lawyer thinking small.jpg

If a spouse wilfully fails to provide financial information during the discovery phase of a divorce action, one remedy may be an order of preclusion under C.P.L.R. §3126.  Thus, an August, 2010 decision of the Appellate Division, Second Department, in Raville v. Elnomany, affirmed the preclusion of the husband “from offering financial evidence at the hearing on equitable distribution based on his willful failure to comply with discovery.” 76 A.D.3d 520, 906 N.Y.S.2d 586.

But what, precisely, is an order of preclusion from offering evidence?  Is it really what you want?  Is it everything you need?  A brief review of some decisions granting “orders of preclusion” may highlight the open issues even after preclusion is granted.

  • For example, is precluding the husband from offering evidence the same as precluding “testimony?” Casey v. Casey, 39 A.D.3d 579, 835 N.Y.S.2d 277 (2nd Dept. 2007).
  • Is preclusion the same as eliminating the right to cross-examine? Grande v. Grande, 129 A.D.2d 612, 514 N.Y.S.2d 250 (2nd Dept. 1987); cf., Settembrini v. Settembrini, 270 A.D.2d 408, 704 N.Y.S.2d 641 (2nd Dept. 2000).
  • If the husband is allowed to cross-examine, may cross-examination be curtailed if the subject matter involves the very information which the husband failed to produce? Cohen v. Cohen, 228 A.D.2d 961, 644 N.Y.S.2d 831 (3rd Dept. 1996).
  • Does it require that there be an “inference” in favor of the non-offending party? Dolny v. Dolny, 32 A.D.3d 818, 820 N.Y.S.2d 520 (2nd Dept. 2006).
  • Does preclusion from offering evidence necessarily require that financial issues of fact be deemed resolved in favor of the non-offending party? Pearl v. Pearl, 266 A.D.2d 366, 698 N.Y.S.2d 160 (2nd Dept. 1999).
  • Is it the same as permitting the wife “to proceed at trial solely upon her proof of the financial matters.” Is the wife entitled to “a default equitable distribution?” Reed v. Reed, 93 A.D.2d 105, 462 N.Y.S.2d 73 (3rd Dept. 1983).

“Preclusion” can be a very imprecise remedy. Counsel should be careful to request, and the Court should be careful to detail the metes and bounds of the remedy. However, for counsel, a detailed request may be unavailable until there is a clear understanding of the fact issues to be determined and the available proof. This may require delaying the motion; or seeking leave to obtain additional or different relief once more is known.