Upon the following papers read on the motions, to wit: 1. Plaintiff’s Notice of Motion and Supporting Papers; 2. Plaintiff’s Attorney Affirmation in Support of Motion; 3. Defendant’s Notice of Cross-Motion and Supporting Papers; 4. Defendant’s Affidavit in Support of Cross-Motion; 5. Defendant’s Attorney Affirmation in Support of Cross-Motion; 6. Plaintiff’s Affidavit in Reply; 7. Plaintiff’s Attorney Affirmation in Reply; and 8. Defendant’s Attorney Affirmation in Reply DECISION & ORDER BRIEF BACKGROUND The parties were married on April 19, 2003. This consolidated action involves a matrimonial action commenced through the filing of a Summons with Notice on August 22, 2011 and a plenary action filed in 2012 to set aside a prenuptial agreement purportedly executed on two different dates: March 17, 2003, and as an antenuptial on April 12, 2004. The parties have been involved in extensive litigation in this matter, including appellate review of numerous applications. The most recent Appellate Order associated with this case was issued on January 27, 2021 [DE 24]. A Note of Issue was filed on the Matrimonial action on August 14, 2012 prior to the consolidation of the two matters on March 3, 2016. The March 3, 2016 Consolidation Order granted the application for consolidation to the extent that the validity and enforceability of the agreement is anow a question that this Court must determine [DE 21]. A Note of Issue was filed by Plaintiff on the plenary action on February 23, 2021. Currently before the Court is Plaintiff’s motion to vacate the Note of Issue and to compel discovery and Defendant’s Cross-motion seeking relief related to discovery issues. NOTE OF ISSUE Branch A of Plaintiff’s application seeks an Order pursuant to 22 NYCRR §202.21(e), vacating a defective Note of Issue filed by Defendant. Defendant opposes Plaintiff’s application to vacate the Note of issue asserting that the 2021 Rescission action is ready for trial. After the filing of a Note of Issue, a party can seek to vacate a note of issue through 22 NYCRR §202.21(e), which provides, in pertinent part: [w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. Plaintiff filed her motion pursuant to 22 NYCRR 202.21 (e), within the requisite 20 day period and asserts that discovery is incomplete and the matter is not ready for trial.” Tirado v. Miller, 75 AD3d 153, 901 N.Y.S.2d 358 (2d Dep’t 2010). A. Procedural Sufficiency of Application for Vacatur Defendant does not oppose the timeliness of Plaintiff’s application to vacate the Note of Issue but instead opposes Plaintiff’s application asserting that Plaintiff’s application is jurisdictionally insufficient because it was unaccompanied by a factual affidavit from Plaintiff. Any motion “relating to” discovery or bills of particulars must have served and filed with the motion papers an affirmation that the attorney for the moving party has conferred in good faith with the counsel for the opposing party in order to attempt to resolve the issues that are contained in the motion. 22 NYCRR 202.7(a) and (d). The same holds true for a motion that in any way relates to discovery. See also Matos v. Mira Realty Met. Corp., 240 A.D.2d 214, 658 N.Y.S.2d 880 (1st Dept. 1997) and Vasquez v. G.A.P.L.W. Realty, Inc., 236 A.D.2d 311, 654 N.Y.S.2d 16 (1st Dept. 1997). A review of Plaintiff’s papers reveals that Plaintiff’s Counsel did not file a separate affirmation of good faith but rather include Counsel’s efforts to resolve the dispute in his Attorney Affirmation in Support of the application to vacate the Note of Issue. The Affirmation references Counsel’s efforts to resolve the outstanding discovery issues, which includes Plaintiff’s Counsel’s letter to Counsel for Defendant dated March 11, 2021 and discussions during a conference with this Court. Plaintiff’s Counsel is correct that this Court conferenced with Counsel on February 2, 2021 wherein Counsel informed the Court of the January 27, 2021 Decision. This Court was also informed of Plaintiff’s Counsel intent to file “streamlined discovery demands” upon Defendant’s Counsel. In response to Defendant’s Counsel expressing her desire to file a Note of Issue, Plaintiff’s Counsel reiterated his intent to file discovery demands in accordance with the Appellate Division Decision as discovery was not complete. Not having had the opportunity to review the Appellate Division decision as of February 2, 2021, this Court directed the parties to confer regarding the Decision and to take steps they believed to be in accordance with the Appellate Division Decision and set a subsequent conference for March 9, 2021 for a status update. On February 23, 2021, Defendant filed a Note of Issue. During the conference of March 9, 2021, there was discussion surrounding Plaintiff’s