Fanelli v. Fanelli

Jul 1, 2002
Versions:296 A.D.2d 373
745 N.Y.S.2d 435
2002 N.Y. App. Div. LEXIS 7080

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Westchester County (Dillon, J.), entered September 5, 2001, which denied her motion for a protective order and to quash a subpoena duces tecum served upon a nonparty, and, sua sponte, awarded the defendant an attorneys fee in the sum of $750.

Ordered that the appeal from so much of the order as, sua sponte, awarded the defendant an attorneys fee is dismissed, as no appeal lies as of right from a sua sponte order, and leave to appeal has not been granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the respondent.

The Supreme Court properly denied, on both procedural and substantive grounds, the plaintiff’s motion to quash the subpoena duces tecum and for a protective order. The plaintiff’s counsel failed to provide the required affirmation of a good faith effort to resolve the disclosure dispute (see 22 NYCRR 202.7 [a] [2]; Hegler v Loews Roosevelt Field Cinemas, 280 AD2d 645; Romero v Korn, 236 AD2d 598). Moreover, suppression of the requested documents was not warranted under the circumstances of this case (see Gutierrez v Dudock, 276 AD2d 746; DiMarco v Sparks, 212 AD2d 965). O’Brien, J.P., H. Miller, Schmidt and Cozier, JJ., concur.