Opinion
Index No. 50363/2018
11-01-2023
M.B., Plaintiff, v. K.B., Defendant.
Counsel for the Plaintiff Mary Grace Elizabeth Condello, Esq. Counsel for the Defendant: Antonio Monaco, Esq.
Counsel for the Plaintiff Mary Grace Elizabeth Condello, Esq.
Counsel for the Defendant: Antonio Monaco, Esq.
Ronald Castorina, Jr., J.
The following e-filed documents listed on NYSCEF (Motion No.024) numbered 412-417, and (Motion #026) numbered 441-457, 463-487 were read on this motion. On October 19, 2023, parties stipulated on the record that oral argument was waived by the parties and the motion be accepted on submission.
Upon the foregoing documents, Motion Sequence #024 and Motion Sequence #026 are resolved and therefore, it is hereby, ORDERED, that the Defendant's request for the Court to vacate the Order dated June 14, 2023, is GRANTED only as pertaining to the appointment of XX Valuation and Consulting Services, Inc. to appraise the Defendant's interest in XXXX, LLC, as owner operator of Luce Food Group, and it is further, ORDERED, that the Order of this Court dated September 27, 2022, is vacated; and the Court shall issue a separate Order contemporaneously with this Memorandum Decision and Order appointing a neutral forensic expert to be paid 100% by the Defendant, subject to reallocation at trial, to appraise the Defendant's interest in XXXX, LLC, as owner operator of Luce Food Group; and it is further, ORDERED, that the Defendant's request for the Court to vacate the Order dated June 14, 2023, is DENIED with prejudice; and it is further, ORDERED, that the Defendant's request to compel the sale of the marital residence is referred to the trial court for determination; and it is further, ORDERED, that the Defendant's request for a lifestyle analysis of the Plaintiff is GRANTED and the Court shall issue a separate Order contemporaneously with this Memorandum Decision and Order appointing a neutral forensic expert to be paid 100% by the Plaintiff, subject to reallocation at trial, to complete a lifestyle analysis of the Plaintiff; and it is further, ORDERED, that Plaintiff's request for sanctions against the Defendant is DENIED with prejudice; and it is further, ORDERED, that the Plaintiff's request for an appraisal of XXX of NY, Inc. is GRANTED, and the Court shall issue a separate Order contemporaneously with this Memorandum Decision and Order appointing a neutral forensic expert to complete the appraisal of XXX of NY, Inc. and to be paid 40% by the Plaintiff, subject to reallocation at trial, and 60% by the Defendant, subject to reallocation at trial; and it is further, ORDERED, that the Plaintiff's request to amend the complaint to include the third-party, TB, is GRANTED; and it is further, ORDERED, that the complaint shall be amended to include third party Defendant TB, within twenty (20) days, or same shall be deemed waived, and service of same shall be effectuated pursuant to the CPLR. The caption shall be amended upon the filing of the amended complaint; and it is further, ORDERED, that the Plaintiff's request to vacate the pretrial conference date of August 17, 2023 is DENIED as moot; and it is further, ORDERED, that the Plaintiff's request to vacate the trial dates scheduled for September 28, 2023 and September 29, 2023 is DENIED as moot; and it is further, ORDERED, that the Plaintiff's request for Defendant pay interim counsel fees in the amount of $7,500.00 is referred to the trial court for determination; and it is further, ORDERED, that the Plaintiff is to serve a copy of this Memorandum Decision and Order upon the Defendant within twenty (20) days; and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
I. Procedural History
Plaintiff M.B. and Defendant K.B. were married on October 7, 1989. There are no minor children of the marriage. The Plaintiff commenced this action for divorce on or about May 3, 2018. On June 29, 2023, Defendant filed Motion Sequence #024 by Notice of Motion.
The Defendant seeks (1) the vacating of the Order dated June 14, 2023, which included an award to the Plaintiff of counsel fees, pendente lite, subject to reallocation at trial in the amount of $55,000.00, a requirement that parties exchange all documentation provided to the forensic evaluator, and a trial Order; (2) the vacating of the Order dated April 10, 2023, which required the Defendant to pay $7,500.00 to the forensic evaluator for forensic services to be provided in this matter; and (3) the immediate market and sale of the marital residence.
Defendant further seeks (4) the forensic evaluator, XX Valuation and Consulting Services, Inc., to be directed to perform a lifestyle analysis of the Plaintiff; (5) the immediate recusal of Hon. Ronald Castorina, Jr. and for this matter to be transferred to another judge; and (6) other relief as may be just, proper, and equitable.
