S.K. v S.K.

[*1] S.K. v S.K. 2010 NY Slip Op 52306(U) [30 Misc 3d 1206(A)] Decided on December 9, 2010 Supreme Court, Kings County Thomas, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 9, 2010
Supreme Court, Kings County

S.K., Plaintiff,

against

S.K., Defendant.



50082/09



Attorney for Plaintiff:

Steven M. Silpe, Esq.

Cohen, Goldstein Silpe, LLP

850 Third Avenue

New York, NY 10022

Attorney for Defendant:

Dan Rottenstreich, Esq.

Rottenstreich & Ettinger LLP

150 East 58th Street, 21st Floor

New York, NY 10155

Delores J. Thomas, J.

Upon the foregoing papers, in this matrimonial action, defendant S.K. moves for an order: (1) vacating the note of issue, dated July 22, 2010, and removing the case from the trial calendar; and (2) appointing neutral experts to value plaintiff's holdings and to trace the money allegedly transferred in and out of the parties' numerous accounts during the marriage, or, in the alternative, awarding her $100,000 to retain her own experts to do so.

Facts and Procedural Background

The parties were married on June 25, 1989 and have four children: a son, born on January 25, 1991; a daughter, born on May 4, 1993; a son, born on July 29, 1996; and a son, born on May 10, 2001. On January 8, 2009, plaintiff filed a summons with notice [*2]commencing the instant action seeking a judgement of divorce and ancillary relief.

By decision dated July 9, 2010, this court disposed of defendant's motion seeking omnibus pendente lite relief by: (1) denying her request for exclusive use and occupancy of the parties' marital residence and temporary custody of their minor children; (2) granting those branches of her motion seeking pendente lite child support and maintenance to the extent of directing plaintiff to continue to pay the real estate taxes, utilities and insurance on the marital residence; all unreimbursed medical, dental, psychiatric and pharmaceutical expenses for defendant and the children; all of the children's school tuition and school related expenses; the cost of the children's tennis and guitar lessons; all necessary household maintenance costs; $1,200 per month to cover the cost of groceries; the maid; carrying costs on the New Jersey house; to maintain the credit cards and bank accounts that he has provided for Mourad and Rina; and to continue to pay those children's expenses at the same level that he has paid in the past; and (3) denying her request for an award of counsel fees (the Pendente Lite Decision).

On July 22, 2010, plaintiff filed a note of issue and statement of readiness. On August 11, 2010, defendant filed the instant order to show cause.

Defendant's Contentions

In support of her motion, defendant argues that in March 2010, when she reviewed her file, it was in disarray and she learned that her former counsel had not litigated this matter to her satisfaction. More specifically, defendant complains that she had problems with her prior attorney's representation for some time, stating that he waited well over a year after the case was commenced to file a motion for pendente lite relief, and therein falsely portrayed her as having access to a significant amount of money so that she was not awarded the relief that she sought. Defendant also contends that although her prior attorney served subpoenas on four of plaintiff's business associates, depositions were never held. In addition, documents that were demanded during plaintiff's deposition and that were requested by defendant's expert were not produced, including documents reflecting his acquisition of an additional interest in Madison Maidens,[FN1] his passport, the lease for a corporate apartment, his expert's retainer and his shareholder agreement. Defendant further avers that although she retained Joel Rakower of Financial Appraisal Services, Ltd., to appraise plaintiff's businesses and she paid him approximately $15,000, she never received any draft reports or work product; she further advises the court that Mr. Rakower claims that he resigned because she did not pay him.

Defendant also argues that plaintiff has been planning to divorce her since at least 1999, so that assets that she knows existed apparently no longer do and millions of dollars have been transferred by him from one account to another. By way of example, defendant asserts that plaintiff's overseas operations in Sri Lanka had massive manufacturing facilities and thousands of employees before the divorce action was [*3]commenced; now, plaintiff claims that those operations ceased to exist in 2005. Plaintiff also claims that sales from Madison Maidens fell from more than $26,000,000 in 2005 to $16,000,000 in the year that he filed this action. In addition, various companies that had paid for renovations in the marital residence, including Nanatex U.S.A. Limited and Young World, apparently no longer exist, since they are not listed on plaintiff's net worth statement. Defendant also claims that she has learned that plaintiff gave over $2.6 million to various charities, including over $2 million to the Jewish Communal Fund, from 2000 to 2008. Since the rule of thumb in the Jewish community is that one contributes 10% of one's income to charity, defendant estimates that plaintiff earned over $26 million during this period, or an average of $3.25 million per year.

