Dunlap v. Dunlap

Appellate Division of the Supreme Court of New York

Dunlap v. Dunlap

34 A.D.2d 889, 312 N.Y.S.2d 441

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

DecidedMay 21, 1970

DocketAppeal No. 2

StatusPublished

Cited by8 cases

This text of 34 A.D.2d 889 (Dunlap v. Dunlap) 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

Dunlap v. Dunlap, 34 A.D.2d 889, 312 N.Y.S.2d 441 (N.Y. Ct. App. 1970).

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Opinion

Order unanimously modified in accordance with the memorandum and as so modified affirmed, with costs to respondent. Memorandum: Defendant appeals from an order of Monroe Special Term which denied his motion for a protective order to avoid the taking of his deposition as demanded in plaintiff’s notice. The notice sought examination of all relevant facts and circumstances in connection with plaintiff’s action for divorce predicated on the nonfault ground of living apart for a period of two years after the execution of a written separation agreement, and also in connection with defendant’s counterclaim based on the fault ground of adultery. Sensitive that use of pretrial disclosure might destroy any chance of reconciliation of the parties, prior law has restricted use of disclosure in matrimonial actions (Nomako v. Ashton, 20 A D 2d 331; Burch v. Burch, 18 A D 2d 964; McKinney’s Cons. Laws of N. Y., Book 7B, Practice Commentary, CPLR 3101; C3101:15). Since laws now in force (Domestic Relations Law, §§ 170, 215, 215-e) require matrimonial actions to go forward only after submission to conciliation, the reasons for restricting use of disclosure in matrimonial actions have been substantially diminished. In our Opinion the order properly permitted disclosure of all relevant facts and circumstances in connection with plaintiff’s action, but disclosure by defendant on the issue of the adultery alleged in his counterclaim should not be required because he is not competent to testify on that issue. (CPLR 4502.) The order should, therefore, be modified 'by substituting for the first ordering paragraph thereof the following provision: Ordered that the motion be granted to the extent of deleting from the notice to take defendant’s deposition the words “ counterclaim raised by the defendant ”, and the motion is otherwise denied. The second ordering paragraph should be modified by substituting the [890]*890date July 1, 1970 for December 31, 1969. (Appeal from order of Monroe Special Term, denying motion for disclosure in divorce action.) Present — Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.

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Order unanimously modified in accordance with the memorandum and as so modified affirmed, with costs to respondent. Memorandum: Defendant appeals from an order of Monroe Special Term which denied his motion for a protective order to avoid the taking of his deposition as demanded in plaintiff’s notice. The notice sought examination of all relevant facts and circumstances in connection with plaintiff’s action for divorce predicated on the nonfault ground of living apart for a period of two years after the execution of a written separation agreement, and also in connection with defendant’s counterclaim based on the fault ground of adultery. Sensitive that use of pretrial disclosure might destroy any chance of reconciliation of the parties, prior law has restricted use of disclosure in matrimonial actions (Nomako v. Ashton, 20 A D 2d 331; Burch v. Burch, 18 A D 2d 964; McKinney’s Cons. Laws of N. Y., Book 7B, Practice Commentary, CPLR 3101; C3101:15). Since laws now in force (Domestic Relations Law, §§ 170, 215, 215-e) require matrimonial actions to go forward only after submission to conciliation, the reasons for restricting use of disclosure in matrimonial actions have been substantially diminished. In our Opinion the order properly permitted disclosure of all relevant facts and circumstances in connection with plaintiff’s action, but disclosure by defendant on the issue of the adultery alleged in his counterclaim should not be required because he is not competent to testify on that issue. (CPLR 4502.) The order should, therefore, be modified 'by substituting for the first ordering paragraph thereof the following provision: Ordered that the motion be granted to the extent of deleting from the notice to take defendant’s deposition the words “ counterclaim raised by the defendant ”, and the motion is otherwise denied. The second ordering paragraph should be modified by substituting the [890]*890date July 1, 1970 for December 31, 1969. (Appeal from order of Monroe Special Term, denying motion for disclosure in divorce action.) Present — Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.

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Bluebook (online)

34 A.D.2d 889, 312 N.Y.S.2d 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-v-dunlap-nyappdiv-1970.

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