Pizzo v. Pizzo

New York Supreme Court

Pizzo v. Pizzo

33 Misc. 2d 1022, 227 N.Y.S.2d 399, 1962 N.Y. Misc. LEXIS 3560

CourtNew York Supreme Court

DecidedApril 6, 1962

StatusPublished

Cited by2 cases

This text of 33 Misc. 2d 1022 (Pizzo v. Pizzo) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pizzo v. Pizzo, 33 Misc. 2d 1022, 227 N.Y.S.2d 399, 1962 N.Y. Misc. LEXIS 3560 (N.Y. Super. Ct. 1962).

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Opinion

Domenick Gabbielli, J.

In this separation action, the defendant husband seeks to examine the plaintiff before trial, pursuant to the provisions of rule 121-a of the Rules of Civil Practice, by notice of examination upon ‘ ‘ all of the relevant and material allegations of fact put in issue by the pleadings of this action

The plaintiff now seeks to vacate the notice of examination upon the ground that it is against public policy arid that it being [1023]*1023a matrimonial action, the defendant is not entitled to a general examination.

It has been the general rule that in matrimonial actions, such examinations will be denied unless special circumstances are shown. (Field v. Field, 281 App. Div. 657; Tausik v. Tausik, 280 App. Div. 887; Immerman v. Immerman, 230 App. Div. 458; Shatz v. Shatz, 248 App. Div. 594.) This rule has in the past been universally adhered to by all the courts.

Prior to March 1, 1958, rule 121-a of the Rules of Civil Practice (added July 1, 1952), provided in part that in negligence actions it would be sufficient “ if, as to matters upon which a person is to be examined, the notice shall state ‘ all of the relevant facts and circumstances in connection with the accident, including negligence, contributory negligence, liability or damages

Thereafter and on March 1, 1958, this rule was amended by adding to the above, the following language: “In all other actions, except those in which by local rule or decision the party seeking the examination is required to establish special circumstances in order to obtain the examination, it shall be sufficient if, as to the matters upon which a person is to be examined, the notice shall state that the examination shall be with ‘ respect to the relevant and material allegations of fact put in issue by the pleadings in the action. ’ ”

Obviously, this last-quoted sentence does (and must) refer to any action other than a negligence action and, of course, is effective and operative unless there is a “ local rule or decision ” prohibiting the examination.

There is no local rule or decision prohibiting this examination. The rule is, therefore, in matrimonial actions, except where local rule or decision forbids, that a party may be examined before trial upon all relevant and material allegations of fact put in issue by the pleadings in the action. (See Szymanshi v. Szymanshi, 16 Misc 2d 398.) Motion denied.

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Domenick Gabbielli, J.

In this separation action, the defendant husband seeks to examine the plaintiff before trial, pursuant to the provisions of rule 121-a of the Rules of Civil Practice, by notice of examination upon ‘ ‘ all of the relevant and material allegations of fact put in issue by the pleadings of this action

The plaintiff now seeks to vacate the notice of examination upon the ground that it is against public policy arid that it being [1023]*1023a matrimonial action, the defendant is not entitled to a general examination.

It has been the general rule that in matrimonial actions, such examinations will be denied unless special circumstances are shown. (Field v. Field, 281 App. Div. 657; Tausik v. Tausik, 280 App. Div. 887; Immerman v. Immerman, 230 App. Div. 458; Shatz v. Shatz, 248 App. Div. 594.) This rule has in the past been universally adhered to by all the courts.

Prior to March 1, 1958, rule 121-a of the Rules of Civil Practice (added July 1, 1952), provided in part that in negligence actions it would be sufficient “ if, as to matters upon which a person is to be examined, the notice shall state ‘ all of the relevant facts and circumstances in connection with the accident, including negligence, contributory negligence, liability or damages

Thereafter and on March 1, 1958, this rule was amended by adding to the above, the following language: “In all other actions, except those in which by local rule or decision the party seeking the examination is required to establish special circumstances in order to obtain the examination, it shall be sufficient if, as to the matters upon which a person is to be examined, the notice shall state that the examination shall be with ‘ respect to the relevant and material allegations of fact put in issue by the pleadings in the action. ’ ”

Obviously, this last-quoted sentence does (and must) refer to any action other than a negligence action and, of course, is effective and operative unless there is a “ local rule or decision ” prohibiting the examination.

There is no local rule or decision prohibiting this examination. The rule is, therefore, in matrimonial actions, except where local rule or decision forbids, that a party may be examined before trial upon all relevant and material allegations of fact put in issue by the pleadings in the action. (See Szymanshi v. Szymanshi, 16 Misc 2d 398.) Motion denied.

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Bluebook (online)

33 Misc. 2d 1022, 227 N.Y.S.2d 399, 1962 N.Y. Misc. LEXIS 3560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pizzo-v-pizzo-nysupct-1962.

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