Opinion
07-03-2024
A.S., Plaintiff, v. A.B., Defendant.
Jaspan Schlesinger Narendran By: Kara K Miller, Esq. Attorney for Plaintiff Matthew J. Kazansky, Esq., Attorney for the Children Krauss Shaknes Tallentire & Messeri LLP By: Eric T. Saar, Esq. Attorney for Defendant
Jaspan Schlesinger Narendran By: Kara K Miller, Esq. Attorney for Plaintiff
Matthew J. Kazansky, Esq., Attorney for the Children
Krauss Shaknes Tallentire & Messeri LLP By: Eric T. Saar, Esq. Attorney for Defendant
HON. JEFFREY S. SUNSHINE J.S.C.
This Court must determine if DRL § 236 B (5)(d)(14), as amended on April 3, 2020, which requires the Court to consider "whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts" when determining equitable distribution, permits subpoenaed non-party discovery of a tracking device in a divorce action.
In the instant matter, the plaintiff-wife subpoenaed the non-party to produce records relating to a GPS tracking device that she alleges the defendant-husband put or had caused to be put on her automobile, when there was an existing temporary order of protection that specifically provided that he refrain from: "remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, vehicle or property of [plaintiff] by connection to or through any means, including, but not limited to the internet, Bluetooth, a wire or wireless network or other wireless technology."
Upon the foregoing papers in this divorce action defendant-husband moved by notice of motion [mot. seq. #8] dated February 20, 2024, seeking the following relief:
1. "Pursuant to CPLR § 2304, quashing the Subpoena Duces Tecum served upon [REDACTED], a non-party, on behalf of the Plaintiff, which directs [REDACTED] to produce various records to the office of Plaintiff's counsel (hereinafter the "Subpoena");
2. Pursuant to CPLR § 3103, granting the Defendant a protective order preventing [REDACTED], a non-party, from producing the requested records set forth in the Subpoena Duces Tecum prepared and served by the attorney for the Plaintiff;
3. To the extent that Plaintiff and/or her counsel receive any records from the Subpoena, directing and her counsel to destroy all copies of said records;
4. To the extent that any records are produced to the Court by the subpoenaed party that is the subject of this application, restraining the Plaintiff and her counsel from seeing, reviewing, and/or copying said records;
5. Directing Plaintiff to pay Defendant the sum of $7,500.00 as an award of sanctions and/or counsel fees for Plaintiff's frivolous conduct; and
6. Granting such other and further relief as this Court deems just and proper."
Plaintiff-wife filed opposition dated February 28, 2024. Defendant-husband, though provided an opportunity to do so, did not file a reply. Oral argument was held on March 1, 2024.
PROCEDURAL HISTORY
The parties were married on July 6, 2014. Plaintiff-wife commenced this action for divorce on February 12, 2023 [NYSCEF #1]. Plaintiff is thirty-one (31) year old: she owns a beauty services business which she avers she started in October 2022. Defendant is thirty-eight (38) year old and owns a dental practice where he works as a dentist. There are two (2) children of the marriage, E. B., age 7; and El. B., age 4. The plaintiff and the parties' children currently reside in the marital residence in Brooklyn. The issues of custody and parenting time as well as the financial issues between the parties are currently pending before this Court. An attorney for the children was appointed by written order dated March 24, 2023 [NYSCEF #28].
It is undisputed that the marital residence was purchased during the marriage and is in the defendant's name exclusively.
Temporary Order of Protection History
There is an extensive history of cross orders of protection between these parties: there have been temporary orders of protection issued by both Kings County Criminal Court and Kings County Family Court. When the Kings County Family Court proceeding was consolidated into this divorce action, on consent, by order dated March 22, 2023 [NYSCEF #25], this Court issued temporary orders of protection mirroring the existing temporary orders of protection issued by Family Court [NYSCEF#26] (see DRL 252) .
DRL 252 (1) provides that:
In an action for divorce, separation or annulment or in an action to declare the nullity of a void marriage in the supreme court, the supreme court or the family court shall entertain an application for an order of protection or temporary order of protection by either party. Such an order may require any party:
(i)(1) to refrain from remotely controlling any connected devices affecting the home, vehicle or property of the person protected by the order.
(2) For purposes of this paragraph, "connected device" shall mean any device, or other physical object that is capable of connecting to the internet, directly or indirectly, and that is assigned an internet protocol address or bluetooth address...
The initial temporary order of protection issued by this Court that mirrored the order from Family Court provided that the defendant refrain from committing family/criminal offenses and "not impede the [plaintiff] access to the common areas of the home" and also specified that the [defendant] "is not permitted to enter the room [plaintiff] currently uses as her bedroom." A temporary order of protection against the plaintiff in favor of the defendant was also issued by this Court dated March 22, 2023 [NYSCEF #27], on consent, ordering that plaintiff refrain from committing family/criminal offenses against the defendant.
