In the below decision in Kings County Supreme Court, Judge Sunshine denies a motion to reopen a trial that had been closed for several years, the motion was based on a new evidence theory which the court did not heed. 
6975/98
SUPREME COURT OF NEW YORK, KINGS COUNTY
2007 NY Slip Op 51787U; 17 Misc. 3d 1101A; 851 N.Y.S.2d 61;
August 16, 2007, Decided
Subsequent appeal at Sieger v. Sieger, 37 A.D.3d 585, 829 N.Y.S.2d 649, (N.Y. App. Div. 2d Dep't, 2007)

Jeffrey S. Sunshine, J.

Upon the foregoing papers, by order to show cause signed on April 18, 2007, defendant Helen Sieger moves for an order permitting her to reopen her case to introduce evidence regarding the eviction of Kingsbridge Heights Rehabilitation & Care Center, Inc. (Kingsbridge), a 400 bed nursing home held in defendant's name and the parties' most significant marital asset, and the financial consequences of such eviction on its value for purposes of equitable distribution. By order to show cause signed on May 31, 2007, defendant seeks an order: (1) holding plaintiff Chaim Sieger in contempt for his alleged violation of Domestic Relations Law (DRL) § 236B(4) in failing to disclose that he loaned $ 650,000 to VCS Technologies, Inc. (VCS), and that he held substantial shares and warrants in said corporation in any net worth statement that he filed in this divorce action; (2) amending the trial decision to reverse all credibility questions resolved in plaintiff's favor and entering a second amended judgment resolving all questions of credibility in defendant's favor; or, in the alternative (3) vacating the decision pursuant to CPLR 4404(b) and remanding the matter for additional discovery; and/or, in the alternative (4) allowing defendant to reopen the trial to prove the factual allegations regarding the VCS transaction. By cross motion dated June 26, 2007, plaintiff moves for sanctions in the amount of $ 7,500 against defendant for making a frivolous motion.

Procedural Background

This matrimonial action has been extensively litigated since it was commenced on March 2, 1998. As is relevant herein, the parties tried the case on 15 days between August 2, 2004 and October 12, 2004 and submitted post-trial memoranda. By decision dated June 29, 2005, this court awarded plaintiff and defendant equitable distribution of the parties' marital assets (Sieger v Sieger, 8 Misc 3d 1029(A), 806 N.Y.S.2d 448, 2005 WL 2031746 (2005) (the Trial Decision). As is relevant to the issues to be resolved herein, this court held that Kingsbridge was a marital asset and valued it at $ 16,822,904 as of December 31, 1998. Based upon the distribution of all other marital assets as set forth in the Trial Decision, the judgment, dated August 11, 2005 and filed on August 12, 2005, directed defendant to pay plaintiff a distributive award in the amount of $ 8,497,697 (the Judgment of Divorce). Defendant filed a notice of appeal on September 20, 2005 and perfected her appeal on March 27, 2006.

By decision dated February 13, 2007, the Appellate Division, Second Department, modified the Judgment of Divorce by deleting the provision that directed defendant to pay plaintiff a distributive award and remitted the matter to this court:

"for the sole purpose of either supplementing its decision to set forth with specificity the mathematical calculations employed and the basis therefor in light of this decision, or determining de novo the proper valuation of Kingsbridge in light of the factors enumerated herein, and for the entry of an appropriate amended judgment thereafter."

(Sieger v Sieger, 37 AD3d 585, 588, 829 N.Y.S.2d 649 [2007]) (the Appellate Division Decision).

After reviewing the parties' submissions, it became evident to this court that on appeal, defendant failed to include in her appendix the trial exhibit that this court relied upon in reaching its valuation of Kingsbridge. By decision dated April 17, 2007, this court explained its calculation of the value of Kingsbridge, corrected a minor mathematical error made in the Trial Decision and valued Kingsbridge at $ 16,823,348, for an increase in value of approximately $ 400 (the Amended Trial Decision). After crediting each party with his and her share of the marital assets, as set forth in the Trial Decision, as affirmed by the Appellate Division Decision, and as modified above, defendant was ordered to pay plaintiff the sum of $ 8,497,919, plus interest at the rate of 9% per annum from the date of entry, or August 12, 2005, to the date of payment. Defendant filed a notice of appeal with regard to this decision. That appeal is currently pending.

