M.L., Plaintiff, v. O.L., Defendant. (2025)

I. Statement Pursuant to CPLR 2219(a)

This matrimonial action was recently assigned to the undersigned by Administrative Order of the Chief Administrative Judge of the Courts [AO/150/2026], by which the undersigned, a Justice of the Supreme Court of the State of New York, was assigned from Supreme Court, Richmond County, to Supreme Court, New York County, Civil Term. Six motion sequences are before the Court for determination. The Court has reviewed the submissions of the parties in their entirety.

In compliance with CPLR § 2219 [a], the Court states that the papers read and considered upon these applications are the following:

A. Motion Sequence No. 22

1. Defendant's Order to Show Cause with Temporary Emergency Relief Requested, signed by the Honorable Jeffrey H. Pearlman, J.S.C. on October 7, 2025 and filed October 15, 2025, together with the affirmation of Defendant dated October 6, 2025 and the affirmation of Jill Spielberg, Esq. dated October 6, 2025 recited therein, with the exhibits annexed thereto (NYSCEF Doc No. 899);

2. Plaintiff's Notice of Cross Motion dated December 5, 2025 (NYSCEF Doc No. 948);

3. Affirmation of Kevin M. McDonough, Esq. in Support of the Cross Motion and in Opposition, affirmed December 5, 2025, together with the affirmation of Plaintiff affirmed December 5, 2025 and the exhibits annexed thereto (NYSCEF Doc No. 950);

4. Affirmation of Jill Spielberg, Esq. in Opposition to Plaintiff's Cross Motion and in Reply and Further Support of Defendant's Order to Show Cause, affirmed January 5, 2026, with Exhibits A through L (NYSCEF Doc No. 1007);

5. Defendant's Affirmation in Opposition to Plaintiff's Cross Motion and in Reply and Further Support of Defendant's Order to Show Cause, affirmed January 5, 2026 (NYSCEF Doc No. 1026); and

6. Supplemental Affirmation of Kevin M. McDonough, Esq., affirmed January 26, 2026 (NYSCEF Doc No. 1027).

B. Motion Sequence No. 23

1. Plaintiff's Order to Show Cause Seeking Interim Relief, signed by the Honorable Jeffrey H. Pearlman, J.S.C. on October 30, 2025 (NYSCEF Doc No. 945);

2. Affirmation of Kevin M. McDonough, Esq. in Support, affirmed October 24, 2025, with the exhibits annexed thereto (NYSCEF Doc No. 901);

3. Plaintiff's Affirmation of Plaintiff, affirmed October 24, 2025 (NYSCEF Doc No. 902);

4. Affirmation of Burton D. Witman, Esq. submitted pursuant to 22 NYCRR 202.7(f) (NYSCEF Doc No. 943);

5. Affirmation of Service of Burton D. Witman, Esq. dated October 30, 2025 (NYSCEF Doc No. 947);

6. Defendant's Affirmation in Opposition of O.L., affirmed December 16, 2025 (NYSCEF Doc No. 987);

7. Affirmation of Jill Spielberg, Esq. in Opposition, affirmed December 16, 2025, with Exhibits A through J (NYSCEF Doc No. 995); and

8. Affirmation of Kevin M. McDonough, Esq. in Further Support, affirmed January 5, 2026, with the exhibits annexed thereto (NYSCEF Doc No. 996).

C. Motion Sequence No. 24

1. Defendant's proposed Order to Show Cause, presented April 7, 2026 and declined for signature by the Honorable Jeffrey H. Pearlman, J.S.C. (NYSCEF Doc No. 1049);

2. Defendant's Affirmation in Support of Order to Show Cause, affirmed April 7, 2026 (NYSCEF Doc No. 1037);

3. Defendant's Letter to the Court dated April 7, 2026 (NYSCEF Doc No. 1038);

4. Limited Affirmation in Opposition of Burton D. Witman, Esq., affirmed April 7, 2026, with the exhibits annexed thereto (NYSCEF Doc No. 1042); and

5. Defendant's Limited Reply dated April 7, 2026 (NYSCEF Doc No. 1048).

D. Motion Sequence No. 26

1. Plaintiff's Order to Show Cause, signed by the Honorable Lyle E. Frank, J.S.C. on July 29, 2026 and made returnable before the undersigned on September 9, 2026 (NYSCEF Doc No. 1104);

2. Attorney Affirmation of Kevin M. McDonough, Esq., affirmed July 24, 2026, together with the exhibits annexed thereto, including the Report and Recommendations of Special Referee Stephen Burzio dated July 10, 2026 (NYSCEF Doc No. 1073) (NYSCEF Doc No. 1075);

3. Plaintiff's Affirmation of Plaintiff, affirmed July 24, 2026 (NYSCEF Doc No. 1076);

4. Affirmation of Service of Deneen Heller dated July 30, 2026 (NYSCEF Doc No. 1109);

5. Affirmation of Jill Spielberg, Esq. in Opposition, affirmed August 17, 2026, with Exhibits A through D (NYSCEF Doc No. 1142);

6. Defendant's Memorandum of Law in Opposition dated August 17, 2026 (NYSCEF Doc No. 1143);

7. Statement of Authorization for Electronic Filing (NYSCEF Doc No. 1144);

8. Defendant's Affirmation in Opposition of O.L., affirmed August 17, 2026 (NYSCEF Doc No. 1145); and

9. Reply Affirmation of Kevin M. McDonough, Esq., affirmed August 24, 2026, with the exhibits annexed thereto (NYSCEF Doc No. 1164).

E. Motion Sequence No. 27

1. Defendant's Order to Show Cause dated July 27, 2026;

2. Affirmation of Jill Spielberg, Esq. in Support, affirmed July 27, 2026, with the exhibits annexed thereto (NYSCEF Doc No. 1096);

3. Defendant's Memorandum of Law in Support dated July 27, 2026 (NYSCEF Doc No. 1103);

4. Attorney Affirmation in Opposition of Kevin M. McDonough, Esq., affirmed August 17, 2026, with the exhibits annexed thereto (NYSCEF Doc No. 1138);

5. Plaintiff's Affirmation in Opposition of Plaintiff, affirmed August 17, 2026 (NYSCEF Doc No. 1139);

6. Defendant's Affirmation in Reply and Further Support of O.L., affirmed August 24, 2026 (NYSCEF Doc No. 1168); and

7. Affirmation of Jill Spielberg, Esq. in Reply and in Further Support, affirmed August 24, 2026 (NYSCEF Doc No. 1172).

F. Motion Sequence No. 28

1. Plaintiff's Order to Show Cause, signed by the undersigned on August 3, 2026 with handwritten modifications and filed August 4, 2026 (NYSCEF Doc No. 1130);

2. Plaintiff's Emergency Affirmation of Plaintiff, affirmed August 2, 2026, with the exhibits annexed thereto (NYSCEF Doc No. 1123);

3. Attorney Affirmation of Burton D. Witman, Esq., affirmed August 2, 2026, with the exhibits annexed thereto (NYSCEF Doc No. 1124);

4. Affirmation of Burton D. Witman, Esq. submitted pursuant to 22 NYCRR 202.7(f), dated August 2, 2026 (NYSCEF Doc No. 1129);

5. Affirmation of Jill Spielberg, Esq. in Opposition, affirmed August 17, 2026, with Exhibits A through E (NYSCEF Doc No. 1155);

6. Defendant's Affirmation in Opposition of O.L., affirmed August 17, 2026 (NYSCEF Doc No. 1156); and

7. Plaintiff's Reply Affirmation of Plaintiff, affirmed August 24, 2026 (NYSCEF Doc No. 1167).

G. Additional Papers and Orders Considered

1. Order of Reference to Special Referee dated October 12, 2023 (NYSCEF Doc No. 420);

2. Decision and Order After Custody Trial of the Honorable Kathleen Waterman-Marshall dated July 30, 2024 (NYSCEF Doc No. 550);

3. Interim Decision and Order dated December 23, 2024 (NYSCEF Doc No. 694);

4. Decision and Order After Trial of the Honorable Ariel Chesler, J.S.C. dated August 4, 2025 (NYSCEF Doc No. 821);

5. Report and Recommendations of Special Referee Stephen Burzio dated July 10, 2026 (NYSCEF Doc No. 1073);

6. Order of Protection entered upon the consent of Defendant on August 3, 2026 (NYSCEF Doc No. 1131); and

7. Short Form Order of the undersigned dated August 4, 2026 (NYSCEF Doc No. 1133).

A cross motion has been interposed only upon Motion Sequence No. 22. Pursuant to the Short Form Order dated August 4, 2026, oral argument upon Motion Sequences Nos. 26 and 27 was waived on the consent of the parties, Motion Sequences Nos. 22 and 23 were adjourned for decision, Motion Sequence No. 24 was withdrawn upon the consent of the parties, and this matter was adjourned to September 9, 2026 for a Decision and Order upon Motion Sequences Nos. 26 and 27 and for a status conference. Motion Sequence No. 28 was made returnable the same day.

II. Findings of Fact

A. The Parties, the Commencement of the Action and the Custodial Determinations

Plaintiff M.L. is a psychiatrist licensed in New Jersey and New York and has been employed since May 2017 at a forensic center in New Jersey. Defendant O.L., born March 27, 1980, is a certified public accountant who spent some twenty years in the finance and banking industry and was employed as a healthcare investment banker from 2016 until March 2024, when she was laid off in the course of a departmental reorganization. The parties were married on July 7, 2007 and had been married twelve years and ten months when Plaintiff filed a Summons with Notice on June 1, 2020. Two unemancipated children were born of the marriage: a son born in 2013 and a daughter born in 2018, referred to collectively herein as the Children.

The former marital residence is a cooperative apartment on the Upper East Side of Manhattan, referred to herein as the Marital Residence, purchased in February 2019 for $1,560,000 and financed in part by a joint co-operative loan of $1,014,000. The parties' submissions describe the street address of the premises inconsistently, and the Court notes the discrepancy only so that the record may be conformed upon settlement of any subsequent order.

Soon after commencement Plaintiff vacated the Marital Residence and relocated to southern New Jersey. In June 2021 he purchased a residence in New Jersey for $400,000, referred to herein as the New Jersey Residence. For approximately four and one-half years Defendant served as the Children's primary physical custodian, Plaintiff exercising access on alternate weekends and during holidays and vacations.

