Kivo v. Kivo

Appellate Division of the Supreme Court of New York

Kivo v. Kivo

193 A.D.2d 585, 597 N.Y.S.2d 157, 1993 N.Y. App. Div. LEXIS 4537

Appellate Division of the Supreme Court of the State of New York·Decided May 3, 1993·Published·Cited by 3 cases

Opinion

In a matrimonial action in which the parties were divorced by judgment dated December 11, 1979, the defendant appeals from the orders of the Supreme Court, Nassau County (O’Brien, J.), dated March 26, 1991, and September 13, 1991 respectively, which granted the plaintiffs motions pursuant to CPLR 3126, inter alia, to prohibit the defendant from offering any financial testimony or evidence, and awarded costs of $100 and counsel fees of $500.

Ordered that the orders are affirmed, with one bill of costs.

The defendant’s failure to appear for two scheduled examinations before trial was deliberate and contumacious. He failed to offer a reasonable excuse for the defaults (see, Read v Dickson, 150 AD2d 543; Ferraro v Koncal Assocs., 97 AD2d 429). Contrary to his contentions, there was no need for the court to consider affidavits or time and work sheets before awarding the plaintiff $500 in counsel fees, since that award was in the nature of a sanction for failure to comply with discovery orders (see, Jacobs v Levy, 154 AD2d 654, 655).

We have reviewed the defendant’s remaining contentions and conclude that they are without merit. Mangano, P. J., Sullivan, O’Brien and Pizzuto, JJ., concur.

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In a matrimonial action in which the parties were divorced by judgment dated December 11, 1979, the defendant appeals from the orders of the Supreme Court, Nassau County (O’Brien, J.), dated March 26, 1991, and September 13, 1991 respectively, which granted the plaintiffs motions pursuant to CPLR 3126, inter alia, to prohibit the defendant from offering any financial testimony or evidence, and awarded costs of $100 and counsel fees of $500.

Ordered that the orders are affirmed, with one bill of costs.

The defendant’s failure to appear for two scheduled examinations before trial was deliberate and contumacious. He failed to offer a reasonable excuse for the defaults (see, Read v Dickson, 150 AD2d 543; Ferraro v Koncal Assocs., 97 AD2d 429). Contrary to his contentions, there was no need for the court to consider affidavits or time and work sheets before awarding the plaintiff $500 in counsel fees, since that award was in the nature of a sanction for failure to comply with discovery orders (see, Jacobs v Levy, 154 AD2d 654, 655).

We have reviewed the defendant’s remaining contentions and conclude that they are without merit. Mangano, P. J., Sullivan, O’Brien and Pizzuto, JJ., concur.

Kivo v. Kivo, 193 A.D.2d 585, 597 N.Y.S.2d 157, 1993 N.Y. App. Div. LEXIS 4537 (N.Y. Ct. App. 1993).

Pincite

193 A.D.2d 585 (Kivo v. Kivo) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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