Defendant's Request to Reopen the Trial

The Eviction of Kingsbridge

In support of her motion, defendant argues that Kingsbridge was evicted from its place of business, 3400 Cannon Place in the Bronx, by a decision issued on March 13, 2007 by the Honorable Mitchell J. Danzinger; the warrant of eviction was stayed for six months, so that  Kingsbridge must vacate the premises by September 12, 2007. Defendant asserts that as the result of this eviction, she has no choice but to liquidate Kingsbridge. She thus concludes that since the evidence introduced at trial did not contemplate a liquidation of the business, the record is incomplete and inaccurate, thereby requiring that the trial be reopened so that she may introduce evidence to prove that Kingsbridge was, in fact, evicted, and to establish the financial consequences that liquidation will have on its value.

In opposition, plaintiff argues that Kingsbridge was properly valued as of December 31, 1998; that this court declined to consider the pending eviction of Kingsbridge when it rendered the Amended Trial Decision on April 17, 2007; and that this court is bound by the Appellate Division's finding that December 31, 1998 was properly selected as the valuation date for the parties' nursing home assets. In his affidavit, plaintiff again points out that Kingsbridge's landlord, CG Limited Partnership (CG), is an entity controlled by defendant and her siblings, so that the eviction cannot be characterized as an arms length transaction. Plaintiff also alleges that if defendant desired to do so, she could have found a new building out of which to operate the nursing home, as he did when Rofay Nursing Home, a nursing home awarded to him, was evicted, since the license for the facility was in her name.

In reply, defendant argues that Kingsbridge was evicted because of intra-familial disputes regarding the distribution of her late father's estate. More specifically, defendant avers that her sister, Briendy Melnicke, assumed control of CG and refused to settle the parties' dispute. Defendant further argues that although Kingsbridge was valued as "a going concern with indefinite duration," it is now clear that it should have been valued as a business having a duration of only 8.75 years, as posited by the Market Value Appraisal prepared by Courtney Lees, MAI, of Province Valuation Group, which values Kingsbridge at $ 6,675,000. Defendant rebuts plaintiff's claim that she could relocate Kingsbridge, explaining that since the Berger Commission Report is suggesting a downsizing in the number of nursing homes, the Department of Health will not approve a move of Kingsbridge.

Defendant's Investment in VCS

With regard to her claim that the trial should be reopened to allow her to submit evidence regarding plaintiff's transaction with VCS, defendant alleges that when she recently did a search on Google, she learned that plaintiff had invested money in VCS. She claims to have ascertained that between 1996 and 1998, plaintiff loaned more than $ 650,000 to VCS and held upwards of 167,000 shares of stock in the corporation, as is corroborated by the registration statement filed with the Security and Exchange Commission (SEC) on September 30, 1998. Defendant further avers that although plaintiff's agreement with VCS was restructured in a document dated August 12, 1998, he failed to include this loan on the net worth statements dated July 24, 1998, December 9, 1998 and October 12, 2001 that he filed in this divorce action. Defendant thus concludes that since plaintiff's failure to include these assets in his net worth statement and his lack of credibility worked to prejudice her by depriving her of her share of the investment, the Trial Decision should be amended to include distribution of this asset.

  In opposition, plaintiff alleges that in approximately 1996, he loaned $ 650,000 to VCS. By March 1998, when VCS' financial condition was deteriorating, plaintiff demanded the return of his money. In response, VCS advised plaintiff that they were attempting a public offering and that if it was successful, the company would be able to pay him back and/or give him stock and warrants. It subsequently became evident, however, that VCS could not find an underwriter to take it public. Hence, when he submitted his net worth statement in July 1998, plaintiff had already concluded that his investment in VCS had no value. Indeed, the SEC filing that defendant relies upon in support of her motion was withdrawn by December 1998. From this it follows that his investment in the company had no value when plaintiff filed his second net worth statement in December 1998. By "Order for Relief in an Involuntary Case," the petition filed by VCS on July 14, 1999 for relief under Chapter 7 of the Bankruptcy Code was granted (In re VCS Technologies, Bankruptcy Case No. 99-51078). Hence, by the time that he filed his third net worth statement dated October 12, 2001, VCS was bankrupt and the loan had no value.

