| Hauzinger v Hauzinger |
| 2007 NY Slip Op 07096 [43 AD3d 1289] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| Richard M. Hauzinger, Plaintiff, v Aurela G. Hauzinger,Respondent. Carl R. Vahl, Esq., Appellant. |
—[*1] Moriarty & Grocott, Buffalo (Robert B. Moriarty of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Cattaraugus County (Michael L. Nenno, A.J.),entered July 20, 2006 in a divorce action. The order denied the motion of a nonparty witnessseeking, inter alia, to quash a subpoena issued by defendant.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Carl R. Vahl, Esq. (appellant), a nonparty witness in this divorce action,appeals from an order denying his motion seeking, inter alia, to quash the subpoena issued bydefendant for his appearance at a deposition in this action and for his records in connection withthe mediation process that he conducted with the parties prior to the commencement of theaction. The parties were not represented by counsel when they participated in the mediationprocess that concluded with the execution of a separation agreement. Even assuming, arguendo,that the subpoena and accompanying notice did not advise appellant of the "circumstances orreasons such disclosure [was] sought or required" (CPLR 3101 [a] [4]), we conclude thatdefendant's response to appellant's motion provided the requisite information (see Velez v Hunts Point Multi-Serv. Ctr.,Inc., 29 AD3d 104, 111 [2006]). Thus, Supreme Court did not improvidently exercise itsdiscretion in denying that part of appellant's motion seeking to quash the subpoena (see generally Koramblyum vMedvedovsky, 19 AD3d 651, 652 [2005]). Inasmuch as defendant seeks to establish thecircumstances surrounding the execution of the separation agreement, and the court mustdetermine in this action whether the terms of the separation agreement "were fair and reasonableat the time of the making of the agreement" (Domestic Relations Law § 236 [B] [3]), wereject appellant's contention that the court abused its discretion in refusing to enforce theconfidentiality agreement entered into by the parties as part of the mediation process (cf.Lynbrook Glass & Architectural Metals Corp. v Elite Assoc., 238 AD2d 319 [1997]), and inrefusing to quash the subpoena as a matter of public policy. Although appellant urges this Courtto apply the confidentiality provisions in the Uniform Mediation Act as a matter of public policy,New York has not adopted that Act and we decline to do so. Present—Scudder, P.J.,Martoche, Centra, Green and Pine, JJ.