Crocker C. v Anne R.

[*1] Crocker C. v Anne R. 2020 NY Slip Op 50059(U) Decided on January 14, 2020 Supreme Court, Kings County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2020
Supreme Court, Kings County

Crocker C., Plaintiff,

against

Anne R., Defendant.



REDACTED



Crocker C.

Plaintiff Pro Se

Raoul Felder and Partners

By: Raoul Felder

Attorney for Defendant

437 Madison Avenue

New York, New York 10022
Jeffrey S. Sunshine, J.

Procedural History

Plaintiff, through former counsel, commenced this action for divorce on October 28, [*2]2014. Defendant appeared with counsel. The parties engaged in extensive motion practice during this litigation and this Court has issued many written decisions during the years this litigation has continued.

One of the most litigious aspects of this divorce action was the impact of the defendant's discovery of spyware plaintiff installed on defendant's iPhone prior to him commencing this divorce and his use of that spyware to intercept, monitor and "listen in" on defendant's confidential communications, including privileged e-mails between her and her attorneys in this litigation and his subsequent spoliation of evidence related thereto until now. Plaintiff consistently invoked his Fifth Amendment privilege in response to all questions related to spyware during this litigation. In order to discover the extent and scope of the spyware usage there was extensive discovery including forensic computer experts which was supervised by the appointment, on consent, of a Special Referee.

This Court has written numerous detailed decisions related to the spyware issue and those written decisions, including the facts and procedural history detailed therein, must be read in conjunction with this decision. Those decisions include the following: the decision dated September 18, 2015 resolving motion sequences number 4 and number 5 (49 Misc 3d 1202(A)); the decision dated September 19, 2016 resolving motion sequences number 16 and 17 (53 Misc 3d 1202(A)); the decision dated February 5, 2018 resolving motion sequence number 25 (58 Misc 3d 1221(A)); and the decision after trial dated September 17, 2019. This Court expended vast judicial resources related to plaintiff's actions related to his use of spyware, his invocation of his Fifth Amendment privilege and his subsequent spoliation of evidence. The culminating effect of plaintiff's actions resulted in the Court by written decision, inter alia, striking plaintiff's pleadings as to certain equitable distribution relief not related to the children.[FN1]

Pursuant to the September 17, 2019 written decision after trial on the financial issues between the parties, the only remaining issues before this Court are defendant's outstanding application seeking a finding of contempt against plaintiff for his spoliation of evidence on May 16, 2015 in violation of this Court's May 15, 2015 ex parte order and the parties' cross-applications for counsel fees and litigation expenses as detailed in that decision. In the September 17, 2019 decision after trial, the Court noted as follows:

The evidentiary hearing will include defendant's application for contempt; plaintiff's accounting of counsel fees incurred related to child support. The Court will also hear testimony as to what, if any, off-set there should be against any award of counsel fees to plaintiff related to child support is appropriate given the counsel and expert fees defendant incurred related to uncover and establish plaintiff's spyware use given plaintiff's spoliation. The Court will also hear testimony as to accounting of what, if any, of defendant's personal expenses drawn against the line of credit should be her personal responsibility and not considered in any award of counsel fees. The evidentiary hearing will not be required if the parties stipulate on consent to submit the issue of a final award of counsel fees to the Court and waived their right to an [*3]evidentiary hearing on the issue (see Reehill v. Reehill, 181 AD2d 725 [2 Dept 1992]; Pinto v. Pinto, 260 AD2d 622 [2 Dept 1999]) or if the parties reach a consent stipulation resolving their cross applications for awards of counsel fees with due consideration of the applicable case law.If defendant withdraws her application for contempt and the parties resolve their cross-applications for counsel fees by consent stipulation they shall provide a copy of that stipulation to the Court prior to September 27, 2019 and the parties can then submit a judgment of divorce on notice. As this Court has stated on the record on numerous occasions: the parties should carefully weigh the efficacy, time and cost to continue this litigation.

Dates for an evidentiary hearing on those issues was scheduled for January 2, 2020; January 3, 2020; and January 7, 2020; however, after those dates were selected on consent of the parties, plaintiff filed the motion detailed herein. Those dates were vacated inasmuch as these application were sub judice.

On November 22, 2019, plaintiff pro se filed an order to show cause [motion sequence #31] seeking the following relief: "1) providing access to the forensic image of the plaintiff's laptop computer to Mr. Lucick so as to forensically authenticate the nine emails exchanged in April of 2014 with Mr. K. H. [REDACTED] and Ms. M. S. [REDACTED], and copying Ms. Anne R. [REDACTED], advising them of the plaintiff's use of spyware software on Ms. R's [REDACTED] phone; and, 2) Providing access to the forensic image of Ms. R's [REDACTED] phone to a) potentially establish whether she opened and/or forwarded these emails and b) if there is any forensic evidence to suggest that any outside party accessed her email or text communications between October 31st, [sic] 2014 and May 15, 2015; and, 3) issuing a subpoena to compel Ms. S. [REDACTED] to testify before this Court at the trial scheduled for January 2nd, 3rd, and 7th of 2020 on the limited issue of whether the use of spyware was discussed during marriage counseling sessions between the plaintiff and defendant in April and May of 2014; and, 4) Issuing a subpoena to compel Mr. Y. D. [REDACTED] to testify before this Court at the trial scheduled for January 2nd, 3rd, and 7th of 2020 to explain why the emails providing an admission of the use of spyware by the plaintiff were not obtained using keyword searches for the plaintiff's laptop, or, if they were discovered, why they were withheld from the Referee and the Court in the three forensic reports issued by the computer forensic experts; 5) And issuing a subpoena to Alphabet Inc. (owner of Google) seeking a list of all devices and IP addresses that accessed Ms. R's [REDACTED] email account between October 31st, 2014 and May 15th, 2015, if they have maintained such information on their servers; 6) To order the defendant, based upon evidence that emerges at trial, to reimburse the plaintiff for all or part of the expenses related to the spyware litigation actually incurred by the plaintiff due to defendant's false statements as to the extent of her knowledge of the existence and extent of spyware usage prior to making her initial application to this Court, and the subsequence waste of judicial resources; 7) to consider referring defendant for criminal prosecution for perjury based on the evidence that is presented at trial; 8) any other sanctions or relief that the Court deems just and proper with respect to the defendant and her attorneys."