On August 3, 2023, Plaintiff filed cross Motion Sequence #026 seeking (a) the denial of Defendant's motion dated June 29, 2023 in its entirety; (b) the sanctioning of the Defendant for filing of the Notice of Motion on June 29, 2023 without prior Court approval; (c) a finding that the Notice of Motion filed by the Defendant is in frivolous Motion pursuant to 22 NYCRR § 130.1; and (d) the appraisal of XXX of NY, Inc to be paid solely by the Defendant.
Plaintiff further seeks (e) permission to amend the Complaint to include Third Party Defendant, T.B.; (f) the vacating of the pretrial conference of August 17, 2023; (g) the vacating of the trial dates scheduled for September 28, 2023 and September 29, 2023; (h) the Defendant pay interim counsel fees in the amount of $7,500.00 for the expense of this motion; and (i) other and further relief that the Court deems just and proper.
On September 15, 2023, Defendant filed opposition to cross Motion Sequence #026 and reply on Motion Sequence #024. On September 29, 2023, Plaintiff filed reply on Motion Sequence #026. On October 19, 2023, parties appeared on the record and Defendant withdrew prong (5) of Motion Sequence #024 seeking the immediate recusal of Hon. Ronald Castorina, Jr. and for this matter to be transferred to another judge and parties appeared. Parties further waived oral argument on the record on October 19, 2023.
This is a Decision and Order on Motion Sequence #024 and cross Motion Sequence #026.
II. Facts
This matter has been pending before this Court for more than five years and two Judges. Twenty-six motions have been filed to date. On September 27, 2022, the Court Ordered the appointment of XX Value and Consulting Services to appraise the Defendant's interest in XXXX, LLC, XX Bennett Avenue, Staten Island, NY 10312, as owner operator of XXXX Food Group. (NY St Cts Filing [NYSCEF] Doc Nos. 258). The Defendant, having previously been determined to be the monied spouse, was Ordered to pay 100% of the cost of this appraisal, subject to reallocation at trial. (see id). As of November 7, 2022, the Defendant had not complied with this Order of the Court. (NY St Cts Filing [NYSCEF] Doc Nos. 451).
On March 2, 2023, following the resolution of four motions, the Court Ordered, "If there is no settlement, Defendant to bring payment in the form of a bank check made payable to XX Valuation and Consulting Services, Inc. in the amount of $7,500.00 [Seven Thousand Five Hundred Dollars and No Cents] for forensic services on the next adjourn date." (NY St Cts Filing [NYSCEF] Doc Nos. 396).
On April 10, 2023, Motion Sequence #021, a motion brought by the Plaintiff for contempt, was resolved with "Defendant Ordered to pay in the form of a bank check made payable to XX Valuation and Consulting Services, Inc., the amount of $7,500.00 [Seven Thousand Five Hundred Dollars and No Cents] for forensic services no later them April 20, 2023." (NY St Cts Filing [NYSCEF] Doc Nos. 416).
On June 14, 2023, this matter was scheduled for trial to commence on September 28, 2023, and continuing through September 29, 2023. Accordingly, the Court issued a trial Order, which included, an award to the Plaintiff as the non-monied spouse of counsel fees, pendente lite, subject to reallocation at trial, in the sum of $20,000.00 which was to be paid within two weeks directly to Plaintiff's counsel. (NY St Cts Filing [NYSCEF] Doc Nos. 415). The Court further Ordered the Defendant to pay, as the monied spouse, the Plaintiff's trial retainer counsel fees, pendente lite, subject to reallocation at trial and without prejudice to renew, in the sum of $35,000.00 to be paid no later than August 15, 2023 directly to Plaintiff's counsel. (see id). Parties were also Ordered to provide opposing counsel with copies of all documentation provided to XX Valuation and Consulting. (see id).
III. Vacate Order of April 10, 2023
" CPLR § 5015 [a] authorizes a court to relieve a party from an order or judgment, on motion, based on the existence of specified grounds: excusable default (see CPLR § 5015 [a] [1]); newly discovered evidence (see CPLR § 5015 [a] [2]); fraud, misrepresentation, or other misconduct of an adverse party (see CPLR § 5015 [a] [3]); lack of jurisdiction (see CPLR § 5015 [a] [4]); or upon the reversal, modification, or vacatur of a prior judgment or order upon which it is based (see CPLR § 5015 [a] [5])." (see Bank of NY Mellon Trust Co., N.A. v Thonfeld, 172 A.D.3d 665 [2d Dept 2019]).