Plaintiff further relies upon an affirmation from her newly retained counsel to support her motion. Therein, counsel alleges that this is an extraordinary case in which the court will be called upon to value two bank accounts and eight brokerage accounts, with millions of dollars flowing in and out; eight accounts maintained in the names of the parties' four children; seven retirement accounts; nine investments in real estate; two residences; and a business that has no fewer than 14 operating entities, which list does not include assets and accounts that plaintiff no longer maintains.

Counsel further argues that the note of issue and certificate of readiness should be vacated because they are facially inaccurate: (1) although plaintiff alleges that all pleadings have been served, neither a complaint nor an answer has been filed; (2) although plaintiff exchanged six appraisal reports valuing 14 assets, defendant has not exchanged any report; (3) the preliminary conference order has not been complied with in that neutral experts have not been appointed to value many of the parties' assets and valuation dates have not been determined; (3) although plaintiff states that the parties have complied with 22 NYCRR 202.16, he has failed to produce documents for 2009 and 2010 including: (a) all paycheck stubs, as is required pursuant to 22 NYCRR 202.16(f)(ii); (b) all state and federal income tax returns for the previous three years, filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder, as is required pursuant to 22 NYCRR 202.16(f)(ii); (c) all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which he did not file state and federal income tax returns, as is required pursuant to 22 NYCRR 202.16(f)(iv); (d) all statements of accounts received during the past three years from each financial institution in which he maintained any account in which cash or securities are held, as is required pursuant to 22 NYCRR 202.16(f)(v), since there also seems to be some accounts for which he has failed to provide any information as, for example, an account used to write checks for a supermarket that he purchased in 2006 and an account that he used to write checks to JCF through an entity called the "Ely Fund;" and (e) all statements immediately preceding and following the date of commencement of the action pertaining to any policy of life insurance having a cash or dividend surrender value and any deferred compensation plan of any type in which the party has an interest, as required [*4]pursuant to 22 NYCRR202.16(f)(vi), including deferred compensation plans maintained through Rishon Holdings [FN2] and Madison Maidens. Counsel also avers that no statement of proposed disposition, as is required pursuant to 22 NYCRR 202.16(h)(3), has been filed. In addition, he contends that the statement of readiness is false in that it states that there are no outstanding requests for discovery, although defendant has not been given the opportunity to depose plaintiff's business partners, and that plaintiff has not valued all of the marital assets as, for example, pensions, art, antiques, personal property, jewelry, stock options, stock plans, other benefit plans and six real estate entities in which he holds interests (the real estate entities).[FN3] In addition, it is alleged that plaintiff has sent out subpoenas that are returnable in June 2010, which also compels the conclusion that discovery is not complete.

Defendant therefore argues that given the complex nature of this case, fourteen months was not enough time in which to conduct discovery. She further claims that she does not have the resources to hire the experts necessary to value plaintiff's assets, and that she receives only "phantom income" from her father because he only gives her enough money to pay the taxes due on real estate interests that he transfers to her as part of his estate planning. In addition, she alleges that since plaintiff consulted with numerous valuation experts while preparing to commence this action, these experts now refuse to represent her.

Plaintiff's Contentions

In opposition to the motion, plaintiff argues that he has provided extensive discovery in this action, as is evidenced by the five page list of documents that he produced that is annexed to his moving papers; additional documents related to Madison Maidens that are not listed were also provided by his forensic accountant, Joan Lipton. These documents include statements for at least three years for his bank accounts, brokerage accounts and custodial accounts for the children; three years of credit card statements; a detailed net worth statement; income tax returns from 2006 through 2008; the Madison Maidens' general ledgers and trial balances from 2006 through 2008; all insurance polices; all records related to any limited partnership investments that he owns; all of the documents to support his claims of separate property; and all of the documents that he had regarding the personal real estate properties owned by the parties, i.e., Rishon, Ditmas and 20th Avenue, even though defendant admits that she is primarily in charge of these properties and has control of all of those records. In addition, plaintiff asserts that [*5]he was deposed for three days in October 2009 and marked 20 exhibits; the deposition resulted in a 450 page transcript.