Kings County Criminal Court Order Excluding Husband from Marital Residence
Subsequently, the defendant was excluded from the martial residence by a Kings County Criminal Court order, dated April 9, 2023, after he was arrested for allegedly violating the temporary order of protection. As part of that temporary order of protection, the Kings County Criminal Court expanded the terms to include that the defendant stay away from the plaintiff's home, school, business and place of employment and to refrain from committing family/criminal offenses.
On April 10, 2023, based on the new terms of the Kings County Criminal Court temporary order of protection, this Court issued an updated temporary order of protection mirroring the new Kings County Criminal Court temporary order of protection.
That temporary order of protection was continued, on consent, by this Court until April 5, 2024. Neither party sought to continue the orders of protection after April 5, 2024.
On September 15, 2023, Kings County Criminal Court expanded the temporary order of protection in favor of plaintiff against defendant [NYSCEF #22] , inter alia, to include that the Defendant:
That temporary order of protection was to continue until September 14, 2024; however, defendant's counsel represented on the record on February 7, 2024, that the Criminal Court temporary order of protection has been vacated.
"... refrain from remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, vehicle or property of [Plaintiff-Wife] by connecting through any means, including, but not limited to, the internet, Bluetooth, a wired or wireless network, or other wireless technology."
Plaintiff Discovers A GPS Tracking Device on Her Automobile
During the court appearance on February 7, 2024, plaintiff's counsel represented, on the record, that plaintiff discovered a tracking device under the rear bumper of her automobile and that she believes that the defendant placed it there in violation of the provision of the temporary order of protection that was issued by Kings County Criminal Court which prohibited defendant from inter alia monitoring or tracking her movements through any means, including technology [NYSCEF #298; T.2/7/2024, p.11, 11-18]. Plaintiff's counsel represented that the tracking device was turned over to the police and that an investigation is on-going. Plaintiff's counsel represented that the tracking device had a dedicated IMEI number (XXXXXXXXXXX4309) to allow the person or persons who are using the device to monitor the plaintiff to remotely collect the information and, as such, the IMEI information can be traced: counsel contends that tracing this information will show if defendant was involved with the tracking device or whether he may have control over whomever placed the device for him.
Defendant, through counsel on the record, maintains his position that plaintiff's allegation related to the tracking device is, in effect, a vindicative maneuver made after the Kings County District Attorney's Office declined to prosecute her prior allegations that he was stalking her and that he had made verbal threats by telephone in violation of an order of protection. Defendant's counsel has maintained on the record and in her submissions that this allegation by Plaintiff that defendant was involved in the tracking device is designed solely to harass him.
Defendant's counsel represents that the most recent criminal charges against the Defendant were dismissed by the District Attorney's Office on January 19, 2024.
The Subpoena
On February 8, 2024, Plaintiff's counsel issued and served a subpoena on [REDACTED] (hereinafter referred to as the tracking device company) the non-party company associated with the tracking device. That subpoena called for production of the following information limited to the specific IMEI number XXXXXXXXXXX4309 associated only with the tracking device plaintiff found on her automobile:
"Any and all IP addresses and/or email address used to connect to the services of [REDACTED] (or [REDACTED] that access the device, identifying all users accessing the device;
Account data for any user of the device including, without limitation, credit card or other payment forms, email addresses, usernames, passwords and/or any other information which may or may not help identify the users of the device or those funding the use of the device;
All user data for any user that has accessed the device;
Any and all information relating to other users accounts associated with those who have accessed or used this device including, without limitation, any other devices with different IMESs used previously or concurrently by those associated to the instant device.
Any and all logs including, without limitation, all dates and times the users of the device have accessed the service, what they were accessing, and for how long and all data that has been logged by users including coordinated and times."
Plaintiff served a copy of the subpoena on defendant's counsel by e-mail on February 12, 2024. On February 20, 2024, defendant filed a motion to quash the subpoena. The subpoenaed records were provided to plaintiff's counsel by the tracking device company after the motion to quash was filed. Plaintiff's counsel provided a copy of the subpoenaed records to defendant's counsel on February 23, 2024, approximately three (3) days after she filed the motion to quash. On the record, plaintiff's counsel represented that because of the motion to quash he did not review the subpoenaed records prior to providing them to defendant's counsel. Defendant's counsel acknowledged on the record on March 1, 2024, receipt of the subpoenaed records and acknowledged that she reviewed the subpoenaed records: she did not disclose whether she has shown the subpoenaed records to the defendant.