desire to have Defendant withdraw the Note of Issue to avoid lengthy motion practice. Plaintiff’s Counsel served his streamlined discovery demand on Defendant on March 12, 2021, and followed up with Defendant’s Counsel regarding his request to have Defendant withdraw the Note of Issue. This Court notes that Defendant’s Counsel did in fact respond to Plaintiff’s Counsel via correspondence dated March 16, 2021 rejecting Plaintiff’s Notice for Discovery and Inspection and requesting that Counsel “withdraw this second demand so that this matter can finally proceed to hearing and be finalized”. In her correspondence dated March 16, 2021, Defendant’s Counsel’s referenced certain purported deficiencies in the Notice and ultimately requested withdrawal of the demands so that a hearing can be conducted. There was no request to modify the Notice to address any purported deficiencies. Based on the aforementioned, this Court accepts the efforts reflected in Plaintiff’s Attorney Affirmation as Plaintiff’s good faith attempts to resolve the dispute in satisfaction of 22 NYCRR §202.7(c). See Mironer v. City of New York, 79 AD3d 1106, 915 N.Y.S.2d 279 (2d Dept 2010); Bronstein v. Charm City Housing, LLC, 175 A.D.3d 454, 106 N.Y.S.3d 331 (2d Dept 2019) and 241 Fifth Ave. Hotel, LLC v. GSY Corp., 110 AD3d 470, 106 N.Y.S.3d 331 (1st Dept 2013). Further, the Attorney Affirmation details the outstanding discovery items in this action (discovery responsive to Notice for Discovery and Inspection and depositions), details which are in his personal knowledge as Counsel for Plaintiff. As such, Defendant’s argument fails and this Court deems Plaintiff’s Attorney Affirmation sufficient to satisfy the requirements under 22NYCRR 202.7. B. Facial Sufficiency of Note of Issue In support of his application to vacate the Note of Issue, Plaintiff’s Counsel argues that Defendant’s Note of Issue should be vacated because it is deficient as it did not include a trial Certification Order and it improperly noted “without jury” under matrimonial Index No. 026233/2011. This Court finds that, given this Court’s vacatur of the Note of Issue, infra, Plaintiff’s argument is moot. C. Readiness for Trial Where a party’s motion to vacate the note of issue is timely, the party is “required only to demonstrate why the case [is] not ready for trial, and [is] not required to establish that additional discovery [is] necessary because [is] unusual or unanticipated circumstances [have] developed subsequent to the filing of the note of issue” See Jacobs v. Johnston, 97 A.D.3d 538, 948 N.Y.S.2d 321 (2d Dep’t 2012); Audiovox Corp. v. Benyamini, 265 A.D.2d 135, 707 N.Y.S.2d 137 (2d Dept. 2000); and see 22 NYCRR 202.21[d][e]. As stated supra, Plaintiff’s Attorney Affirmation details why this case is not ready for trial, asserting that there remains outstanding discovery items, which includes responses to Plaintiff’s Notice for Discovery and Inspection and depositions. Defendant refutes this argument by stating that all discovery is complete in this case, and alternatively, if the Court finds that there still remains discovery, Plaintiff’s actions throughout the pendency of this consolidated action warrants the denial of Plaintiff’s request for vacatur. More specifically, Defendant alleges that this matter has been pending since 2012 and that Plaintiff’s persistent disregard for the orders of the lower and Appellate Courts and Plaintiff’s failure to exercise good faith efforts to resolve discovery disputes has resulted in this protracted litigation. While this matter has been open for a number of years, this Court does not find that Plaintiff failed to take effort to procure discovery sought prior to the filing of the Note of Issue nor that the failure to procure discovery is deemed solely the fault of Plaintiff. Rather, it was the extensive motion practice of both parties that resulted in this protracted litigation and stalled discovery in this consolidated action. As such, Defendant’s arguments are without merit and do not warrant the denial of Plaintiff’s application for vacatur of the Note of Issue. This Court grants Branch A of Plaintiff’s application which seeks an Order pursuant to 22 NYCRR §202.21(e), vacating a defective note of issue filed by Defendant. Defendant’s application to vacate the Note of Issue is GRANTED. DISCOVERY Plaintiff’s Motion to Compel Branch B of Plaintiff’s application seeks an Order pursuant to CPLR §3124, directing Defendant to respond to discovery, and to sit for an Examination Before Trial within 90 days of an order directing same. Plaintiff is permitted pursuant to CPLR §3124 to file an application to compel compliance or a response if a person fails to comply with any, inter alia, notice or demand under Article 31. An affirmation