Plaintiff also asserts that defendant's claim that she has no money available to her is untrue. In this regard, he annexes bank statements that indicate that as of May 31, 2010, plaintiff had approximately $91,000 in a Chase checking/savings account, approximately $140,000 in a Dreyfus account held in her maiden name and approximately $16,000 held in accounts connected with the parties' real estate interests. In addition, in 2009, defendant paid $51,760 to David Ruby, Ltd., to purchase jewelry, as is evidenced by a copy of a cancelled check, and $86,478 to purchase clothing, as is evidenced by copies of statements from American Express, Bloomingdale's, Saks, Prada, Bergdorf and others; these exhibits do not reflect purchases that defendant made using cash. Further, defendant deposited $223,000 from accounts held in the names of Rishon and Ditmas into her private account; in order to divert these funds, defendant failed to pay real estate taxes and other expenses due on the property. Plaintiff also claims that defendant "purloined" approximately $87,000 from Rishon and Ditmas in the first four months of 2010, as is evidenced by copies of the checking account statements and summary statements from the businesses; he contends that this is in addition to depositing at least $26,318 in rent received from tenants. Plaintiff thus asserts that although defendant is accusing him of hiding money, she spent nearly $250,000 and took at least ten vacations, six of which were to Israel, while he continues to pay most of the family's expenses. Finally, plaintiff claims that defendant is emotionally out of control, as is evidenced by her conduct in involving the children in her attempt to obtain custody, as is shown by copies of emails that she sent to the children, so that an expeditious resolution of this action is in the best interests of the children.

In reliance upon an affirmation submitted by counsel, plaintiff further argues that defendant has had unfettered access to the court and if she has not had adequate discovery, she has no one to blame but herself. In this regard, counsel relies upon the recent case of Shumakh v Shumakh (2008 NY Slip Op 52482U, 10, 21 Misc 3d 1142A [2008]), in which this court denied a motion that was very similar to that now before the court. Therein, this court rejected the contention that the wife's retention of new counsel who was dissatisfied with discovery was insufficient to entitle her to an order vacating the note of issue and reopening disclosure. Counsel also reminds the court that in the fall of 2009, plaintiff retained Ms. Lipton to value his interest in Madison Maidens and defendant retained Mr. Rackower. After months of exchanging documents and engaging in discovery, Mr. Rackower wrote a letter to Ms. Lipton dated April 22, 2010, in which he stated that "there are no outstanding document requests at this time."

In addition, although defendant admits in her affirmation that she was aware, early in the litigation, that there were issues with her attorney's representation, she did not retain a new attorney until July 2010, so that she is responsible for failing to use due diligence in obtaining discovery in a timely manner. Counsel also notes that although [*6]defendant criticizes her former counsel for his refusal to make a motion seeking pendente lite relief, his judgment was apparently correct, since she was denied the relief that she sought. Plaintiff also points out that he was forced to expend thousands of dollars in counsel fees to oppose the motion.

Counsel further asserts that all of defendant's claims with regard to the defects in the note of issue are incorrect or without merit. For example, although defendant argues that a complaint and answer have not been served, the preliminary conference order states that the issue of grounds is resolved, so that an inquest can be held without the need for the service of pleadings. Further, although defendant contends that appraisal reports have not been exchanged, plaintiff has served copies of his appraisals and defendant should not be permitted to delay the trial by refusing to exchange a copy of her report. Similarly, the statements in the preliminary conference order that expert valuations were reserved, held in abeyance or could be required do not give her "an open-ended invitation to conduct them whenever she wants." In this regard, the order directed the parties to notify the court no later than 60 days of the date of the order whether any discovery items had not been provided, so that any claims of non-production should have been raised by June 27, 2009, which compels the conclusion that defendant is barred from now raising any objections. Counsel also asserts that if defendant failed to value certain assets , she, and not plaintiff, is responsible for this lack of discovery.

