Ilyaich v Mallayev

[*1] Ilyaich v Mallayev 2011 NY Slip Op 52037(U) Decided on October 6, 2011 Supreme Court, Queens County Brown, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 6, 2011
Supreme Court, Queens County

Margo Ilyaich, Plaintiff,

against

Yakov Mallayev, Defendant.



25145/2009



Appearances of Counsel:

Baroccas & Rieger, LLP, Counsel for Plaintiff

Ira Bierman, Esq., Counsel for Defendant

Pam Jackman Brown, J.

Recitation as required by CPLR § 2219(a), of the papers considered in review of the Order to Show Cause for an order to quash a Subpoena Duces Tecum served upon JP Morgan Chase and Bank of America, in which a nonparty witness maintains savings and checking accounts.

PapersNumbered

Order to Show Cause and annexed Affidavits .........................................1-4

Exhibit Annexed to Order to Show Cause ...............................................5a

Affidavit in Opposition and Affirmation annexed...................................6-7

Exhibits Annexed to Affidavit in Opposition............................................8a-8i

Affirmation in Support of OSC..................................................................9

Exhibits Annexed to Affirmation in Support.............................................10

Upon the foregoing cited papers, the Decision/Order on the Court is as follows:

Plaintiff commenced the instant matrimonial proceeding on September 17, 2009. On May 31, 2011, Defendant's paramour, Aleksandra Alayeva files the instant Order to Show Cause with Temporary Restraining Order in a Civil Action seeking an Order to quash a Subpoena [*2]Duces Tecum served upon JP Morgan Chase and Bank of America, in which Ms. Alayeva maintains savings and checking accounts. Plaintiff opposes the motion in an Affidavit in Opposition. Defendant filed an Affirmation in Support of the Order to Show Cause. The motion was submitted after oral arguments on the motion.

Upon the papers and after argument the Court makes the following findings and orders.

Defendant's paramour, Aleksandra Alayeva, files the instant motion seeking an order to quash a Subpoena Duces Tecum served upon JP Morgan Chase and Bank of America. Ms. Alayeva argues that she and Defendant maintain separate bank accounts and Defendant does not have access to her financial information. Ms. Alayeva further argues that Plaintiff failed to make a showing that Ms. Alayeva's bank records are relevant or necessary to the instant matrimonial proceeding.

Plaintiff opposes the motion arguing that there is a clear financial relationship between Defendant and his paramour. Plaintiff argues that Ms. Alayeva designated the Defendant as an "agent" for "banking transactions." Plaintiff alleges that Defendant deposits cash and engages in financial transactions through Ms. Alayeva's bank accounts in an effort to hide his income and assets. Plaintiff argues that the information sought by the subpoena is not "utterly irrelevant" and Plaintiff would be prejudiced if the instant motion is granted. Defendant contends that Plaintiff has failed to show that the requested information cannot be obtained from Defendant or any other source. Defendant further argues that Plaintiff failed to show a financial relationship between Ms. Alayeva and Defendant.

New York Domestic Relations Law § 236 (B)(4)(a) provides for compulsory disclosure of the parties financial states in matrimonial proceedings in which alimony, maintenance or support is in issue. New York Civil Practice Law and Rules § 3101(a)(4) provides, "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 that the circumstances or reasons such disclosure is required."

The Appellate Division, Second Department determined, "to withstand a challenge to a discovery request therefore, the party seeking discovery must first satisfy the threshold requirement that the disclosure sought is material and necessary" (Kooper v Kooper 74 AD3d 6, 10 [2010]). Regarding a disclosure request directed to a nonparty, the Court held that while "special circumstances" need not be shown, the trial court must weigh underlying considerations to determine whether disclosure from a nonparty is warranted. While the Court declined to set forth a list of the underlying considerations or circumstances sufficient to warrant disclosure from a nonparty, the Court noted that, "more than mere relevance and materiality is necessary to warrant disclosure from a nonparty" (Id at 17-18). The Court further noted that a motion to quash a subpoena is properly granted where the party issuing the subpoena fails to establish that the disclosure cannot be obtained by any source other than the nonparty and is properly denied when the issuing party establishes that the disclosure can only be obtained by the nonparty.

In the instant matter, the parties are engaged in a trial regarding the ancillary issues of their divorce, including equitable distribution, maintenance and child support. It is undisputed that information regarding the income generated by Defendant's business is material and necessary to the determination of the ancillary issues in this proceeding. However, Plaintiff failed to establish a financial relationship between Defendant and Ms. Alayeva sufficient to warrant [*3]disclosure from a nonparty. While Plaintiff alleges that Defendant's income significantly decreased between 2008 and 2009 and Plaintiff further alleged that Defendant conducted financial transactions for his business through Ms. Aleyva's bank accounts, the annexed exhibit indicates that Ms. Alayeva designated Defendant as an agent for banking transactions in March 2010. Thus, the alleged financial relationship between Ms. Alayeva and Defendant began in March 2010. Ms. Alayeva's bank records would not account for the decrease in Defendant's income in 2009. Furthermore, a review of the record indicates that this Court appointed a neutral appraiser to appraise Defendant's business, MJ Custom Homes and Extensions Corp. Surely the neutral appraiser reviewed the business's financial records and can testify regarding the income generated by the business and any funds for which Defendant and/or his business cannot provide an accounting. Moreover, Plaintiff has not established that Ms. Alayeva's bank accounts are the only source of the information regarding Defendant's business and income. Weighing these considerations, Plaintiff has failed to establish circumstances sufficient to warrant disclosure from a nonparty.

Accordingly, Ms. Alayeva's motion is granted.

It is ORDERED that the Subpoena Duces Tecum served upon JP Morgan Chase and Bank of America are quashed.

Dated: October 6, 2011So Ordered:

___________________________

Pam Jackman Brown, JSC

Courtesy Copy Sent to:

Alayeva Aleksandra

123-60 83 Avenue, Apt 11A

Kew Gardens, NY 11415

Barrocas & Rieger, LLP

Attorneys for Plaintiff

Garden City Center, Suite 208

100 Quentin Roosevelt Boulevard

Garden City, NY 11530

Ira Bierman, Esq.

Attorney for Defendant

485 Underhill Boulevard, Suite 103

Syosset, NY 11791