of good faith is required when seeking relief under CPLR §3124. See 22 N.Y.C.R.R. §§202.7(a) and (c); see also Chervin v. Macura, 28 A.D.3d 600, 602 (2d Dept. 2006). As detailed above, Plaintiff satisfied this requirement based on the Attorney Affirmation provided in Support of Plaintiff’s application. Furthermore, as Plaintiff correctly notes, no less than two court conferences were held with respect to Plaintiff’s intent to file “streamlined” discovery demands. Importantly, the Court notes that Defendant was given the opportunity to work with Plaintiff’s Counsel and delineate the specific objections Defendant had to each of Plaintiff’s requests in Plaintiff’s Notice for Discovery and Inspection and/or withdraw the Note of Issue. Rather, Defendant rejected Plaintiff’s Notice for Discovery and Inspection. Accordingly, the Court finds that Plaintiff has satisfied the requirement to first move to compel under CPLR §3124. See e.g. Diel v. Rosenfeld, 12 A.D.3d 558, 12 A.D.3d 558 (2d Dept. 2004) and Charter One Bank, FSB v. Houston, 300 A.D.2d 429, 751 N.Y.S.2d 573 (2d Dept. 2002). Defendant argues that the Appellate Division decision dated January 27, 2021 did not allow for any further discovery in this action. The Court disagrees with this interpretation of the January 27, 2021 Appellate Division Decision. A review of the Decision reveals that the holding did not foreclose further discovery in this action. Instead, the Court reasoned that “Plaintiff’s Notice for Discovery and Inspection was palpably improper in that it was overbroad and burdensome, sought irrelevant and confidential information and failed to specify with reasonable particularity many of the documents demanded.” The Decision does not preclude Plaintiff from continuing to seek discovery through appropriate discovery mechanisms. This Court finds that discovery shall continue related to the remaining causes of action in the plenary action, namely the claims to set aside or rescind the agreement based on duress, coercion, undue influence and unconscionability and fraudulent inducement. As it relates to depositions, given the length of time passed during the pendency of this action, the amount of motion practice and the lack of discovery transpired, this Court finds that the parties should be permitted to conduct depositions in this matter. This Court grants Branch B of Plaintiff’s application which seeks an Order pursuant to CPLR §3124 to the extent that Defendant is to respond to Plaintiff’s streamlined discovery demands within 30 days of the date of this Order. Furthermore, the parties are to submit to depositions in accordance with a schedule and terms delineated during the next Court conference dated August 6, 2021. Defendant’s Cross-Motion Protective Order and Motion to Strike Demands Branch 2 of Defendant’s application seeks a Protective Order relieving him from the obligation to respond Plaintiff’s Demand for Discovery and Inspection. Branch 3 of Defendant’s application seeks an Order striking and quashing Plaintiff’s Demand for Discovery and Inspection in its entirety. “Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order precluding disclosure that is palpably improper in that it seeks irrelevant and/or confidential information, or is overly broad and burdensome. Trial courts are vested with broad discretion to issue appropriate protective orders to limit discovery…. [T]his discretion is to be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind.” Arch Ins. Co. v. Delric Constr. Co., 174 A.D.3d 560, 103 N.Y.S.3d 568, 570 (2d Dep’t 2019)[Citations omitted] In Defendant’s Affidavit, Defendant argues that Plaintiff’s Discovery demands from two years ago demanded sixteen years of privileged legal communications, medical records (including X-rays), and every check, deposit slip, account statement and financial document Plaintiff ever issued or been issued. The Appellate Division held that Plaintiff’s Notice for Discovery and Inspection was overbroad and burdensome, sought irrelevant or confidential information, and failed to specify with reasonable particularity many of the documents demanded. Defendant alleges that the Notice for Discovery and Inspection that is the subject of the instant motion is equally improper based on relevancy as Plaintiff is demanding “almost the same array of documents and materials, but now from 2003 through the end of 2004″. This Court does not have the benefit of reviewing the Notice of Discovery and Inspection served by Plaintiff two years ago. However, this Court reviewed Plaintiff’s Notice for Discovery and Inspection dated March 10, 2021 and does not find the Notice for Discovery and Inspection to be overbroad, irrelevant or lacking in specificity warranting a protective order to protect Defendant against unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice. See CPLR 3103. Defendant points out certain individualized objections to various paragraphs in Plaintiff’s Notice for Discovery and Inspection. The Court notes that in providing written responses to the Notice for Discovery and Inspection, Defendant is well within his right to object to specific paragraphs of Plaintiff’s Notice for Discovery and Inspection in accordance with CPLR 3122. The Court acknowledges that until the invalidity of the agreement is established, broad financial disclosure should be denied. McLean v. Balkoski, 125 A.D.2d 234, 509 N.Y.S.2d 34 (1st Dept. 1986) As such, Defendant’s applications for a Protective Order and motion to strike is DENIED. Motion to Strike Pleadings Branch 5 of Defendant’s application seeks an Order striking Plaintiff’s pleadings pursuant to CPLR 3016. Defendant’s application to strike Plaintiff’s pleadings is DENIED as this has been litigated throughout the extensive motion practice in this action. CHILD SUPPORT Branch 6 of Defendant’s application seeks an Order terminating the pendente lite child support Order obligation contained in the Order of the Honorable William J. Kent, JSC. In support of his application, Defendant, through his Attorney’s Affirmation, indicates that “the child is now eighteen years of age, works along side his father on a full time basis and lives in a separate part of his father’s house.” Defendant’s Affidavit states that “our son, who is now eighteen years old…works with me, learning the restaurant business…[has] moved into an area in my home I built for him and I pay for all his expenses. He works with me and is paid a salary for his efforts.” Plaintiff opposes such application by stating that this request “is frivolous on its face: Plaintiff has had residential custody of the parties’ child, Vittorio Lombardi, Jr. for the pendency of this action.” Further, Plaintiff indicates that Defendant recently attempted to induce Vittorio, Jr. to sign a prospective child support waiver at Defendant’s Counsel’s office. Defendant’s Counsel argues that Plaintiff’s opposition and reply papers support the assertion that “it is indisputed by Plaintiff that eighteen-year old Vittorio, Jr. lives in his father’s home and no longer resides with his mother”. This Court, however, does not adopt Defendant’s argument and finds that there appears to be triable issues of fact raised related to the parties’ son’s current primary residence. As such, this Court declines to rule on this application on paper and refers this issue to a hearing, the date for which will be determined at the conference scheduled for August 6, 2021. SANCTIONS Branch 4 of Defendant’s application seeks an Order sanctioning the Plaintiff and her counsel, Vesselin Mitev, Esq., pursuant to 22 NYCRR 130, 11, to include, but not be limited to ordering payment by Plaintiff and her counsel to pay the costs and legal fees incurred by the Defendant in the instant proceeding in the sum of $7,500.00, with leave to apply for more, should it become necessary or should the sanctionable conduct complained of persist. 22 N.Y.C.R.R. §130-1.1 states, in pertinent part, that: “(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct… (c) For purposes of this Part, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false.” Based upon a review of the facts presented in the motion papers, Plaintiff’s conduct does not warrant sanctions. More specifically, the Court notes that any of the extreme sanctions pursuant to CPRL §3126 are not warranted because “it does not appear that the [Plaintiff] willfully and contumaciously failed to…provide complete responses to the discovery demands…”. See Cestaro v. Chin, 20 A.D.3d 500, 799 N.Y.S.2d 143 (2d Dept. 2005). The Court notes that the January 2021 Appellate Division Decision denied Defendant’s previous request for sanctions based on similar arguments. For purposes of background, on January 22, 2019, Plaintiff served a Notice for Discovery and Inspection. On February 25, 2019, Defendant filed a motion seeking a Protective Order pursuant to CPLR 3103(a) striking the Notice for Discovery and Inspection, seeking sanctions against Plaintiff and her Counsel pursuant to 22 NYCRR 130-1.1, and seeking to preclude Plaintiff from offering certain evidence at trial pursuant to CPLR 3126, and to disqualify Plaintiff’s counsel from representing Plaintiff. Justice Poulos denied those application. This Decision was appealed and on January 27, 2021, the Appellate Division, Second Department issued a Decision and Order, holding in relevant part that, “order is modified, on the law, by deleting the provision thereof, in effect, denying that branch of the motion of Vittorio Lombardi which was pursuant to CPLR 3103(a) for