Plaintiff further asserts that when he was deposed on February 18, 2000, defendant's attorney specifically asked him about the VCS transaction. Plaintiff also alleges that he discussed this investment at his deposition in the action which defendant commenced against the rabbis who granted the Heter (Sieger v Union of Orthodox Rabbis of the U.S. & Can., Inc., 1 A.D.3d 180, 767 N.Y.S.2d 78). Accordingly, defendant was well aware of the VCS transaction and she knew, at least as early as his deposition in February 2000, why he did not include the loan on his net worth statement. From this it follows that if defendant wished to question plaintiff about the VCS transaction at trial, she could have done so, but apparently chose not to because the investment had no value. Plaintiff therefore concludes that defendant's present motion is "a blatant attempt to mislead this court into thinking that she did not know about the VCS transaction until now." Plaintiff further avers that inasmuch as defendant's motion is therefore frivolous, he should be awarded sanctions, particularly since defendant's current counsel was advised that defendant was aware of the VCS transaction, but refused to withdrawn the motion.

Plaintiff also alleges that defendant's demands to reopen the trial must be denied as untimely pursuant to CPLR 4404. In the alternative, plaintiff argues that even if defendant's motions are characterized as made pursuant to CPLR 5015, they must fail, since they were not made in a reasonable time after the Judgment of Divorce was entered and defendant's demand for relief is not predicated upon any fraudulent claim. Finally, plaintiff avers that this is defendant's second frivolous motion in which she seeks to set aside the Trial Decision.

The Law

It is well settled that the court has the discretion either to permit or to prohibit the introduction of evidence after the party offering the evidence previously rested (see e.g. Feldsberg v Nitschke, 49 N.Y.2d 636, 643, 404 N.E.2d 1293, 427 N.Y.S.2d 751 [1980], rearg denied 50 N.Y.2d 1059, 431 N.Y.S.2d 1031 [1980]). "When a motion to reopen is made, the trial court should consider whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted" (Kay Found. v S & F Towing  [*5]  Serv., 31 AD3d 499, 501, 819 N.Y.S.2d 765 [2006]). Further:

"[A]n untimely motion to reopen should be denied (see, Mulligan v Wetchler, 39 A.D.2d 102, 332 N.Y.S.2d 68 supra; Matter of Wareham v Wareham, 34 A.D.2d 647, 309 N.Y.S.2d 990), especially when such a motion is made after the court rules on the relevant issue, the movant fails to disclose the nature of the omitted evidence and the evidence sought to be introduced is not newly discovered (see, Oregon Leopold Day Care Center Asso. v Di Marco Constructors Corp., 104 A.D.2d 719, 480 N.Y.S.2d 661)."

(Shapiro v Shapiro, 151 A.D.2d 559, 560-561, 542 N.Y.S.2d 339 [1989]; see also Matter of Radisson Community Assn. v Long, 28 AD3d 88, 92, 809 N.Y.S.2d 323 [2006], appeal dismissed 4 NY3d 870, 830 N.E.2d 1144, 797 N.Y.S.2d 815 [2005]; cf. Smith v Smith, 249 A.D.2d 813, 815, 671 N.Y.S.2d 829 [1998] [court did not abuse its discretion in granting plaintiff's motion to reopen the evidence, made immediately after defendant rested and prior to summations, for the limited purpose of introducing records concerning defendant's pension, which were inadvertently omitted from evidence during her direct case]). Finally, the discretion to reopen a case after a party has rested should be sparingly exercised (see e.g. Kay Found., 31 AD3d at 501, citing King v Burkowski, 155 A.D.2d 285, 547 N.Y.S.2d 48 [1989]).

In disposing of defendant's motions, the court must also consider CPLR 4404(b), which provides that:

"After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue."

Pursuant to CPLR 4405, "[a] motion under this article shall be made before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury. The court shall have no power to grant relief after argument or submission of an appeal from the final judgment."

CPLR 5015, in pertinent part, allows a court to relieve a party from a judgment or order on the grounds of:

"1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or

"2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or

"3. fraud, misrepresentation, or other misconduct of an adverse party."