Defendant Claims Through Counsel That Tracking Device Is Not His
On February 7, 2024, after being confronted with the accusation of placing a tracking device on Plaintiff's vehicle, Defendant did not admit or deny any involvement in the placement of the tracking device. Defendant through counsel represented "that any time and every time [plaintiff] seeks to rachet up the conflict in the case she makes allegations of a criminal nature against my client and when she sees an outcome that she's not happy with, these allegations are instituted." [NYSCEF #298; T. 2/7/2024, p. 21-22].
Defendant's counsel, who appears to be the only person related to this action who has seen the subpoenaed records at this time, continues to object to the subpoenaed records being allowed in this litigation claiming that to allow the plaintiff to see the subpoenaed records could potentially subject personal information of non-parties to "two counsel and two parties and potentially a Court that they have no involvement with" [NYSCEF #299; T. 3/01/2024, p. 41, 1-4]. While positing that the subpoenaed records should not be allowed because they "could potentially" include non-party information, the Defendant has not affirmatively asserted under oath that he had no involvement with the tracking device. Despite having an opportunity to do so, defendant himself did not file an affidavit of facts in support of the motion to quash the subpoena or asserted any affirmative denial of any involvement with the tracking device; however, on the record on March 1, 2024, defendant's counsel, with defendant standing next to her, denied that the tracking device belongs to defendant [NYSCEF #299; T. 3/1/2024, p. 40, 25] ["this device that I maintain is not my client's [emphasis added ]"].
Defendant's Claim That Subpoena Was Not Served Timely
CPLR 3120(3) provides:
The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve a copy of the subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each party notice that the items produced in response thereto are available for inspection and copying, specifying the time and place thereof.
This procedure is in place to allow a party to move for a protective order pursuant to CPLR § 3103(a) or to move to quash the subpoena pursuant to CPLR § 2304 in advance of the actual production of discovery responsive to a non-party subpoena (see Patrick M. Connors, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3120:12, at 231).
Defendant's counsel alleges that she was first notified of the subpoena by e-mail on Monday, February 12, 2024 at 7:25 p.m. [NYSCEF #242]. The subject subpoena to the non-party contains no affidavit of service but it is dated Thursday, February 8, 2024, and indicates that it would be mailed to defendant's counsel's office address and to the tracking device company. Defendant's counsel contends that this does not constitute service on her "at the same time" as service on the non-party and that the subpoena is procedurally defective and should be quashed.
CPLR 2103 (b)(2) provides for service of papers upon an attorney by mail and the timing thereof:
"mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address; service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period if the mailing is made within the state and six days if the mailing is made from outside the state but within the geographic boundaries of the United States [emphasis added ]"
It is undisputed that plaintiff mailed the subpoena to defendant: by mailing the subpoena to the Defendant's attorney there was compliance with CPLR 3120 (3). It is also undisputed that plaintiff's counsel took the additional step of notifying defendant's counsel by e-mail providing her earlier notice than she would have received had it only been sent by regular mail. As such, it appears that plaintiff provided more than sufficient notice to defendant's counsel than even required by the statute and that defendant was in no way prejudiced by this additional and early notice of the proposed subpoena.
Plaintiff's Claim That Defendant Was Required To Seek Withdrawal of Subpoena Prior To Filing A Motion To Quash
Plaintiff contends that defendant failed to comply with the strict conditions of CPLR §2304, which requires the party opposing a subpoena to request that the issuer of the subpoena withdraw or modify the subpoena prior to bringing a motion to quash. Defendant's counsel contends that she was unable to serve a letter requesting that plaintiff withdraw the subpoena as required by law because she was served with the subpoena after it was served on the non-party: the subpoena was served on Defendant's counsel, by e-mail, on February 12, 2024, but served on the non-party on February 8, 2024.
CPLR 2304 provides in relevant part:
"If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the supreme court."
CPLR 2304 refers to when a non-judicial subpoena is not issued during litigation such as when a subpoena is issued during an administrative proceeding (see Irizarry v New York City Police Dept., 260 A.D.2d 269, 271 [1st Dept 1999]). It is undisputed that defendant's counsel did not request that the issued subpoena be withdrawn or modified prior to making the instant application to quash the subject subpoena; however, the subpoena here was issued during litigation and therefore defendant was not required to request that plaintiff withdraw the subpoena before filing to quash the subpoena.
