| Raville v Elnomany |
| 2010 NY Slip Op 06302 [76 AD3d 520] |
| August 3, 2010 |
| Appellate Division, Second Department |
| Adrienne Raville, Respondent, v Salah Elnomany,Appellant. |
—[*1] Farber, Pappalardo & Carbonari, White Plains, N.Y. (Karen M. Jansen of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Westchester County (Martin, J.), enteredDecember 30, 2008, as, upon an order of the same court dated May 30, 2007, granting theplaintiff's application to preclude him from offering financial evidence at a hearing on equitabledistribution, awarded the plaintiff a divorce on the ground of constructive abandonment andawarded the plaintiff certain equitable distribution.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff wife proffered sufficient evidence to support a finding that for a period of atleast one year prior to the commencement of the divorce action, the defendant husband willfullyand unjustifiably refused to engage in sexual relations with her despite her repeated requests(see Silver v Silver, 253 AD2d 756, 757 [1998]; Gunn v Gunn, 143 AD2d 393,395 [1988]). Contrary to the husband's claim, improperly raised for the first time on appeal (see Hwang v Tam, 72 AD3d 741[2010]; Unger v Unger, 62 AD3d986 [2009]; BTJ Realty, Inc. vCaradonna, 65 AD3d 657 [2009]), there was no evidence that the parties engaged insexual relations within this period.
CPLR 3126 states that a court may sanction a party for willfully failing to comply withdiscovery, including precluding the party from "producing in evidence designated things or itemsof testimony" (CPLR 3126 [2]). "Generally, the nature and degree of the penalty to be imposedpursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is amatter within the discretion of the court" (Duncan v Hebb, 47 AD3d 871, 871 [2008] [internal quotationmarks omitted]; see Byam v City ofNew York, 68 AD3d 798, 801 [2009]). Here, there was no evidence in the recordshowing that the Supreme Court improvidently exercised its discretion in issuing the order datedMay 30, 2007, granting the wife's application to preclude the defendant from offering financialevidence at the hearing on equitable distribution based on his willful failure to comply withdiscovery.
The trial court "is vested with broad discretion in making an equitable distribution [*2]of marital property" (Bossard v Bossard, 199 AD2d 971,971 [1993]), and unless it can be shown that the court improvidently exercised that discretion, itsdetermination should not be disturbed (see Oster v Goldberg, 226 AD2d 515 [1996]).The trial court's assessment of the credibility of witnesses is afforded great weight on appeal (see Jones-Bertrand v Bertrand, 59AD3d 391 [2009]). Upon consideration of each party's credibility and the particular factspresented in this case, including the defendant's failure to comply with discovery demands forfinancial documentation, we perceive no basis for disturbing the trial court's equitabledistribution award (see Saleh vSaleh, 40 AD3d 617, 617-618 [2007]; Jones-Bertrand v Bertrand, 59 AD3d 391 [2009]).
The husband's remaining contentions are either based on matter dehors the record or withoutmerit. Dillon, J.P., Dickerson, Lott and Austin, JJ., concur.