Discussion

The court finds defendant's arguments in support of her request to reopen the trial on the issue of equitable distribution to be unpersuasive with regard to both the eviction of Kingsbridge and plaintiff's investment in VCS. With regard to the value of Kingsbridge, the court first notes that in seeking to convince this court that its valuation of Kingsbridge should be determined in a de novo trial after the Appellate Division remitted the matter, defendant raised the same argument. In addition, in his affirmation in opposition to plaintiff's cross motion seeking to require defendant's undertaking to remain on deposit with the Office of the County Clerk, which was disposed of in the Amended Trial Decision, defendant's counsel stated that defendant intended to file a motion asking this court to reopen her case to prove that the value of Kingsbridge can no longer be $ 16,000,000 in view of its forced liquidation. The court accordingly addressed that issue, rejected the contention, and stated that:

"In so valuing Kingsbridge, the court declines to consider the alleged forced liquidation of Kingsbridge following the issuance of a judgment of possession in favor of its landlord, CG, on March 13, 2007. In this regard, the court notes that defendant's role in forcing the liquidation of Kingsbridge cannot be ignored, since CG is an entity owned and controlled by defendant and her family. Hence, CG's decision to evict Kingsbridge, thereby forcing its liquidation, cannot be characterized as an arms length business transaction. As such, the liquidation may well be intended to frustrate plaintiff's ability to obtain payment of a distributive award.

"Moreover, defendant's claim that Kingsbridge should be valued now, after its liquidation, is without legal merit. "A trial court possesses discretion to select valuation dates for marital assets which are appropriate and fair under the circumstances, limited only by the requirement that the date be set sometime between the commencement of the action and the date of the trial" (D'Angelo v D'Angelo, 14 AD3d 476, 788 N.Y.S.2d 154 [2005], citing Moody v Moody, 172 A.D.2d 730, 731, 569 N.Y.S.2d 116 [1991]; Domestic Relations Law § 236 [B] [4] [b]; accord Weissman v Weissman, 8 AD3d 264, 265, 777 N.Y.S.2d 679 [2004]). Accordingly, this court is without authority to value Kingsbridge as of March 13, 2007, or any date thereafter, since the date is nine years after the commencement of the action on March 2, 1998, and two and one-half years after the commencement of the trial on August 2, 2004.

"In the alternative, in her appeal, defendant argued that the valuation date of December 31, 1998 that this court utilized to value Kingsbridge was improper. In its decision, the Appellate Division held that "[t]he wife's contention that the Supreme Court erred in selecting December 31, 1998, as the valuation date for the nursing home assets is without merit" (Sieger, 37 AD3d 585, 829 N.Y.S.2d 649, 2007 NY Slip Op 1286 at 7]). Inasmuch as the Appellate Division affirmed the valuation date, defendant is bound by that decision (see generally Preston Corp. v Fabrication Enters., 68 N.Y.2d 397, 405, 502 N.E.2d 197, 509 N.Y.S.2d 520 [1986] [the prior decision of the Appellate Division, which was not appealed, was law of the case, binding upon Special Term]; Luyster v Joseph, 179 NY 53, 56, 71 N.E. 458 [1904] [the parties must abide by the law of that case as laid down by the Appellate Division]).

(Amended Trial Decision, pp 10-11 [footnote omitted]). In addressing the issue herein, the court adheres to this reasoning and again reject's defendant's argument that Kingsbride should be revalued because of its recent eviction.

In so holding, the court also recognizes the need for litigation in a matrimonial action to enter a state of repose. If a spouse were permitted to reopen an action years after a judgment of divorce was entered to reapportion the distribution of assets because of a change in value, the parties' economic partnership, as well as their divorce action, would never end. Further, inasmuch as defendant presumably continued to profit from Kingsbridge after the Judgment of Divorce was entered, any revaluation would have to consider both the value of the business in view of the eviction and these profits, which would be a very complicated undertaking. In addition, the court would be compelled to consider whether defendant wastefully dissipated the asset by virtue of her actions in the probate dispute or in other disputes with her family. In this regard, it is self evident that defendant's relationship with her family should not be relevant to the distribution of assets as between her and her former husband.

It must also be noted that defendant has made several attempts to convince the court to modify its award of equitable distribution, i.e., in the papers that she submitted when the case was remitted, in her opposition to plaintiff's cross motion seeking to require that the cash undertaking remain on deposit pending the appeal, and in the two motions now before the court. Although she has continued to submit additional motions after the matter was remitted to this court six months ago, with her last motion returnable June 1, 2007, defendant continues to insist that disposition of her motions should be expedited because she has posted a cash undertaking to stay enforcement of the Judgment of Divorce pending appeal, so that it costs her money every day that the motions remain undecided. In this regard, it must be recognized that it was defendant who chose to post a cash undertaking, who chose to make additional motions seeking the modification of the Trial Decision months after the Appellate Division Decision was rendered and who has apparently not yet perfected her appeal of the Amended Trial Decision because she wishes to seek to consolidate all of the decisions in her appeal. Hence, defendant is responsible for any costs or inconvenience incurred by reason of the length of time involved in finally resolving the matters now before the court.