Moreover, counsel contends that defendant's application for an award of $100,000 in appraisal fees lacks the requisite specificity in that she fails to advise the court of the assets that she thinks should be appraised or why. Similarly, she fails to name the appraiser who she seeks to have appointed; a statement of his or her experience and hourly rates; a statement of the work that needs to be done; and a demonstration that she is entitled to an award of fees. Counsel also points out that although defendant argues that this is an extraordinary and complex case, four of the seven assets that she claims need to be valued are bank and brokerage accounts, which can be readily valued by issuing a subpoena to the financial institutions. Another asset is a commercial asset that defendant owns jointly with her family and plaintiff, so that she has control of all documents that she may need to value it. He also notes that the value of Madison Maidens has been determined by Ms. Lipton and Mr. Rackower. Finally, although defendant now complains that her prior attorney failed to depose plaintiff's business partners, plaintiff did nothing to impede her efforts and she remains able to subpoena them to appear at trial.

The Law

It is well settled that:

"Under the Equitable Distribution Law, [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' (Kaye v Kaye, 102 AD2d 682, 686 [1984]; see also Gellman v Gellman, 160 AD2d 265 [1990]). This [*7]searching exploration is more than justified in the case of close corporations, the ownership of which is in the hands of a small number of stockholders and for which there is little objective evidence of fair market value' (Briger v Briger, 110 AD2d 526, 527 [1985])."

(Reich v Reich, 36 AD3d 506, 507 [2007]).

As is also relevant to the instant dispute, it is well settled that the purpose of a note of issue and certificate of readiness is to assure that cases which appear on the court's trial calendar are, in fact, ready for trial (see e.g. Mazzara v Town of Pittsford, 30 AD2d 634). It is equally well established " that the filing of the note of issue denotes the completion of discovery, not the occasion to launch another phase of it'" (Akalski v Counsell, 2010 NY Slip Op 20394, 3 [2010], quoting In Arons v Jutkowitz, 9 NY3d 393, 411 [2007]). Stated differently, a certificate of readiness certifies that all discovery is completed, waived, or not required and that the action is ready for trial, so that its effect is to foreclose further discovery (see e.g. Blondell v Malone, 91 AD2d 1201 [1983]; Niagara Falls Urban Renewal Agency v Pomeroy Real Estate, 74 AD2d 734 [1980], appeal dismissed 50 NY2d 842 [1980]; Bookazine Co. v J & A Bindery, 61 AD2d 919 [1978]).

Once the note of issue has been filed and discovery presumably completed, the applicable standard for allowing additional discovery is governed by the decidedly less liberal requirements of 22 NYCRR § 202.21. Thus, as is relevant herein, § 202.21(e) provides as follows:

"Vacating note of issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. . . . After such period . . . . no such motion shall be allowed except for good cause shown."

In interpreting this provision, the court has explained that:

"Post-note discovery . . . may only be sought under two procedural circumstances set forth in 22 NYCRR 202.21. As discussed by this Court in an opinion by Justice Feuerstein in Audiovox Corp. v Benyamini (265 AD2d 135, 138), one method of obtaining post-note discovery is to vacate the note of issue within 20 days of its service pursuant to 22 NYCRR 202.21(e), by merely showing that discovery is incomplete and the matter is not ready for trial. The second method, beyond that 20 days, requires that the movant, pursuant to 22 NYCRR 202.21(d), meet a more stringent standard and demonstrate unusual or unanticipated circumstances and substantial prejudice' absent the additional discovery (Audiovox Corp. v Benyamini, 265 AD2d at 138; see Schroeder v IESI NY Corp., 24 AD3d 180, 181; Aviles v 938 SCY Ltd., 283 AD2d 935, 936). [*8]

(Tirado v Miller, 75 AD3d 153, 157 [2010]). Accordingly, it is well established that a note of issue should be vacated pursuant to 22 NYCRR 202.21(e) when it is based upon a certificate of readiness that contains erroneous facts, as when a note of issue is filed when it was clear that discovery was neither completed nor waived (see e.g. Cromer v Yellen, 268 AD2d 381 [2000]). As is of particular relevance, in Shumakh (2008 NY Slip Op 52482U), this court denied defendant-wife's motion to strike a note of issue and allow her to conduct additional discovery on facts similar to those now before the court.

