SATISH KUMAR, Respondent, v ARUNA KUMAR, Appellant.
Supreme Court, Appellate Division, Third Department, New York
63 A.D.3d 1246 | 881 N.Y.S.2d 518
Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were divorced by judgment entered January 9, 2001. The divorce judgment was entered upon the parties’ stipulation regarding distribution of their marital property in which the parties purportedly identified all assets that were marital property and agreed to divide those assets equally. In the years that followed, both parties engaged in litigation over the distribution of the assets pursuant to their agreement.1 The husband commenced this action in January 2004 and sought to set aside the stipulation alleging that, at the time the settlement agreement was entered, the wife had fraudulently concealed the existence of various bank accounts, individual retirement funds and the cash surrender value of numerous life insurance policies. He also sought an order directing the wife to distribute to him half of the value of those assets.
In the midst of discovery, the husband moved for an order precluding the wife from offering any 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 was still not satisfied with the content of the discovery provided by the wife, he renewed his application for an order of preclusion. Supreme Court granted the husband‘s motion by order entered March 27, 2007, and precluded the wife from “offering any evidence whatsoever in support of her position because of her willful failure to comply with the discovery demands.” At the nonjury trial, and as a result of the preclusion order, the wife did not call any witnesses nor did she testify on her behalf. Following the trial, Supreme Court determined that the wife had fraudulently concealed the existence of bank accounts, and concluded that the
We initially turn to Supreme Court‘s order precluding the wife from offering any evidence at trial. ”
Here, Supreme Court failed to articulate any factual findings or conclusions that it might have reached in justifying its conclusion that the sanction of preclusion was warranted. In addition, our review of the record indicates that while the materials provided and the disclosures made by the wife during the discovery process were not entirely accurate or complete, the fact remains that she did provide more than 60 pages of documentation and specifically informed the husband‘s counsel that “[t]he balance of the demanded documents . . . simply are not in [the wife‘s] possession, either actual or constructive.” With respect to those documents sought by the husband that the wife claims were not in her possession, her counsel offered “to cooperate in obtaining” them, and agreed to “provide authorizations bearing her signature” to facilitate their production and disclosure. While the husband complains that this response was inadequate and did not comply with the court‘s prior order, we are unable to conclude that it did not, under the
Therefore, the order precluding the wife from offering any evidence at trial is reversed and, as a result, the amended judgment in the husband‘s favor must be vacated. The matter is remitted to Supreme Court for further proceedings, including additional discovery as it deems necessary to ensure that the parties have an adequate opportunity to obtain all of the information necessary to protect their interests at trial or to enter into 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 the wife challenging the amended judgment entered in the husband‘s favor.
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the amended judgment is reversed, on the facts, without costs, plaintiff‘s motion for an order of preclusion denied, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court‘s decision.