Turning again to the merits, the court further finds that defendant fails to offer a sufficient excuse with regard to why she did not introduce evidence with regard to the limited term of Kingsbridge's lease or plaintiff's investment in VCS at trial. With regard to Kingsbridge, defendant knew that its lease terminated on May 31, 2004 at the time that the business was appraised, as well as at the time of trial, but chose not to value Kingsbridge premised upon the limited duration of its tenancy. Similarly, defendant's claim that she was unaware of plaintiff's investment in VCS until she recently did a Google search is belied by the facts, since plaintiff was undeniably asked about the investment during his depositions. Moreover, defendant fails to offer any reason why she did not seek to introduce evidence of either during the trial. For the same reasons, neither the limited term of Kingsbridge's lease    nor plaintiff's investment in VCS can be characterized as newly discovered, since "[t]he so-called newly-discovered evidence was in existence before the judgment of divorce was issued and the defendant failed to establish that she could not have discovered it sooner with due diligence" (Vandelli v Vandelli, 266 A.D.2d 280, 698 N.Y.S.2d 506 [1999]; accord Kleet Lumber Co. v Saw Horse Remodelers, 13 AD3d 414, 787 N.Y.S.2d 64 [2004]; Reed v Reed, 13 AD3d 602, 786 N.Y.S.2d 358 [2004], appeal denied 5 NY3d 709, 836 N.E.2d 1153, 803 N.Y.S.2d 30 [2005]; Litras v Litras, 271 A.D.2d 578, 707 N.Y.S.2d 340 [2000]).

Further, although the court does not condone plaintiff's failure to include his investment in VCS in his net worth statements, defendant does not contest plaintiff's claim that by the time the statements were filed, the investments had no value. From this it follows that even if the investment had been considered by this court, it would not have altered the court's award of equitable distribution. Since it is well settled that vacatur pursuant to CPLR 5015(a)(2) on the ground of newly-discovered evidence requires the movant to establish that the new evidence, if introduced at trial, would probably have produced a different result, and that it would have gone to the heart of the factual issues in the case, defendant is similarly not entitled to relief from the Judgment of Divorce on this ground (see e.g. Reed v Reed, 13 AD3d 602, 786 N.Y.S.2d 358 [2004], appeal denied 5 NY3d 709, 836 N.E.2d 1153, 803 N.Y.S.2d 30 [2005]; Federated Conservationists v County of Westchester, 4 AD3d 326, 327, 771 N.Y.S.2d 530 [ 2004]).

In addition, since defendant's claim that she was not aware of plaintiff's investment until recently has been found to be patently incredible, and since the inclusion of the worthless VCS investment on plaintiff's net worth statements would not have altered the equitable distribution of the parties' marital assets, defendant has failed to establish fraud, misrepresentation, or other misconduct on the plaintiff's part sufficient to entitle her to vacatur of the judgment of divorce pursuant to CPLR 5015(a)(3) (see generally Mohrmann v Lynch-Mohrmann, 24 AD3d 735, 809 N.Y.S.2d 115 [2005]; Blumes v Madar, 21 AD3d 518, 520, 800 N.Y.S.2d 580 [2005]); Badgett v Badgett, 2 AD3d 379, 379, 767 N.Y.S.2d 792 [2003]). In this regard, it must also be recognized that while $ 650,000 is a significant amount of money, this court valued the parties' marital assets at approximately $ 38,000,000. In view of the couple's net worth, an investment of this amount was simply another routine business venture, albeit one that was not profitable.

