Askin v. Askin

37 A.D.2d 804, 324 N.Y.S.2d 646, 1971 N.Y. App. Div. LEXIS 3343

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1971
• Status: Published

Opinion

Order, Supreme Court, New York- County, entered on April 28, 1971, granting plaintiff’s motion for reargument and which, upon reargument, permitted plaintiff to examine nonparty witnesses and vacated the statement of readiness, unanimously modified on the law, the facts and in the exercise of discretion to provide for adherence to the decision resulting in the original order entered March 5, 1971 (denying plaintiff’s application in all respects), and the order entered April 28,1971 is otherwise affirmed. Defendant-respondent-appellant shall recover of plaintiff-appellant-respondent $30 costs and disbursements of this appeal. The original order entered March 5, 1971 denied plaintiff’s application to vacate defendant’s statement of readiness and to examine defendant and three nonparty witness accountants prior to trial. We believe that the order as originally entered was proper in all respects and should not have been modified upon reargument to allow examination of the nonparty witnesses. This is a matrimonial action and it is settled law that in such actions pretrial examinations are not permitted without a showing of special circumstances. (Faulk v. Faulk, 22 A D 2d 671; Mook v. Mook, 13 A D 2d 465; Hunter v. Hunter, 10 A D 2d 291.) Plaintiff has completely failed to show any special circumstances warranting an examination before trial. Her reference to events which occurred some 10 years ago is insufficient to require an examination of the nonparty witnesses, particularly since the defendant concedes that plaintiff is entitled to a decree of separation based upon abandonment. Appeal from order, Supreme Court, New York County, entered on March 5, 1971, unanimously dismissed as academic in view of the determination on the [above] appeal from the subsequent order entered on April 28, 1971 which granted plaintiff’s motion for reargument. (7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5701.23.) Concur—Nunez, J. P., Kupferman, Murphy, Steuer and Tilzer, JJ.