A custody trial was conducted in 2024 before the Honorable Kathleen Waterman-Marshall, resulting in a Decision and Order dated July 30, 2024 (NYSCEF Doc No. 550) awarding Defendant primary physical custody and the parties joint legal custody, with Plaintiff vested with final decision-making authority after meaningful consultation. On November 8, 2024, Plaintiff moved by Order to Show Cause, Motion Sequence No. 14, for modification and for leave to relocate the Children to New Jersey. By Interim Decision and Order dated December 23, 2024 (NYSCEF Doc No. 694), Defendant's access was directed to be supervised, the court having found that she could not be trusted to act in the Children's best interests or in accordance with court order; that supervision was furnished by Comprehensive Family Services from late 2024 through the end of May 2025. Between December 2024 and August 2025 the parties nested in the Marital Residence, and a relocation hearing was conducted in May and June 2025.

B. The Decision and Order After Trial Dated August 4, 2025

The Honorable Ariel Chesler, J.S.C., rendered a decision from the bench on August 1, 2025 denying relocation and memorialized it in a Decision and Order After Trial dated August 4, 2025 (NYSCEF Doc No. 821). The custodial disposition was framed in the conditional. Plaintiff was awarded primary physical custody of the Children on condition that he reside in Manhattan. He was directed, on or before September 1, 2025, to inform Defendant in writing whether he intended permanently to reside in Manhattan; in the event he elected to do so, then commencing September 2, 2025 he would have exclusive use of the marital apartment until the apartment is sold, bought out, or a determination is made at the conclusion of the upcoming financial trial. In the alternative, should Plaintiff choose not to reside in Manhattan, he would have the alternate weekend and holiday, vacation and summer schedule set forth in the July 31, 2024 Decision, and Defendant would have primary physical custody and parenting time at all other times. Both parties were directed to continue sharing the carrying charges of the Marital Residence, and Justice Chesler determined that Plaintiff was entitled to an award of counsel fees for the fees incurred in bringing the modification motion and conducting the trial. The Decision and Order After Trial further directed that the Special Referee issue alternate determinations on child support corresponding to the alternate custodial outcomes.

Plaintiff advised Defendant by electronic mail that he intended to return to the Marital Residence, and Defendant vacated on or about September 2, 2025, asserting that she neither conceded that Plaintiff permanently resided in Manhattan nor waived her right to resume occupancy. During her parenting time she thereafter stayed in hotels, in short-term rental accommodations and with friends, while continuing to pay one-half of the carrying charges of the Marital Residence.

C. The Financial Trial and the Report and Recommendations

By Order of Reference dated October 12, 2023 (NYSCEF Doc No. 420), Justice Waterman-Marshall referred the matter to the Office of the Special Referee to hear and report upon three issues, namely equitable distribution of marital assets and debts, child support, and attorney's fees, except that upon the filing of a stipulation of the parties as permitted by CPLR 4317 the Special Referee would determine those issues. No stipulation to hear and determine was ever executed, Defendant having declined on January 8, 2026 to so stipulate. The Order of Reference was never amended or supplemented.

The financial trial was conducted before Special Referee Stephen Burzio on August 5, 6 and 7, October 14, 17 and 21, November 17 and 19, December 1, 16 and 17, 2025, and January 5, 2026. The trial consumed twelve days, produced nearly two thousand pages of testimony and more than two hundred exhibits, and was followed by post-trial submissions. The Report and Recommendations dated July 10, 2026 (NYSCEF Doc No. 1073) runs ninety-three pages.

The Report recommends, in substance, that the Marital Residence be listed and sold according to prescribed procedures, with the net sale proceeds divided fifty-five percent to Plaintiff and forty-five percent to Defendant, and with the carrying charges continuing to be shared equally until closing; that the Professional Entity is not a business subject to equitable distribution; that the retirement accounts be equalized as of the date of commencement, with Plaintiff to receive $41,500 from Defendant's 401(k) account by qualified domestic relations order; that each party receive a credit of $82,674 on account of Defendant's bonuses and deferred compensation; that Plaintiff receive a bank account equalization credit of $41,925; that the New Jersey Residence is separate property not subject to equitable distribution, that Defendant receive no distributive award in relation to it, and that the escrowed sale proceeds be released to Plaintiff; that Defendant receive no credit for marital funds applied to Plaintiff's student loans; that Defendant's motion to vacate the deemed admissions arising from Plaintiff's Notice to Admit be denied as untimely and unsubstantiated; that Defendant's motion to vacate the maintenance provisions of the 2021 Preliminary Conference Order be denied as untimely and prejudicial; that Plaintiff has satisfied the terms of the August 4, 2025 Decision and Order After Trial by residing in Manhattan and that Defendant be directed to pay Plaintiff child support, with add-on expenses apportioned thirty-six percent to Defendant and sixty-four percent to Plaintiff; that a negative inference be drawn against Defendant for her failure to file an updated Statement of Net Worth or her 2024 income tax returns; that Plaintiff be awarded $345,795 in counsel fees for the modification motion and the second custody trial and $271,772 on account of Defendant's frivolous conduct in connection with her pendente lite application and the ensuing motion practice and appeal, both sums payable from Defendant's share of the sale proceeds; and that Defendant receive no counsel fees, with the outstanding balance of the interim counsel fee award made as part of the pendente lite determination cancelled.

D. Motion Sequence No. 22

On October 6, 2025 Defendant moved by Order to Show Cause, signed by Justice Pearlman on October 7, 2025 and filed October 15, 2025 (NYSCEF Doc No. 899), for an order adjudicating Plaintiff in contempt for violations of the July 30, 2024 Decision and Order After Custody Trial, the decision rendered on the record, and the August 4, 2025 Decision and Order After Trial; enforcing the Decision and Order After Trial by declaring Defendant the primary custodial parent by reason of Plaintiff's failure to relocate; directing that Defendant and the Children have exclusive use and occupancy of the Marital Residence in that event; directing a right of first refusal whenever a parent is unable personally to care for the Children for two hours or more; directing that the sale proceeds of the New Jersey Residence be held in escrow; directing Plaintiff to provide a mailbox key and to return Defendant's belongings; and restraining Plaintiff from discarding, damaging or removing the belongings of Defendant or of the Children.

Justice Pearlman granted interim relief in one respect only. The order as signed directs that the proceeds of sale of the New Jersey Residence be held in escrow within twenty-four hours following the closing, pending written agreement of the parties or further order of the Court. The proposed interim provisions deeming Defendant the primary custodial parent, awarding her and the Children exclusive use and occupancy of the Marital Residence, restraining Plaintiff from discarding belongings, and directing delivery of a mailbox key were each struck from the order before signature. Oral argument was directed. The closing on the New Jersey Residence took place in early November 2025, and sale proceeds of $234,286.51 have since been held in the trust account of Plaintiff's real estate attorney.

On December 5, 2025 Plaintiff cross-moved for an order directing Defendant to pay $4,086 per month in pendente lite basic child support retroactive to December 1, 2024; directing her to pay forty-nine percent of the Children's extracurricular activities, Hebrew school and summer camp expenses, likewise retroactive; directing her to pay forty-nine percent of his childcare expenses; awarding $65,000 in interim counsel fees pursuant to DRL § 237; sanctioning Defendant pursuant to 22 NYCRR 130-1.1 and awarding a further $35,000 in counsel fees; and restraining Defendant pursuant to DRL § 234 from disposing of the assets in her 401(k) account. By supplemental affirmation dated January 26, 2026, Plaintiff reduced his child support demand to $2,948 per month to account for the double shelter allowance.

Defendant opposes upon the grounds that the remedy for perceived pendente lite inequity is a speedy trial, which has now been had; that the identical issues were before the Special Referee; that the November 16, 2021 Decision and Order of the Honorable Lori Sattler declared Plaintiff the monied spouse and is law of the case; that no more than $175,000 of income may be imputed to her; that an award would produce an impermissible double shelter allowance; and that her conduct was not frivolous. In support of her own application she asserts that Plaintiff has not permanently relocated, that he maintains his New Jersey employment and substantial ties to another state, that a live-in nanny of approximately twenty-three or twenty-four years of age is primarily raising the Children in the Marital Residence, that Plaintiff has produced no driver's license, voter registration or tax filing evidencing New York residence, and that within forty-eight hours of the August 2025 determination he offered her $1,500,000 in marital assets in exchange for her consent to a New Jersey relocation.

E. Motion Sequence No. 23

On October 24, 2025 Plaintiff moved by Order to Show Cause, signed by Justice Pearlman on October 30, 2025 (NYSCEF Doc No. 945), for an order pursuant to CPLR 6314 vacating the temporary restraining order of October 7, 2025; pursuant to CPLR 2221(e) granting leave to renew; pursuant to Judiciary Law § 753 adjudicating Defendant in civil contempt for withdrawing $111,000 from her 401(k) account in violation of the automatic orders prescribed by DRL § 236(B)(2)(b); deeming service upon Defendant's attorneys sufficient pursuant to CPLR 2103(b)(2), (3), (6) or (7) and Judiciary Law § 761; and awarding $25,000 in counsel fees pursuant to DRL § 238. The proposed interim provision vacating the temporary restraining order was struck before signature; no interim relief was granted.

Plaintiff traces the acquisition of the New Jersey Residence in detail. A business account maintained in the name of the Professional Entity held $234,000 on the date of commencement; $225,000 was transferred into it from the parties' joint Folio pension in July 2020; and in October 2020 there were withdrawals totaling $489,887, of which $319,000 was contributed to the joint pension on account of tax year 2019, $19,000 was transferred to Plaintiff's individual retirement account, and $128,128 was applied through a second account to the parties' joint 2019 federal and New Jersey tax liabilities. Plaintiff contends that the sums transferred out exceeded the sums in question, so that no marital dollar remained when the $20,000 deposit was paid in March 2021 and the $51,585.65 balance at the June 8, 2021 closing, the remainder having been financed by a purchase money mortgage of $340,000. He relies additionally upon Defendant's deemed admission, in response to a Notice to Admit, that the New Jersey Residence is his post-commencement separate property, and upon her concessions on cross-examination that no withdrawal was made from the joint pension between October 2020 and July 2021.