Hence, defendant's motion to reopen the record is denied as it "was made belatedly (see Noga v Noga, 235 A.D.2d 1002, 653 N.Y.S.2d 47 [1997]; Shapiro, 151 A.D.2d at 560-561), and [t]his is not an instance in which a party [sought] to reopen and supply defects in evidence which have inadvertently occurred' (Matter of Radisson Community Assn., 28 AD3d at 91, quoting Dutchess County Dep't of Social Servs. ex rel. Sabrina T. v Shirley U., 266 A.D.2d 459, 460, 698 N.Y.S.2d 535" (Matter of Markham v Comstock, 38 AD3d 1262, 1264, 833 N.Y.S.2d 781 [2007]; see generally Jonas v Jonas, 4 AD3d 336, 770 N.Y.S.2d 889 [2004] [the court properly denied those branches of plaintiff's motion which were made, inter alia, pursuant to CPLR 5015(a)(2) to modify the judgment of divorce on the ground of newly-discovered evidence where plaintiff failed to establish that the evidence was not available at the time of the prejudgment proceedings or that it would likely have produced a different result regarding the equitable disposition of the marital residence]; Piotrowski v Patel, 288 A.D.2d 918, 733 N.Y.S.2d 670 [2001], appeal denied 98 N.Y.2d 644, 771 N.E.2d 832, 744 N.Y.S.2d 760 [2002] [the court properly denied plaintiffs' motion to set aside the verdict and for a new trial, pursuant to CPLR 4404(a), based upon the allegedly false testimony of defendant's expert witness where plaintiffs failed to establish that the evidence supporting their motion could not have been discovered earlier with due diligence or that the evidence was of such a nature, and was so positive and convincing, that it would have, in all probability, produced a different result]).

In so holding, the court also notes that none of the cases cited by defendant in support of her motion allowed a party to reopen a trial two and one-half years after the trial ended, two years after the decision after trial was rendered, and one year after the decision on appeal was rendered (see generally Gropper v St. Luke's Hosp. Ctr., 255 A.D.2d 123, 679 N.Y.S.2d 385 [1998] [the court properly denied plaintiff's motion to set aside the reinstated jury verdict, pursuant to CPLR 4404 and 4405, as untimely where the motion was interposed almost one year after the verdict was rendered]). The court also notes that although defendant argues that the trial should be reopened because plaintiff's credibility is now called into question by his failure to include his VCS investment on his net worth statements, her claim that she was unaware of the investment until recently is belied by the facts, hence undermining her credibility yet again, while defendant's explanation of his omission is credible.

In the alternative, the court finds that defendant's motion is untimely pursuant to CPLR 4405, since it was not made within 15 days after the Trial Decision was rendered on June 29, 2005 (see generally Brzozowy v Elrac, 39 AD3d 451, 833 N.Y.S.2d 590 [2007]; Bertan v Richmond Memorial Hosp. & Health Ctr., 131 A.D.2d 799, 800, 517 N.Y.S.2d 165 [1987]). Moreover, CPLR 4405 explicitly provides that "[t]he court shall have no power to grant relief after argument or submission of an appeal from the final judgment," so that the court's authority to reopen the trial terminated upon defendant's submission of her appeal. The court similarly finds that defendant's motion is untimely under CPLR 5015(a)(1), since it was not made within one year after the Trial Decision was rendered, and under CPLR 5015(a)(2), since it was not made within the time for making a motion pursuant to CPLR 4404.

Defendant's Motion to Hold Plaintiff in Contempt

The Parties' Position

In support her motion, defendant argues that plaintiff should be held in contempt for failing to include the VCS investment on his net worth statements, since this failure violates DRL § 236B(4). In opposing the motion, plaintiff relies upon the same arguments raised in opposition to defendant's motion to reopen the trial, i.e., that the omission was inadvertent, since he did not include the investment because he did not believe that it had any value; that defendant was aware of the investment since as least February 2000, when he was first deposed; and that the inclusion of the investment would not have altered the court's award of equitable distribution, since the investment had no value.

The Law

Pursuant to Judiciary Law § 753:

"A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced."

It is well settled that in order "[t]o sustain a finding of civil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clearly expressing an unequivocal mandate was in effect and the person alleged to have violated the order had actual knowledge of its terms'" (Biggio v Biggio, 41 AD3d 753, 839 N.Y.S.2d 527 [2007], quoting Ottomanelli v Ottomanelli, 17 AD3d 647, 648, 794 N.Y.S.2d 90 [2005]). In discussing the burden of proof in a civil contempt proceeding, it is well settled that the moving party bears the burden of proving contempt by clear and convincing evidence (see e.g. Biggio, 41 AD3d 753, 839 N.Y.S.2d 527; Dankner v Steefel, 41 AD3d 526, 838 N.Y.S.2d 601 [2007]; Raphael v Raphael, 20 AD3d 463, 463-464, 799 N.Y.S.2d 108 [2005];Vujovic v Vujovic, 16 AD3d 490, 791 N.Y.S.2d 648 [2005]; Sklover v Sklover, 11 AD3d 527, 782 N.Y.S.2d 792 [2004]). Furthermore, the moving party is required to demonstrate that the alleged contempt prejudiced his or her rights (see e.g. Biggio, 41 AD3d 753, 839 N.Y.S.2d 527; Raphael, 20 AD3d at 463-464; Vujovic, 16 AD3d at 491; Sklover, 11 AD3d at 528).