Turning to defendant's request that the court appoint a neutral expert or that she be awarded $100,000 so that she can retain an expert, it is well settled that although the award of expert witness fees in a matrimonial action is left to the sound discretion of the trial court, such awards should not be made routinely and should only be made upon a detailed showing, inter alia, of the services to be rendered and the estimated time involved (see e.g. O'Donnell v O'Donnell, 2 AD3d 604, 605 [2003], citing Ahern v Ahern, 94 AD2d 53, 58 [1983]). Thus, absent affidavits from the expert witnesses at issue, the court lacks a sufficient basis to grant a motion for the award of such fees (see e.g. Corrao v Corrao, 209 AD2d 573, 574 [1994]; accord Selznick v Selznick, 251 AD2d 489, 490 [1998] [the court erred in directing the defendant to pay the cost of appraisals of certain real property and an accountant's report as the plaintiff failed to submit a proper application for such relief, including, inter alia, the services to be rendered and an estimate of the time involved]; Darvas v Darvas, 242 AD2d 554, 555 [1997] [plaintiff did not set forth a sufficient basis upon which to determine an award of expert fees where her application contained no information concerning the anticipated expert work involved, an estimate of the number of hours necessary to complete the work or any details with respect to the difficulties involved in evaluating the marital property]).

Discussion

As a threshold issue, the court first notes that since plaintiff served his note of issue on July 22, 2010 and the instant order to show cause was filed on August 11, 2010, or within 20 days of service, the instant motion is governed by the more liberal standard set forth in 22 NYCRR 202.21(e), i.e., to vacate the note of issue, defendant must show that discovery is incomplete and the matter is not ready for trial. In so holding, the court notes that although plaintiff relies upon cases applying the more stringent standard applicable to motions to vacate a note of issue that are made more than 20 days after it is filed, he does not establish that defendant's motion is untimely. Nonetheless, the court concludes that defendant has failed to demonstrate the note of issue should be vacated.

In so holding, it must first be noted that defendant has been represented by counsel during most of this proceeding. Significantly, counsel prepared defendant's motion seeking omnibus pendente lite relief. Therein, although defendant sought an award of interim attorneys' fees, she did not seek to obtain any further discovery or the appointment of an appraiser. The absence of such a request must be attributed to the fact that plaintiff had already retained Ms. Lipton and defendant had retained Mr. Rackower to value the [*9]parties' marital assets, so that the relief was not required. Further, as is evidenced by Mr. Rackower's letter dated April 22, 2010, he deemed discovery complete and did not request any further documents at that time. Thus, the fact that defendant and her new attorney have now reconsidered and no longer find discovery to be complete is insufficient, at this stage of the proceeding, to convince the court that discovery is incomplete.

In so holding, the court also relies upon the reasoning as discussed in Shumakh, wherein it was recognized that:

"[C]ourts have consistently determined that [t]he substitution of new counsel or the delinquencies of predecessor counsel alone is insufficient to show the presence of unusual or unanticipated circumstances subsequent to the filing of the note of issue' (Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794 [2006]); accord Schroeder v IESI NY Corp., 24 AD3d 180, 181 [2005]; Nisselson v Hercules Constr. Corp., 269 AD2d 507, 508 [2000]; Lyons v Saperstein, 202 AD2d 401, 402 [1994]; Ehrhart v County of Nassau, 106 AD2d 488, 488 [1984]). "

(Shumakh, 2008 NY Slip Op 52482U, *9). Although Shumakh addressed a motion to vacate a note of issue pursuant to the more stringent standard of 202.21(d), i.e., that the movant must demonstrate unusual or unanticipated circumstances and substantial prejudice absent the additional discovery, the court finds that the fact that defendant retained new counsel is similarly insufficient to establish that discovery is not complete merely because new counsel is not satisfied with the discovery conducted by his or her predecessor. In this regard, it is noted that herein, as was also the case in Shumakh, the moving party is arguing that there had been only "minimal discovery . . . and that substantial additional discovery would need to be conducted in order to properly prepare this matter for trial."