Defendant responds that the accounts used were marital accounts holding marital balances at commencement, that $50,301 remained in that account as of October 31, 2020, that post-commencement income deposited into those accounts was thereby commingled and transmuted, that Plaintiff never asserted a convenience defense, that his deposition testimony and his November 2021 Statement of Net Worth are inconsistent as to the source of funds, and that the issue was squarely before the Special Referee so that a determination by this Court would risk inconsistent results. As to the retirement withdrawals, she acknowledges having withdrawn $25,000 in June 2025 and a further $86,000 between July 1 and September 23, 2025, and states that she did so because she is unemployed, receives neither maintenance nor child support, must maintain two households, and is owed substantial arrears. She points out that $455,464.42 remained in the account as of December 16, 2025 against a commencement-date balance of approximately $230,000, and that ample assets remain from which any marital interest of Plaintiff may be satisfied.

F. Motion Sequence No. 24

On April 7, 2026 Defendant, though represented by counsel, presented a proposed Order to Show Cause of her own preparation, accompanied by a letter to the Court explaining that she had asked her firm to file the application and that it had not been filed. She sought leave to withdraw up to $100,000 from her 401(k) account; the return to her of exclusive use and occupancy of the Marital Residence or, alternatively, a reallocation of the carrying charges to seventy-eight percent Plaintiff and twenty-two percent Defendant; and enforcement of child support arrears of $45,148 and counsel fee arrears of $36,441. Plaintiff opposed on the grounds that every item of relief was sub judice, and requested that Defendant be required to seek leave before filing further applications. Justice Pearlman declined to sign the proposed order. Upon the appearance of August 3, 2026, Motion Sequence No. 24 was withdrawn on the consent of the parties.

G. Motion Sequences Nos. 26 and 27

On July 24, 2026 Plaintiff moved by Order to Show Cause, signed by the Honorable Lyle E. Frank, J.S.C. on July 29, 2026, for an order pursuant to CPLR 4403 confirming the Report in its entirety and pursuant to DRL § 234 restraining Defendant and her agents from withdrawing, dissipating, hypothecating, trading or otherwise disposing of the assets in her 401(k) account [plan number redacted] until after the closing of the sale of the Marital Residence or pending further order of the Court. He represents that the net equity of the apartment may approximate $700,000, that the recommended award of $617,567 is payable from Defendant's forty-five percent share, and that a deficiency of some $380,000 is therefore likely.

On July 27, 2026 Defendant moved by Order to Show Cause for an order pursuant to CPLR 4403 rejecting the Report and pursuant to CPLR 4404 setting it aside and rendering new findings upon the trial record without the taking of additional testimony. Her principal contention is that the Referee exceeded the Order of Reference by recommending that Plaintiff satisfied the Manhattan residency condition of the Decision and Order After Trial, an issue never referred to him and squarely presented by Motion Sequence No. 22, and by failing to render the alternate child support determinations Justice Chesler directed. She contends further that the Report is contradicted by the record in ten respects, among them the denial of a credit for marital funds applied to Plaintiff's premarital student loans, the denial of a credit arising from the commingled funds used to acquire the New Jersey Residence, the refusal to vacate the deemed admissions, the refusal to vacate the maintenance provisions of the Preliminary Conference Order, the treatment of her employment search, the absence of alternate child support computations, the determination that the Professional Entity is not subject to distribution notwithstanding that both experts assigned it a value, the absence of a credit for the automobile sold before commencement, the absence of a credit on account of Plaintiff's withdrawals of some $400,000 from the joint pension and his Charles Schwab accounts, and the absence of any stated foundation for the amount of the sanctions.

H. Motion Sequence No. 28 and the Events of August 2, 2026

Defendant's summer parenting time was scheduled to commence on August 2, 2026. Plaintiff affirms that Defendant secreted herself in the stairwell of the building and, when he stepped out to carry garbage to the trash chute, ran into the apartment and refused to leave; that after he telephoned the police she attempted to draw him into a physical altercation; that he barricaded himself in a room while awaiting the officers because he feared she would attack him with a weapon or falsely accuse him of injuring her; that when the parties' son attempted to reenter the apartment she grabbed him by the face and pushed him out the front door before slamming it shut; and that she screamed at the responding officers for more than thirty minutes, all in the presence of the Children. He states that the officers advised him they could not enforce the order and remove her, whereupon he took the Children to the home of his aunt in New Jersey.

Defendant affirms that she notified Plaintiff by electronic mail well in advance of her intention to reside in the Marital Residence, which she jointly owns, during her summer parenting time, and asked him to ensure a peaceful exchange; that she arrived at approximately noon as agreed; and that the customary practice of the parties was to exchange the Children at the Marital Residence, with Defendant ascending by the stairwell while Plaintiff descended by the elevator so that they would not encounter one another. She denies hiding, denies that she grabbed the child by the face, stating that she directed him to take his sister to the Center so that the Children would not witness the dispute, and denies screaming at the police, relying upon the police report annexed as Exhibit D. She acknowledges that her entry produced an extraordinarily hostile situation, states that she does not condone her own behavior, and concedes that in hindsight she should have handled the matter differently.

The parties appeared before this Court on an emergency basis on August 3, 2026. Defendant consented, without admitting or denying the allegations, to the entry of an Order of Protection expiring August 3, 2027 (NYSCEF Doc No. 1131). This Court signed Plaintiff's Order to Show Cause the same day with substantial handwritten modifications. As signed, it suspends Defendant's parental access under the August 4, 2025 Decision and Order until supervised visitation can be implemented by way of therapeutic sessions with either Kids In Common, Bettina Tousen or Ann Graham; directs that her access and contact be supervised by Comprehensive Family Services at her sole cost; directs her to stay away from Plaintiff, from his residence and from the common areas of the building; awards Plaintiff exclusive use and occupancy of the common areas together with authorization to change the mailbox lock and key; reappoints Philip A. Katz, Esq. as the Attorney for the Children; and directs turnover of the Children's Russian passports to Mr. Katz and to Plaintiff to the extent not already turned over. The provision directing the New York City Sheriff to remove Defendant was struck, and the travel restraint was modified to apply to both parties. Defendant has since vacated the Marital Residence.

By Short Form Order dated August 4, 2026 (NYSCEF Doc No. 1133), this Court further directed that Defendant refrain from being at the building except for curbside pickup and dropoff of the Children and from loitering in front of adjacent buildings; fixed the briefing schedule upon Motion Sequences Nos. 26 and 27; directed that no further motion, cross motion or order to show cause be filed by either party without prior leave of the Court, such leave to be sought by letter application of not more than one page, excepting only applications for emergency relief; directed the parties to pay the Attorney for the Children in full and to file updated Statements of Net Worth within two weeks; and directed enrollment in the therapeutic sessions provided for by the Order to Show Cause.

I. The Findings of Credibility Previously Made

Justice Waterman-Marshall found Defendant's testimony largely incredible, combative and substantially impeached, internally inconsistent and almost entirely unsupported by the documentary evidence, and found that she routinely refuses to place the Children's interests above her own and habitually excludes Plaintiff from decision-making, and that her testimony revealed an unapologetic history of violating court orders. Justice Chesler found the mother markedly incredible and repeatedly impeached, found that her having obtained and disseminated the transcript of the Children's in camera Lincoln hearing raised alarm bells as to her judgment and was, in that court's words, unheard of and so egregious, and identified her involvement of the Children in the litigation and her undermining of Plaintiff's decisions as reflecting terrible parenting judgment. Special Referee Burzio found her testimony generally not credible, particularly as to her ability to satisfy the cooperative board's requirements, her employment search and her involvement with the Professional Entity.

The findings of record are not, however, unilateral. Special Referee Burzio reported that he had difficulty crediting either party's testimony in full and that both had tailored their testimony so as to shade the facts in a light more favorable to their own narratives (see Gass v Gass, 42 AD3d 393, 394 [1st Dept 2007]). Justice Chesler observed that Plaintiff's testimony at the 2025 hearing sounded very different from his testimony at the interim hearing in 2024, that he had been much more thoughtful at the earlier proceeding, and that having previously stated he was absolutely willing to move to Manhattan for his children, he thereafter characterized such a move as an impossibility. That court further observed that it had not been presented with compelling evidence that either party could not live in New York.

III. Conclusions of Law

A. The Standard Governing Confirmation of a Referee's Report

Upon the motion of any party or upon the Court's own initiative, the judge required to decide the issue may confirm or reject, in whole or in part, the report of a referee to report, make new findings with or without taking additional testimony, or order a new trial or hearing (CPLR 4403). A referee's report should be confirmed where it is supported by the record (Bubul v Port Parties, Ltd., 83 AD3d 517 [1st Dept 2011]; Baker v Kohler, 28 AD3d 375 [1st Dept 2006]). Courts look with favor upon a referee's report, the referee as trier of fact being in the best position to determine the issues presented (Namer v 152-54-56 W. 15th St. Realty Corp., 108 AD2d 705, 706 [1st Dept 1985], quoting Matter of Holy Spirit Assn. for Unification of World Christianity v Tax Commn. of City of NY, 81 AD2d 64 [1st Dept 1981]). It is the function of the referee to determine the issues presented and to resolve conflicting testimony and matters of credibility (Rezzadeh v Lucas, 253 AD2d 698 [1st Dept 1998]), and his findings will generally not be disturbed so long as they are substantiated by the record (Freedman v Freedman, 211 AD2d 580 [1st Dept 1995]), deference being appropriate because the referee is best positioned to weigh the evidence and to make credibility determinations (Winopa Intl. Ltd. v Woori Am. Bank, 59 AD3d 203 [1st Dept 2009]; Poster v Poster, 4 AD3d 145 [1st Dept 2004]).

That deference has a boundary. A referee's authority is confined to the terms of the order of reference (Furman v Wells Fargo Home Mtge., Inc., 105 AD3d 807, 809 [2d Dept 2013]), and one who attempts to determine matters not referred to him acts beyond and in excess of his jurisdiction (McCormack v McCormack, 174 AD2d 612, 613 [2d Dept 1991]). Absent the consent of the parties or special circumstances there can be no extension of the scope of the reference (Chang v Chang, 190 AD2d 311, 319 [1st Dept 1993]). The remedy is not wholesale rejection but excision: that portion of a report exceeding the scope of the reference is rejected (401 Hotel v MTI/Image Group, 271 AD2d 228, 229 [1st Dept 2000]; see also Edwards v Wells, 97 AD3d 530, 531 [2d Dept 2012]; HSBC Bank USA, N.A. v Isaacson, 221 AD3d 668 [2d Dept 2023]). Where the referee had no authority to render a determination, the court should not rely upon it (Brighton Leasing Corp. v Brighton Realty Corp., 192 AD3d 749, 751 [2d Dept 2021]; see Pulver v Pulver, 197 AD3d 672, 675 [2d Dept 2021]).