As is also relevant to the issues presented herein, DRL § 236B(4), compulsory financial disclosure, provides, in relevant part:

"In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states. A sworn statement of net worth shall . . . include all income and assets of whatsoever kind and nature and wherever situated and shall include a list of all assets transferred in any manner during the preceding three years, or the length of the marriage, whichever is shorter . . . Noncompliance shall be punishable by any or all of the penalties prescribed in section thirty-one hundred twenty-six of the civil practice law and rules, in examination before or during trial."

Discussion

As a threshold issue, although defendant does not so specify, it appears that she is seeking to punish plaintiff for civil contempt, since that is the remedy sought in the cases that she relies upon (see e.g. McCain v Dinkins, 84 N.Y.2d 216, 639 N.E.2d 1132, 616 N.Y.S.2d 335 [1994], motion denied 84 N.Y.2d 846, 641 N.E.2d 152, 617 N.Y.S.2d 132 [1994]; Di Santo v DiSanto, 29 AD3d 935, 816 N.Y.S.2d 520 [2006]; Rupp-Elmasri v Elmasri, 305 A.D.2d 394, 395, 758 N.Y.S.2d 524 [2003]; Kim v Kim, 170 Misc 2d 968, 652 N.Y.S.2d 694 [1996]). Further, the court notes that the last sentence of DRL § 236B(4) clearly provides that "[n]oncompliance shall be punishable by any or all of the penalties prescribed in section thirty-one hundred twenty-six of the civil practice law and rules," without any mention being made of a motion seeking to punish a noncomplying spouse by holding him or her in contempt.

Although defendant cites authority for her argument that a finding of contempt may be premised upon misrepresenting assets in a net worth statement, the court finds these cases do not provide authority for such a finding here. More specifically, although DiSanto may be interpreted to support such a finding, the court therein found insufficient evidence to hold  plaintiff wife in contempt (DiSanto, 29 AD3d at 935). Also significant is the fact that the cases cited therein, Rienzi v Rienzi (23 AD3d 447, 448-449, 808 N.Y.S.2d 113 [2005]), Raphael (20 AD3d at 463-464) and Vujovic (16 AD3d at 491), are not cases in which misstatements in a net worth statement were in issue. More particularly, in Rienzi, the wife sought to hold the husband in contempt for failing to comply with the provisions of the judgment of divorce (Rienzi v Rienzi, 23 A.D.3d 447, 449, 808 N.Y.S.2d 113). In Raphael, the wife sought to hold the husband in contempt for disposing of assets in violation of a restraining order (Raphael, 20 AD3d at 464). In Vujovic, plaintiff wife moved to hold the husband in contempt for violating a so-ordered stipulation (Vujovic, 16 AD3d at 491).

Further, the Kim case is readily distinguishable from the case at bar. Significantly, that case involved misstatements made by the plaintiff in his net worth affidavit and relied on by the court in awarding defendant pendente lite support and maintenance. The case is, therefore, in a different procedural stance, since the relief was awarded during the pendency of the action, and not after the trial had been completed, where the parties had a full opportunity to litigate the matter on the merits, and after a decision was rendered on appeal. In addition, the facts of that case bear no similarity to the facts herein. In Kim, the parties married in South Korea, where they lived for one and one-half years before moving to the United States. The plaintiff husband was a pathologist who claimed an income of $ 354,436 and expenses of $ 372,724; the wife was not fluent in English and did not work outside of the home so that she could care for the parties' three children. In his net worth statement, the husband failed to disclose that he was paying his alleged paramour approximately $ 5,000 per month and giving approximately $ 12,000 to his relatives; he claimed loan payments of $ 4,000 a month while actually paying only $ 1,000; and he claimed educational expenses of $ 96,000 a year while actually paying only $ 63,000. Plaintiff's misrepresentations resulted in the court increasing the wife's pendente lite award and fining the husband $ 10,000 for his contemptuous deceit.