Defendant's Claim that Plaintiff Failed to File An Affirmation of Good Faith Attempt to Resolve the Relief Requested
Plaintiff's counsel also argues that defendant's counsel did not comply with the strict conditions of 22 NYCRR § 202.7 (a), which requires counsel to submit "an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion" if the motion relates to discovery. Such affirmation "shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions" (See 22 NYCRR § 202.7(c)). "The purpose of this rule is 'to avoid the unnecessary expenditure of limited judicial resources' in circumstances 'where the attorneys for the parties could resolve... the issues that would be raised in a motion [through constructive dialogue]'" (Anuchina v. Mar. Transp. Logistics, Inc., 216 A.D.3d 1126, 1128 [2d Dept 2023]). Where the discovery dispute could not be resolved without court intervention, courts have excused failure to comply with 22 NYCRR § 202.7(a). See Moran v. Grand Slam Ventures, LLC, 221 A.D.3d 994, 996 [2d Dept 2023]; Capacity Group of NY, LLC v. Duni, 186 A.D.3d 1482, 1483 [2d Dept 2020]; Baulieu v. Ardsley Assoc. L.P., 84 A.D.3d 666 [1st Dept 2011]; N. Leasing Sys., Inc. v. Estate of Turner, 82 A.D.3d 490 [1st Dept 2011]; Carrasquillo ex rel. Rivera v. Netsloh Realty Corp., 279 A.D.2d 334, 334 [1st Dept 2001]. See also Loeb v. Assara New York I L.P., 118 A.D.3d 457, 458 [1st Dept 2014] [The Court found that even though plaintiff's motion papers were technically noncompliant with 22 NYCRR 202.7(c), the record established that plaintiff's counsel attempted on numerous occasions, both in and out of court, to resolve the outstanding discovery issues with defendants before filing the motion to strike the answer. The court concluded that "any further attempt to resolve the dispute non-judicially would have been futile"].
In the case at bar, defendant's counsel did not submit an affirmation that she conferred with opposing counsel in good faith to resolve the motion to quash; however, contrary to plaintiff's contentions, it is not, under the facts and circumstances presented, fatally defective for defendant not to submit an attorney's affirmation attesting to a good-faith pre-motion attempt to resolve the dispute with the plaintiff. Prior to serving the subpoena, on the record on February 7, 2024, plaintiff represented that she believed defendant placed the tracking device on her automobile and defendant represented on the record through counsel that Plaintiff's accusation is just another litigation tactic intended to harass him. In the case at bar, for the Court to require, under these circumstances where both parties have made explicit representations in open court on the record as to their entrenched positions related to this issue would only force the parties to incur additional counsel fees.
Plaintiff's Claim That Defendant Lacks Standing To Move to Quash Non-Party Subpoena
CPLR 2304, which governs motions to quash, provides in relevant part:
"A motion to quash, fix conditions or modify a subpoena shall be made promptly in the court in which the subpoena is returnable. If the subpoena is not returnable in a court, a request to withdraw or modify the subpoena shall first be made to the person who issued it and a motion to quash, fix conditions or modify may thereafter be made in the supreme court;... Reasonable conditions may be imposed upon the granting or denial of a motion to quash or modify."
Plaintiff contends that the defendant does not have standing to move to quash the subject non-party subpoena. "A motion to quash may be made on behalf of a non-party witness by the witness or the witness' lawyer, or by one of the parties or a party's lawyer" (McDaid v. Semegran, 16 Misc.3d 1102 (A) [Sup Ct 2007], see also Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3103:1 at 94; In re MacLeman, 9 Misc.3d 1119(A) [Surrogate's Court, Westchester County 2005] citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 2304:1, at p. 274-275 [1991]. See also (Matter of Hyatt v. State Franchise Tax Bd., 105 A.D.3d 186, 195 [2d Dept 2013]) [the court held that Hyatt had standing to challenge the subpoenas because he has a propriety interest as the owner of the intellectual property consisting of his patents. The court also determined that Hyatt has standing as a party the underlying tax proceeding]. Similarly, in this action, as a party in this action, defendant-husband has standing to seek a protective order related to a non-party. As such, the Court does not adopt the plaintiff's position that defendant has no standing to move to quash the subpoena.
Notice Requirement of CPLR 3101 (a)(4 )
Defendant contends that the subpoena is facially defective because it does not comply with the CPLR §3101 (a)(4) which provides that:
There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.
Defendant argues that because the tracking device company is a non-party in this action, any subpoena must provide a detailed description of the circumstances for which disclosure is sought or required and that the subject subpoena that was served does not delineate with specificity the reason why the information is sought.
"Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, so long as the nonparty is apprised of the circumstances or reasons requiring disclosure" (Bianchi v. Galster Mgt. Corp., 131 A.D.3d 558, 559 [2d Dept 2015]). "The notice requirement of CPLR 3101(a)(4) obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, 'the circumstances or reasons such disclosure is sought or required'" (Id.; Matter of Kapon v. Koch, 23 N.Y.3d 32, 39 [2014], quoting CPLR 3101 [a][4]; see Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 A.D.3d 104, 111[1st Dept 2006]).
Contrary to defendant's contention, the Court finds that plaintiff satisfied the notice requirement. On the subpoena to the non-party, dated February 8, 2024, it states that the reasons or circumstances for seeking or requiring disclosure is that" we believe you have information material and relevant to the legal issues in the above-captioned action." Given the inherent confidential nature of matrimonial actions, for privacy reasons it would not be appropriate to list details about the parties' matrimonial action, including the allegations here of one spouse tracking another. (See generally DRL 235).
Additionally, the nonparty did not object to the notice provided in the subpoena and provided the requested disclosure, therefore, the notice requirement is in effect waived. See Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 A.D.3d 104, 111 [1st Dept 2006].
Defendant's Claim that Subpoenaed Information Is Not Relevant
Defendant maintains that the tracking device and the requested records are irrelevant to this matrimonial litigation, so it is impermissible for plaintiff to use a non-party subpoena issued in this litigation to obtain discovery related to the tracking device and contends that the subpoena is a "fishing expedition" and serves no purpose but to harass the Defendant. Defendant's counsel maintains that this is an attempt by Plaintiff to "rachet up" what, she characterizes as, an "already very contentious, heated litigation" [T.3/1/2024, p. 33, 13-14]. Defendant's counsel contends that plaintiff has made numerous criminal complaints against the defendant which her client maintains were all meritless so, she contends, this one is also meritless.
Defendant maintains that the subpoena does not "demonstrate, describe, or even suggest a relationship between the non-party and/or the device for which underlying records are sought and the litigation and/or the [d]efendant." [NYSCEF # 240, p. 2]. Defendant's counsel argues that identifying the device by the IMEI number does not correlate it to the defendant and maintains that because the non-party is a "nationwide company", it is unclear "how many people have been provided this exact tracking device by this nationwide company over what period of time the company's been in existence." [T. 3/1/2024, p. 40, 17-19]. Defendant did not address how this argument relates to the subpoena issued inasmuch as the subpoena specifically limits production of information limited to the user or users with access to the tracking information linked to the specific coded device placed on plaintiff's automobile and does not call for production of information linked to any other tracking device(s) or any other IMEI numbers.
Plaintiff disputes defendant's claim that the information related to the tracking device is not relevant to this matrimonial action: she contends that if defendant violated the terms of the temporary order of protection by using a tracking device - or caused someone else to place it - to monitor her it is an act of domestic violence as defined by subsection 459-a of the Social Services Law and acts of domestic violence are specific enumerated factors that the Court is required to consider in determining awards of equitable distribution and/or maintenance (see DRL § 236 B (5)(d)(14); see also DRL § 236 B (6)(e)). This is particularly relevant here, Plaintiff contends, where there was a temporary order of protection in place specifically providing that Defendant refrain from:
" remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, vehicle or property of [Plaintiff] by connection to or through any means, including, but not limited to the Internet, [B]luetooth, a wireless network or other wireless technology [ emphasis added ]." [T. 3/1/2024, p. 35, 19-24].
"A subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence. Rather, the purpose of a subpoena duces tecum is 'to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding'" (Fugazy v.Fugazy, 210 A.D.3d 653, 657 [2d Dept 2022]; Capacity Group of NY, LLC v Duni, 186 A.D.3d 1482, 1483 [2d Dept 2020]; Matter of Terry D., 81 N.Y.2d 1042, 1044 [1993]).
The New York Court of Appeals held in seminal case of Matter of Kapon v. Koch, 23 N.Y.3d 32, at 39 that it is the party or nonparty moving to vacate the subpoena who has the initial burden of establishing either that the information sought is "utterly irrelevant" to the action or that "the futility of the process to uncover anything legitimate is inevitable or obvious" (Matter of Kapon v. Koch, 23 N.Y.3d 32, 39 [2014]; see Matter of Anheuser-Busch, Inc. v. Abrams, 71 N.Y.2d 327, 331 [1988]; Ferolito v. Arizona Beverages USA, LLC, 119 A.D.3d 642, 643 [2d Dept 2014]; Matter of Hyatt v. State Franchise Tax Bd., 105 A.D.3d 186 at 201, supra ]; Velez v. Hunts Point Multi-Service Center, Inc., supra; see, New Hampshire Ins. Co. v. Varda, Inc., 261 A.D.2d 135 [1999]; Matter of Reuters Ltd. v. Dow Jones Telerate, 231 A.D.2d 337, 341 [1997]; Ayubo v Eastman Kodak Co., Inc., 158 A.D.2d 641, 642 [2d Dept 1990]).