B. The Report Exceeds the Reference in One Respect and Is to That Extent Rejected

Defendant is correct, and Plaintiff offers no persuasive answer, that the Referee exceeded the Order of Reference when he recommended that Plaintiff has satisfied the terms of Justice Chesler's decision and order modifying custody dated August 4, 2025 by residing in Manhattan. The Order of Reference dated October 12, 2023 referred three subjects and three only: equitable distribution, child support, and attorney's fees. It was never amended. Whether Plaintiff elected and effected a permanent residence in Manhattan is not a subject of equitable distribution; it is the condition precedent upon which the custodial disposition turns, and it is the precise question tendered by Motion Sequence No. 22, filed October 6, 2025 and never referred to the Referee. Defendant's counsel represents, and the Court accepts, that she adduced no testimony and offered no evidence upon that question because it was not before the Referee. A determination made in those circumstances cannot bind the parties, and this Court will not rely upon it (Chang v Chang, 190 AD2d 311, 319 [1st Dept 1993]; Brighton Leasing Corp. v Brighton Realty Corp., 192 AD3d 749, 751 [2d Dept 2021]).

The child support recommendation presents a different question. Child support was expressly referred, and the computation of it was squarely within the Referee's authority. Its infirmity is not one of jurisdiction over the subject but of the predicate upon which it rests, and that infirmity is curable. It is cured below. This Court, which is empowered to decide the custodial question, decides it upon Motion Sequence No. 22, and determines that Plaintiff elected and has maintained a permanent residence in Manhattan. The direction of the Decision and Order After Trial that alternate determinations be rendered was intended to spare these parties a further proceeding whichever way the condition resolved; the Referee's failure to render the alternate computation is harmless once the operative alternative has been determined by the Court. The child support recommendation is accordingly confirmed, and no remittal is required.

Excision is the appropriate remedy, and rejection of the Report in its entirety is not (401 Hotel v MTI/Image Group, 271 AD2d 228, 229 [1st Dept 2000]). Defendant's request that this Court set aside the Report and render new findings of its own upon the whole record pursuant to CPLR 4404 is declined. The Referee sat through twelve days of testimony and received more than two hundred exhibits; he saw the witnesses; and the balance of his recommendations rests upon credibility determinations that this Court, reading a cold transcript, is in no position to make afresh.

C. The Balance of the Report Is Substantiated by the Record

Defendant's remaining objections ask this Court to reweigh evidence that the Referee has already weighed. That is not the office of a motion to confirm (Rezzadeh v Lucas, 253 AD2d 698 [1st Dept 1998]; Winopa Intl. Ltd. v Woori Am. Bank, 59 AD3d 203 [1st Dept 2009]).

As to the student loans, the Referee credited testimony that the payment of each party's premarital student loans from marital funds was a marital decision, each party having carried such loans into the marriage. Courts do not ordinarily revisit the financial decisions spouses make during a marriage (Mahoney-Buntzman v Buntzman, 12 NY3d 415, 422 [2009]; Klauer v Abeliovich, 149 AD3d 617 [1st Dept 2017]). Defendant's reliance upon the principle that a spouse may recoup an equitable share of marital funds applied to the other's separate indebtedness (Biagiotti v Biagiotti, 97 AD3d 941, 943 [3d Dept 2012]; Ramadan v Ramadan, 195 AD3d 1174, 1176 [3d Dept 2021]; Bernholc v Bornstein, 72 AD3d 625, 628-629 [2d Dept 2010]) does not compel a contrary result where the Referee found a mutual arrangement symmetrical in its burdens.

As to the New Jersey Residence, Defendant states the commingling presumption accurately (Ceravolo v DeSantis, 125 AD3d 113 [3d Dept 2015]; Scher v Scher, 91 AD3d 842, 846 [2d Dept 2012]; Chamberlain v Chamberlain, 24 AD3d 589, 593 [2d Dept 2005]; McManus v McManus, 298 AD2d 189 [1st Dept 2002]; Belilos v Rivera, 164 AD3d 1411, 1412 [2d Dept 2018]; Sinnott v Sinnott, 194 AD3d 868 [2d Dept 2021]). The presumption was overcome here not by a convenience defense but by tracing. The Referee had before him month by month statements establishing that the commencement-date balance and the transferred pension funds were exhausted in October 2020 by the $319,000 pension contribution and the payment of the parties' joint 2019 tax liabilities, months before the March 2021 deposit and the June 2021 closing, and Defendant conceded on cross-examination that no withdrawal was made from the joint pension in the interim. That the Referee also had the benefit of a deemed admission is an additional, not a necessary, support. Defendant's attack upon the Notice to Admit has force as a matter of principle, a notice to admit being unavailable to establish ultimate or contested issues (Genna v Klempner, 195 AD3d 444 [1st Dept 2021]; Priceless Custom Homes, Inc. v O'Neill, 104 AD3d 664, 665 [2d Dept 2013]; Fetahu v New Jersey Tr. Corp., 167 AD3d 514, 515 [1st Dept 2018]), but the Referee's refusal to relieve her of admissions she left unanswered for nearly a year and moved to vacate on the eve of trial was a provident exercise of the discretion conferred by CPLR 3123(b), and the tracing findings stand on their own.

As to the Professional Entity, the Referee heard both valuation experts and credited the testimony that the entity has no office, no staff, no patients of its own, no revenue beyond the 1099 payments generated by Plaintiff's personal services, and no capacity to assign the services agreement, which by its terms is not assignable without written consent. He found the valuation methodology of Defendant's expert flawed for failing to account for the absence of any market, and observed that much of the ascribed value reflected the $234,000 held in that accounts which was later contributed to the joint pension and is separately subject to distribution. Defendant's authorities establish that a solo medical practice may be valued and distributed (Marcus v Marcus, 137 AD2d 131 [2d Dept 1988]; see Davenport v Davenport, 199 AD3d 637, 640 [2d Dept 2021]); they do not establish that every limited liability company through which a physician receives independent contractor income is such a practice. The determination is one of fact, and it is substantiated.

As to the retirement accounts, Defendant complains that she received no credit on account of Plaintiff's liquidation of his Charles Schwab accounts and his October 2024 withdrawal of $300,000 from the joint pension. The Referee equalized the retirement accounts as of the date of commencement. A commencement-date equalization is by its nature indifferent to what either party thereafter withdrew; each is charged with the marital balance as it stood on June 1, 2020, and Defendant was directed to transfer $41,500 to Plaintiff from her 401(k) account by qualified domestic relations order to accomplish that result. The objection therefore mistakes methodology for omission.

As to the deferred compensation, the Referee found that the bonuses were compensation for past performance conditioned only upon continued employment, so that the coverture apportionment of DeJesus v DeJesus, 90 NY2d 643 [1997] was inapplicable, and treated the payments as marital (Kaufman v Kaufman, 189 AD3d 31, 63 [2d Dept 2020]; Klauer v Abeliovich, 149 AD3d 617 [1st Dept 2017]). As to maintenance, Defendant waived it in the 2021 Preliminary Conference Order and moved to vacate that provision on the eve of a trial commencing four days later and more than two years after the note of issue was filed. The Referee found the application untimely and prejudicial. Defendant's change of financial circumstance is real, and her authorities are not frivolous (Hartog v Hartog, 85 NY2d 36, 50-51 [1995]; Anonymous v Anonymous, 123 AD3d 581, 584 [1st Dept 2014]), but the balancing of prejudice against delay is committed to the discretion of the trier of fact, and this Court finds no basis to disturb it. As to her employment search, the Referee heard the testimony and examined the messages offered and found the showing wanting. That is a credibility determination in its purest form.

Accordingly, save for the residency recommendation and the award made under Part 130, the Report is confirmed.

D. Counsel Fees and the Award Made Pursuant to Part 130

The recommended award of $271,772 stands differently, and this Court declines to confirm it. The Referee reported and recommended that Defendant's conduct during the period within which the pendente lite application was made, and during the subsequent motion practice and appearances, was frivolous conduct subject to sanctions under 22 NYCRR 130-1.1 because she asserted material factual statements that were false, in that she failed to disclose a $220,000 bonus received two weeks before the application, under-reported a savings account by nearly $80,000, and advanced a claim concerning $465,000 that proved to be a misrepresentation, the monies having been transferred to a joint pension account and applied to a joint tax liability. Those findings are serious, and nothing in this Decision and Order should be read to diminish them. Three difficulties nevertheless stand between the recommendation and a judgment of this Court.

The first is the scope of the reference, and this Court cannot apply that principle to Plaintiff's disadvantage upon one issue and decline to apply it upon another. The Order of Reference dated October 12, 2023 referred equitable distribution, child support and attorney's fees. An award of costs and the imposition of sanctions under Part 130 is not simply a species of matrimonial counsel fee. It is a distinct remedy resting upon a distinct predicate, and one that carries its own procedural requirements, among them notice that Part 130 relief is under consideration and a reasonable opportunity to be heard upon it. The record submitted upon these applications does not identify any order, motion, stipulation or trial ruling by which Part 130 relief was placed before the Referee, and the Order of Reference was never amended. Having rejected the residency recommendation upon the ground that a referee may not determine what was not referred to him (Chang v Chang, 190 AD2d 311, 319 [1st Dept 1993]; Furman v Wells Fargo Home Mtge., Inc., 105 AD3d 807, 809 [2d Dept 2013]; McCormack v McCormack, 174 AD2d 612, 613 [2d Dept 1991]), the Court will not confirm a Part 130 determination upon a record that does not establish it was referred either.

The second difficulty is one of measurement. Costs under 22 NYCRR 130-1.1(a) are limited to actual expenses reasonably incurred and reasonable attorney's fees resulting from the frivolous conduct, and 22 NYCRR 130-1.2 requires a written decision setting forth not merely the conduct and the reasons it is frivolous but the reasons the amount is appropriate. The recommended sum is the aggregate of every fee billed from May 2021 through December 2022 and in March 2023. It is not allocated between work occasioned by the three misstatements identified and the ordinary work of a contested matrimonial action across a span of some twenty months, and it contains no reduction for duplication, for block billing, for unrelated tasks or for unsuccessful applications. A gross temporal aggregation is not a demonstration of causation, and without that demonstration this Court cannot make the findings that 22 NYCRR 130-1.2 requires it to make in writing.

