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Rodolico v. Rodolico

Supreme Court of New York, Second Department

September 11, 2013

Dina M. Rodolico, appellant,
v.
Anthony Rodolico, defendant-respondent; Lawrence Haynes, doing business as Island Wide Surveyors, nonparty- respondent Index No. 12458/10

Robert A. Ross, Huntington, N.Y., for appellant.

Tabat, Cohen, Blum & Yovino, LLP, West Islip, N.Y. (Elizabeth Diesa of counsel), for defendant- respondent.

David S. J. Rubin, Hauppauge, N.Y., for nonparty-respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Quinn, J.), dated May 10, 2012, as denied that branch of her motion which was to compel the nonparty Lawrence Haynes, doing business as Island Wide Surveyors, to provide additional discovery pursuant to a judicial subpoena and subpoena duces tecum dated October 7, 2011.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

In a divorce action, the entire financial history of the marriage is relevant and open for examination pursuant to CPLR article 31, and "[b]road pretrial disclosure enabling both spouses to obtain necessary information regarding the value and nature of the marital assets is deemed critical if the trial court is to properly distribute the marital assets" (Goldsmith v Goldsmith, 184 A.D.2d 619, 620; see Pagello v Pagello, 17 A.D.3d 428, 429; Pechman v Pechman, 303 A.D.2d 479, 480; Kaye v Kaye, 102 A.D.2d 682; see also Domestic Relations Law § 236[B]). CPLR 3101(a) is to be liberally construed "to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406). However, "[t]o withstand a challenge to a discovery request... the party seeking discovery must first satisfy the threshold requirement that the disclosure sought is material and necessary, ' whether the request is directed to a party (see CPLR 3101[a][1]) or [, as here, ] to a nonparty (see CPLR 3101[a][4])" (Kooper v Kooper, 74 A.D.3d 6, 10).

Here, contrary to the plaintiff's contention, further discovery with respect to the nonparty Lawrence Haynes, doing business as Island Wide Surveyors, is not "material and necessary" in the prosecution of the action (CPLR 3101[a][1]; see CPLR 3101[a][4]). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was to compel additional discovery (see Galgano v Galgano, 287 A.D.2d 687; Antreasyan v Antreasyan, 245 A.D.2d 405).

ANGIOLILLO, J.P., DICKERSON, SGROI and HINDS-RADIX, JJ., concur.


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