Dunlap v. Dunlap
| Decision Date | 21 May 1970 |
| Docket Number | No. 2,2 |
| Citation | 34 A.D.2d 889,312 N.Y.S.2d 441 |
| Parties | Betty Lou DUNLAP, Respondent v. Charles DUNLAP, Appellant. Appeal |
| Court | New York Supreme Court — Appellate Division |
Robinson, Williams, Robinson & Angeloff, Frank Aloi, Rochester, for appellant.
Sanford Robert Shapiro, Rochester, for respondent.
Before GOLDMAN, P.J., and MARSH, WITMER, MOULE and HENRY, JJ.
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, 247 N.Y.S.2d 230; Burch v. Burch, 18 A.D.2d 964, 238 N.Y.S.2d 559; Practice Commentary, McKinney's Consol.Laws of N.Y., Book 7B, CPLR 3101; C3101:15). Since laws now in force (Domestic Relations Law §§ 170, 215, 215--c) 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 date July 1, 1970 for December 31, 1969.
Order unanimously modified in accordance with the Memorandum and as so modified affirmed with costs to respondent.
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McMahan v. McMahan
...(Bloom v. Bloom, 52 A.D.2d 1030, 1031, 384 N.Y.S.2d 281), subject, of course, to exclusion of any privileged matter (Dunlap v. Dunlap, 34 A.D.2d 889, 312 N.Y.S.2d 441; CPLR § 4502). While this Department has not followed this practice in the past, the new law calls for a liberalized approac......
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W. v. D.
...Relations Law. Such limitations on examinations before trial in matrimonial actions are now being relaxed (see Dunlap v. Dunlap, 34 A.D.2d 889, 312 N.Y.S.2d 441) and so should be the restriction on such examinations in filiation cases (see Green v. Brown, supra). At any rate, until examinat......
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Schaeffer v. Schaeffer
...peculiar to the case at hand and taken cognizance of by the court by individual protective order under CPLR 3103'. Cf. Dunlap v. Dunlap, 34 A.D.2d 889, 312 N.Y.S.2d 441. Also see, Mr. Justice Liff's cogent comments in Hochberg v. Hochberg, 63 Misc.2d 77, 310 N.Y.S.2d 737; 2 Foster-Freed, La......
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Margaret B. v. Gilbert W.
...Domestic Relations Law. Such limitations on examinations before trial in matrimonial actions are now being relaxed (see Dunlap v. Dunlap, 34 A.D.2d 889, 312 N.Y.S.2d 441) and so should be the restriction on such examinations in filiation cases (see Green v. Brown, supra).' Matter of Arlene ......
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Witness competence
...459 (2d Dept. 1976). A husband is competent to testify about his wife’s adultery in a divorce action based on cruelty. Dunlap v. Dunlap , 34 A.D.2d 889, 312 N.Y.S.2d 441 (4th Dept. 1970). In an action for divorce where the wife sought discovery against the husband, the Appellate Division he......
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Witness competence
...459 (2d Dept. 1976). A husband is competent to testify about his wife’s adultery in a divorce action based on cruelty. Dunlap v. Dunlap , 34 A.D.2d 889, 312 N.Y.S.2d 441 (4th Dept. 1970). In an action for divorce where the wife sought discovery against the husband, the Appellate Division he......
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Witness competence
...459 (2d Dept. 1976). A husband is competent to testify about his wife’s adultery in a divorce action based on cruelty. Dunlap v. Dunlap , 34 A.D.2d 889, 312 N.Y.S.2d 441 (4th Dept. 1970). In an action for divorce where the wife sought discovery against the husband, the Appellate Division he......
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Witness competence
...459 (2d Dept. 1976). A husband is competent to testify about his wife’s adultery in a divorce action based on cruelty. Dunlap v. Dunlap , 34 A.D.2d 889, 312 N.Y.S.2d 441 (4th Dept. 1970). In an action for divorce where the wife sought discovery against the husband, the Appellate Division he......