"In order to succeed on a motion pursuant to CPLR § 5015 [a] [2] to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish, among other things, that the evidence could not have been discovered earlier through the exercise of due diligence" (see HSBC Bank USA, N.A. v. Walker, 201 A.D.3d 795 [2d Dept 2022] citing U.S. Bank N.A. v Eisler, 188 A.D.3d 1288 [2d Dept 2020]; Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 A.D.3d 1088 [2d Dept 2017]).
Where "a defendant seeks to vacate a default pursuant to CPLR § 5015 [a] [3] based on extrinsic fraud, the defendant must demonstrate 'some device, trick, or deceit that led him [or her] to believe that he [or she] need not defend this action'" (see U.S. Bank N.A. v. Nunez, 208 A.D.3d 711 [2d Dept 2022] quoting HSBC Bank USA, N.A. v. Walker, 201 A.D.3d 795 [2d Dept 2022] citing LaSalle Bank N.A. v Oberstein, 146 A.D.3d 945 [2d Dept 2022]).
The Defendant has failed to provide the Court any credible evidence that would meet the requirements of CPLR § 5015 [a] to relieve the Defendant from orders of the Court dated April 10, 2023, and June 14, 2023, respectively. In its determination, the Court considered the very credible evidence provided, including a court filing, (NY St Cts Filing [NYSCEF] Doc Nos. 289) pertaining to the Defendant's ownership interest in XXXX, LLC, XX Bennett Avenue, Staten Island, NY 10312, as owner operator of XXXX Food Group. Defendant was unable to provide any credible evidence to refute this. In the Order dated September 27, 2022, the Defendant was ordered to pay the cost of the XX Valuation, subject to reallocation at trial. The requirement for the Defendant to pay XX Valuation the amount of $7,500.00 in the Order dated April 10, 2023 was a reiteration of the September 27, 2022 order and subject to reallocation as well.
In this motion practice, the Defendant did not provide any evidence that would demonstrate newly discovered evidence or evidence of fraud, misrepresentation, or other misconduct of the Plaintiff or any other adverse party to warrant the vacating of the previous order of the Court dated April 10, 2023.
Defendant's counsel has provided in his combined affirmation and memorandum of law in opposition the image of a check dated July 8, 2021, made out to XX Valuation and Consulting Services, by the Plaintiff in the amount of $5,000.00. (NY St Cts Filing [NYSCEF] Doc Nos. 464). The memo line of the check appears to read, "part of retainer". (see id). Defendant's counsel contends, "this disclosure was never made- not in any statement of net worth nor any document[.]" (see id). Defendant's counsel continues "There was no expert disclosure pursuant to the CPLR [.]" While the Court has complete confidence in the abilities of XX Valuation and Consulting Services as a neutral expert, in this particular matter, where the Defendant has provided documentation of the neutral experts previous purported transaction with the Plaintiff the Court finds it to be prudent to exercise its discretion and appoint another neutral forensic expert. Accordingly, the Defendant's request for the Court to vacate the Order dated June 14, 2023, is GRANTED only as pertaining to the appointment of XX Valuation and Consulting Services, Inc. to appraise the Defendant's interest in XXXX, LLC, as owner operator of XXXX Food Group; and it is further, ORDERED, that the Order of this Court dated September 27, 2022, is vacated; and the Court shall issue a separate Order contemporaneously with this Memorandum Decision and Order appointing a neutral forensic expert to be paid 100% by the Defendant, subject to reallocation at trial, to appraise the Defendant's interest in XXXX, LLC, as owner operator of XXXX Food Group.
IV. Vacate Order of June 14, 2023
Defendant has failed to offer any evidence that the Defendant is not the monied spouse and that Plaintiff should not have been awarded counsel fees as Ordered in the trail order dated June 14, 2023.
Pursuant to Domestic Relations Law § 237 [a], "There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded." "An award of reasonable counsel fees in a matrimonial action is a matter within the discretion of the trial court[.]" (see Guzzo v Guzzo, 110 A.D.3d 765 [2d Dept 2013] citing Domestic Relations Law § 237 ; De Cabrera v. Cabrera-Rosete, 70 N.Y.2d 879 [1987]; Quinn v Quinn, 73 A.D.3d 887 [2d Dept 2010]).
