Osman v. Pelofi

Osman v Pelofi 2026 NY Slip Op 05602 October 1, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Benjamin Ben Osman, Plaintiff-Appellant, v Claire Pelofi, Defendant-Respondent. Decided and Entered: October 01, 2026 Index No. 321600/23|Appeal No. 7115|Case No. 2025-00380| Before: Moulton, J.P., Kennedy, Friedman, Michael, Hagler, JJ. Schwartz Sladkus Reich Greenberg Atlas, LLP, New York (Eric Wrubel of counsel), for appellant. Law Office of Deana Balahtsis, New York (Deana Balahtsis of counsel), for respondent. [*1] Order, Supreme Court, New York County (Ariel D. Chesler, J.), entered on or about December 17, 2024, which, to the extent appealed from as limited by the briefs, denied plaintiff husband's motion to require defendant wife to preserve all electronically stored information on her electronic devices, enjoin her from deleting or modifying such electronically stored information, and produce any devices in her possession for forensic examination by a neutral expert, unanimously affirmed, without costs. The husband's argument that the motion court effectively sua sponte granted summary judgment to the wife is unpreserved and, in any event, without merit. The motion did not seek dismissal under CPLR 3211 nor was it dispositive of the divorce action but rather dealt with the discrete discovery issue of the wife's alleged access to the husband's Google emails and files. The husband's constitutional due process arguments are also unpreserved for appellate review and, in any event, are without merit. The husband was afforded a full opportunity to litigate his motion and submit any relevant evidence. On the merits, the husband's motion papers and expert reports "did not create an issue of fact that would warrant a hearing on the issue" of whether the wife had access to his Google emails or files (Zinger v Robertson, 217 AD3d 471, 472 [1st Dept 2023]). The evidence presented to the court, including subpoenaed Google records and a forensic copy of the wife's iPhone, failed to establish any access to the husband's email account from the wife's devices. At oral argument, the husband's counsel also conceded that there was no evidence demonstrating such access. Although the experts disagreed about certain technical aspects of Google account activity, those disagreements did not establish a triable issue of fact as to whether the wife accessed the husband's emails or files. Moreover, the husband's spoliation allegations against the wife and his assertion that the court failed to consider such allegations are unavailing. The court expressly addressed the issue of preservation and rejected his interpretation of the April 30, 2024 order of this Court as unreasonable. Further, although this Court's April 2024 order required the wife to preserve ESI on her electronic devices and refrain from deleting or modifying such information, it expressly vacated the provisions of the motion court's order requiring her to turn over additional devices for forensic examination. The wife thereafter voluntarily produced her iPhone for forensic examination. Thus, the husband failed to establish a violation of the preservation order or actual destruction of relevant ESI. We have considered the husband's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 1, 2026