The Court concluded that "the subpoenaing party's notice obligation was never intended by the legislature to shift the burden of proof on a motion to quash from a nonparty to the subpoenaing party" (Matter of Kapon v. Koch, 23 N.Y.3d 32, at 39, supra). Therefore, once "the subpoenaing party has established compliance with the CPLR 3101(a)(4) notice requirement, disclosure from a nonparty requires no more than a showing that the requested information is relevant to the prosecution or defense of the action" (see Matter of Kapon v. Koch, N.Y.3d 32, at 38, supra; Bianchi v. Galster Mgt. Corp., 131 A.D.3d 558, 559 [2d Dept 2015]; Ferolito v Arizona Beverages USA, LLC, 119 A.D.3d 642, 643 [2d Dept 2014]).
Contrary to defendant's position it is not plaintiff's burden to establish that the requested disclosure is material and necessary; rather, once plaintiff established that she provided the non-party with adequate notice of the circumstances or reason requiring the disclosure, which the Court finds she did, the burden shifted to defendant to establish that the disclosure sought was irrelevant to the instant action. The Court finds that based upon the facts and circumstances herein, the defendant failed to show that the requested information sought from the non-party is "utterly irrelevant" (see DiBuono v. Abbey, LLC, 163 A.D.3d 524, 525 [2d Dept 2018]). Defendant's self-serving proclamation that the information requested from the non-party is a "fishing expedition" is insufficient to establish that as a legal reality.
Additionally, defendant argued that if law enforcement authorities believed that there was a correlation between the defendant and the tracking device, they would take steps to secure the information and, therefore, Plaintiff should not be permitted to obtain any information related to the device directly through subpoena in this divorce. The Court rejects defendant's contentions that the records demanded under the subpoena is solely a matter only for law enforcement and that the records have no bearing on any issues in this divorce action.
Unauthorized tracking of a person's movements
Under Penal Law § 120.45 (2) , "the unauthorized tracking of such person's movements or location through the use of a global positioning system or other device" is considered stalking in the fourth degree . The Court notes that even if the District Attorney allegedly declined to prosecute, the plaintiff may still seek the information in a separate civil proceeding. A violation of the Penal Code is often the basis for a civil order of protection in a Family Court or Matrimonial proceeding. "In 1994 the Legislature enacted the Family Protection and Domestic Violence Intervention Act to help ensure that victims of family offenses receive "the fullest protections of our civil and criminal laws" Matter of Kampa v. Kampa, 268 A.D.2d 432, 433 [2d Dept 2000]. Therefore, if an act would constitute a basis for a civil order of protection it certainly would constitute a basis, if proven, to consider in maintenance and equitable distribution due to the amendments to the statute. (See again DRL § 236 B (5)(d)(14); see also DRL § 236 B (6)(e) ).
"A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct... causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person..., and the actor was previously clearly informed to cease that conduct". "For purposes of subdivision two, the term 'following' shall include the unauthorized tracking of such person's movements or location through the use of a global positioning system or other device." (Penal Law § 120.45 (2)).
Stalking in the fourth degree is a class B misdemeanor.
DRL § 236 B (6)(e) (g) provides that the Court shall consider "acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law"
As detailed herein-below, consideration of domestic violence impacts the Court's determination of issues of equitable distribution and maintenance as well as issues of custody and parenting time and is therefore well within the general compulsory disclosure provisions of the Domestic Relations Law as detailed below.
Domestic Violence: Equitable Distribution
In determining equitable distribution, the Court is required to consider fourteen (14) specific factors and may take into account any other factor the court finds just and proper (see DRL § 236 B (5)(d)). The Court notes that in recognizing the serious impact of domestic violence the Legislature amended DRL § 236 B (5)(d)(14), as of April 2020, to add that domestic violence, as enumerated in section four hundred fifty-nine-a of the social services law is a factor that Courts "shall" consider when determining equitable distribution.
Social Services Law § 459-a defines "Victim of domestic violence" as any person over the age of sixteen, any married person or any parent accompanied by his or her minor child or children in situations in which such person or such person's child is a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, strangulation, identity theft, grand larceny or coercion; and (i) such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person's child; and (ii) such act or acts are or are alleged to have been committed by a family or household member.
DRL § 236 B (5)(d)(14) provides:
...whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts...
Since this Court must consider the effects of any domestic violence when determining equitable distribution, the information requested from the non-party, based on the allegations presented and the facts presented, is relevant. Equitable distribution is an issue that this Court must determine in this contested divorce action: as such, plaintiff has established the relevance of the discovery sought in relation to her claim for equitable distribution.
Domestic Violence: A Factor the Court May Consider in Maintenance
Spousal maintenance is also an issue that this Court must determinate in this contested divorce action. The Court notes that issues of domestic violence may be considered as a deviation factor in awarding maintenance beyond the calculated guideline amount.
DRL § 236 B (6)(e) provides that the court shall order the post-divorce maintenance guideline obligation up to the income cap, unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate. Such finding shall be based upon consideration of any one or more of the fifteen (15) enumerated factors, and adjusts the postdivorce maintenance guideline obligation accordingly based upon such consideration. Factor (g) provides consideration for "acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law." (See DRL § 236 B (6)(e)(g)). As such, plaintiff has established the relevance of the discovery sought in relation to her claim for spousal support.
Domestic Violence: Awarding Custody and Visitation
Additionally, where there are allegations that a party had committed an act of domestic violence, the Court is mandated to consider the effect of such domestic violence upon the best interest of the child when awarding custody or visitation (see DRL 240 (1) (a); Matter of Wissink v. Wissink, 301 A.D.2d 36, 39 [2d Dept 2002]; Bressler v Bressler, 122 A.D.3d 659, 660 [2d Dept 2014].
Protective Order: Material and Necessary
Defendant contends that the Court should issue a protective order denying plaintiff's use of the non-party subpoena arguing that even if the Court determines that the discovery sought from the non-party is material and necessary, the Court should limit the scope of the discovery because the subpoena seeks information related to a device which plaintiff has not shown has a connection to the instant matrimonial proceeding or to the defendant. He contends that the subpoena does not limit itself to records related to the parties and argues that the subpoena seeks information "pertaining to any and all persons who may have used the device, whether or not they ar[e] parties to this action." [NYSCEF # 240, p. 7]. Defendant maintains that the non-party is a nationwide organization and if the Court does not limit the scope of the subpoena, it may return discovery revealing personal information of non-parties. Plaintiff, in effect, contends that she must have the discovery as requested to know whether Defendant put or had someone else put the tracking device on her automobile.
CPLR §3103 (a) provides that:
"the court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."
"It is a fundamental principle in civil litigation that '[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.' "However, a "'party is not entitled to unlimited, uncontrolled, unfettered disclosure, and the supervision of discovery is generally left to the trial court's broad discretion'" (Kopelevich & Feldsherova, P.C. v. Geller Law Group, P.C., 222 A.D.3d 956, 957-958 [2d Dept 2023]). The words, "material and necessary", are to be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406 [1968]).
Courts have determined that the "material and necessary" standard includes not only relevant evidence, but also discovery of matters "reasonably calculated to lead to the discovery of information bearing on the claims." (H.R. Prince, Inc. v Elite Envtl. Sys., Inc., 107 A.D.3d 850, 850 [2d Dept 2013]; Foster v. Herbert Slepoy Corp., 74 A.D.3d 1139, 1140 [2d Dept 2010]; Cronin v. Gramercy Five Assocs., 233 A.D.2d 263 [1st Dept 1996]). This Court finds that Plaintiff's opposition papers sufficiently articulated the need for the discovery sought (see Alumil Fabrication, Inc. v F.A. Alpine Window Mfg. Corp., 151 A.D.3d 667, 668 [2d Dept 2017].
"For a protective order to be issued, the party seeking such an order must make a "factual showing of 'unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice'" (Nunez v. Peikarian, 208 A.D.3d 670, 671 [2d Dept 2022]). "In determining whether to issue a protective order, the court must balance the 'competing interests of the parties and the truth-finding goal of the discovery process'" (Id.; Gonzalo v. Fragomeni, 221 A.D.3d 586, 587 [2d Dept 2023].
Here, defendant failed to make the requisite showing pursuant to CPLR 3103(a) to warrant the issuance of a protective order. Defendant unwaveringly maintains that there is no connection between him and the device described in the subpoena: as such, Defendant cannot also assert that any information related to the device will cause" unreasonable annoyance, expense, embarrassment, disadvantage, or prejudice [ emphasis added ]" to him. If Defendant had nothing to do with the tracking device, then these records should pose no prejudice to him: Defendant has failed to establish that he is entitled to a protective order and that application is denied. Furthermore, based on the statutory and case law, the issue of domestic violence is one that is certainly material and necessary to the issues before the Court.
