By Friedman, J.P., Kapnick, Kern, Oing, JJ. 10531. & M-8500. In re Jay Sarkar, pet-ap, v. The City of New York res-res — Jay Sarkar, appellant pro se. Georgia M. Pestana, Acting Corporation Counsel, New York (Antonella Karlin of counsel), for res — Order and judgment (one paper), Supreme Court, New York County (Carmen Victoria St. George, J.), entered August 7, 2017, denying the petition to compel respondent New York City Office of Special Commissioner of Investigation (SCI) to remove from its website an investigation report dated December 12, 2006, that substantiated allegations against petitioner of theft of services and recommended that he be deemed ineligible to work as a contractor for respondent New York City Department of Education (DOE), and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs. The decision not to remove the report upon petitioner’s request was not arbitrary and capricious (Matter of Peckham v. Calogero, 12 NY3d 424, 431 [2009]; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 232 [1974]). The record demonstrates that SCI considered petitioner’s refusal to participate in its investigation, the nature of the conduct it substantiated, and the public interest in exposing misconduct. It was not unreasonable for SCI to conclude that petitioner’s untimely rebuttal, submitted to the DOE months after it adopted SCI’s recommendations, and the almost 10 years that passed from the report’s publication before petitioner’s current request, did not compel the report’s removal. Petitioner’s challenge to SCI’s authorization to publish reports online is unpreserved and, in any event, unavailing (see Matter of WE 223 Ralph LLC v. New York City Dept. of Hous. Preserv. & Dev., 173 AD3d 436, 437 [1st Dept 2019]). The Special Commissioner is authorized to “issue such reports regarding corruption or other criminal activity, unethical conduct, conflicts of interest, and misconduct, that he or she deems to be in the best interest of the school district” (NYC Executive Order No. 11, §3[a] [1990]). The power to publish substantiatedmisconduct is necessarily implied (see Matter of City of New York v. State of N.Y. Commn. on Cable Tel., 47 NY2d 89, 92 [1979]). M-8500 In re Sarkar v. City of New York Motion for reconsideration denied. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Friedman, J.P., Webber, Kern, Moulton, JJ. 10670. Garey Gordon, plf-res, v. Hope Anderson, def-ap — Dikman & Dikman, Lake Success (David S. Dikman of counsel), for ap — Fuchs & Eichen, Harrison (Linda A. Eichen of counsel), for res — Judgment, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about January 5, 2018, insofar as appealed from as limited by the briefs, awarding plaintiff husband 50 percent of the appreciation of defendant wife’s separate real property, 50 percent of the cash surrender value of the wife’s life insurance policies, and directing the wife to pay the husband outstanding counsel fees in the amount of $41,355.31, unanimously modified, on the law and the facts, to deny the husband any portion of the appreciation of the wife’s separate real property, and otherwise affirmed, without costs. The court improperly distributed 50 percent of the appreciation of the wife’s separate real property because the husband failed to establish his entitlement to it. The husband argues that he is entitled to 50 percent of the appreciation of the property on the ground that he actively contributed toward the renovations of the property. However, the husband fails to provide any nexus between his alleged contributions and the property’s appreciation in value. The husband relies on the testimony of a city tax assessor, who testified only as to the property’s passive appreciation, specifically, that the property appreciated in value based on comparative sales in the area, and did not testify that any appreciation in value was due to the renovations done to the property. Indeed, the assessor could not have testified as to whether the property appreciated due to the renovations because he never entered the property to view any of the renovations and he did not take such renovations into account when making his assessment. Regarding the wife’s life insurance policies obtained before the marriage, the court distributed the total cash surrender value as set forth in documents subpoenaed by the husband and entered into evidence at trial. Thus, contrary to the wife’s contention, there was an evidentiary basis for its valuation. While generally only the appreciated cash value of the policies would be subject to equitable distribution if made with marital funds (see Sheehan v. Sheehan, 161 AD3d 912, 914 [2d Dept 2018]), here the wife was precluded from entering into evidence any related documentation at trial, after refusing to comply with the husband’s discovery demands. As a result, the wife was unable to establish the separate property component of these policies, and thus the court acted within its discretion in treating the total cash surrender value as marital property to be divided equally (see Behan v. Kornstein, 164 AD3d 1113, 1116 [1st Dept 2018], lv dismissed in part and denied in part 32 NY3d 1078 [2018]). The court properly considered the financial circumstances of the parties together with all the circumstances of the case, including the relative merit of the parties’ positions, in directing the wife to pay the husband’s outstanding counsel fees (see DeCabrera v. Cabrera-Rosete, 70 NY2d 879 [1987]). Furthermore, the court considered the wife’s obstructionist tactics in needlessly prolonging this litigation, such as failing to disclose assets and comply with discovery demands, and disrupting the courtroom during trial (see Johnson v. Chapin, 12 NY3d 461, 467 [2009]. Under these circumstances, the counsel fee award, representing approximately 60 percent of the husband’s total fees, was not excessive (see Behan at 1116). We have considered the wife’s remaining arguments and find them unavailing. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
