Tydings v. Tydings , 64 A.D.2d 897 ( 1978 )

—In an action for divorce, defendant appeals from an order of the Supreme Court, Nassau County, entered April 13, 1978, which denied his motion for a protective order and directed him to produce (1) the records and books of the professional corporation of which he is a shareholder and (2) his personal financial records from 1974 to 1977. Action remitted to Special Term to hear and report as to whether defendant, as a minority stockholder, has actual possession and control over the corporate financial records sought, and appeal held in abeyance in the interim. Special Term is to file its report in accordance herewith with all convenient speed. Defendant alleges that he has no control over the corporate documents that the court at Special Term has directed him to produce. The facts in this action have been disputed throughout. In view of that circumstance, an opportunity to amplify, explain or contradict the varying allegations by further proof should be afforded the parties. No first-instance evaluation of the tendered proof has been made by a court possessed of fact-finding powers. Upon remission, the court at Special Term shall determine as a fact whether defendant is in possession of the requested records. Martuscello, J. P., Damiani, Margett and O’Connor, JJ., concur.