In contrast, in this case, the wife is a sophisticated business woman who ran a nursing home that this court valued at $ 16,823,348. Further, plaintiff's failure to list his investment in VCS on his net worth statements did not impact on the court's award of equitable distribution, since the investment had no value. In addition, as was discussed above, defendant was aware of this as early as February 2000, when plaintiff was questioned about the investment at his deposition. Hence, her claim that plaintiff concealed this investment from her is specious. From this it also follows that defendant cannot prove an essential element of contempt i.e., that plaintiff's actions prejudiced her rights in any way (Webb v Torrington Indus., 28 AD3d 1216, 812 N.Y.S.2d 903 [2006] [the court properly found defendant in contempt of court for willfully deceiving the court in a manner injurious to plaintiffs' rights as judgment creditors]). Defendant's inability to establish that she was prejudiced precludes a finding of contempt (see e.g. Raphael, 20 AD3d at 463-464; Vujovic, 16 AD3d at 491; Sklover, 11 AD3d at 528). Accordingly, while there may be cases where the facts support a finding of contempt based upon a spouse concealing assets in his or her net worth statement, this is not such a case.

Similarly lacking in merit is defendant's claim that the special referee assigned to supervise discovery herein carried out his duties improperly by "failing to appraise some martial assets" and because he "uncovered no bank accounts from plaintiff." In so holding, the court first notes that this argument has been rejected on each of the previous occasions when plaintiff raised it. Of particular significance in this regard is the holding of the Appellate Division that:

"The wife's contention that she is entitled to additional discovery and that the appraisals are tainted due to the involvement of a certain special discovery referee in this case could have been raised on the wife's prior appeals from the orders of the same court dated April 15, 2004, and July 30, 2004, denying her motions. On February 22, 2005, those appeals were dismissed for lack of prosecution. The dismissal of those appeals constituted an adjudication on the merits with respect to all issues which could have been raised, and we decline to review those issues on this appeal (see Rubeo v National Grange Mut. Ins. Co., 93 N.Y.2d 750, 755-756, 720 N.E.2d 86, 697 N.Y.S.2d 866; Bray v Cox, 38 N.Y.2d 350, 342 N.E.2d 575, 379 N.Y.S.2d 803; Silvestre v Shelley, 30 AD3d 401, 816 N.Y.S.2d 195)."

(Sieger v Sieger, 37 AD3d at 652). Accordingly, as discussed above, this court is bound by the Appellate Division's determination that defendant is precluded from now arguing that discovery is tainted because of the involvement of the special referee.

In the alternative, defendant cites no authority for her assertion that a referee appointed to supervise discovery has an obligation to actively participate in the litigation and obtain discovery for the benefit of either party (see CPLR 3014; see generally Cillo v Resjefal Corp., 32 AD3d 274, 820 N.Y.S.2d 47 [2006] [supervision by a referee was necessary so that discovery necessitated by plaintiff's death and subsequent filing of new cause of a action for wrongful death would be conducted by defendant as soon as possible and would be properly limited]; Katzen v Balaj, 2 AD3d 103, 769 N.Y.S.2d 13 [2003] [the circumstances warranted the appointment of a referee to supervise disclosure where it was not clear how much further disclosure plaintiff should have]; Merchants Indem. v Wallack, 14 A.D.2d 777, 219 N.Y.S.2d 1014 [1961] [referee who would supervise discovery of policies issued during the year preceding issuance of the policy which the insurer sought to have declared void might determine when, where and the manner in which discovery should proceed]).

Plaintiff's Demand for the Imposition of Sanctions

While the court finds no merit to defendant's motion to hold plaintiff in contempt or to reopen the trial, the court does not find that her conduct in so moving rises to the level where sanctions should be imposed. In view of the fact that defendant has already made several attempts to convince the court to modify its award of equitable distribution, i.e., in the papers that she submitted when the case was remitted, in her opposition to plaintiff's cross motion seeking to require that the cash undertaking remain on deposit pending the appeal, and in the two motions now before the court, a future motion seeking the imposition of sanctions against both defendant and her counsel may be entertained, particularly in view  of the fact that the Trial Decision was affirmed on appeal with regard to the issues that defendant now seeks to modify.

Conclusion

All relief requested by both parties is denied.

The foregoing constitutes the order and decision of this court.