On December 6, 2019, defendant, through counsel, filed a notice of cross-motion [motion sequence #32], seeking the following relief: "A) pursuant to 22 NYCRR 130-1.1, sanctioning Plaintiff, Crocker C. [REDACTED], based on his frivolous conduct, in bringing an Order to [*4]Show Cause, signed November 22, 2019, with said frivolous conduct being defined in 22 NYCRR 131-1.1 part C(i)(ii)(iii); B) pursuant to 22 NYCRR 130-1.1 part D, making an award of costs or the imposition of sanctions based on either Defendant's Cross-Motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative; C) for such other and further relief as this Court deems just and proper."

Plaintiff pro se filed an affidavit in opposition to defendant's cross-motion dated December 9, 2019. Defendant's counsel filed an affirmation in support dated December 10, 2019. Oral argument on the motions was heard on December 11, 2019. At that oral argument plaintiff appeared pro se and defendant appeared with counsel.[FN2]

Plaintiff's Application

Plaintiff's application, in large part, attempts to address the ultimate issues which are already the subject of the upcoming evidentiary hearing rather than to address the relief he requests in the instant application which is for discovery. Plaintiff maintains that defendant should be financially responsible for the litigation expenses related to the spyware because "the actions of the defendant in calling for a multi-million dollar investigation of the issue of spyware premised on her perjurious statements that she had no prior knowledge that monitoring software had been placed on her phone "

In motion sequences #31, plaintiff for the first time alleges that none of the extensive computer forensic discovery was necessary because the defendant knew about the spyware for more than a year before she filed her emergency application in May 2015. In support of this allegation, plaintiff annexed e-mails to his application in which he revealed his use of spyware and monitoring to her from April 2014.

Plaintiff contends, in effect, that since defendant knew about the spyware before the commencement of the divorce that the financial consequences of the investigation and counsel fees that were incurred by both parties should be solely the financial responsibility of the defendant because she is "indisputably the monied spouse." He argues that defendant perjured herself when she claimed in her support affidavit to her emergency order to show cause in 2015 that she had "just" learned that there was spyware on her iPhone and when she averred that plaintiff had "never" told her he used spyware to monitor her during the marriage. He contends that defendant was fully aware that he had used spyware to monitor her during the marriage but had discontinued using it by agreement between them after consultation with their marriage therapist.

Plaintiff, in effect, argues that defendant knowingly and unnecessarily created the spyware investigation when she already knew all the facts and circumstances and that he was unable to defend himself against her allegations because if he answered defendant's allegations he could face criminal liability. He contends that if defendant had not perjured herself and if she had been forthright with the Court that she knew all along about the spyware that none of the computer forensic investigation would have been necessary and that neither of the parties would have been forced to incur the accompanying counsel fees and litigation costs. Plaintiff opines in his supporting papers to motion sequence #31 that defendant "was fully aware that her phone communications were being monitored by her husband more than a year in advance of bringing her Emergency Order to Show Cause seeking his devices to be seized and the inception of what turned into an 18-month, multi-million dollar proceeding to discover what she already know — that her phone was not secure — knowledge she did not take seriously enough to take any tangible steps to remediate the situation."

Plaintiff's Counsel Fee Argument

In his undated and unsigned memorandum of law annexed to his order to show cause [motion seq. #31], plaintiff contends that there is "no statutory basis to award litigation fees to the wealthier party under DRL 237" and "[a]s such there is no legitimate basis in fact or in law of an offset or award of litigation expenses incurred by the monied spouse-defendant to the non-monied spouse-plaintiff in the case at bar." Plaintiff's assessment that there is no basis at law for the Court to find that counsel fees should be paid by a non-monied spouse is misplaced: there is a plethora of case law that provides for an award of counsel fees where a party has engaged in dilatory tactics (see generally Kugler v Kugler, 174 AD3d 878, 103 NYS3d 319 [2 Dept.,2019]; see also Chesner v Chesner, 95 AD3d 12525, 945 NYS2d 409 [2 Dept.,2012]). The Court notes that the issues of counsel fees is already referred to the evidentiary hearing.

Plaintiff's Contempt Argument

Plaintiff offers extensive details by way of explanation related to the alleged contempt of this Court's May 15, 2015 ex parte order; however, that issue is ripe for adjudication after the evidentiary hearing which was previously scheduled.

Nonetheless, in his supporting affidavit dated November 18, 2019, plaintiff concedes that he used "three types of free disk cleaning software from the internet" on May 16, 2015. He avers that "[t]he purpose of this software is to 'overwrite' the spaces on a hard disk where files or browser artifacts have been deleted, either on purpose or by the natural process of the browser and other software to conserve disk space, with random digital information so that the underlying data cannot be recovered." He contends that he used these programs to remove certain images of a woman he "began seeing post-separation to her work email address" because "[t]he woman was very upset because she was afraid that her IT administrator might intercept the photos and that they also might be intercepted by private detectives working for the defendant " and "[s]he demanded that I erase all copies from my phone, computer, and any cloud-based storage." He contends that after he erased these photographs of the woman he remained "concerned that they might be recovered" so he used the disk scrubbing software. He avers that he "did not use the software to delete or overwrite any specific files or folders, and, to the best of my recollection, the three documents that were recovered by the forensic experts from my laptop were the only three that I ever downloaded from the web portal of mSpy."