"For matrimonial actions such as this one, commenced on or after October 12, 2010, there is a statutory 'rebuttable presumption that counsel fees shall be awarded to the less monied spouse[.]'" (see Weidman v Weidman, 162 A.D.3d 720 [2d Dept 2018] quoting Domestic Relations Law § 237 [a]; citing Teaney v. Teaney, 138 A.D.3d 1301 [3rd Dept 2016]; Vantine v Vantine, 125 A.D.3d 1259 [3rd Dept 2018]). "[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case[.]" (see id quoting De Cabrera v Cabrera-Rosete, 70 N.Y.2d 879 [1987]).
Defendant has not provided any newly discovered evidence or evidence of fraud, misrepresentation, or other misconduct of the Plaintiff or any other adverse party to demonstrate that the Defendant is not the monied spouse or that the amount of counsel fees awarded to the Plaintiff, pendente lite, subject to reallocation at trial, and the amount of the trial retainer awarded to the Plaintiff, pendente lite, subject to reallocation at trial was not a reasonable award.
While "'[e]very court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made' during the pendency of an action" (see Daniels v. Howell, 9 A.D.3d 442 [2d Dept 2004] quoting Aridas v. Caserta, 41 N.Y.2d 1059 [1977] citing Liss v. Trans Auto Systems, Inc., 68 N.Y.2d 15 [1986]; Budihas v. Bd. of Educ., 285 A.D.2d 549 [2d Dept 2001]; In re Estate of Burns, 228 A.D.2d 674 [2d Dept 1996]), this Court can find no justification for doing so in this instant.
Accordingly, the Defendant's request for the Court to vacate the Order dated June 14, 2023, is DENIED with prejudice.
V. Sale of the Marital Residence
Defendant seeks an Order to compel the sale of the marital residence. The issue of the Defendant's request for an Order to compel the sale of the marital residence is referred to the trial court for determination.
VI. Lifestyle Analysis of the Plaintiff
Defendant has raised issues pertaining to the sources of income and expenses of the Plaintiff. Defendant contends that the plaintiff has not only been coy about her sources of money, but she has also lied outright on many occasions. (see id). Defendant alleges Plaintiff's statements of net worth are replete with information that belies her claim to need any support from Defendant. (see id). Defendant's allegations, include Plaintiff having more than $3,400.00 a month in credit card debt, plus all her other expenses, international and interstate travel, frequent lavish dinners and nights out. (see id). Defendant further contends Plaintiff's exploits from the metropolitan area to the Jersey Shore are usually logged in her EZ Pass account or an apparently alternate EZ Pass account.
Defendant's credible allegations raise legitimate concerns pertaining to the credibility of the Plaintiff's finances. Accordingly, the Defendant's request for a lifestyle analysis of the Plaintiff is GRANTED and the Court shall issue a separate Order contemporaneously with this Memorandum Decision and Order appointing a neutral forensic expert to be paid 100% by the Plaintiff, subject to reallocation at trial, to complete a lifestyle analysis of the Plaintiff.
VII. Sanctioning of Defendant as Pertaining to Defendant's June 29, 2023 Motion
"Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party's attorney for frivolous conduct" (see Cassagnol v. Village of Hempstead, 214 A.D.3d 766 [2d Dept 2023] quoting Genco v. Genco, 124 A.D.3d 580 [2d Dept 2015]). "Conduct is frivolous if (1) it is completely without merit in law or fact and cannot be supported by a reasonable argument for the 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" (see id quoting Matter of Congregation Ahavas Moische, Inc. v Katzoff, 134 A.D.3d 934 [2d Dept 2015] citing 22 NYCRR § 130-1.1 ).
"The decision whether to impose costs or sanctions against a party for frivolous conduct, and the amount of any such costs or sanctions, is generally entrusted to the court's sound discretion" (see id quoting Strunk v New York State Bd. of Elections, 126 A.D.3d 779 [2d Dept 2015]).
While the Defendant did not seek the Court's permission to file the motion of June 29, 2023, in the Court's discretion, the Court chooses to retroactively accept the motion and finds that the conduct of the Defendant's attorney was not frivolous as within the meaning of 22 NYCRR 130-1.1 [c] in filing this motion. Accordingly, Plaintiff's request for sanctions is DENIED with prejudice.