The third difficulty is arithmetical and is dispositive of $60,000 of the sum in any event. The recommendation folds into the award the $60,000 interim counsel fee award made as part of the pendente lite determination. That is not an expense Plaintiff incurred; it is a sum he was directed to pay to his adversary, of which the record establishes he paid $32,559.50. Its inclusion is doubly infirm, because the Report elsewhere recommends, and this Court today confirms, that any outstanding balance of that very award be cancelled. To cancel the award and simultaneously to charge Defendant with its face amount would compensate Plaintiff twice for a single item.

So much of the Report as awards Plaintiff $271,772 is therefore rejected in its entirety. The rejection is upon procedural and evidentiary grounds and not upon the merits of the conduct described, and it is accordingly without prejudice to a properly noticed application to this Court, upon notice to Defendant, for costs and reasonable attorney's fees pursuant to 22 NYCRR 130-1.1. Should such an application be made, the Court will consider the existing trial record together with the parties' submissions upon the application and will determine whether any further evidentiary presentation is required. Plaintiff shall identify the specific conduct relied upon, the subdivision of 22 NYCRR 130-1.1(c) alleged to be implicated, and the particular billing entries claimed to be causally attributable to that conduct. Leave to make that application is granted notwithstanding paragraph six of the Short Form Order dated August 4, 2026.

The disposition of the interim counsel fee award requires a word of its own so that nothing is left unresolved. The recommendation that any outstanding balance of the $60,000 interim award be cancelled is confirmed. Plaintiff paid $32,559.50 of that award. Defendant retains that sum, no repayment of it is directed, and the unpaid balance of $27,440.50 is cancelled and shall not be enforced.

The Court has considered whether the counsel fee award of $345,795 should likewise be disturbed and concludes that it should not. Entitlement to those fees was not determined by the Referee. It was determined by Justice Chesler in the Decision and Order After Trial dated August 4, 2025, which held that Plaintiff is entitled to an award of counsel fees for the fees incurred in bringing the modification motion and conducting the trial. That determination is the law of this case, and a judge of coordinate jurisdiction should not vacate, modify or depart from the ruling of a colleague of equal rank in the same case (People v Evans, 94 NY2d 499, 502 [2000]; Powell v All City Ins. Co., 74 AD2d 942 [3d Dept 1980]). Counsel fees were squarely within the Order of Reference, so that the Referee's task, confined to fixing the amount, was one he was empowered to perform. He examined the invoices for the modification motion and found $112,096 reasonable, examined the invoices for the second custody trial and found $233,699 reasonable, measured the hours against the tasks described and the rates against those prevailing in the community, and identified the discrete proceedings to which each period of billing related. Defendant contests neither counsel's qualifications, the hourly rates, the work performed nor the hours incurred. That award is confirmed.

E. The Restraint upon Defendant's Retirement Account

DRL § 234 vests the Court with broad discretion to issue orders in the interest of justice concerning marital property, and permits interim injunctive relief without the showing that CPLR article 63 would otherwise require (Taft v Taft, 156 AD2d 444, 446 [2d Dept 1989]; Leibowits v Leibowits, 93 AD2d 535 [2d Dept 1983]; Monroe v Monroe, 108 AD2d 793 [2d Dept 1985]; Nederlander v Nederlander, 102 AD3d 416 [1st Dept 2013]). The prerequisite is a showing that the party to be restrained is attempting or threatening to dispose of marital assets so as to adversely affect the movant's ultimate rights in equitable distribution (Sacks v Sacks, 181 AD2d 727, 728 [2d Dept 1992]; Guttman v Guttman, 129 AD2d 537, 539 [1st Dept 1987]; Steinberg v Steinberg, 87 AD2d 782 [1st Dept 1982]; Balkin v Balkin, 8 AD3d 416, 417 [2d Dept 2004]).

The showing is made. Defendant withdrew $111,000 from the 401(k) account in less than four months without the consent of Plaintiff or leave of court, and in April 2026 sought leave to withdraw a further $100,000. Upon the recommendations confirmed today she stands charged with $345,795 in counsel fees payable from a forty-five percent share of the net proceeds of an apartment whose net equity Plaintiff estimates at approximately $700,000, and she owes a transfer of $41,500 to Plaintiff from the very account sought to be restrained. A deficiency is a realistic prospect rather than a speculative one. This is the case the authorities describe, in which a restraint is required to preserve a party's right to an equitable share and to preserve a fund from which an award may be satisfied (Parker v Parker, 196 Misc 2d 672, 676 [Sup Ct, Nassau County 2003]; Rogers v Rogers, 161 AD2d 754 [2d Dept 1990]; Schlosberg v Schlosberg, 130 AD2d 735, 736 [2d Dept 1987]).

Two refinements are required. The first concerns the character of the account. A restraint under DRL § 234 ordinarily reaches marital property, and Defendant has asserted that a portion of the 401(k) account is premarital, having originated in a plan opened at a former employer some twenty years ago and rolled over through several employments. The Referee considered and rejected that claim, finding Defendant's asserted premarital separate property credit unproven. That finding is substantiated by the record and is confirmed. The 401(k) account is accordingly treated as marital property in its entirety for purposes of the limited restraint imposed herein. The second refinement concerns duration, and it requires the Court to tailor the relief rather than simply to grant or to deny it. Plaintiff asked that the restraint run until the closing of the sale. A restraint expiring at that moment would dissolve precisely when a deficiency appeared, which is the moment at which it is needed. The Court will not for that reason enjoin the whole of a retirement account indefinitely, which is more than Plaintiff sought and more than the occasion requires. The restraint will therefore reach all assets in the account until the closing, as requested. Thereafter it will continue only so far as two identified purposes require: to preserve the $41,500 owed to Plaintiff under the qualified domestic relations order, should that transfer not yet have been effected, and to preserve so much of the account as equals any deficiency remaining upon the counsel fee award after the sale proceeds have been applied. The remainder of the account is released to Defendant's free use upon the closing.

One further word is owed to the relationship between this determination and the denial of contempt upon Motion Sequence No. 23, because the two rest upon the same withdrawals and reach opposite conclusions. There is no inconsistency. The withdrawals did not diminish Plaintiff's fixed equitable share of the retirement accounts, which the equalization as of the date of commencement has now settled, and for that reason they did not prejudice him within the meaning of the contempt statute. They are nonetheless evidence of Defendant's demonstrated willingness to liquidate a retirement asset without leave when she believes her circumstances require it, and that willingness supports prospective relief designed to preserve a source from which the monetary awards confirmed herein may be satisfied. A finding that a past act caused no compensable harm is not a finding that the same conduct, repeated, would cause none.

F. Motion Sequence No. 22: Enforcement, Custody and Contempt

The principal issue presented by Motion Sequence No. 22 is the contention that Plaintiff never permanently relocated to Manhattan and that Defendant is therefore, by operation of the Decision and Order After Trial, the primary custodial parent. Having rejected the Referee's recommendation upon that subject as beyond the reference, this Court must decide it. Defendant is the movant, and the burden of persuasion is hers.

The condition Justice Chesler imposed has two components. Plaintiff was to inform Defendant in writing, on or before September 1, 2025, whether he intended permanently to reside in Manhattan, and he was to reside there. Each has been satisfied, and the material facts are not in dispute. Plaintiff gave the written notice; Defendant acknowledges receiving it and vacated the Marital Residence on or about September 2, 2025 in compliance with the order. He has occupied the apartment since September 1, 2025 (see NYSCEF Doc No. 895). The Children reside there. He placed the New Jersey Residence under contract and closed upon its sale in early November 2025, and there is no suggestion in this record that he has acquired any other residence in his own name. Defendant herself affirms that Plaintiff stays in the Marital Residence, her quarrel being with the frequency rather than the fact.

What Defendant offers against these facts is not proof but inference, and inference expressly pleaded upon information and belief. She believes that Plaintiff purchased a residence outside New York; she believes that he flies from an out-of-state airport, deducing this from luggage tags; she observes that his medical license bears a New Jersey address and that he has produced no New York driver's license, motor vehicle registration or voter registration. Allegations of that character are conclusory and speculative, and they do not carry a movant's burden or compel a hearing (Rubin v Rubin, 134 AD3d 572 [1st Dept 2015]; Matter of Antonio Dwayne G. v Ericka Monte E., 96 AD3d 697 [1st Dept 2012]). A party who seeks to alter a custodial arrangement must make some evidentiary showing to warrant a hearing, and allegations that largely repeat what has been submitted before do not suffice (Owen v Johnson, 2025 NY Slip Op 05774 [1st Dept 2025]). The Court observes as well that Defendant has had ample opportunity to make that showing. Motion Sequence No. 22 was filed October 6, 2025 and has been fully submitted since January 2026; she filed a further application in April 2026 and served opposition papers in August 2026; and at no point did she move to compel the disclosure she says Plaintiff has withheld, or supplement her submission with anything beyond her own belief.

Nor do the circumstances Defendant identifies establish non-residence even if accepted at face value. That Plaintiff continues to work at his New Jersey place of employment is no answer, because Justice Chesler knew he worked there and framed the condition in terms of residence rather than employment, and observed that he had not been presented with compelling evidence that either party could not live in New York. That a live-in caregiver assists with the Children is no answer either; the employment of a caregiver is a parenting choice that may be examined on its merits, and will be at the hearing directed below, but it does not establish that the parent who employs her lives elsewhere. And the condition speaks of permanent residence, not of a minimum number of nights, and certainly not of the surrender of a New Jersey livelihood.

No evidentiary hearing is required upon this question. The Court does not resolve credibility upon affidavits, and does not purport to do so. It holds that Defendant has not submitted admissible evidence creating a material factual dispute concerning Plaintiff's actual residence. Her assertions concerning an unidentified out-of-state residence and the airport from which he travels are expressly made upon information and belief, while the undisputed documentary and circumstantial proof establishes his occupancy of the Marital Residence, the Children's residence there, her own vacatur in compliance with the order, and the sale of his New Jersey home. Where a movant's showing consists of surmise, there is nothing for a hearing to resolve.