He further avers that "I had no knowledge of the order to preserve evidence relevant to spyware usage on the date I used or attempted to use these programs. I understood I was under [*5]an obligation to preserve all electronic and paper records that were relevant to the financial issues of the case under the automatic stay [See Exhibit AA, Preliminary Conference Stipulation & Order, Part G 1 (b), page 7][FN3] , but never conceived that the use of spyware could become a central issues in the matrimonial proceedings at the time, given [defendant's] long-standing and oft-discussed knowledge that her phone had been monitored sporadically from late January to late June of 2014."

In his affidavit dated November 18, 2019, plaintiff avers that he had no knowledge of the Court's ex parte court order dated May 15, 2015 until he was served with it on May 19, 2015 by the Sheriff of the City of New York. He concedes that on May 18, 2015, someone from the Sheriff's department contacted him and notified him that they had to serve a court order on him personally. He avers that "[a]t no point did the sheriff on the phone make mention of seizing computer devices or an order to preserve evidence." He further averred that he "did not take any steps after speaking with the sheriff on the 18th, or indeed after May 16th, to delete or overwrite any relevant data."

Plaintiff further argues in his memorandum of law in support of his order to show cause [mot. Seq. #31] that "defendant has utterly failed to demonstrate any prejudice whatsoever that she has suffered as a result of the alleged spoliation of evidence" and therefore, he posits, there is no basis for a finding of civil or criminal contempt against him. The Court notes that the issue of contempt has already been referred to the evidentiary hearing.

He further opines that he has already, in effect, been "punished enough" for his conduct because his pleadings were struck related to financial relief for equitable distribution of marital property, maintenance and legal fees not related to custody. He argues that it is a form of, in effect, "double punishment" for him to also face civil and/or criminal contempt "for an alleged violation of a Court order to preserve electronically stored evidence (ESI)."[FN4]

Financial Responsibility: Plaintiff Contends Defendant Knew About Spyware

In support of his allegation that the defendant knew that he had previously used spyware to monitor her iPhone communications, plaintiff annexes an e-mail from himself to defendant and to a third-party dated April 5, 2014 in which he discloses the following:

[i]t in in this frame of mind that I did something I am quite ashamed of: I installed spyware on her phone that allowed me to read all of her text messages. For two weeks I could see every text she sent or received, a violation of her privacy and also, as it turned [*6]out, of yours.

Plaintiff notes that, despite his disclosure to defendant in that April 2014 e-mail, in her sworn affidavit dated June 9, 2015 [Affidavit in Further Support of Motion Sequence #4] more than a year later after the April 2014 e-mail, defendant swore as follows: "[a]s I have now discovered, and as is fully set forth in my moving papers, plaintiff had already begun purchasing mSpy (with our marital funds) in early 2013. And, as also set forth, he never — not even once — told me about his purchases of spyware, his installing of spyware on my iPhone [emphasis added]"

Plaintiff, in his memorandum of law concedes that:

[w]hile this investigation undoubtedly had its foundation in highly questionable and offensive behavior by the plaintiff, it would never have been undertaken in this venue had the defendant spoken truthfully to the Court about her prior knowledge of spyware usage, her failure to take corrective action to secure her phone, and her apparent lack of concern about the monitoring of her communications by her husband in the waning months of their failing marriage prior to separation.

In his affidavit dated November 18, 2019, plaintiff contends that he was presented with a "Hobson's choice" of either revealing his spyware usage against defendant together with his allegation that defendant knew about the spyware or of speaking up and "place both his liberty and his children's safety and well-being in peril" if he was subsequently indicted, prosecuted, convicted and incarcerated.

In his affidavit in support dated November 18, 2019, plaintiff contends that he elected to assert his Fifth Amendment right instead of disclosing defendant's prior knowledge about him installing and using spyware against her iPhone " so as to avoid a criminal prosecution " Plaintiff contends that he will have been penalized for asserting his Fifth Amendment right if this Court holds him responsible for any of the financial consequences of his election to invoke the Fifth Amendment instead of disclosing that he did not believe the computer forensic investigation was necessary before defendant knew all along about the spyware usage in 2014.

Plaintiff asserts in his affidavit dated November 18, 2019 that the statute of limitations for criminal liability related to his spyware usage is five (5) years and, he contends, the "spyware was removed from the defendant's phone on the morning of October 31, 2014 at 8:57 a.m." Plaintiff contends that the record in this litigation established that no spyware was used against defendant after October 31, 2014.

Plaintiff contends that he is "no longer entitled to assert the Fifth Amendment privilege with respect to the use of spyware" because it has now been, in his assessment of the facts as he presents them, more than five (5) years since the last spyware was removed from defendant's iPhone. He continues that "I have chosen to describe my use of spyware to the best of my recollection, given that it is relevant to the issue of which party should bear the responsibility for the delays, expense, and burden on this Court of litigating the spyware issues " He further opines that "the Court will be in a better position to decide what sanctions are appropriate, if any, if given full information, rather than relying on adverse inferences and gaps in the testimony on material facts."

