SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 17, 1968
MARGARET M. SMITHERS, RESPONDENT,
JOHN A. SMITHERS, APPELLANT
In an action upon a separation agreement (1) to recover money owing thereon and (2) for an accounting, order of the Supreme Court, Dutchess County, dated October 23, 1967, modified, on the law and the facts, by striking from the first decretal paragraph the words "in all respects" and inserting after the word "granted" the following: "insofar as the motion is for continuation of the examination before trial and otherwise denied."
Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.
The examination shall be continued at the place stated in said order at a time to be specified in a written notice of not less than 10 days or at such other time and place as the parties may stipulate. In view of the statement in defendant's opposing affidavit that he is prepared to supply much of the information requested at the examination before trial and the failure of plaintiff's moving affidavit to specifically state what records were supplied and what matters were dropped upon the examination previously had, the motion to compel production of the specified records was premature. Moreover, plaintiff has not shown that the material requested of defendant is within his "possession, custody or control" (CPLR 3111) or that there is a nexus between defendant and the corporations enumerated in the notice of examination. As to the demand for defendant's 1964-1966 tax returns, plaintiff has waived her right to such examination by the provision in the separation agreement that information concerning defendant's income would be supplied by defendant's accountant's certified statement.
As so modified, order affirmed, without costs.
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