CHAMBERLAIN, D'AMANDA, OPPENHEIMBER, GREENFIELD, LLP v. WILSON, REBECCA P.

Appellate Division of the Supreme Court of New York

CHAMBERLAIN, D'AMANDA, OPPENHEIMBER, GREENFIELD, LLP v. WILSON, REBECCA P.

101 A.D.3d 1640, 956 N.Y.2d 730

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 21, 2012

DocketCA 12-00868

StatusPublished

Cited by1 cases

This text of 101 A.D.3d 1640 (CHAMBERLAIN, D'AMANDA, OPPENHEIMBER, GREENFIELD, LLP v. WILSON, REBECCA P.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

CHAMBERLAIN, D'AMANDA, OPPENHEIMBER, GREENFIELD, LLP v. WILSON, REBECCA P., 101 A.D.3d 1640, 956 N.Y.2d 730 (N.Y. Ct. App. 2012).

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Opinion

Memorandum: Defendant appeals from an order that, inter alia, denied her motion to compel insofar as it sought disclosure from her ex-husband, nonparty respondent J. Richard Wilson, and conditioned disclosure from her ex-husband’s attorney, nonparty respondent Steven M. Jacobstein, upon her stipulation not to seek to “re-open” the divorce from her ex-husband.

Contrary to defendant’s contention, the ex-husband did not waive his objection to the disclosure sought by failing to seek a protective order in a timely manner. The party seeking disclosure is obligated to move to compel such disclosure when confronted with a refusal to disclose; “no longer may the party who served a discovery notice rely upon the recipient’s failure to seek a protective order” (Pyron v Banque Francaise du Commerce Exterieur, 256 AD2d 204, 205 [1998]).

*1641 Defendant further contends that Supreme Court erred in both denying her motion to compel to the extent that it sought disclosure from her ex-husband, a nonparty to the underlying action between defendant and her former attorneys, and in imposing a condition on the disclosure from the ex-husband’s attorney. “The supervision of discovery, the setting of reasonable terms and conditions for disclosure, and the determination of whether a particular discovery demand is appropriate, Eire all matters within the sound discretion of the trial court” (Kooper v Kooper, 74 AD3d 6, 17 [2010]). While we conclude that the Court did not abuse its discretion under the circumstances of this case by refusing to compel disclosure from defendant’s ex-husband (see CPLR 3101 [a] [4]; cf. CPLR 3101 [a] [1]), we do agree with defendant that the court abused its discretion by conditioning disclosure from her ex-husband’s attorney “upon defendant supplying [the attorney] with a stipulation not to seek re-opening [of] any aspect of the divorce, within five (5) days of this Order.” We therefore modify the order by vacating that condition. Present — Smith, J.P., Carni, Lindley, Sconiers and Whalen, JJ.

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Memorandum: Defendant appeals from an order that, inter alia, denied her motion to compel insofar as it sought disclosure from her ex-husband, nonparty respondent J. Richard Wilson, and conditioned disclosure from her ex-husband’s attorney, nonparty respondent Steven M. Jacobstein, upon her stipulation not to seek to “re-open” the divorce from her ex-husband.

Contrary to defendant’s contention, the ex-husband did not waive his objection to the disclosure sought by failing to seek a protective order in a timely manner. The party seeking disclosure is obligated to move to compel such disclosure when confronted with a refusal to disclose; “no longer may the party who served a discovery notice rely upon the recipient’s failure to seek a protective order” (Pyron v Banque Francaise du Commerce Exterieur, 256 AD2d 204, 205 [1998]).

*1641 Defendant further contends that Supreme Court erred in both denying her motion to compel to the extent that it sought disclosure from her ex-husband, a nonparty to the underlying action between defendant and her former attorneys, and in imposing a condition on the disclosure from the ex-husband’s attorney. “The supervision of discovery, the setting of reasonable terms and conditions for disclosure, and the determination of whether a particular discovery demand is appropriate, Eire all matters within the sound discretion of the trial court” (Kooper v Kooper, 74 AD3d 6, 17 [2010]). While we conclude that the Court did not abuse its discretion under the circumstances of this case by refusing to compel disclosure from defendant’s ex-husband (see CPLR 3101 [a] [4]; cf. CPLR 3101 [a] [1]), we do agree with defendant that the court abused its discretion by conditioning disclosure from her ex-husband’s attorney “upon defendant supplying [the attorney] with a stipulation not to seek re-opening [of] any aspect of the divorce, within five (5) days of this Order.” We therefore modify the order by vacating that condition. Present — Smith, J.P., Carni, Lindley, Sconiers and Whalen, JJ.

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Bluebook (online)

101 A.D.3d 1640, 956 N.Y.2d 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chamberlain-damanda-oppenheimber-greenfield-llp-v-wilson-rebecca-p-nyappdiv-2012.

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