Lanzatella v. Lanzatella

• Decision Date: 09 May 1977
• Parties: Lucy LANZATELLA, Petitioner, v. Philip LANZATELLA, Respondent.
• Court: New York City Court

Page 544

394 N.Y.S.2d 544

90 Misc.2d 325

Lucy LANZATELLA, Petitioner, v. Philip LANZATELLA, Respondent.

Family Court, City of New York, Monroe County.

May 09, 1977.

Gould & Maloy, Rochester, for petitioner; Lewis J. Gould, Rochester, of counsel.

Chikovsky & Snyder, Rochester for respondent; Martin L. Zimmerman, Rochester, of counsel.

DECISION

RICHARD D. ROSENBLOOM, Judge.

This motion is brought by Respondent pursuant to CPLR Rule 3120 for an order permitting him to inspect the contents of a safe deposit box bearing Petitioner's name.

In 1974, Petitioner commenced a support proceeding against Respondent pursuant to Article 4 of the Family Court Act. Following lengthy hearings, an order was granted by former Family Court Judge Elizabeth W. Pine, entered on December 31, 1976, requiring Respondent to pay support for Petitioner and one child of the parties. An appeal taken by Respondent to the Appellate Division, Fourth Department, is still pending.

Respondent contends that he should be permitted to inspect the safe deposit box which he recently learned of on the grounds that its contents may disprove Petitioner's testimony at the hearing that she had no assets other than a small bank account. He claims that the contents of the safe deposit box may have altered the outcome of the proceeding as to support and counsel fees.

Petitioner objects to the granting of the motion on the grounds that Respondent is not entitled to be relieved from the terms of the order by reason of newly-discovered evidence and that there is no proceeding pending.

The question of whether Respondent may be relieved from the order of support under CPLR Rule 5015(a)(2) or Rule 4404 is not before the Court at this time. Respondent has only requested the inspection to determine whether any further proceedings would be appropriate. Respondent's position is similar to that of a person who seeks disclosure before an action is commenced in accordance with CPLR Section 3102(c) to aid in bringing an action. Accordingly this decision is limited to the issue of whether or not Respondent is entitled to the requested inspection.

Since the method of procedure is not prescribed by the Family Court Act, the provisions of the CPLR should be applied (Family Court Act, Section 165). CPLR Rule 3120 permits inspection of a "thing" in the control of a party "after commencement of an action." CPLR Section 3102(d) provides that disclosure (including discovery and inspection of property) may be obtained by order "during and after trial."

In Feinerman v. Feinerman, Sup., 135 N.Y.S.2d 564, Aff'd 285 A.D. 1048, 141 N.Y.S.2d 508, a mother was allowed an examination of a father's employer following the conclusion of a divorce proceeding on the ground that she intended to apply for an increase in support. In his Practice Commentaries to McKinney's Consolidated Laws of New York (C 3102:8), referring to CPLR Section 3102(d), Professor David D. Siegel states:

"Disclosure can conceivably become relevant while a case is on appeal. This subdivision...