In his supporting affidavit plaintiff, now for the first time under oath, includes details of [*7]his installation of numerous spyware programs and his usage of those various spyware programs to intercept e-mails, text messages and recordings of defendant's telephone calls. He also details various times when he "listened in" on defendant when she was with other people, including her current attorney and her psychiatrist. He states that he "had clearly lost any moral compass at that point and I deeply regret what I did." Plaintiff asserts, in effect, that he resorted to spyware because he believed that the defendant's behaviors at that time placed his health in danger and the parties' children at risk of physical harm.

Plaintiff contends that in addition to disclosing the spyware use to defendant by e-mail that the parties discussed his use of spyware with a marriage therapist and "negotiated an agreement to have the software removed from her phone in June of 2014" in exchange for a change in certain behavior by the defendant. He contends that he voluntarily discontinued his spyware use on October 31, 2014 and deactivated his spyware accounts.[FN5] He annexed documentation, including e-mail confirmations from the spyware companies, to his application in support of this proposition. He contends that none of the computer forensic investigation revealed any spyware usage after October 31, 2014.

Plaintiff contends in his affidavit dated November 18, 2019 that defendant "had ample opportunity, had she been so inclined, to restore the security of her phone. And she had an obligation to notify her attorneys that her devices were quite possibly not secure at the time she retained them." He contends that "defendant has misled this Court and incited a multi-million-dollar investigation and litigation sideshow to what should have been a straightforward divorce proceeding " He further avers that "[n]o forensic investigation was required, since [defendant] already knew most of the scope and purposes for which spyware was employed, and yet withheld this information from the Court."

Plaintiff continues:

[w]hile it is quite likely that the Court would have found the behavior of the plaintiff to be deeply offensive by using this technology to monitor his wife, it seems unlikely that the extensive investigation would have been ordered given the defendant's clear knowledge of the monitoring over a period of many months and lack of any remediating steps to secure the privacy of her communications.

Plaintiff alleges that defendant:

perjured herself at multiple times in depositions under oath and multiple times in sworn trial testimony under oath as part of the Federal civil trial, where she explicitly denied any knowledge or even suspicion of the presence of spyware on her phone prior to February 6th, 2015, which just happened to be precisely two years to the day before she and her family filed their Federal lawsuit.

Plaintiff contends that "[t]his was a central issue at trial, given that the two-year statute of limitations was the sole affirmative defense available to the plaintiff (who was the defendant in the federal trial)."

Plaintiff concludes that:

[h]ad [defendant] provided truthful testimony and admitted that she had suspicions that [*8]her text and email communications were being monitored as early as late January 2014, that she had actual knowledge and a written admission from the plaintiff as of April 5th, 2014, and that she had extensive discussions with the plaintiff about the use of monitoring software from April through late June of 2014, then her civil Federal case would have been dismissed on summary judgment before the convening of a week-long jury trial in federal court, based on the clear two-year statute of limitations for civil corollary claims under the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act.

The Court notes that the information alleged by plaintiff related to the "backstory" of the spyware issue during the parties' marriage is not germane — or even, at this juncture, relevant — to the relief requested by plaintiff in his application which is for additional discovery.

Plaintiff had the right to assert his Fifth Amendment privilege; however, plaintiff's, in effect, contention that he "had no choice" in electing to do so and that any financial ramifications from his election to do so is misplaced.

The Fifth Amendment privilege asserted by plaintiff protects a party from revealing information that he or she "reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used" (Kastingar v United States, 406 US 441, 444-445 (1972); however, it does not also categorically protect the party asserting the privilege from any and all economic consequences resulting from not disclosing the information being sought.

Here, plaintiff seeks to have it both ways and to, in effect, make defendant financially responsible for all of the economic consequences that resulted from his election to invoke his Fifth Amendment privilege. Certainly, plaintiff had the right to invoke his Fifth Amendment privilege but defendant also had the right to seek to establish the information plaintiff elected not to disclose. Plaintiff's election to assert his Fifth Amendment privilege did not ipso facto make defendant the financier of his election to do so.

The judicial system does not punish a party for asserting the Fifth Amendment privilege but parties when electing to assert that privilege do so weighing the possible consequences.

Each of the parties will have a full and fair opportunity to present testimony and evidence about issue at the evidentiary hearing as fully detailed in this Court's September 17, 2019 decision after trial.

Plaintiff's Request for Additional Discovery

Plaintiff contends that the discovery he seeks is "highly relevant to the questions of which party or parties bears the responsibility of the staggering legal fees accumulated during the spyware litigation of this divorce case; of what sanctions, if any, are appropriate for the plaintiff for the alleged spoliation; and of what monetary and criminal sanctions are appropriate for the defendant for committing gross perjury, wasting judicial resources, and undermining the integrity of the judicial process; and of what referral for potential investigation and sanctions is appropriate for [defendant's] attorneys."

Defendant's Opposition to Further Discover

In his affirmation dated December 5, 2019, defendant's counsel argues that plaintiff is not entitled to any further discovery related to spyware issues inasmuch as he himself "tried to deny Defendant seeking discovery on back in 2015 when this action was pre-trial and when discovery [*9]was appropriate." He argues that it is " repugnant that Plaintiff now wishes to relitigate the issue of his Spyware usage " after invoking his Fifth Amendment privilege for five (5) years during this litigation. He argues that "[p]laintiff, by way of his Order to Show Cause, is attempting to reduce his financial liability arising from this case, by attempting to transfer blame, for the cause of the protracted litigation seen in this action, onto Defendant, whereas this Court has already struck Plaintiff's pleading as they pertain to financial relief."