Weighing the record as a whole, the Court determines that Plaintiff elected, in the manner and within the time the Decision and Order After Trial prescribed, permanently to reside in Manhattan, and that he has resided there since September 2, 2025. He is accordingly the primary physical custodial parent of the Children, and is entitled to exclusive use of the Marital Residence until it is sold. So much of Motion Sequence No. 22 as seeks enforcement of the Decision and Order After Trial by a contrary declaration, and as seeks exclusive use and occupancy of the Marital Residence for Defendant and the Children, is denied upon the merits.

It follows that the branch seeking to adjudicate Plaintiff in contempt must be denied as well. Civil contempt under Judiciary Law § 753 requires a lawful order clearly expressing an unequivocal mandate, disobedience appearing with reasonable certainty, knowledge, and prejudice, established by clear and convincing evidence (El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015], citing McCormick v Axelrod, 59 NY2d 574, 583 [1983]); and because such a proceeding is quasi criminal in character, more than a fair preponderance is required (Hynes v Hartman, 63 AD2d 1, 3-4 [1st Dept 1978]). Where the Court has determined that the order was obeyed, the second element fails outright and the remaining elements need not be reached.

The branch seeking a right of first refusal whenever a parent cannot personally care for the Children for two hours or more is denied. It is a modification of the parental access schedule and must answer to the same standard as any other (Santiago v Halbal, 88 AD3d 616, 617 [1st Dept 2011]; Osborne v Tulwits, 227 AD3d 1541 [4th Dept 2024]), and Defendant's showing does not meet it. The denial is without prejudice to renewal at the evidentiary hearing directed below, at which the role of the live-in caregiver may be explored.

The branch seeking to maintain the escrow upon the sale proceeds of the New Jersey Residence is denied, the Report having recommended, and this Court having confirmed, that the residence is separate property and that the funds be released to Plaintiff. The branch seeking a mailbox key is denied as academic in light of the Order of Protection entered August 3, 2026 and the award to Plaintiff of exclusive use of the common areas together with authorization to change the mailbox lock. The branch seeking the return of Defendant's belongings is not academic and requires a practical direction. Defendant vacated the Marital Residence in September 2025 and is now barred from the premises by an Order of Protection to which she consented; the apartment is to be listed and sold; and the mutual restraint granted below preserves her property without affording her any means of recovering it. A party ought not to be required to choose between obeying an order of protection and retrieving her own possessions before the marital home is emptied for sale. The application is therefore granted to the extent of directing a single supervised retrieval, upon terms that keep the parties apart. The branch seeking to restrain the disposal of belongings is granted as modified and made mutual: with the apartment now to be listed and sold, neither party should be at liberty to discard the other's property or the Children's, and a reciprocal restraint costs neither party anything to obey.

G. Motion Sequence No. 22: The Cross Motion

Plaintiff's cross motion for pendente lite child support and interim counsel fees is denied as academic. Absent exigent circumstances, the remedy for perceived inequity in pendente lite relief is a speedy trial (Anonymous v Anonymous, 167 AD3d 527 [1st Dept 2018]; Canonico v Canonico, 224 AD2d 338 [1st Dept 1996]; Tadesse v Amanu, 116 AD3d 1034, 1035 [2d Dept 2014]; Hudak v Hudak, 222 AD2d 404 [2d Dept 1995]; Bagner v Bagner, 207 AD2d 367 [2d Dept 1994]). The trial has been had. It concluded on January 5, 2026, the Report issued on July 10, 2026, and this Decision and Order disposes of it. An interim award fashioned now, upon affirmations, in a case in which the final determination of support is made today, would serve no purpose that the final determination will not serve better, and would risk the very inconsistency that the reference was designed to avoid. The branch seeking interim counsel fees is denied for the same reason and because the Report has resolved counsel fees comprehensively.

The branch seeking sanctions and a further $35,000 in counsel fees on the ground that Defendant's Order to Show Cause was frivolous is denied. Motion Sequence No. 22 raised a question that required judicial determination and that this Court has decided today upon the merits. An application of that character is not one that is completely without merit in law, undertaken primarily to delay or harass, or founded upon material factual statements that are false (22 NYCRR 130-1.1(c)), and it may not be sanctioned merely because it may ultimately fail (Rennie-Otote v Otote, 15 AD3d 380 [2d Dept 2005]). The branch seeking a restraint pursuant to DRL § 234 is granted, upon the reasoning set forth above, in the form directed upon Motion Sequence No. 26, and is otherwise denied as duplicative.

H. Motion Sequence No. 23: Vacatur, Renewal, Contempt and Fees

The branch seeking to vacate the temporary restraining order of October 7, 2025 is granted. Upon confirmation of the recommendation that the New Jersey Residence is Plaintiff's separate property not subject to equitable distribution and that the escrowed proceeds be released to him, the premise of the restraint dissolves. A restraint under DRL § 234 does not reach separate property (Guttman v Guttman, 129 AD2d 537, 539 [1st Dept 1987]; Cohen v Cohen, 93 AD3d 506 [1st Dept 2012]), and injunctive relief under CPLR 6301 would fail for want of a likelihood of success (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). The branch seeking leave to renew pursuant to CPLR 2221(e) is denied as academic; the relief sought upon renewal has been granted upon the merits, and the Court need not decide whether the elimination of Plaintiff's locum tenens position constituted a new fact that would have changed the prior determination (see Matter of Defendini, 142 AD3d 500, 502 [2d Dept 2016]; Acevedo v Nurmatov, 206 AD3d 488 [1st Dept 2022]).

The branch seeking to adjudicate Defendant in civil contempt is denied. Three of the four elements are established and are essentially conceded. The automatic orders prescribed by DRL § 236(B)(2)(b) are a lawful mandate expressed in unequivocal terms, forbidding withdrawal from any retirement account without the written consent of the other party or further order of the court (Spencer v Spencer, 159 AD3d 174, 180 [2d Dept 2018]); Defendant admits in three separate paragraphs of her opposing affirmation that she withdrew from the account; and she had knowledge of the orders, which were served with the summons. What is missing is prejudice. Prejudice is shown where the offending conduct was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of a party (Colon v Crespo, 223 AD3d 645 [2d Dept 2024], quoting Matter of Figueroa-Rolon v Torres, 121 AD3d 684, 685 [2d Dept 2014]).

Civil contempt is remedial. Any penalty is designed to compensate the injured party or to coerce compliance, not to punish (El-Dehdan v El-Dehdan, 26 NY3d 19, 34 [2015]; Palmitesta v Palmitesta, 166 AD3d 782 [2d Dept 2018]). Plaintiff's marital interest in the 401(k) account has now been fixed by the equalization of the retirement accounts as of the date of commencement, confirmed today, and satisfied by a distributive payment of $41,500 by qualified domestic relations order. Whatever Defendant withdrew, she withdrew from her own remaining share. Her conduct is closer to the withdrawal that was made good in P.S. v R.O., 31 Misc 3d 373 [Sup Ct, NY County 2011], than to the sale and dissipation that supported contempt in S.M.S. v D.S., 54 Misc 3d 779 [Sup Ct, Richmond County 2016]. To impose a compensatory fine upon a violation that the distributive award has already neutralized would be to punish, and that is not the office of civil contempt. The denial is not an absolution. Defendant is directed to observe the automatic orders strictly, and the restraint granted today removes any occasion for further breach.

The branch seeking $25,000 in counsel fees pursuant to DRL § 238 is denied. Counsel fees have been comprehensively determined in the Report, and a further award for this application would duplicate what has been awarded. The branch seeking to deem service upon Defendant's attorneys good and sufficient pursuant to CPLR 2103(b)(2), (3), (6) or (7) and Judiciary Law § 761 is granted, service having been effected and no objection having been raised.

I. Motion Sequence No. 24

The proposed Order to Show Cause was declined for signature and the sequence was withdrawn upon the consent of the parties at the appearance of August 3, 2026. It is accordingly deemed withdrawn and is marked disposed. The Court notes, without deciding anything by it, that the substance of the relief Defendant sought is addressed elsewhere in this Decision and Order: her access to the 401(k) account is governed by the restraint granted upon Motion Sequence No. 26, subject to her right to apply for leave; occupancy of the Marital Residence is determined upon Motion Sequence No. 22; and the arrears she asserts are among the credits addressed in the recommendations confirmed today. Plaintiff's request that Defendant be required to seek leave before further motion practice has been granted already, by paragraph six of the Short Form Order dated August 4, 2026, which applies with equal force to both parties and which remains in effect (see Trajkovic v Trajkovic, 98 AD3d 575, 576 [2d Dept 2012]).

J. Motion Sequence No. 28: Modification of Parental Access

A custody order may be modified only upon a showing of a substantial change in circumstances and that modification serves the child's best interests (Santiago v Halbal, 88 AD3d 616, 617 [1st Dept 2011]; Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]; Fountain v Fountain, 83 AD2d 694, 694 [3d Dept 1981], affd 55 NY2d 838 [1982]; Sano v Sano, 98 AD3d 659 [2d Dept 2012]). Access should not be suspended absent substantial evidence that it would be detrimental to the welfare of the child (Mia C. v Administration for Children's Servs., 168 AD3d 836 [2d Dept 2019]; Fitzgerald v Fitzgerald, 172 AD3d 713 [2d Dept 2019]; D.D. v R.M., 68 Misc 3d 1220[A] [Fam Ct, Nassau County 2020]), and supervision is required only where it is established that unsupervised access would be detrimental (Cervera v Bressler, 50 AD3d 837, 840 [2d Dept 2008]; Preston v Hormadaly, 246 AD3d 923, 924 [2d Dept 2026]; Livesey v Gulick, 194 AD3d 1045 [2d Dept 2021]; In re Alexander, 39 AD3d 358, 359 [1st Dept 2007]; Gainza v Gainza, 24 AD3d 551, 551-552 [2d Dept 2005]). Where it is established, supervision is no deprivation of meaningful access (Matter of Arcenia K. v Lamiek C., 144 AD3d 610 [1st Dept 2016]), and the authority to impose it is not confined to fears for physical safety but extends to a parent's negative impact upon a child's emotional wellbeing (Matter of Frank M. v Donna W., 44 AD3d 495, 495-496 [1st Dept 2007]).

