| Matter of Blauman-Spindler v Blauman |
| 2009 NY Slip Op 09654 [68 AD3d 1105] |
| December 22, 2009 |
| Appellate Division, Second Department |
| In the Matter of Tina Blauman-Spindler,Respondent, v Richard Blauman, Appellant. |
—[*1] Lawrence A. Weinreich, Westbury, N.Y., for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Nassau County (Singer, J.), dated March 30, 2009, which deniedhis objections to so much of an order of the same court (Watson, S.M.), dated October 14, 2008,as granted that branch of the mother's motion which was to preclude evidence of the father'sfinances and, in effect, granted the mother's petition to enforce the provisions of a judgment ofdivorce dated July 9, 1996, and the parties' separation agreement which was incorporated but notmerged into the judgment of divorce, obligating the father to pay the college expenses of theparties' child.
Ordered the order dated March 30, 2009 is reversed, on the facts and in the exercise ofdiscretion, the objections are granted, so much of the order dated October 14, 2008 as grantedthat branch of the mother's motion which was to preclude evidence of the father's finances and,in effect, granted the mother's petition are vacated, that branch of the mother's motion which wasto preclude evidence of the father's finances is denied, and the matter is remitted to the FamilyCourt, Nassau County, for a new determination of the petition.
Contrary to the father's contention, there is no requirement that a movant identify a specificstatute or rule in the notice of motion, only that the notice "specify . . . the reliefdemanded and the grounds therefor" (CPLR 2214 [a]). Even though the mother's notice ofmotion and supporting affirmation did not formally and specifically request relief pursuant toCPLR 3126, where, as here, there is no misunderstanding or prejudice, "a court may grant reliefthat is warranted by the facts plainly appearing on the papers on both sides" (Frankel vStavsky, 40 AD3d 918, 918-919 [2007]; see HCE Assoc. v 3000 Watermill Lane RealtyCorp., 173 AD2d 774 [1991]; Pace v Perk, 81 AD2d 444, 456 [1981]). Here, themother's notice of motion clearly seeks the relief of preclusion based upon the father's allegedwillful failure to respond to her discovery demands. Accordingly, because the father wasadequately apprised of the relief sought and the grounds therefor, there was no prejudice, and theSupport Magistrate did not err in treating the motion as one made pursuant to CPLR 3126.
Nevertheless, the Support Magistrate improvidently exercised her discretion in granting thatbranch of the mother's motion which was to preclude evidence of the father's finances. While thenature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within thediscretion of the court (see Kingsley v Kantor, 265 AD2d 529 [1999]), in order "[t]oinvoke the drastic remedy" of preclusion for failure to disclose pursuant to CPLR 3126 (2), thecourt "must determine that the offending party's lack [*2]ofcooperation with disclosure was willful, deliberate, and contumacious" (Pryzant v City ofNew York, 300 AD2d 383 [2002]; see Kelleher v Mt. Kisco Med. Group, 264 AD2d760 [1999]; Maillard v Maillard, 243 AD2d 448 [1997]). In this case, the father servedresponses and objections to the mother's discovery demands. While the mother was clearlydissatisfied with the objections and responses to her demands, there was no showing of a patternof willful failure to respond to discovery demands or comply with disclosure orders, so as tojustify an order of preclusion.
Moreover, we note that the mother's motion was unsupported by an affirmation of a goodfaith effort to resolve the purported discovery dispute as required by 22 NYCRR 202.7 (a) (2)(see Diel v Rosenfeld, 12 AD3d 558 [2004]; Dennis v City of New York, 304AD2d 611, 613 [2003]; Fanelli v Fanelli, 296 AD2d 373 [2002]; Charter One Bank vHouston, 300 AD2d 429, 430 [2002]; Hegler v Loews Roosevelt Field Cinemas, 280AD2d 645 [2001]).
Accordingly, the Support Magistrate improvidently exercised her discretion in granting thatbranch of the mother's motion which was to preclude evidence of the father's finances. Wetherefore remit the matter to the Family Court, Nassau County, for a new determination of thepetition. Mastro, J.P., Balkin, Belen and Chambers, JJ., concur.