Defendant's Cross Application for Sanctions

Defendant's counsel, in his affirmation dated December 5, 2019, that "[t]hese attempts by Plaintiff to undermine the Court's findings are both insulting to the Court and constitute further harassment, by Plaintiff, of Defendant after forcing Defendant to spend millions of dollars and over 5 years of her life litigating this matter and to prove Plaintiff's egregious conduct." Defendant's counsel further affirms that "[p]laintiff further harasses Defendant by suggestion that this Court refer her for 'Criminal Prosecution' based on Plaintiff's fabricated allegations. Plaintiff's request of this Court are detached from reality when one considers that there is still an evidentiary hearing for criminal contempt, by the Plaintiff, pending before this Court " He affirms that plaintiff's order to show cause "belabor countless unpersuasive points, rehash disputes that were already resolved, and contains more irrelevant personal attacks on [defendant]." He contends that "plaintiff over litigated every issue brought before the Court in this case while knowing that attorney's fees were only continuing to rise."

Defendant's counsel seeks an award of costs or the imposition of sanctions pursuant to 22 NYCRR 130-1.1 Part D. Defendant's counsel does not address the allegations raised by plaintiff that defendant filed the emergency application in May 2015 in which she swore that she had no knowledge from plaintiff that he had used spyware against her when, he avers, he had notified her numerous times of his use of spyware in 2014 before ceasing to use it on October 31, 2014. Defendant's counsel does not address in any manner the e-mails annexed by plaintiff to defendant in April 2014 in which he acknowledges that he used spyware to monitor her iPhone or the e-mails plaintiff annexes that he sent to the parties' marriage therapist and copied to defendant related to the use of spyware. No affidavit of defendant is annexed to the notice of cross-motion in support of the application or in opposition to the plaintiff's order to show cause or addressing plaintiff's allegation that she had full knowledge of the spyware use when the emergency application was filed in May 2015 and when she swore in June 2015 that plaintiff had "never — not even once" revealed his spyware use against her iPhone to her.

In his affidavit in opposition dated December 9, 2019, plaintiff notes that "defendant does not deny that she had knowledge of being monitored by software installed on her phone beginning on April 5th, 2014, She does not deny having extensive discussions about the use of this monitoring software with the plaintiff in April, May and June of 2014, including in the presence of our marriage therapist, [REDACTED]. Further, the defendant does not deny that she perjured herself in sworn statements made to this Court when she made her application to have the plaintiff's computing devices seized and then to have an extensive computer forensic investigation conducted under the supervision of a Referee." He contends that defendant made the emergency application in May 2015 "under false pretenses "

In his affidavit in opposition dated December 9, 2019, plaintiff opposes defendant's motion for sanctions asserting that his order to show cause is not frivolous as defined by 22 NYCRR 130-1.1 because he "is entitled to due process including reasonable discovery to establish an evidentiary record that fairly presents all relevant facts to the Court. This [*10]encompasses the testimony of the parties with direct knowledge of the events, expert witnesses, third-party witnesses to conversations between the parties, documentary and forensic evidence, and other evidence that is relevant to the three issues at trial." He contends that central to the issue of determining the parties' respective financial responsibility for the spyware investigation is the question of whether "the application for the computer spyware investigation made in good faith?" Plaintiff contends that the evidentiary hearing is only necessitated now because the defendant "rejected an offer of a global settlement on the three issues that are outstanding and refused to provide any settlement offer on her own." He contends that "[h]aving brought on the evidentiary hearing, the defendant has now [sic] seeks to deny the plaintiff's reasonable request for discovery.

Plaintiff, in his affidavit dated December 9, 2019, argues that his application is not frivolous because the additional discovery he seeks is appropriate because " this in effect a trial on new issues, there has been a substantial change in circumstances in that the plaintiff is no longer entitled to assert the Fifth amendment given that the relevant criminal statutes regarding his use of monitoring software have expired."

Defendant's counsel offered general dismissal of the propositions proffered by plaintiff but provided no memorandum of law and did not cite any legal support on the issues presented in his affirmation in opposition to plaintiff's application other than to give conclusory statements that plaintiff's application was "repugnant", contained "countless unpersuasive points" and was, generally, "detached from reality ".

THE DECISION

Financial Responsibility for Litigation and Contempt

The issue of whether or not contempt against plaintiff is appropriate is not before this Court in these motions: this Court has already addressed that issue in the written decision after the financial trial dated September 17, 2019 and the issue was scheduled for an evidentiary hearing beginning January 2, 2020 which had to be adjourned due to plaintiff's filing of this application. It is well-established that "[t]he failure to obey a lawful order of a court is a species of contempt" (Rubackin v Rubackin, 62 AD3d 11, 15, 875 NYS2d 90 [2 Dept.,2009]). Plaintiff's contention, in effect, that contempt cannot be found if the order itself was based upon a potentially incomplete record is unavailing if the other elements of contempt are satisfied (see Skripek v Skripek, 239 AD2d 488, 658 NYS2d 62 [2 Dept.,1997]["notwithstanding a party's good faith belief that a court's order raise a conflict and irrespective of how misguided and erroneous the court's order may be, a party is not free to disregard it and decide for himself the manner in which to proceed"]).

Additionally, the issue of the ultimate financial responsibility of the litigation expenses and counsel fees the parties' incurred in this litigation is not before this Court in these motions: that issue, too, was scheduled for the evidentiary hearing beginning January 2, 2020. Many of the arguments proffered by plaintiff in his order to show cause appear to be an attempt to address the merits of those issues which will be subject to the evidentiary hearing and are not relevant to the specific relief requested by plaintiff: additional discovery. Plaintiff's position on the relative financial responsibility of the parties and the issue of contempt will be adjudicated at the evidentiary hearing.

