Green v. Brown
| Decision Date | 09 December 1970 |
| Citation | 65 Misc.2d 226,317 N.Y.S.2d 104 |
| Parties | Elaine GREEN, * Petitioner, v. William BROWN, * Respondent. |
| Court | New York Family Court |
In this proceeding, instituted pursuant to Article 5 of the Family Court Act, Petitioner seeks an order adjudging the respondent to be the father of a child born to her on January 29, 1967. In answer to the petition, the respondent entered a general denial and requested that a blood grouping test be performed.
By notice of motion dated October 8, 1970, the respondent moves this Court for an order permitting him to take the deposition upon oral questions of the petitioner.
The taking of oral depositions is not specifically authorized by the Family Court Act. The Family Court Act does, however, provide that where the method of procedure is not prescribed, the provisions of the Civil Practice Law and Rules shall be applicable to the extent that they are appropriate (Section 165, Family Court Act).
It is well settled in this jurisdiction that the Family Court has the authority and power to order a pre-trial examination of a party (Hirsch v. Hirsch, 1967, 53 Misc.2d 938, 280 N.Y.S.2d 425; Schwartz v. Schwartz, 1965, 23 A.D.2d 204, 259 N.Y.S.2d 751). There is however, no absolute right to have a pre-trial examination in a Family Court proceeding. Despite the general liberality intended by Sections 3101 and 3102 of the Civil Practice Law and Rules as to disclosure, a rule of caution continues with respect to the grant of disclosure in matrimonial actions and in analogous proceedings in the Family Court (Rann v. Rann, 1967, 54 Misc.2d 704, 283 N.Y.S.2d 426; Nomakor v. Ashton, 1964, 20 A.D.2d 331, 247 N.Y.S.2d 230). Furthermore, in Doe v. Roe, 1963, 40 Misc.2d 148, 242 N.Y.S.2d 742, the court held that the same restrictions which have been applied to matrimonial actions should be applied to filiation proceedings, and an examination before trial should be denied in the absence of a showing of special circumstances.
In the instant proceeding, the respondent has met the burden of showing special circumstances and is entitled to the relief requested. The petitioner commenced this proceeding some twenty (20) months after the birth of her baby. In addition, although a demand for a bill of particulars was duly served, said bill was furnished some twenty months thereafter....
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Shirley v. Lavine
...(1970); NYCPLR §§ 3101, 3102, 3126; Schwartz v. Schwartz, 23 App.Div.2d 204, 259 N.Y.S.2d 751 (App.Div. 1st Dept. 1965); Green v. Brown, 65 Misc.2d 226, 317 N.Y.S.2d 104 (Family Court, Westchester County, 1970); N.Y. Judiciary Law, McKinney's Consol.Laws, c. 30 §§ 750, 753, 773, 774. In the......
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...extent that attitude seems to be shifting in favor of a more liberal grant of disclosure in such proceedings. See, e.g., Green v. Brown, 65 Misc.2d 226, 317 N.Y.S.2d 104 (Family Ct., Westchester Co.1970); Matter of Commissioner v. O., 70 Misc.2d 581, 333 N.Y.S.2d 621 (Family Ct., Kings Co.1......
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