VIII. Appraisal of XXX of NY, Inc.
Defendant seeks the appraisal of XXX of NY, Inc. and to have said appraisal to be paid solely by the Defendant. Plaintiff contends in her statement of net worth that she hold a 40% owners interest in the subject business. (NY St Cts Filing [NYSCEF] Doc Nos. 248). Accordingly, the Plaintiff's request for an appraisal of XXX of NY, Inc. is GRANTED, and the Court shall issue a separate Order contemporaneously with this Memorandum Decision and Order appointing a neutral forensic expert to complete the appraisal of XXX of NY, Inc. and to be paid 40% by the Plaintiff, subject to reallocation at trial, and 60% by the Defendant, subject to reallocation at trial.
VIII. Amend Complaint to Add Third Party, T.B.
Plaintiff seeks permission to amend the complaint to include the third-party, T.B., the father of the Defendant. Plaintiff provides no caselaw or statutory support for her request, but alleges that the Defendant uses his Father's, T.B.' Signature Bank Account ending in 0469 to divert funds from the business XXX of NY Inc to lower his income. (NY St Cts Filing [NYSCEF] Doc Nos. 442).
Plaintiff provides in exhibit A, copies of checks made out to Defendant, in which K.B.'s name "K" was crossed out and the name of "T" was written in on the check. (NY St Cts Filing [NYSCEF] Doc Nos. 443). Plaintiff alleges that over a period of four years, the Defendant deposited into his father's account the sum of $308,000.00. (NY St Cts Filing [NYSCEF] Doc Nos. 442). Plaintiff further provided a copy of the deposits into the DKM accounts (NY St Cts Filing [NYSCEF] Doc Nos. 444). These deposits demonstrate that the clothing business clients are the signatories of the checks deposited in T.B.' Signature bank account. (see id).
Plaintiff provides credible evidence that T.B. opened the TD Bank account ending in 7053 on November 28, 2018, during the pendency of the divorce action commenced on May 3, 2018. (NY St Cts Filing [NYSCEF] Doc Nos. 472). Plaintiff contends that the Defendant deposited both checks and cash into the TD Bank account ending in 7053 for the period of November 28, 2018 to August 11, 2023 in the sum of $415,814.11. (NY St Cts Filing [NYSCEF] Doc Nos. 473). In support of Plaintiff's contention, on September 15, 2020, a check for $2,200.00 was deposited at the TD Bank located at Hylan Boulevard, Staten Island, New York. (NY St Cts Filing [NYSCEF] Doc Nos. 474). This check was drawn on the account of A.D. and M.T., who are allegedly clients of XXX of NY LLC. (see id).
Plaintiff has provided credible evidence of the Defendant's conduct which indicates a comingling of his assets with those of his father, T.B.. Defendant responds to these allegations as follows, "Ms. Condello has accused me of not reporting/documenting my debts. Please see my sixth statement of net worth (CEF Doc. 261) for repeated documentation of money owed to T.B.." (NY St Cts Filing [NYSCEF] Doc Nos. 465). Defendant further contends the inclusion of T.B. as a litigant would be a significant burden due to his age and health. (see id).
" CPLR § 3025 [b] allows a plaintiff to amend his or her complaint, with leave of court, to add a party defendant" (see Pensabene v City of New York, 172 A.D.3d 1396 [2d Dept 2019] citing Sabatino v 425 Oser Ave., LLC, 87 A.D.3d 1127 [2d Dept 2011]; Sinistaj v Maier, 82 A.D.3d 868 [2d Dept 2011]); WMC Mortg. Corp. v. Vandermulen, 63 A.D.3d 1050 [2d Dept 2009]). "A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." (see CPLR § 3025 [b])
"[I]n the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (see Gurewitz v City of New York, 175 A.D.3d 655 [2d Dept 2019] quoting Marcum, LLP v. Silva, 117 A.D.3d 917 [2d Dept 2014] citing CPLR § 3025 [b]; Bernardi v Spyratos, 79 A.D.3d 684 [2d Dept 2010]; Lucido v. Mancuso, 49 A.D.3d 220 [2d Dept 2008]).
"Only an excuse, not a reasonable excuse, is necessary to support the plaintiff's application to add a new defendant, as long as the delay was not intentional" (see Pansini Stone Setting, Inc. v. Crow & Sutton Assoc., Inc., 46 A.D.3d 784 [2d Dept 2007] citing Buran v. Coupal, 87 N.Y.2d 173 [1995]; Davis v. Larhette, 39 A.D.3d 693 [2d Dept 2007]; DeLuca v. Baybridge at Bayside Condo. I, 5 A.D.3d 533 [2d Dept 2004]).