Plaintiff's attempts to "correct" the record, in effect, in "advance" of the evidentiary hearing are unavailing and this Court rejects his attempts. Those issues will be determined by the Court at the evidentiary hearing when sworn testimony, subject to cross-examination, and [*11]evidence admitted into the record can be offered by both parties.

Additional Discovery

The only issue properly before this Court by way of motion sequence #31 is plaintiff's request for additional discovery. The superfluous arguments as to the merits of the issues already referred to the evidentiary hearing are not properly before this Court by way of this motion sequence as discussed above.

Plaintiff's contention that a party's right to invoke his or her Fifth Amendment privilege "expires" once a statute of limitations passes and that that "expiration" constitutes a "change in circumstances" which amounts to, in effect, a stay of discovery is misplaced. If the Court were to adopt plaintiff's view, it would render application pursuant to CPLR 2201 moot and grant all litigants a unilateral right to institute a stay on their own by invoking the Fifth Amendment privilege and then, once the relevant statute of limitations had expired, relitigating the same issue.[FN6]

Here, plaintiff is bound by his election to invoke his Fifth Amendment privilege instead of pursuing discovery options available to him had he proffered the allegations he first raises now. Plaintiff contends that the discovery he now seeks after the perceived threat of criminal prosecution has ended are "reasonable" discovery demands but that question is no longer before this Court inasmuch as plaintiff chose a divergent litigation approach when he elected to invoke his Fifth Amendment privilege instead of litigating the issue through discovery.

Plaintiff contends that there may be additional discovery available relevant to the issues which will be the subject of the evidentiary hearing as detailed in this Court's September 17, 2019 written decision after trial. The question of whether or not there "may be" additional discovery available is no longer the relevant question. The time for discovery has long passed. Discovery has long been closed. This Court has conducted two full trials and issued numerous written decisions. Plaintiff had a full and fair opportunity to present this information and to pursue this newly requested discovery during the years of litigation since defendant filed her initial emergency application in May 2015. Plaintiff concedes in his application that he chose to invoke his Fifth Amendment privilege consistently to allow the statute of limitations to run, as he calculates it, on any criminal liability he may face related to his spyware usage. Plaintiff concedes in his application that he had full knowledge of the information he now wishes the Court to consider but that he chose his Fifth Amendment privilege instead of disclosing this information to the Court and that he did so after weighing his available options.

At the hearing, plaintiff has the right to confront defendant as to his allegation as they relate to counsel fees and to offer evidence on that issue subject to relevant objections.

The fact that the statute of limitations may have expired on any criminal liability facing plaintiff as a result of his spyware usage is not, in and of itself, a sufficient basis at this juncture in the litigation to "begin again" and relitigate the issues.

Plaintiff must now proceed with the record of this litigation as it was established. Discovery has been closed for some time. The trial in chief has concluded and the limited trial [*12]issues relating to the remaining ancillary issues must come to a conclusion. To further delay this protracted litigation to allow an entirely new avenue of discovery and experts — all of which were available to plaintiff throughout this litigation and which plaintiff concedes he knew about — would only further unreasonably delay this litigation. The Court has conducted a full trial on all the financial issues between the parties and issued an extensive, detailed written decision. The limited issues remaining are counsel and litigation fees and the pending application for contempt against plaintiff.

Contrary to plaintiff's contention, the mere fact that the statute of limitation on criminal proceedings against him, under the facts and circumstances presented here, is not alone a sufficient basis for this Court to now reopen discovery. Under the facts and circumstances presented in the case at bar, to do so would be allowing the plaintiff to use the Fifth Amendment as a shield and a sword (see generally Nasca v Town of Brookhaven, 10 AD3d 415, 781 NYS2d 137 [2 Dept.,2004]).

It is well-established that the right to invoke the Fifth Amendment that might adversely affect his or her criminal interest; however, it is also well settled that invoking the Fifth Amendment privilege, alone, is generally an insufficient basis for precluding discovering in a civil matter. The Appellate Division, Second Department in El-Dehdan v El-Dehdan, 114 AD3d 4, 20, 978 NYS2d 239 [2 Dept.,2013], that:

[a]lthough a defendant in an ongoing criminal prosecution faces a dilemma whether to defend a civil proceeding involving the same subject matter or to assert the Fifth Amendment privilege, "a court need not permit a defendant to avoid this difficulty by staying a civil action until a pending criminal prosecution has been terminated," and the fact "that the witness may invoke the privilege against self-incrimination is not a basis for precluding civil discovery" (Mattar of Astor, 62 AD3d 867, 869, 879 NYS2d 560 [internal quotation marks omitted] [motions to stay discovery and for a protective order in a probate proceeding properly denied, although the proponent of the will was the defendant in a criminal prosecution]; see State of New York v. Carey Resources, 97 AD2d 508, 509, 467 NYS2d 876 [motion to stay civil discovery was improperly granted on the ground that disclosure might incriminate the movant]; see generally Steinbrecher v Wapnick, 24 NY2d 354, 365, 300 NYS2d 555, 248 NE2d 419).