It was upon the emergency exception recognized in Lela G. v Shoshanah B., 151 AD3d 593, 594 [1st Dept 2017] that this Court acted on August 3, 2026. Relief so granted is provisional. It preserves the position of the parties and shields the children pending determination; it does not adjudicate the merits, and it does not ripen into a permanent modification by the passage of time. Upon full submission the record will not sustain a permanent modification. Whether Defendant secreted herself in the stairwell or followed an exchange practice of years' standing, whether she gave advance written notice, whether she seized the parties' son by the face or directed him to remove his sister so that the Children would not witness the confrontation, whether she screamed at the officers, and whether those officers identified Plaintiff rather than Defendant as the aggressor, are each irreconcilably disputed, and Defendant has annexed a police report she contends is at odds with Plaintiff's account. These are questions of credibility and they cannot be resolved upon competing affirmations (S.L. v J.R., 27 NY3d 558, 563 [2016]; Katsoris v Katsoris, 178 AD3d 794 [2d Dept 2019]).

Neither can the Court conclude on this record that what occurred was merely the isolated incident described in Lyons v Lyons, 112 AD2d 232 [2d Dept 1985] and Sano v Sano, 98 AD3d 659 [2d Dept 2012]. Defendant's access was supervised for six months upon a finding that she could not be trusted to act in the Children's best interests, and the findings of Justice Waterman-Marshall and Justice Chesler concerning her involvement of the Children in this litigation are of a piece with the conduct now alleged; conduct of that character, if credited, is not trivial (Tuttle v Tuttle, 137 AD3d 1725, 1725-1726 [4th Dept 2016]; Vernon v Vernon, 296 AD2d 186, 192-193 [1st Dept 2002], affd 100 NY2d 960 [2003]; see Graham v Morrow, 111 AD3d 1178 [3d Dept 2013]). At the same time, Defendant was the Children's primary caretaker for years, Plaintiff does not contend that they are inadequately fed, clothed or cared for in her charge, and her own account, which candidly acknowledges that she should have proceeded differently, is neither frivolous nor implausible. The competing narratives require testimony, and this Court will not permanently curtail a mother's access upon a paper record that two able advocates have rendered wholly antagonistic. The interim provisions will remain in effect pending the hearing.

K. Motion Sequence No. 28: Contempt, Sanctions and the Remaining Branches

Plaintiff's application is framed as one seeking civil and criminal contempt pursuant to Judiciary Law § 750. The two are distinct remedies governed by distinct provisions, civil contempt by Judiciary Law § 753 and criminal contempt by Judiciary Law § 750, and they are addressed separately.

As to civil contempt, three of the four elements are established, and the Court's determination upon Motion Sequence No. 22 removes the objection Defendant pressed against the first of them. The Decision and Order After Trial, as this Court has today construed it, awarded Plaintiff exclusive use of the Marital Residence commencing September 2, 2025; the mandate is clear and unequivocal; Defendant had knowledge of it, having vacated in compliance and having litigated its meaning for a year; and she does not deny that she entered the apartment on August 2, 2026 and declined to leave. Her belief that the condition had failed did not license self-help. The proper course was the very motion she had already made, and which is decided today.

The Court does not hold that a completed but temporary violation can never work the prejudice that Judiciary Law § 753 requires; a temporary dispossession and an interference with court-ordered exclusive occupancy may well impair a party's rights notwithstanding that the impairment has ceased. Assuming, therefore, that Plaintiff's displacement constituted prejudice, the Court declines in the exercise of its discretion to impose a civil contempt remedy. Defendant vacated the following day, Plaintiff was restored to exclusive possession, and the prospective relief already entered, namely a consented Order of Protection in force through August 3, 2027 and the interim suspension of Defendant's unsupervised access, adequately protects his rights. Any penalty in civil contempt is to compensate or to coerce, not to punish (El-Dehdan v El-Dehdan, 26 NY3d 19, 34 [2015]; Palmitesta v Palmitesta, 166 AD3d 782 [2d Dept 2018]), and upon this record there is little left for a fine to compensate and nothing left for it to coerce.

As to criminal contempt, Plaintiff has not carried his burden. Criminal contempt requires proof beyond a reasonable doubt of willful disobedience of a clear and unequivocal judicial mandate, and unlike civil contempt it does not depend upon a showing that the movant suffered prejudice. Here the parties' sharply conflicting accounts of the events within the apartment, and the absence of an evidentiary hearing resolving those conflicts, preclude a finding beyond a reasonable doubt that Defendant willfully disobeyed the Court's mandate (see Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1073, 1074 [2d Dept 2008]; compare Thimm v Thimm, 137 AD3d 775, 776 [2d Dept 2016]; Jaffe v Jaffe, 44 AD3d 825 [2d Dept 2007]). The branch seeking an adjudication of criminal contempt is denied.

The branch seeking sanctions pursuant to 22 NYCRR 130-1.1 and counsel fees pursuant to Judiciary Law § 773 is denied without prejudice. The conduct complained of occurred not in the prosecution or defense of this litigation but in the course of a parental exchange, and its factual contours remain in dispute. The fee application under Judiciary Law § 773 depends upon an adjudication of contempt and is premature.

The remaining branches are resolved as follows. The direction to the New York City Sheriff was struck from the order as signed and Defendant has vacated; that branch is denied as moot. The application for a full stay away order of protection pursuant to DRL § 252 is denied as moot, Defendant having consented on August 3, 2026 to an Order of Protection in force through August 3, 2027, and the Court need not reach whether the allegations establish a family offense within the meaning of Family Ct Act § 812 and CPL 530.11, or what relief would otherwise be appropriate under Family Ct Act § 842. Plaintiff's request that any order of protection extend to the Center at which the Children attend Hebrew school, made in a footnote to his affirmation, is denied without prejudice. The Children attend Hebrew school at that institution; it was Defendant who enrolled and reenrolled them there; and Plaintiff, by Defendant's account, has not paid the membership fees that Justice Chesler directed be maintained on the Children's behalf. To bar a parent outright from the place where her children receive their religious instruction is a serious step, and the allegation that she spends her days there is disputed and unproven. The question is better resolved with the evidence at the hearing directed below. The limited interim direction that follows is not an extension of the Order of Protection, does not rest upon a finding that Defendant committed a family offense, and does not determine the disputed allegation that she spends substantial time at the Center. It is imposed pursuant to DRL § 240 solely to implement the existing requirement that Defendant's contact with the Children remain supervised pending the evidentiary hearing. Pending that hearing, Defendant shall not be present at the Center while the Children are present there, except in the course of access supervised in accordance with this Decision and Order. The award of exclusive use and occupancy of the common areas, with authorization to change the mailbox lock and key, is continued. The restraint upon international travel is continued as modified and applies to both parties. The turnover of the Children's Russian passports is denied as moot to the extent that the Attorney for the Children retains them, and the direction otherwise continues. The reappointment of Philip A. Katz, Esq. as Attorney for the Children is confirmed, and his continued service is of particular value in view of the hearing directed below. Service is deemed good and sufficient.

IV. Conclusion and Decretal Paragraphs

The Court has considered the parties' remaining contentions and finds them to be either without merit or rendered academic by the foregoing. This action is in its seventh year. It has occupied five judicial officers and a Special Referee, produced two custody trials, a relocation hearing and a twelve-day financial trial, and generated more than twenty-eight motion sequences. Every financial issue is resolved today. One principal issue remains: whether these two Children may safely spend unsupervised time with their mother. The Court intends that it be answered promptly, upon testimony rather than affidavit, and that this litigation then be brought to its conclusion. Accordingly, it is hereby

ORDERED that so much of Plaintiff's Order to Show Cause, Motion Sequence No. 26, as seeks confirmation of the Report and Recommendations of Special Referee Stephen Burzio dated July 10, 2026 pursuant to CPLR 4403 is GRANTED to the extent that the Report is CONFIRMED in all respects except as set forth in the two succeeding paragraphs, and is otherwise DENIED; and it is further

ORDERED that so much of Defendant's Order to Show Cause, Motion Sequence No. 27, as seeks rejection of the Report pursuant to CPLR 4403 is GRANTED to the extent that so much of the Report as recommends that Plaintiff has satisfied the terms of the Decision and Order After Trial dated August 4, 2025 by residing in Manhattan is REJECTED as beyond the scope of the Order of Reference dated October 12, 2023; and it is further

ORDERED that so much of the Report as recommends an award to Plaintiff of $271,772 pursuant to 22 NYCRR 130-1.1 is REJECTED in its entirety, without prejudice to a properly noticed application to this Court for costs and reasonable attorney's fees pursuant to 22 NYCRR 130-1.1, such application, if made, to be filed within thirty days of the date of entry hereof, leave for which is granted notwithstanding paragraph six of the Short Form Order dated August 4, 2026; and it is further

ORDERED that so much of Defendant's Order to Show Cause, Motion Sequence No. 27, as seeks an order setting aside the Report and rendering new findings upon the trial record pursuant to CPLR 4404 is DENIED, and Motion Sequence No. 27 is otherwise DENIED; and it is further

ORDERED that this Court determines, upon Motion Sequence No. 22, that Plaintiff elected in the manner and within the time prescribed by the Decision and Order After Trial dated August 4, 2025 permanently to reside in Manhattan and has resided there since September 2, 2025, that Plaintiff is the primary physical custodial parent of the Children, and that Plaintiff shall have exclusive use of the Marital Residence until it is sold; and it is further

ORDERED that the Marital Residence shall be listed and sold in accordance with the procedures set forth at page 59 of the Report, which procedures are incorporated herein and made a part hereof; that the parties shall continue to share equally the co-operative loan payments and monthly maintenance charges until the closing of title; and that the net proceeds of sale shall be divided fifty-five percent to Plaintiff and forty-five percent to Defendant; and it is further

ORDERED that the net proceeds otherwise payable to Defendant shall be applied at closing in the following order: first, to Plaintiff in satisfaction of the counsel fee award of $345,795 confirmed herein; and second, the balance, if any, to Defendant; and it is further

ORDERED that in the event Defendant's share of the net proceeds is insufficient to satisfy the counsel fee award in full, Plaintiff may settle a money judgment upon notice for the unpaid deficiency, less all amounts previously applied in satisfaction of the award, together with proof of the closing statement and of the sums so applied; and it is further

