Cerasaro v. Cerasaro

• Decision Date: 08 July 2004
• Docket Number: 95519.
• Citation: 2004 NY Slip Op 05836,9 A.D.3d 663,781 N.Y.S.2d 375
• Parties: LORI K. CERASARO, Appellant, v. VICTOR J. CERASARO, Respondent.
• Court: New York Supreme Court — Appellate Division

9 A.D.3d 663

781 N.Y.S.2d 375

2004 NY Slip Op 05836

LORI K. CERASARO, Appellant, v. VICTOR J. CERASARO, Respondent.

95519.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 8, 2004.

Appeals (1) from an order of the Supreme Court (Hester, Jr., J.), entered June 30, 2003 in Broome County, which, inter alia, denied plaintiff's motion to compel the production of certain documents, and (2) from an order of said court, entered November 7, 2003 in Broome County, which, inter alia, denied plaintiff's motion for reconsideration.

MUGGLIN, J.

Following the January 2002 commencement of this divorce action, plaintiff served three notices to produce. Defendant opposed complying with the third one which requested the names and addresses of all current and former employees, a list of all products sold, and the names and addresses of all suppliers and manufacturers for products sold by CJV, Inc., a business operated by defendant. Although plaintiff was provided a copy of the only outstanding stock certificate in CJV, showing legal ownership in Anthony Cerasaro, defendant's brother, and an admission that defendant may have an equitable interest in the business, plaintiff moved to compel production of the requested information contending that since some sales were not properly reported on the books of the corporation, the information was necessary to properly value the business. Additionally, plaintiff sought two court-ordered subpoenas, the first requiring defendant's brother to produce his income tax records for the years 1997 through 2002, and the second directing Donald Sukloff, attorney for Anthony Cerasaro's ex-wife, to produce financial documents generated in that divorce action. Supreme Court denied both plaintiff's motion and a subsequent motion to renew. Plaintiff appeals from both orders.

A trial court is vested with broad discretion to control discovery and disclosure and its determination of such issues will only be disturbed on a showing of clear abuse (see Fox v Fox, 309 AD2d 1056, 1057-1058 [2003]; Allen v Krna, 282 AD2d 946, 947 [2001]; Getman v Petro, 266 AD2d 688, 690 [1999]). Defendant contends that further disclosure is unnecessary since plaintiff has previously been supplied with sufficient corporate information to properly and accurately value the business and the present demand is overbroad, burdensome and irrelevant.

Defendant's admission that he may have an equitable interest in the business is sufficient to authorize discovery of the necessary corporate financial records to evaluate the business (see Galgano v Galgano, 287 AD2d 687, 687 [2001]; Antreasyan v Antreasyan, 245 AD2d 405, 405 [1997]; Avery v Avery, 89 AD2d 633, 634 [1982]). Nevertheless, Supreme Court did not abuse its discretion in denying plaintiff's request as defendant has already provided plaintiff with sufficient corporate financial records to value the business. At this point in the litigation, plaintiff's speculative assertion that the corporate financial records do not reflect the total business revenue is not an adequate premise upon which to base the requested discovery.

With regard to plaintiff's request for subpoenas, we note that, generally, "`[d]isclosure against a nonparty is available only upon a showing of special circumstances, i.e., that the information sought to be discovered is material and necessary and cannot be discovered from other sources or otherwise is necessary to prepare for trial'" (Sand v Chapin, 246 AD2d 876, 877 [1998], quoting King v State Farm Mut. Auto. Ins. Co., 198 AD2d 748, 748 [1993]; see CPLR 3101 [a] [4]). "Whether such special circumstances have...