SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
February 18, 1969
IN THE MATTER OF JOAN S. OHRSTROM, ON BEHALF OF HERSELF AND AS MOTHER OF PETER OHRSTROM AND ANOTHER, RESPONDENT,
GEORGE L. OHRSTROM, JR., APPELLANT
Concur -- Capozzoli, J. P., Nunez, McNally, Steuer and Bastow, JJ.
Order of the Family Court, entered on August 2, 1968, granting petitioner's motion for an examination before trial of respondent husband, and order of September 30, 1968, awarding petitioner a counsel fee and printing costs to defend the appeal from the earlier order, unanimously reversed on the law, on the facts and in the exercise of discretion and both motions denied, without costs or disbursements to either party. The granting of petitioner's application for examination before trial of the respondent was inappropriate in the absence of a showing of special circumstances. "Even under the liberal disclosure provisions of the CPLR, this court has held that in a separation action no examination before trial of a defendant as to his income, property and assets will be ordered in the absence of a showing of special circumstances. * * * In a matrimonial case 'the need for the examination should be shown'. (Nomako v. Ashton, 20 A.D.2d 331, 334.) A proper case for disclosure must be established by evidentiary proof. (Hunter v. Hunter, 10 A.D.2d 291, 296, mot. for lv. to app. den. 10 A.D.2d 937.)" (Matter of Schwartz v. Schwartz, 23 A.D.2d 204.) In addition, the respondent has conceded his financial ability to comply with any reasonable support order and, therefore, there is no necessity for the examination. (Lesher v. Hyman, 25 A.D.2d 847.) Obviously, the order granting the examination was entirely devoid of merit and, in the absence of a demonstration of a reasonable probability of success, the order awarding counsel fee and printing costs for the appeal should not have been made. (Habiby v. Habiby, 24 A.D.2d 435.)
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