| Kumar v Kumar |
| 2009 NY Slip Op 04334 [63 AD3d 1246] |
| June 4, 2009 |
| Appellate Division, Third Department |
| Satish Kumar, Respondent, v Aruna Kumar,Appellant. |
—[*1] Jean M. Mahserjian, P.C., Clifton Park (Stephen W. Rossi of counsel), forrespondent.
Kavanagh, J. Appeal from an amended judgment of the Supreme Court (Seibert, Jr., J.),entered July 27, 2007 in Saratoga County, upon a decision of the court in favor of plaintiff.
Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were divorced byjudgment entered January 9, 2001. The divorce judgment was entered upon the parties'stipulation regarding distribution of their marital property in which the parties purportedlyidentified all assets that were marital property and agreed to divide those assets equally. In theyears that followed, both parties engaged in litigation over the distribution of the assets pursuantto their agreement.[FN*]The husband commenced this action in January 2004 and sought to set aside the stipulationalleging that, at the time the settlement agreement was entered, the wife had fraudulentlyconcealed the existence of various bank accounts, individual retirement funds and the cashsurrender value of numerous life insurance policies. He also sought an order [*2]directing the wife to distribute to him half of the value of thoseassets.
In the midst of discovery, the husband moved for an order precluding the wife from offeringany evidence at trial based upon her failure to respond to the husband's discovery demands.Supreme Court granted a conditional preclusion order in July 2005 and, when the husband wasstill not satisfied with the content of the discovery provided by the wife, he renewed hisapplication for an order of preclusion. Supreme Court granted the husband's motion by orderentered March 27, 2007, and precluded the wife from "offering any evidence whatsoever insupport of her position because of her willful failure to comply with the discovery demands." Atthe nonjury trial, and as a result of the preclusion order, the wife did not call any witnesses nordid she testify on her behalf. Following the trial, Supreme Court determined that the wife hadfraudulently concealed the existence of bank accounts, and concluded that the funds in thoseaccounts, as well as the balance of individual retirement accounts in the wife's name and the cashsurrender value of the life insurance policies, were marital property and, as such, subject toequitable distribution. The court declined to set aside the stipulation, but ordered that the fundsin the various accounts be equally divided between the parties and directed the wife to paycounsel fees as well as interest on the balance of the funds in those accounts from August 30,2000. The wife now appeals.
We initially turn to Supreme Court's order precluding the wife from offering any evidence attrial. "CPLR 3126 authorizes the court to fashion an appropriate remedy, the nature and degreeof which is a matter committed to the court's sound discretion. The penalty imposed will not bedisturbed absent a clear abuse of the court's discretion" (Myers v Community Gen. Hosp. of Sullivan County, 51 AD3d1359, 1360 [2008] [citations omitted]; see Hesse Constr., LLC v Fisher, 61 AD3d 1143, 1144 [2009]; Greaves v Burlingame, 12 AD3d730, 731 [2004], lv dismissed and denied 5 NY3d 741 [2005], lv dismissed5 NY3d 742 [2005]). However, the remedy of preclusion is "reserved for those instances where'the offending party's lack of cooperation with disclosure was willful, deliberate, andcontumacious' " (Matter of Duma v Edgar, 58 AD3d 1085, 1086 [2009], quotingMaillard v Maillard, 243 AD2d 448, 449 [1997]). An adverse inference may be drawnwhere a party has not made a "meaningful attempt to comply with disclosure and [has] anentirely inadequate excuse for such failure" (Matter of Duma v Edgar, 58 AD3d at 1086;see Allen v Calleja, 56 AD3d497, 498 [2008]).
Here, Supreme Court failed to articulate any factual findings or conclusions that it mighthave reached in justifying its conclusion that the sanction of preclusion was warranted. Inaddition, our review of the record indicates that while the materials provided and the disclosuresmade by the wife during the discovery process were not entirely accurate or complete, the factremains that she did provide more that 60 pages of documentation and specifically informed thehusband's counsel that "[t]he balance of the demanded documents . . . simply arenot in [the wife's] possession, either actual or constructive." With respect to those documentssought by the husband that the wife claims were not in her possession, her counsel offered "tocooperate in obtaining" them, and agreed to "provide authorizations bearing her signature" tofacilitate their production and disclosure. While the husband complains that this response wasinadequate and did not comply with the court's prior order, we are unable to conclude that it didnot, under the facts presented, constitute a meaningful attempt to respond to his demands. Assuch, imposing an order precluding the wife from offering any evidence on her behalf on thisissue was a drastic sanction not warranted by the particular circumstances presented in thisaction (see Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765 [2002]).[*3]
Therefore, the order precluding the wife from offeringany evidence at trial is reversed and, as a result, the amended judgment in the husband's favormust be vacated. The matter is remitted to Supreme Court for further proceedings, includingadditional discovery as it deems necessary to ensure that the parties have an adequateopportunity to obtain all of the information necessary to protect their interests at trial or to enterinto an informed final disposition of this matter on the merits.
In light of the result reached herein, we need not reach the remaining issues raised by thewife challenging the amended judgment entered in the husband's favor.
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the amendedjudgment is reversed, on the facts, without costs, plaintiff's motion for an order of preclusiondenied, and matter remitted to the Supreme Court for further proceedings not inconsistent withthis Court's decision.
Footnote *: In 2001, the wife unsuccessfullymoved to set aside the stipulation. That same year, the husband successfully moved for an orderholding the wife in contempt for her failure to take steps to effectuate the distribution ofproperty. The husband again moved to hold the wife in contempt in 2002, and Supreme Courtultimately granted the husband's motion.