Handel v. Handel , 26 N.Y.2d 853 ( 1970 )

The order of the Appellate Division should be affirmed, with costs, and question certified answered in the affirmative on the ground that respondent-appellant failed to move for a protective order under CPLR 3122 or to show 'cause why his failure to so move was excusable (Zeif v. Zeif, 31 A D 2d 625; Coffey v. Orbachs, Inc., 22 A D 2d 317, 319-320), and neither the Appellate Division nor the Family Court exercised discretion to excuse compliance with CPLR 3122, a discretion which either court undoubtedly had. No other issue is passed upon.

Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson.