2020 by the filing of a Summons and Complaint with the Nassau County Clerk's Office During the parties' underlying matrimonial action, the Plaintiff initially appeared by and through counsel, Divins & Divins, P.C., and the Defendant initially appeared by and through counsel, Long Tuminello, LLP. On September 10, 2020, the Plaintiff executed a Consent to Change Attorney form whereby she substituted the firm of Capetola & Divins, P.C., in place and stead of Divins & Divins, P.C. On April 5, 2021, the Defendant executed a Consent to Change Attorney form whereby he substituted the firm of Simonetti & Associates in place and stead of Long Tuminello, LLP. On May 14, 2021, this Court issued an Order Appointing Attorney for the Children whereby it appointed Michael W. Cancellare, Esq., as attorney for the subject children (hereinafter referred to as “AFC Cancellare”). On October 12, 2021, the Plaintiff executed a Consent to Change Attorney form whereby she substituted the firm of Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP, in place and stead of Capetola & Divins, P.C. These parties executed a written Stipulation of Settlement dated August 26, 2022 (hereinafter referred to as the “Stipulation”). The parties were thereupon divorced by Judgment of Divorce dated August 31, 2023 (hereinafter referred to as the “Judgment”) (Hon. Edmund M. Dane, J.S.C.).

Prior Post-Judgment Litigation

On May 13, 2025, the Plaintiff executed a Consent to Change Attorney form whereby she substituted the Law Office of Neena Tankha, PLLC, in place and stead of Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP. On September 23, 2025, the Defendant appeared through counsel, Stempel, Catterson, LoFrumento, Carlson, Biondo, LLP.

On October 24, 2025, the Plaintiff interposed an Order to Show Cause  ¹ seeking, inter alia and in sum and substance, the expedited signature of the proposed Qualified Domestic Relations Order with respect to the Council of School Supervisors & Administrators Compensation Accrual Fund (hereinafter referred to as the “Proposed CSA QDRO”), certain stated other relief with respect to the Proposed CSA QDRO, certain stated relief with respect to the previously signed Qualified Domestic Relations Order with respect to the Defendant's Defined Benefit Pension Plan (hereinafter referred to as the “Pension QDRO”), for the imposition of monetary sanctions against the Defendant, and for counsel fees. On December 11, 2025, the Defendant interposed a Notice of Cross-Motion  ² seeking, inter alia and in sum and substance, vacatur of the Proposed CSA QDRO, to amend the Pension QDRO, to amend the Qualified Domestic Relations Order with respect to the Defendant's TDA account (hereinafter referred to as the “TDA QDRO”), counsel fees, proof of payment of the college expenses of one of the parties' children, and enforcement of so much of the parental access portions of the Judgment. On December 12, 2025, this Court issued an Order Appointing Attorney for the Child whereby it appointed Ellen S. Pollack, Esq., as attorney for the subject child (hereinafter referred to as “AFC Pollack”).

In furtherance of the above, Motion Sequence No.: 005 (see supra) and Motion Sequence No.: 006 (see supra) were fully briefed  ³ and marked fully submitted on April 20, 2026. After Motion Sequence No. 005 and Motion Sequence No.: 006 were marked fully submitted on April 20, 2026, on May 6, 2026, the Plaintiff filed an Order to Show Cause  ⁴ seeking, inter alia and in sum and substance, to strike the Defendant's Reply as untimely on Motion Sequence No.: 006, to sever Motion Sequence No.: 005 from Motion Sequence No.: 006 and to decide Motion Sequence No.: 005 independently of Motion Sequence No.: 005, and for the imposition of monetary sanctions. On June 23, 2026, this Court issued a Decision and Order (hereinafter referred to as the “June 2026 Order”) which, inter alia and in sum and substance, denied the Plaintiff's request for the Court to sign the Proposed CSA QDRO,⁵ vacated the TDA QDRO, vacated the Pension QDRO, directed the submission of amended QDRO(s) with respect to the Pension and the TDA, directed certain relief relative to the bills for the payment of college expenses, referred to a hearing so much of the Defendant's application seeking enforcement of the parental access portions of the Judgment, denied the Plaintiff's application for counsel fees, directed the Plaintiff to pay counsel fees to the Defendant in the sum of $3,190.00, and denied the Plaintiff's application for the imposition of monetary sanctions. See MJ v. MJ, 89 Misc 3d 1216(A) (Supreme Court Nassau County 2026). In the June 2026 Order, the Court scheduled a hearing on the Defendant's application to enforce so much of the parental access portions of the Judgment on September 1, 2026 and September 2, 2026. On June 25, 2026, the Plaintiff executed a Consent to Change Attorney form whereby she substituted the Badanes Law Office, P.C., in place and stead of the Law Office of Neena Tankha, P.C.

The Instant Motion & Current Proceedings

The Plaintiff's instant Order to Show Cause - signed on May 6, 2026 - was originally made returnable on May 6, 2026. On the return date on May 28, 2026, given the Court's inherent authority to control its own calendar (see Singh v. Finneran, 100 AD3d 735 (2d Dept. 2012)), which includes, inter alia, the supervision of the progress of litigation (see Mermell v. Ashokan Ctr., Inc., 246 AD3d 1359 (3d Dept. 2026)), this Court set a briefing schedule such that the Defendant's cross-motion was due to be served and filed by June 26, 2026, the Plaintiff's opposition and reply was due to be served and filed by July 13, 2026, and the Defendant's reply was due to be served and filed by July 31, 2026. The Court set the matter down for the return date of the Plaintiff's Order to Show Cause on July 31, 2026 at 9:30 a.m., and set the matter down for conference on July 31, 2026.

The Defendant timely interposed his Notice of Cross-Motion  ⁶ on June 26, 2026. On July 6, 2026, the Plaintiff interposed a “Notice of Rejection” of the Defendant's opposition and cross-motion on procedural grounds. On July 30, 2026, the Defendant's counsel requested an adjournment of the scheduled conference date of July 31, 2026, and indicated that the Plaintiff would not consent to an adjournment of the conference. This Court, upon its own motion and given its inherent authority to control its own calendar, see Singa, supra, advanced the matter to July 30, 2026, and conducted the conference virtually via Microsoft Teams. This Court set the matter down for the return date of Motion Sequence No.: 007 and Motion Sequence No.: 008 and a conference on August 14, 2026 at 12:00 noon. On July 30, 2026, the Plaintiff's counsel filed an “Affirmation of Rejection” (hereinafter referred to as the “Plaintiff's July 30 Affirmation”) with the Court alleging, in part:

“7.This Affirmation is filed to explicitly preserve Plaintiff's jurisdictional and procedural objections. Plaintiff's appearance at the Court's August 14, 2026 scheduled conference is done strictly under protest, without prejudice and the appearance is only to comply with the Court's directive.

On August 14, 2026, the Defendant appeared, the Defendant's counsel appeared, and AFC Pollack appeared. The Plaintiff's counsel appeared. Notwithstanding her conceded actual knowledge of the appearance scheduled for August 14, 2026, the Plaintiff herself failed to appear.

THE PARTIES' CONTENTIONS

Plaintiff's Contentions:

The Plaintiff alleges that the Defendant's reply papers relative to Motion Sequence No.: 006 are untimely, as she filed a motion seeking the signing and enforcement of a QDRO on October 24, 2025 and the Defendant interposed a cross-motion on December 12, 2025. She alleges that, in connection with that prior motion practice, her opposition and reply was due to be filed on or before February 2, 2026, and that the Defendant's reply to his cross-motion was due to be filed on or before February 23, 2026. She alleges that she timely submitted her opposition and reply by February 2, 2026. She alleges that the return date of February 23, 2026 of the prior motion practice did not proceed forward as the Courthouse was closed due to a snowstorm, but the Defendant failed to submit his reply papers by February 23, 2026 and he failed to request an extension of time prior to the expiration of his time to reply. She alleges that she notified the Defendant of this default by submitting a letter to the Court regarding same and she filed an Affirmation of Non-Compliance. She alleges that at the next conference held on March 27, 2026, the Court set a submission date for the Defendant's reply on the prior motion practice to be filed by April 20, 2026. She alleges that despite submitting proposed order(s) setting forth the briefing schedule, the Court declined to sign both of the submitted proposed orders and, therefore, since there was no authority granting the Defendant the right to file reply papers, the February 23, 2026 deadline remains the only enforceable date. She alleges that the Defendant should have been on notice that he did not have the Court's permission to file “late”. She alleges that the Defendant nevertheless filed reply papers on April 20, 2026 without obtaining leave of court or moving to vacate his default. She alleges that she thereafter filed a Notice of Rejection on April 21, 2026. She argues that the Defendant should be sanctioned for his frivolous conduct and that the Uniform Rules and the CPLR must apply “equally” to all parties. She alleges that the Defendant should be sanctioned by forcing her to spend limited resources to combat unauthorized filings, and that “orderly procedure is not a suggestion; it is a requirement”.

Defendant's Contentions:

The Defendant alleges that in connection with the prior motion practice, the Plaintiff moved to expedite the signing of the Proposed CSA QDRO and for proof of compliance with the Pension QDRO. He alleges that the original return date was November 18, 2025, which date was adjourned at the request of the Plaintiff to November 24, 2025. He alleges that due to a medical emergency for his counsel, the Court adjourned the return date to December 12, 2025. He alleges that he filed his cross-motion on December 12, 2025, and, when the Court held a conference on January 14, 2026, it set a briefing schedule such that the Plaintiff's opposition and reply were due to be filed on or before February 2, 2026, and that his reply was due to be filed on or before February 23, 2026, at which time a further conference would be held. He alleges that as the February 23, 2026 conference was approaching, it was his intention to request an adjournment for his reply papers, but a snow storm closed the Nassau County Supreme Court, and the submission date and conference were administratively adjourned to March 27, 2026. The Defendant alleges that at the March 27, 2026 court appearance, the Court granted his request to submit reply papers on the prior motion practice, which papers were due to be filed on or before April 20, 2026. He argues that the Court should award him counsel fees as he was forced to defend against the Plaintiff's frivolous application.

DISCUSSION + ANALYSIS

STRIKING OF PAPERS

Prior to reaching, if at all, the merits of the Plaintiff's application, the Court wishes to address a more fundamental issue: the Plaintiff's non-appearance at the conference scheduled for August 14, 2026, on the return date of the application she herself interposed. The Plaintiff availed herself of the Court's jurisdiction: she is required to follow court rules. The Nassau County Supreme Court Matrimonial Parts have enacted Uniform Part Rules (hereinafter referred to as the “Uniform Rules”).⁷ The relevant sections of the Uniform Rules provide:

STRIKING OF PAPERS

III. MOTIONS

* * *

B. SUBMISSION OF THE MOTION:

1. Appearances of all counsel and parties are required on all motions and Orders to Show Cause return dates unless otherwise specifically waived by the Court.

* * *

VI. COURT APPEARANCES

A. * * *

All counsel and litigants are directed to appear for each and every conference (including preliminary, compliance, certification, motion, and pre-trial conference) at the scheduled time. No individual's presence may be excused by anyone other than the Court.

(emphasis added).

The Uniform Rules are clear: appearances of parties on all court dates are mandated by the Dedicated Nassau County Matrimonial Parts. Appearing at least twice in the Uniform Rules is the obligation - and requirement - for litigants to be present in Court “for each and every conference”. The Uniform Rules are clear, and they are unequivocal. The Plaintiff indisputably failed to comply. What's the appropriate course of action for the Court?

The Uniform Rules are not enacted just for the sake of enacting or having rules. They are enacted for a purpose. Our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. Gibbs v. St. Barnabas Hosp., 16 NY3d 74, 81 (2010) (emphasis added). The Court cannot stress the importance of matrimonial litigants appearing at their own conferences. To this end, the Court wishes to put a finer point on that notion: while this Court presides over the cases before it, the cases that come before the Court are not the Court's personal cases; rather, they are the cases of the litigants before it. Likewise, these cases are not counsel's personal cases. While counsel represents their clients, the outcome of the case affects the life of the litigant. The Court's function is to adjudicate the issues before it. But the issue(s) so adjudicated affect the lives of the litigant(s). Put differently, the litigants choose to put themselves before the Court; but the Court does not inject itself into the lives of the litigants until such time as the litigants request it to do so. There is a compelling need for courts to require compliance with enforcement orders if the authority of the courts is to be respected by the bar, litigants and the public. Gibbs, 16 NY3d at 81. No litigant has the authority to excuse themselves from any scheduled court appearance. Likewise, no lawyer representing a party has the authority to advise their client not to appear before the Court. That compelling need is necessary because the litigants are asking this Court to make a decision about their lives. While this Court respects and takes seriously the obligation to make a legally sound and prudent decision about the lives of the litigants who come before it, the litigants must show the Court, at a minimum, the respect of at least appearing.

As an aside, this Court certainly understands that issues arise from time to time. Medical emergencies may arise. Issues with children may arise. There could even be the possibility of a scheduling error by counsel, a mis-communication between counsel and the litigant, or mis-calendaring. In any one of those instances, the Court may permit a reasonable adjournment of the matter, or even excuse the appearance of a party, provided a sufficient explanation is proffered to the Court.

But this was not the case here, and this was far more egregious and much more serious. On the virtual conference held on July 30, 2026, the Court advised the Plaintiff's counsel that this matter would be scheduled for conference on August 14, 2026 at 12:00 noon. The Plaintiff clearly had knowledge about this appearance, given that her well-respected and competent matrimonial counsel submitted the July 30 Affirmation, which Affirmation represented to the Court that the Plaintiff would be appearing “under protest”.⁸ The Plaintiff, to this end, affirmatively advised the Court that she would be appearing on August 14, 2026, and then deliberately chose not to appear in violation of the Uniform Rules. The Plaintiff's flagrant and abject disregard of the Uniform Rules warrant the imposition of dismissal of her application. The Uniform Rules, at the very beginning, are clear:

These rules are in addition to the Uniform Rules for New York State Trial Court and the Local Rules of Court. Failure to comply with any rules or orders of this Court may result in preclusion and/or sanctions without further notice.

Nonappearances in this Part by litigants, unless excused, should not be, and will not be, countenanced. Stated as simply as it could be: the Plaintiff sought affirmative relief from this Court. She, in effect, asked this Court to read her papers, consider her exhibits, consider her arguments, and make a decision about an issue. The Plaintiff did not have the respect for this Court or the process to appear on the return date of her own application in derogation of the Uniform Rules. The appropriate action is dismissal of her motion for the failure to appear. The Uniform Rules are not made be to broken or disregarded. Rather, they are designed to be followed. Inasmuch as the Court dismisses the Plaintiff's application for failure to appear, the Court does not reach the merits of same. Therefore, it is hereby:

ORDERED, that Branches (i), (ii) and (iii) of the Plaintiff's Order to Show Cause dated May 6, 2026 be and the same are hereby DISMISSED for her failure to appear.⁹

COUNSEL FEES

Domestic Relations Law § 238 provides, in relevant part, that:

“․[i]n any action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce․the court may in its discretion require either party to pay counsel fees and fees and expenses of experts directly to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires having regard to the circumstances of the case and of the respective parties․”

In determining whether or not the award counsel fees, the Court may consider, inter alia, a party's obstructionist tactics and whether or not those tactics have unnecessarily prolonged the litigation. See generally Culen v. Culen, 157 AD3d 930 (2d Dept. 2018). Here, the Plaintiff's failure to appear resulted in the dismissal of her application. The Defendant was certainly forced to file opposition papers, all for a motion that was inevitably dismissed because the Plaintiff failed to comply with the Uniform Part Rules. To this end, the Court has reviewed the Defendant's retainer agreement with counsel, and finds that the hourly rates charges are reasonable. In addition, the Court has reviewed the invoices of the Defendant's counsel and notes that the total sum of $2,365.00 was incurred over 5.15 hours relative to defending against the Plaintiff's application and the preparation of the cross-moving papers and appearing in court on the initial return date. The Court finds that sum to be reasonable under the circumstances. Therefore, it is hereby:

ORDERED, that Branch (B) of the Defendant's Notice of Cross-Motion dated June 26, 2026 be and the same is hereby GRANTED TO THE EXTENT that the Plaintiff shall pay directly to the Defendant's counsel, STEMPEL CATTERSON LoFRUMENTO CARLSON & BIONDO, LLP, attorneys for the Defendant, the sum of $2,365.00 as and for reimbursement of his reasonable counsel fees, within thirty (30) days of the date of service of the within Decision and Order with Notice of Entry; and it is further

ORDERED, that upon the failure of Plaintiff pay the Defendant's counsel as set forth herein above, the Defendant's attorneys may file an Affidavit of Non-Compliance with the Clerk of the County, who shall enter a judgment, with statutory interest thereon as of the date of this Decision and Order, in favor of the firm of STEMPEL CATTERSON LoFRUMENTO CARLSON & BIONDO, LLP, attorneys for the Defendant, and against the Plaintiff. MOIRA JABIR, without further proceedings.

Any other relief requested not specifically addressed herewith is hereby DENIED.¹⁰

This constitutes the Decision and Order of this Court.

FOOTNOTES

1.   Motion Sequence No.: 005.

2.   Motion Sequence No.: 006.

3.   These Motion Sequences consisted of the following papers: (1) the Plaintiff's Order to Show Cause, (2) the Defendant's Notice of Cross-Motion, (3) the Plaintiff's Opposition & Reply, and (4) the Defendant's Reply.

4.   Motion Sequence No.: 007.

5.   The Court declined to sign the Proposed CSA QDRO.

6.   Motion Sequence No.: 008.

7.   Those rules are available online at: https://www.nycourts.gov/LegacyPDFS/COURTS/10JD/nassau/Forms/Mat/Forms/MCUniformRules.pdf.

8.   In any event, the Plaintiff has no right to appear before the Court “under protest”. She herself filed an application seeking affirmative relief from this Court. She availed herself of this Court. She is required to appear under the Uniform Rules.

9.   To the extent that the Plaintiff re-files her application, the Court may consider same.

10.   Branch (A) of the Defendant's Notice of Cross-Motion is rendered academic.

Edmund M. Dane, J.