The Court notes that given the allegations, it appears that defendant, who denies placement of the tracking device through his counsel, would also want to obtain these subpoenaed records to support his claim that he had no responsibility or association with the tracking device allegedly found on plaintiff's automobile and inasmuch as it is presumably an automobile in which the parties' children are transported in. It appears that both parties - given their respective claims - have an interest in obtaining these records which they both contend will vindicate their claims.
Moreover, the Court notes that pursuant to DRL 236 B (4) "[i]n all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states". (See generally Jaffe v. Jaffe, 91 A.D.3d 551, 553 [1st Dept 2012] [In a divorce action, "[b]road pretrial disclosure which enables both spouses to obtain necessary information regarding the value and nature of the marital assets is critical if the trial court is to properly distribute the marital assets" Jaffe v. Jaffe, 91 A.D.3d 551, 553 quoting Kaye v. Kaye, 102 A.D.2d 682, 686 [1984]). The Court notes that although the information requested from the non-party does not directly relate to the parties' financial state, inasmuch as the information relates to necessary and material information that the Court must consider when determining equitable distribution (especially since the amendment to DRL § 236 B (5)(d)(14)), maintenance disclosure is necessary.
Protective Order: Defendant's Claim that Subpoena Is Overly Broad
Plaintiff argues that the subpoena is already limited in scope as it only seeks information relating to the 15-digit IMEI number assigned to the specific device she allegedly found attached to her automobile not, as defendant contends, to all tracking devices that the non-party may have records for so there is no risk that the subpoena will return endless personal information for people all over the nation.
When "discovery demands are palpably improper in that they are overbroad, lack specificity, or seek irrelevant or confidential information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Matter of Cheryl LaBella Hoppenstein 2005 Tr., 186 A.D.3d 1230, 1233 [2d Dept 2020]; Star Auto Sales of Queens, LLC v. Filardo, 216 A.D.3d 839, 840 [2d Dept 2023]; H.R. Prince, Inc. v. Elite Envtl. Sys., Inc., 107 A.D.3d 850, 850, supra ]; Matter of Cheryl LaBella Hoppenstein 2005 Tr., 186 A.D.3d 1230, 1233 [2d Dept 2020]; JPMorgan Chase Bank, Nat. Ass'n v Levenson, 149 A.D.3d 1053, 1054 [2d Dept 2017]; Bell v Cobble Hill Health Ctr., Inc., 22 A.D.3d 620, 621 [2d Dept 2005]).
The Court does not find that the subject subpoena is overbroad or unduly burdensome. The information subpoenaed from the non-party is specifically limited to the information relating to one (1) device bearing IMEI number XXXXXXXXXXX4309 allegedly found on the plaintiff's vehicle and is clearly not a "fishing expedition".
Defendant's Request for Sanctions Against Plaintiff
Defendant seeks sanctions against plaintiff in the amount of $7,500.00 pursuant to NYCRR 130-1.1 arguing that the subpoena was issued only to harass him and that there is no meritorious basis in law for plaintiff to seek this discovery. Defendant maintains that a considerable amount of time was spent preparing this written application and additional time will be spent reviewing the opposition filed by the Plaintiff and responding to same.
Plaintiff contends that no award of sanction is appropriate because the subpoena seeks production of information directly related to the financial issues of equitable distribution and maintenance which are before the Court in this litigation. Plaintiff also requests in her opposition to the motion to quash that the Court consider imposing sanctions on defendant for allegedly bringing a frivolous application to quash the subpoena.
22 NYCRR 130-1.1 [a] in pertinent part provides, a Court in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct. (see 22 NYCRR 130-1.1 [a]; Finkelman v. SBRE, LLC, 71 A.D.3d 1081, 1081-82 [2d Dept 2010]). Conduct is considered frivolous if "1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; 2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or 3) it asserts material factual statements that are false." (22 NYCRR 130-1.1[c][1], [2], [3]; Glenn v. Annunziata, 53 A.D.3d 565, 566, 861 N.Y.S.2d 769; Ofman v. Campos, 12 A.D.3d 581, 582, 788 N.Y.S.2d 115). "In making that determination, the court must consider 'the circumstances under which the conduct took place' and 'whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent'" (Glenn v. Annunziata, 53 A.D.3d at 566, 861 N.Y.S.2d 769, quoting 22 NYCRR 130-1.1[c]). Here, neither side has demonstrated that the other's conduct rose to the egregious level or frivolous within the meaning of 22 NYCRR § 130-1.1.
CONCLUSION
Defendant's motion to quash the subject subpoena and the application for a protective order [motion seq. # 8] is denied.
The records received from the non-party may be reviewed and utilized by either side and shall be forwarded by plaintiff's counsel to the attorney for the children.
Any relief requested but not granted above is denied.
This shall constitute the decision and order of the court.