The Court of Appeals has noted that when a party fails to present evidence on his or her own behalf in a civil case and instead chooses to assert her or his Fifth Amendment privilege "he places himself at an obvious disadvantage" (24 NY2d 354, 365, 300 NYS2d 555 [1969]). The Court of Appeals continued finding that "the courts need not permit a defendant to avoid this difficulty by staying the civil action until a pending criminal prosecution has been terminated (id.). Furthermore, in Langemyr v Campbell, the Court of Appeals affirmed an order of the Appellate Division, Second Department affirming an order of the Supreme Court which denied a request for an adjournment of the civil proceeding until an indictment was disposed of (21 NY2d 796, 288 NYS2d 629 [1968][appeal to the Court of Appeals was on constitutional grounds, contending that denial of request for adjournment of the civil proceeding violated constitutional rights because party was forced to choose between testifying at the civil proceeding and giving information which might incriminate him in criminal prosecution or to assert his privilege against self-incrimination]). It is clear that a litigant in a civil action is not entitled to avoid this potentially difficult choice by, in effect, unilaterally creating a "stay" of the civil proceedings by [*13]invoking the Fifth Amendment privilege until potential criminal liability ends and then relitigating the civil action (see generally Langemyr v Campbell).

It is well-established that "[a] motion pursuant to CPLR 2201 to stay a civil action pending resolution of a related criminal action is directed to the sound discretion of the trial court" (Mook v Homesafe America, Inc., 144 AD3d 1116, 1117, 41 NYS3d 759 [2 Dept.,2016]); however, the law remains clear on this point: "a court is not required to stay a civil action until a pending related criminal prosecution has been terminated so that a party can avoid the difficulty of choosing between presenting evidence in his or her own behalf and asserting his or her Fifth Amendment rights" (Campbell v New York City Transit Authority, 32 AD3d 350, 821 NYS2d 27 [1 Dept.,2006]; see also Spencer v City of Buffalo, 172 AD3d 1916, 99 NYS3d 843 [4 Dept.,2019]; Access Capital, Inc. v. DeCicco, 302 AD2d 48, 53, 752 N.Y.S.2d 658 [1 Dept.,2002]; Matter of Kopf, 169 AD2d 428, 564 N.Y.S.2d 149 [1 Dept.,1991]; Stuart v. Tomasino,148 AD2d 370, 373, 539 N.Y.S.2d 327 [1 Dept.,1989]; DeSiervi v. Liverzani, 136 AD2d 527, 528, 523 N.Y.S.2d 147 [2 Dept.,1988] [the pendency of a criminal proceeding does not give rise to an absolute right under the United States or New York State Constitutions to a stay of a related civil proceeding, although a court may use its discretion]).

The Court notes that plaintiff never filed a motion seeking to stay his action pursuant to CPLR 2201. Furthermore, this Court is unaware that there was ever an indictment or criminal proceeding pending against the plaintiff at any time during this litigation related to the issues of spyware.

In Access Capital v DeCicco, the Appellate Division, First Department found that "(w)hile a party may not be compelled to answer questions that might adversely affect his criminal interest, the privilege does not relieve the party of the usual evidentiary burden attendant upon a civil proceeding; nor does it afford any protection against the consequences of failing to submit competent evidence [emphasis added]" (302 AD2d 48, 51, 752 NYS2d 658 [1 Dept.,2002]).

In the case at bar, plaintiff concedes that he weighed the risks presented between invoking his Fifth Amendment privilege and disclosing the information he now seeks to present to the Court before electing to invoke the privilege. In doing so, plaintiff chose not to present certain information to this Court or to explore available discovery options during the extensive litigation in favor of maintaining the protection of the Fifth Amendment privilege. Plaintiff is now bound by that election and the consequences that flow therefrom.

The Court notes that plaintiff does not need advance "permission" of the Court to present his case as to the issues for the evidentiary hearing. While the Court will not, at this late juncture, order additional discovery, plaintiff retains the right to offer relevant testimony and evidence at the evidentiary hearing and to call relevant witnesses in support of his case. Many of the exhibits annexed to plaintiff's application are not relevant to the issue of seeking additional discovery; however, that does not preclude the plaintiff from offering them as evidence as part of the evidentiary hearing subject to any relevant objections. The Court makes no finding as to whether these documents will be admitted to the record at the evidentiary hearing.[FN7]

[*14]Defendant's Application for Sanctions Pursuant to 22 NYCRR 130-1.1

Pursuant to 22 NYCRR 130—1.1, sanctions may be imposed against a party or the attorney for a party for frivolous conduct (see 22 NYCRR 130—1.1[b]). Conduct is frivolous if 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; it is taken to primarily delay or prolong the resolution of the litigation, or harass or maliciously injure another; or it asserts material factual statements that are false (see 22 NYCRR 130—1.1 [c] see generally Joan 2000, Ltd. V. Deco Const. Corp., 66 AD3d 841, 886 NYS2d 611 [2 Dept.,2009]; see also Mascia v. Maresco,39 AD3d 504, 833 N.Y.S.2d 207 [2 Dept.,2007]).

In making the determination of whether an application was frivolous under 22 NYCRR 130-1.1, it is well-established that "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'" (Finkelman v SBRE, LLC, 71 AD3d 1081, 896 NYS2d 897, 898 [2 Dept.,2010], quoting Glenn v. Annunziata, 53 AD3d 565, 566, 861 N.Y.S.2d 769 [2 Dept.,2008], quoting 22 NYCRR 130—1.1[c]).

This Court has considered all the circumstances under which the conduct took place and does not find that, under the facts and circumstances presented, plaintiff's request for additional discovery was made completely without merit within the meaning of 22 NYCRR 130-1.1 and, as such, the Court will not order sanctions at this time.

Additionally, the Court does not believe that plaintiff filed the application "primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another"; in fact, plaintiff did not seek to adjourn the evidentiary hearing dates originally scheduled to begin on January 2, 2020. The argument proffered by plaintiff, who is pro se, purports to relate to being prepared for the evidentiary hearing and the timing of the application in mid-November is consistent with the argument proffered by plaintiff. There is also no indication at this time that plaintiff's application asserted "material factual statements that are false." The Court finds that sanctions against plaintiff is not appropriate at this juncture.