The court also finds defendant's assertions that the disclosure required by 22 NYCRR 201.16 and by the preliminary conference order is incomplete to be disingenuous. In this regard, it is first noted that the preliminary conference order, which was issued on April 27, 2009, directed the production of financial documents for three years before the action was commenced, which was January 8, 2009. From this it follows that plaintiff was not ordered to produce documents for 2009 and 2010; indeed, financial records for 2010 are not yet available. In addition, notwithstanding defendant's reservation of the right to demand additional documents after plaintiff was deposed, since she does not have an expert to review additional documentation that defendant contends is necessary to value plaintiff's business interests, an order directing any further production of documents pertaining to plaintiff's interests in Madison Maidens and its affiliates would be futile. In this regard, however, defendant remains free to subpoena the documents for trial.

Further, defendant's assertion that additional assets have to be valued is [*10]unpersuasive, since she had ample time to address the valuation of these assets before the note of issue was filed. It is also noted that valuing a bank account or a brokerage account is not difficult, since the values are conclusively determined by the statements, which can also be subpoenaed for trial. Finally, although the preliminary conference order held defendant's right to retain an expert in abeyance, her retention of Mr. Rackower rendered the need for the court to appoint an expert moot. Viewed differently, defendant's failure to seek the appointment of a neutral appraiser for over 15 months after the preliminary conference order was signed shall be deemed a waiver, particularly since discovery was progressing in cooperation with Mr. Rackower. Thus, the court will not now permit defendant to disavow the findings of her own expert and allow her to begin the valuation process again over 18 months after the action was commenced.

The court also declines to appoint a neutral appraiser to value plaintiff's business interests or to award defendant money to allow her to do so. In so holding, it is emphasized that defendant retained Mr. Rackower early in this proceeding and plaintiff and his expert provided the discovery that Mr. Rackower requested. To allow defendant to begin this process anew would accordingly work to plaintiff's prejudice by requiring him to compensate his expert for the additional work that almost certainly would be necessary in responding to discovery demands made by a second appraiser. Plaintiff would be further prejudiced by reason of the resulting delay, since he was ordered to continue paying virtually all of the expenses incurred by defendant and the children pending trial. Moreover, as the above discussion of controlling case law makes clear, defendant's motion is fatally flawed in that she fails to submit a proper application for such relief, including, inter alia, the services to be rendered and an estimate of the time involved (see generally Selznick, 251 AD2d at 490; Darvas, 242 AD2d at 555; Ahern, 94 AD2d at 58).

The court also finds that defendant fails to establish entitlement to an award of money to pay an appraiser for the same reason that her request for an award of interim attorneys' fees was denied, i.e., she has not demonstrated that she does not have sufficient funds to pay for an expert utilizing her own funds (see Pendente Lite Decision, p 28-33). In this regard, although defendant again denies that she is receiving any money from her family and/or family owned businesses, she once again fails to address the issue of the money that she has on deposit in accounts held in her name and the money that she earns from the parties' real estate holdings, which she admits that she administers and controls. Also significant is that in opposition to this motion, plaintiff provides evidence that defendant spent almost $140,000 on clothing and jewelry since the commencement of the action, while arguing that she cannot afford to retain an attorney or an appraiser. The court, however, grants defendant leave to renew her application for expert fees to compensate Mr. Rackower, or any other expert who she may retain, at trial, if so advised (see Selznick, 251 AD2d at 490; Corrao, 209 AD2d at 574; Gastineau v Gastineau, 127 AD2d 629 [1987]). [*11]

The court finds the other arguments raised by defendant to be equally unpersuasive. More specifically, defendant's assertion that expert reports have not been exchanged will not be deemed as a basis for the vacatur of the note of issue. In this regard, defendant does not refute plaintiff's allegation that he produced copies of his reports to defendant. Thus, defendant will not be permitted to delay a resolution of this action by arguing the discovery is incomplete premised upon her refusal to produce a copy of her report.

