49 A.D.2d 755 | N.Y. App. Div. | 1975
In an action for divorce, the plaintiff wife appeals from an order of the Supreme Court, Queens County, dated January 27, 1975, which denied her motion to examine defendant before trial as to the third, fourth and fifth counterclaims in his second amended answer. Order reversed, without costs, and motion granted. The examination shall proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by plaintiff, or at such time and place as the parties may agree. The causes of action in the last three counterclaims, concerning moneys allegedly converted and certain real property, are separate from and unconnected to the divorce and separation causes of action in the first two counterclaims and are joined therewith only because of the procedural device empowering the court to decide such questions in one action (Domestic Relations Law, § 234). As to these three counterclaims, plaintiff would be entitled to examine defendant if they were set forth in a separate action and "there is no justification for removing or qualifying such right merely because [defendant] took advantage of the procedural device afforded by section 234 of the Domestic Relations Law” (Panetta v Panetta, 35 AD2d 967). Hopkins, Acting P. J., Cohalan, Christ, Brennan and Munder, JJ., concur.