Justice Saralee Evans

NEW YORK COUNTY
Supreme Court

 The defendant's motion is decided as follows: Defendant in this order to show cause seeks suppression of material from the hard disk of a lap top computer that was found by plaintiff in the car used by her husband. Defendant claims that the computer was his personal property and that on August 23, 2007, plaintiff improperly "seized" it from the trunk of the car. He contends that she illegally obtained access to material on the hard drive, in violation of several provisions of the Penal Law governing wiretapping and other interference with the transmission of information.

Defendant also moves to dismiss the Third, Fourth, Fifth and Sixth causes of action set forth in the complaint for laches, or to sever those claims which sound in tort and grant a change of venue with respect to them and stay proceedings on those actions until the conclusion of an allegedly pending criminal prosecution.

Plaintiff opposes the motion to suppress, contending that neither the computer nor the car where it was found was defendant's alone, that defendant's counsel agreed that plaintiff could make a copy of the disk for each of the parties' use, that none of the material that was accessed by plaintiff's technician was encrypted or otherwise protected, and that there was no interference with communication that might constitute wiretapping or eavesdropping as defined under the Penal Law.

The parties agree that just prior to the commencement of the action plaintiff obtained possession of the laptop from the trunk of a car to which they both had access. Plaintiff and the parties' two adult daughters identified the computer as one that was used by all members of the family, that had until been kept in the family room until removed by defendant. Defendant states that on the contrary, the laptop at issue was not the one used by his family but is one that he obtained from his former employer in April of 2007, to which no one else had access.

There is no dispute that plaintiff's counsel immediately notified defendant's attorney that she had the computer and asked for the password. The attorneys informally agreed in August that defendant would provide the password and pay for the cost of making two copies of material plaintiff's counsel downloaded. Nothing further transpired and in October, counsel entered into a written stipulation that plaintiff's counsel would have a clone of the hard drive made without any deletions or alteration, with copies for both parties. This was done and, according to plaintiff's computer technician the material on the drive was accessed and copied without any use of passwords as the files were not encrypted. Since that time, repeated references to material from the hard drive were made in various affidavits presented to Justice Joan B. Lobis, the prior judge assigned to this matter. See Plaintiff's Affidavits dated November 8, 2007, and December 4, 2007. The issue of suppression was first raised in May of 2008, after the case had been transferred to this Court.

As an initial matter the sections of the Penal Law cited by defendant do not govern the circumstances presented. In accessing the disputed files, plaintiff did not intercept, overhear or access electronic communications. The communication at issue, defendant's on line chats with the co-defendant, occurred on unstated prior occasions, presumably in perfect privacy. A recording of those communications was saved by defendant. Plaintiff's subsequent access to that material downloaded and saved to the hard drive of the computer was not the result of an intercepted communication and does not constitute a violation of Penal Law §250.05.

Defendant further charges plaintiff with using a computer without authorization, under P.L. §§156.05, computer trespass under P.L. §156.10, and criminal possession of computer related material, P.L. §156.35. Defendant states that only he was authorized to log on and that his password was a "strong" one. Plaintiff's expert explains, however, that to make the copies authorized under counsels' stipulation, there was no need to run the copy of Windows Operating System installed on the computer. He further attests that no files on the computer were encrypted and no passwords were required. Defendant's allegations of trespass and unauthorized access are in any event belied by the stipulation entered into in court and so ordered by Judge Lobis authorizing plaintiff's access to the entire hard drive.

Under the circumstances, defendant's motion in limine and for sanctions are both denied.

Defendant also moves to strike causes of action Third through Sixth of the complaint. These causes of action sound in negligence and tort, and are based upon two of the incidents that are set forth as a basis for a finding of cruel and inhuman treatment in Article First.

Defendant objects that the complaint was not served until eight months after a demand for same, and that the inclusion of tort claims that were not contained in the Summons with Notice would prejudice him. "[A] notice contained in a summons is effectual, however, only in the case of a default . . . .'if the defendant appears the notice at once is rendered of no importance,'" and defendant's liability is measured entirely by the allegations in the complaint. Everitt v. Everitt, 4 N.Y.2d 13, 16 (1958) quoting Sharp v. Clapp, 14 App. Div. 445, 447.

Defendant further contends that he only subjected himself to the jurisdiction of this court for the purpose of litigating the parties' divorce. The law is clear, however, that by interposing a general appearance defendant waived objection to jurisdiction for all purposes. Everitt v. Everitt, supra, at17., see also, Langin v. Langin, 57 A.D.2d 775 (1st Dept. 1977).

Defendant claims to be prejudiced by inclusion of plaintiff's tort claims. The claims are, however, based entirely upon facts already pleaded in the initial notice, and constitute at most another theory based upon the same facts. He denied all of these facts in his initial answer, and denies them again in his supplemental answer. No prejudice results from inclusion of the challenged causes of action, except that defendant took the plaintiff's deposition before the complaint was served. Defendant is therefore entitled to reopen that deposition to question plaintiff about the tort and negligence claims and the damages that purportedly resulted therefrom.

Defendant alternatively seeks a change of venue and a stay of the tort action. He contends that if the matrimonial and tort claims are tried together, the result will be an unwieldy procedure involving multiple attorneys for each side and a jury to decide the tort and negligence issues. Counsel states that defendant is facing or has faced a criminal proceeding involving the same allegations set forth as the basis for the allegation of cruel and inhuman treatment and the tort claims, that was scheduled for trial on May 29, 2008. She contends that the tort action should be stayed until the conclusion of that action.

While severance of plaintiff's tort and negligence claims might streamline this litigation, plaintiff is "free to join [her] interspousal tort claims with the matrimonial action." Xiao Yang Chen v. Fischer, 6 NY 3d 94, 102 (2005). Moreover, "if fault allegations are actually litigated in a matrimonial action, res judicata or some form of issue preclusion would bar a subsequent action in tort based on the same allegations." Ibid at 102-03. Here, grounds are contested and identical factual issues have bearing on the matrimonial and tort claims, so that a failure to pursue all claims might result in later preclusion.

Defendant in his answer and supplemental answer denies all of the alleged facts relevant to the tort/ negligence claims, the matrimonial action, and presumably to the criminal complaint. If plaintiff elects to have a jury hear the tort and negligence claims, any equitable distribution award shall be rendered after the jury verdict, so that an award on those claims can be taken into account. Maharam v. Maharam, 177 AD2d 262 (1st Dept. 1991). Also, if defendant's criminal prosecution remains unresolved as the time of trial approaches, the issue of a temporary stay may be revisited.

For the foregoing reasons, defendant's motion is denied.

This constitutes the decision and order of the court. Any issues raised and unaddressed herein, have nevertheless been considered by the court and are denied.

Supreme CourtJusticeEvans