a protective order striking the plaintiff’s notice for discovery and inspection, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.” “A notice for discovery and inspection is palpably improper if it is overbroad, burdensome, fails to specify with reasonable particularity many of the documents demanded, or seeks irrelevant or confidential information (see CPLR 3120[2]; Kiernan v. Booth Mem. Med. Ctr, 175 AD3d at 1397-1398; City of New York, 137 AD3d 1084). Where the discovery demand is overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it (see Pascual v. Rustic Woods Homeowners Assn., Inc., 173 AD3d 757, 758; Stepping Stones Assoc., L.P v. Scialdone, 148 AD3d 855, 856).” “Here, the plaintiff’s notice for discovery and inspection was palpably improper in that it was overbroad and burdensome, sought irrelevant or confidential information, and failed to specify with reasonable particularity many of the documents demanded (see Pascual v. Rustic Woods Homeowners Assn., Inc., 173 AD3d at 758; Jordan v. City_of_New York, 137 AD3d 1084; Kamanou-Goune v. Swiss Intl. Airlines. 100 AD3d 968). Accordingly, that branch of the defendant’s motion which was pursuant to CPLR 3103(a) for a protective order striking the plaintiff’s notice for discovery and inspection should have been granted.” “Contrary to the defendant’s contention, the plaintiff’s conduct in seeking responses to the notice for discovery and inspection was not frivolous within the meaning of 22 NYCRR 130- 1.1(c), and, therefore, the defendant was not entitled to the imposition of sanctions against the plaintiff and her counsel (see Matter of Miller v. Miller, 96 AD3d 943, 944; Maybaum v. Maybaum, 89 AD3d 692, 697; Providence Wash. Ins. Co. v. Munoz, 85 AD3d 1142, 1144)” Defendant argues that the Court did not determine that Plaintiff was entitled to seek discovery responses. As indicated previously, this Court finds that the Appellate Court did not foreclose the opportunity for continued discovery. The Court struck the Notice for Discovery and Inspection because it was “overbroad and burdensome, sought irrelevant or confidential information, and failed to specify with reasonable particularity many of the documents demanded”, issues that Plaintiff can resolve through the issuance of a subsequent Notice for Discovery and Inspection. This Court finds that in response to the January 27, 2021 Appellate Division decision, Plaintiff made efforts to revise his discovery demands. Defendant’s Attorney concedes that the version presented to her on March 12, 2021 is more streamlined than the first Notice but argues that concerns still remain related to breadth and relevancy. Given Plaintiff’s efforts to address the Appellate Division’s decision and the efforts taken to resolve the discovery issue, this Court does not believe that sanctions are warranted. Further, the Court recognizes that discovery has been stalled but attributes this to the consolidation, the amount of motion practice as well as the Appellate Court’s review of numerous applications. At least one of those Appellate decisions addressed discovery related to this prenuptial agreement. Where unforeseen circumstances has stalled the completion of discovery, this may warrant the vacatur of a Note of Issue. See Club Italia, Inc. v. Italian Fashion Trading, Inc., 268 A.D.2d 219, 701 N.Y.S.2d 34, 35 (1st Dept. 2000). See McKinney’s 2008 New York Rules of Court §202.21[d] [22 NYCRR §202.21(d)].) See also Hope v. Fortunato, 20 Misc. 3d 1117(A), 867 N.Y.S.2d 17 (Sup. Ct. 2008) (Where the Court held that consolidation would be considered an “unusual or unanticipated circumstance” so as to justify post-note-of-issue disclosure). Therefore, the relief requested in Branch 5 of Defendant’s Cross-Motion is denied. See Charter One Bank, supra and Cestaro v. Chin, supra. Accordingly, it is hereby ORDERED that Plaintiff’s application to vacate the Note of Issue is GRANTED; and it is further ORDERED that Plaintiff’s application to compel discovery is GRANTED to the extent that Defendant is to respond to Plaintiff’s Notice for Discovery and Inspection within 30 days of the date of this Order; and it is further ORDERED that Plaintiff’s application to compel discovery is GRANTED to the extent that the parties are to submit to depositions in accordance with a schedule and terms delineated during the Court conference scheduled for August 6, 2021; and it is further ORDERED that Defendant’s application to terminate child support is referred to a hearing, the date for which will be determined at the conference scheduled for August 6, 2021; and it is further ORDERED that all relief requested not specifically addressed herein is denied. The foregoing constitutes the Decision and Order of this Court. Dated: August 5, 2021