Similarly, defendant's assertion that the depositions of non-party witnesses have not been conducted does not compel the conclusion that discovery is incomplete. In this regard, plaintiff's business associates are not under his control; defendant fails to allege or establish that plaintiff has sought to impede her ability to depose these persons; and although the depositions were noticed to be taken on January 18, 2010, defendant took no action to compel the depositions during the six months that followed, before the note of issue was served, so that the fact that the subpoenas were served but not complied with is similarly found to be insufficient to entitle defendant to an order striking the note of issue (see generally Rosenberg & Estis v Bergos, 18 AD3d 218 [2005] [under circumstance where defendants willfully refused or failed to avail themselves of the opportunity to take plaintiff's deposition prior to the deadline set forth in the preliminary conference stipulation, and willfully refused to obtain copies of documents that defense counsel had already inspected and tagged for copying, defendants' motion to vacate the note of issue was properly denied since the certificate of readiness correctly represented that defendants had waived any right they had to additional discovery]; Breakers Motel v Sunbeach Montauk Two, 203 AD2d 227 [1994] [court did not err in denying defendants' motion to strike plaintiffs' note of issue on the ground that discovery was not complete where defendants long failed to seek enforcement of their notices to examine two of the respondents]). In so holding, the court also notes that since the preliminary conference order provides that third-party depositions were to be completed no later than within 30 days of the depositions of the parties and plaintiff alleges that he was deposed in October 2009,[FN4] any attempt to compel these depositions now is untimely. Finally, although 22 NYCRR 202.16(h)(3) requires that the parties file a statement of proposed disposition, it does not require that such statement be filed prior to filing a note of issue.

Thus, contrary to defendant's allegations, the court finds that defendant had an adequate opportunity to conduct discovery before the note of issue was filed, particularly in view of the complete absence of any attempts to do so until the instant motion was filed (cf. Lipson v Dime Sav. Bank, 203 AD2d 161, 163 [1994] [it was an abuse of discretion for the trial court to force the parties to trial without first providing them with a [*12]reasonable opportunity for the completion of discovery]).

Conclusion

For the above discussed reasons, defendant's motion for an order vacating the note of issue, removing the case from the trial calendar, appointing neutral experts or awarding her money to retain her own experts is denied. In an effort to afford defendant complete discovery, however, and to provide the court with the information needed to address the issue of equitable distribution and to set the amount of child support and/or maintenance that is appropriate, both parties are directed to produced federal and state income tax returns for 2009 and a statement of proposed disposition. In addition, plaintiff is directed to produce a copy of his passport. These documents are to be served within 20 days of service upon each party of a copy of this order with notice of entry. The court also grants defendant leave to take the actions necessary to depose plaintiff's business associates prior to trial, if so advised and if time permits, or to subpoena these individuals to appear at trial. Defendant is further granted leave to renew her application for an award of appraisal fees at trial. Plaintiff's request for an order imposing sanctions pursuant to 22 NYCRR 130-1.1 130, as made in his opposing papers, is denied on the ground that the request was not properly interposed in a motion or cross motion (see generally CPLR 2214 and 2215; Chun v North American Mtge. Co., 285 AD2d 42 [2001]; Bauer v Facilities Dev., 210 AD2d 992 [1994]; Guggenheim v Guggenheim, 109 AD2d 1012 [1985]; Braver v Nassau County Office of Administrative Servs., 67 Misc 2d 120 [1971]).

The foregoing constitutes the order and decision of this court.

ENTER,

J.S.C. Footnotes

Footnote 1: Madison Maidens and its affiliate entities are businesses in which plaintiff owns an interest.

Footnote 2: During the marriage, the parties allegedly formed several investment real property holding corporations, including Rishon Holding Corp., Ditmas Property and 20th Avenue, which defendant manages (see Pendente Lite Decision at 9).

Footnote 3: These entities include Iron Stone Penn Towne, LP; Iron Stone Real Estate Fun I, L.P.; East 12th Development LLC; 1295 Plaza LLC; The Byrne Limited Partnership; and TT Real Estate.

Footnote 4: Neither party provides the court with copies of the deposition transcripts, so it is unknown when the parties were actually deposed.