The Court providently exercises its discretion in granting leave to file and serve an amended complaint where the proposed amendment is not palpably without merit and would result in no surprise or prejudice to the non-moving party (see Hines v. City of New York, 43 A.D.3d 869 [2d Dept 2007] citing CPLR § 3025 [b]; Francis v. Nassau Health Care Corp., 22 A.D.3d 715 [2d Dept 2005]).
Plaintiff has presented credible evidence of bank drafts being made out to the Defendant that were deposited into the account of T.B.. Plaintiff has further presented evidence that drafts were issued to T.B. for significant amounts of funds from known clients of the Defendant's business. Defendant has not denied these deposits but implies in a most circumspect manner that the deposits in question relate to some form of loan repayment.
The request by the Plaintiff to amend the complaint to include T.B. as a third-party certainly has merit given the evidence thus far provided. The Plaintiff has not only an excuse to amend the complaint, but it is a very reasonable excuse based on the financial transactions T.B.. In this matter that has been pending for more than five years and where there have been numerous allegations and questionable financial dealings, allowing the Plaintiff to amend the complaint to include the proposed third-party, T.B., would cause neither prejudice nor surprise.
Accordingly, Plaintiff's request to amend the complaint to include the third-party, T.B., is GRANTED.
IX. Vacating the Pretrial Conference Date of August 17, 2023
Plaintiff's request to vacate the pretrial conference date of August 17, 2023 is DENIED as moot.
X. Vacating the Trial Dates of September 28, 2023 & September 29, 2023
Plaintiff's request to vacate the trial dates scheduled for September 28, 2023 and September 29, 2023 is DENIED as moot.
XI. Interim Counsel Fees
Plaintiff's request for Defendant pay interim counsel fees in the amount of $7,500.00 is referred to the trial court for determination.
Decretal Paragraphs
It is hereby ORDERED, that the Defendant's request for the Court to vacate the Order dated June 14, 2023, is GRANTED only as pertaining to the appointment of XX Valuation and Consulting Services, Inc. to appraise the Defendant's interest in XXXX, LLC, as owner operator of XXXX Food Group, and it is further, ORDERED, that the Order of this Court dated September 27, 2022, is vacated; and the Court shall issue a separate Order contemporaneously with this Memorandum Decision and Order appointing a neutral forensic expert to be paid 100% by the Defendant, subject to reallocation at trial, to appraise the Defendant's interest in XXXX, LLC, as owner operator of XXXX Food Group; and it is further, ORDERED, that the Defendant's request for the Court to vacate the Order dated June 14, 2023, is DENIED with prejudice; and it is further, ORDERED, that the Defendant's request to compel the sale of the marital residence is referred to the trial court for determination; and it is further, ORDERED, that the Defendant's request for a lifestyle analysis of the Plaintiff is GRANTED and the Court shall issue a separate Order contemporaneously with this Memorandum Decision and Order appointing a neutral forensic expert to be paid 100% by the Plaintiff, subject to reallocation at trial, to complete a lifestyle analysis of the Plaintiff; and it is further, ORDERED, that Plaintiff's request for sanctions against the Defendant is DENIED with prejudice; and it is further, ORDERED, that the Plaintiff's request for an appraisal of DKM of NY, Inc. is GRANTED, and the Court shall issue a separate Order contemporaneously with this Memorandum Decision and Order appointing a neutral forensic expert to complete the appraisal of XXX of NY, Inc. and to be paid 40% by the Plaintiff, subject to reallocation at trial, and 60% by the Defendant, subject to reallocation at trial; and it is further, ORDERED, that the Plaintiff's request to amend the complaint to include the third-party, T.B., is GRANTED; and it is further, ORDERED, that the complaint shall be amended to include third party Defendant T.B., within twenty (20) days, or same shall be deemed waived, and service of same shall be effectuated pursuant to the CPLR. The caption shall be amended upon the filing of the amended complaint; and it is further, ORDERED, that the Plaintiff's request to vacate the pretrial conference date of August 17, 2023 is DENIED as moot; and it is further, ORDERED, that the Plaintiff's request to vacate the trial dates scheduled for September 28, 2023 and September 29, 2023 is DENIED as moot; and it is further, ORDERED, that the Plaintiff's request for Defendant pay interim counsel fees in the amount of $7,500.00 is referred to the trial court for determination; and it is further, ORDERED, that the Plaintiff is to serve a copy of this Memorandum Decision and Order upon the Defendant within twenty (20) days; and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.