Defendant's Application for Cost

As to defendant's application for costs related to responding to plaintiff's application: defendant failed to establish that the application filed by plaintiff was frivolous pursuant to 22 NYCRR130-1.1 and, as such, the application for fees is denied. The Court also notes that defendant's counsel annexed no billing records related to the application nor did he include in his affirmation any representation as to costs actually incurred.

Plaintiff's Application for Sanctions Against Defendant

Plaintiff contends, among other things, that defendant perpetrated a fraud upon the Court when she did not disclose to the Court that she had prior knowledge of plaintiff's spyware use during the marriage. Additionally, plaintiff contends that defendant perjured herself when she averred under oath that plaintiff "never — not even once — told me about his purchases of spyware, his installing of spyware on my iPhone " in her affidavit in support of her Emergency Order to Show Cause in May 2015. The Court outrightly and categorically rejects defendant's counsel's contention that these issues — including if defendant perjured herself or [*15]committed a fraud upon the Court — are irrelevant to this Court or to the issues remaining related to counsel fees, litigation costs and/or sanctions for the evidentiary hearing.

Plaintiff's application for "[a]ny other sanctions or relief that the Court deems just and proper" against defendant is referred to the trial court as part of the evidentiary hearing. The integrity of the process is of fundamental value to the judicial process and plaintiff shall have the right to confront defendant as to the issue of her prior knowledge of spyware at the evidentiary hearing and the circumstances under which she filed her Emergency Order to Show Cause.

The Court reminds the parties that while they appear to both remain highly emotionally connected to rehashing the disappointments, poor judgment and behavioral missteps — perceived or otherwise — they each encountered during their marriage that the parties remain in a unique position to stipulate or withdraw as to the last remaining issues and that stipulation would enable this Court to consider a judgment of divorce, on notice, in short-order. These parties should mindfully consider whether it remains in their ultimate best interest and in the best interest of their children to continue to engage in this entrenched and scorched earth approach instead of resolving to allow this litigation to come to a long-overdue conclusion that will give them each an opportunity to focus on the future and on their children without the distraction — emotional and financial — of this litigation which has lasted almost five (5) years. The Court will also have to consider as part of any evidentiary hearing whether plaintiff's argument sounds by way of attempting to "blame the victim" for his bad acts: even if defendant knew that her iPhone had been compromised in the past, the order could still have been issued. Additionally, the Appellate Division, Second Department has ruled that violation of the automatic orders can be contempt (see generally Spencer v Spencer, 159 AD3d 174, 71 NYS3d 154[ 2 Dept.,2018]).

Evidentiary Hearing

The evidentiary hearing which was originally scheduled to being on January 2, 2020 must be rescheduled. The parties are directed to contact chambers by conference call on January 21, 2020 at 4:00 p.m. to select dates for the balance of the evidentiary hearing on consent.

Conclusion

The relief requested by plaintiff in motion sequence #31 is granted to the extent detailed herein.

The relief requested by defendant in motion sequence #32 is denied.

This shall constitute the decision and order of this Court.

ENTER:

JEFFREY S. SUNSHINE

J. S. C. Footnotes

Footnote 1:This Court issued a written decision on custody and parenting time after trial dated June 22, 2018 (not published) in which plaintiff was awarded legal custody of the parties' two minor twin children who are currently ten (10) years old. The children were five (5) years old when plaintiff commenced this litigation. The children were represented by an attorney.

Footnote 2:The Court has allocuted the plaintiff on the record in open court at each court appearance on the risks of representing himself, of his right to be represented by counsel of his choice and of the availability of the Office of Self Represented and provided him lists of various bar association resources on the record. Plaintiff has been represented by two (2) private counsels already during in this litigation, both of whom he discharged. Plaintiff appeared pro se during the custody trial before re-retained one of his prior counsels to represent him but then discharged that counsel a second time and is again appearing pro se.. Plaintiff has indicated on the record that he has had private counsel representation in his appeals from this Court's decisions and to represent him in the Federal lawsuit filed by defendant et al herein. The Court has found that plaintiff is not eligible for appointment of counsel on issues of custody, parenting time and now contempt given his income earnings.

Footnote 3:That section reads as follows: "Electronic Evidence: For the relevant periods relating to the issues in this litigation, each party shall maintain and preserve all electronic files, other data generated by and/or stored on the party's computer system(s) and storage media (i.e. hard disks, floppy disks, backup tapes), or other electronic data. Such items include, but are not limited to, e-mail and other electronic communications, word processing documents, spreadsheets, data bases, calendars, telephone logs, contact manager information, internet usage files, offline storage or information stored on removable media, information contained on laptops or other portable devices and network access information." In this matter, the parties entered into the Preliminary Conference order on February 13, 2015.

Footnote 4:Plaintiff filed an appeal to the Appellate Division, Second Department on this issue which is currently pending.

Footnote 5:Plaintiff commenced this litigation three (3) days prior — on October 28, 2014 — to that date.

Footnote 6:CPLR 2201 provides as follows: "Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just."

Footnote 7:The Court notes that at least some of the e-mails annexed by plaintiff in support of his application appear to have originated from him to defendant and, as such, the e-mails in his possession may be found to be admissible during the evidentiary hearing; however, the Court does not reach that issue at this time as it is an issue more properly before the Court during the evidentiary hearing subject to any relevant objections by defendant.