ORDERED that the Professional Entity is not a business subject to equitable distribution; that Defendant shall transfer to Plaintiff the sum of $41,500 from her 401(k) account [plan number redacted], by qualified domestic relations order, together with any gains or losses attributable to that sum from the date of entry hereof to the date of segregation, in satisfaction of the equalization of the parties' retirement accounts as of the date of commencement; that each party shall receive a credit of $82,674 on account of Defendant's bonuses and deferred compensation; and that Plaintiff shall receive a bank account equalization credit of $41,925; and it is further

ORDERED that counsel for Plaintiff shall settle a proposed qualified domestic relations order upon notice within thirty days of the date of entry hereof; and it is further

ORDERED that the New Jersey Residence at New Jersey is Plaintiff's separate property, that Defendant shall receive no distributive award in relation to it, and that Defendant shall receive no credit on account of marital funds applied to Plaintiff's student loans; and it is further

ORDERED that the recommendations of the Report concerning child support are CONFIRMED, the predicate for those recommendations having been supplied by this Court; that Defendant shall pay to Plaintiff basic child support in the sum of $2,189.72 per month, which sum shall be credited against her one-half share of the carrying charges of the Marital Residence until the apartment is sold; that the add-on expenses shall be apportioned thirty-six percent to Defendant and sixty-four percent to Plaintiff; and that retroactive support and the credits related thereto shall be as set forth at pages 81 through 84 of the Report, which are incorporated herein and made a part hereof; and it is further

ORDERED that the recommendation that Defendant receive no counsel fees is CONFIRMED; that any outstanding balance of the $60,000 interim counsel fee award made as part of the pendente lite determination is CANCELLED and shall not be enforced; and that Defendant shall retain the $32,559.50 heretofore paid to her on account of that award, no repayment of which is directed; and it is further

ORDERED that so much of Plaintiff's Order to Show Cause, Motion Sequence No. 26, as seeks a restraint pursuant to DRL § 234 is GRANTED as tailored, and Defendant and her agents are restrained and enjoined from withdrawing, dissipating, hypothecating, trading or otherwise disposing of any asset contained in Defendant's 401(k) account [plan number redacted], until the closing of the sale of the Marital Residence; and it is further

ORDERED that, following the closing, the sum of $41,500, together with the gains or losses attributable thereto as directed herein, shall remain restrained pending its segregation and transfer to Plaintiff pursuant to the qualified domestic relations order; and, in the event a deficiency remains upon the counsel fee award after Defendant's share of the net sale proceeds has been applied as directed herein, so much of the 401(k) account as equals that deficiency shall likewise remain restrained until the deficiency has been paid or otherwise secured or until further order of this Court; and the balance of the account shall be released to Defendant's unrestricted use upon the closing; and it is further

ORDERED that the foregoing restraints are without prejudice to an application by Defendant, on notice, for leave to draw upon the account upon a showing of necessity; and it is further

ORDERED that so much of Defendant's Order to Show Cause, Motion Sequence No. 22, as seeks to adjudicate Plaintiff in contempt of court is DENIED; and it is further

ORDERED that so much of Defendant's Order to Show Cause, Motion Sequence No. 22, as seeks enforcement of the Decision and Order After Trial dated August 4, 2025 by declaring Defendant the primary custodial parent of the Children, and as seeks exclusive use and occupancy of the Marital Residence for Defendant and the Children, is DENIED upon the merits; and it is further

ORDERED that so much of Defendant's Order to Show Cause, Motion Sequence No. 22, as seeks a right of first refusal is DENIED, without prejudice to renewal at the evidentiary hearing directed below; that so much thereof as seeks that the sale proceeds of the New Jersey Residence be held in escrow is DENIED; that so much thereof as seeks delivery of a key to the mailbox of the Marital Residence is DENIED as academic; that so much thereof as seeks the return of Defendant's belongings is GRANTED to the extent set forth in the succeeding paragraph; and that so much thereof as seeks to restrain the disposal of belongings is GRANTED as modified, and neither party shall discard, damage or remove the personal belongings of the other party or of the Children from the Marital Residence pending the sale thereof; and it is further

ORDERED that Defendant shall be afforded one opportunity, not to exceed three hours, to retrieve her undisputed clothing, personal effects and other belongings identified in her moving papers or agreed upon in writing by counsel from the Marital Residence, to take place on a date and at a time fixed by agreement of counsel and occurring within thirty days of the date of entry hereof; that Plaintiff and the Children shall not be present during that period; that the retrieval shall occur in the presence of a person agreed upon by counsel or, failing agreement, in the presence of the building's managing agent or a licensed security professional retained at Defendant's sole expense; that Defendant's presence at the premises for this limited and supervised purpose shall not constitute a violation of the Order of Protection dated August 3, 2026, which is modified to this limited extent and is in all other respects continued; that Defendant shall not remove any item claimed by Plaintiff to constitute marital property, the personal property of Plaintiff, or property belonging to the Children, and any disputed item shall remain in the Marital Residence pending written agreement of the parties or further order of the Court; and that in the event counsel are unable to agree upon a date, either party may apply to the Court by letter for the fixing of one; and it is further

ORDERED that Plaintiff's Cross Motion, Motion Sequence No. 22, is DENIED in its entirety, save that the branch thereof seeking a restraint pursuant to DRL § 234 is GRANTED in the form directed above and is otherwise DENIED as duplicative; and it is further

ORDERED that so much of Plaintiff's Order to Show Cause, Motion Sequence No. 23, as seeks to vacate the temporary restraining order dated October 7, 2025 is GRANTED, that temporary restraining order is VACATED, and the sale proceeds of the New Jersey Residence presently held in escrow shall be released to Plaintiff; that so much thereof as seeks leave to renew pursuant to CPLR 2221(e) is DENIED as academic; that so much thereof as seeks to adjudicate Defendant in civil contempt pursuant to Judiciary Law § 753 is DENIED; that so much thereof as seeks counsel fees pursuant to DRL § 238 is DENIED; and that so much thereof as seeks an order deeming service good and sufficient pursuant to CPLR 2103(b)(2), (3), (6) or (7) and Judiciary Law § 761 is GRANTED; and it is further

ORDERED that Defendant is directed to comply strictly with the automatic orders prescribed by DRL § 236(B)(2)(b); and it is further

ORDERED that Motion Sequence No. 24 is deemed WITHDRAWN upon the consent of the parties and is marked disposed; and it is further

ORDERED that so much of Plaintiff's Order to Show Cause, Motion Sequence No. 28, as seeks the suspension of Defendant's parental access pursuant to DRL § 240 and the supervision of her access by Comprehensive Family Services at her sole expense is GRANTED only to the extent that the interim provisions of the Order to Show Cause signed August 3, 2026 shall remain in full force and effect pending the evidentiary hearing directed below, and any application for a permanent suspension or permanent supervision of Defendant's parental access is DENIED without prejudice; and it is further

ORDERED that so much of Plaintiff's Order to Show Cause, Motion Sequence No. 28, as seeks the removal of Defendant by the New York City Sheriff, and as seeks a full stay away order of protection pursuant to DRL § 252, is DENIED as moot, the Order of Protection entered upon Defendant's consent on August 3, 2026 remaining in full force and effect through August 3, 2027; and it is further

ORDERED that so much of Plaintiff's application as seeks to extend the Order of Protection to the Center at which the Children attend Hebrew school is DENIED without prejudice to renewal at the evidentiary hearing directed below; and that, as a temporary condition of parental access pursuant to DRL § 240 and not as an extension of the Order of Protection, Defendant shall not be present at the Center while the Children are present there, except in the course of access supervised in accordance with this Decision and Order; and it is further

ORDERED that so much of Plaintiff's Order to Show Cause, Motion Sequence No. 28, as seeks exclusive use and occupancy of the common areas of the premises, with authorization to change the mailbox lock and key, is GRANTED and continued; that so much thereof as seeks a restraint upon international travel with the Children is GRANTED as modified, and neither party shall travel outside the United States of America with the Children absent the written consent of the other party or further order of this Court; and that so much thereof as seeks turnover of the Children's Russian passports is DENIED as moot to the extent such passports have been delivered to Philip A. Katz, Esq., and is otherwise GRANTED; and it is further

ORDERED that so much of Plaintiff's Order to Show Cause, Motion Sequence No. 28, as seeks an adjudication of civil contempt pursuant to Judiciary Law § 753 is DENIED; that so much thereof as seeks an adjudication of criminal contempt pursuant to Judiciary Law § 750 is DENIED; and that so much thereof as seeks sanctions pursuant to 22 NYCRR 130-1.1 and counsel fees pursuant to Judiciary Law § 773 is DENIED without prejudice; and it is further

ORDERED that so much of Plaintiff's Order to Show Cause, Motion Sequence No. 28, as seeks the reappointment of Philip A. Katz, Esq. as the Attorney for the Children is GRANTED, and so much thereof as seeks an order deeming service good and sufficient is GRANTED; and it is further

ORDERED that this matter is set down for an evidentiary hearing upon the sole remaining issue, namely whether the parental access of Defendant with the Children should be modified, the date of that hearing to be fixed at the status conference this day scheduled; and it is further

ORDERED that the parties, having been directed by the Order to Show Cause signed August 3, 2026 and by paragraph nine of the Short Form Order dated August 4, 2026 to enroll in therapeutic sessions, shall execute such authorizations as are necessary to permit the provider to report to the Court, and shall direct the provider to submit a written status report to the Court, with copies to counsel for the parties and to the Attorney for the Children, not later than ten days before the date fixed for the hearing; such report shall be received for the limited purpose of apprising the Court of the status of the therapeutic process, shall not be admitted into evidence at the hearing except upon stipulation or upon the testimony of its author subject to cross-examination, and shall otherwise be maintained as confidential and not further disseminated; and it is further

ORDERED that the Short Form Order dated August 4, 2026 remains in full force and effect, including the direction that no further motion, cross motion or order to show cause be filed by either party without prior leave of the Court, excepting only applications for emergency relief; and it is further

ORDERED that all relief requested and not expressly granted herein is DENIED; and it is further

ORDERED that Plaintiff shall serve a copy of this Decision and Order with notice of entry upon Defendant, by service upon her attorneys through NYSCEF, and upon the Attorney for the Children, within ten days of the date of entry hereof.

This constitutes the Decision and Order of the Court.

Dated: September 10, 2026

New York, New York

E N T E R :

Hon. Ronald Castorina, Jr., J.S.C.

Ronald Castorina Jr., J.