Ponard v. Ponard , 52 A.D.2d 564 ( 1976 )

Order, Supreme Court, New York County, entered on November 19, 1975 granting the defendant husband’s motion for a protective order and vacating the plaintiff wife’s notice to take his deposition, unanimously reversed on the law and in the exercise of discretion, without costs or disbursements, and motion denied. In Perse v Perse (52 AD2d 60) and Schneiderman v Schneiderman (51 AD2d 914) we affirmed Special Term’s grant of discovery of the husband’s finances, thus abandoning our former more restrictive approach to such discovery in the light of the policy expressed by the enactment of section 250 of the Domestic Relations Law (L 1975, ch 690, § 1; ch 691, § 1). In the present case Special Term denied such discovery. Whether we apply our new standards or the former ones, we think this was error. In this case plaintiff met even this Department’s former, stricter criteria for discovery of her husband’s finances. (Meyerhoff v Meyerhoff, 41 AD2d 726; Plancher v Plancher, 35 AD2d 417, affd 29 NY2d 880.) While defendant has denied virtually every other allegation in the complaint and has interposed counterclaims seeking a judgment of divorce, the plaintiff’s right to a decree, to the extent that it is based on the husband’s continuous course of adultery (fourth cause of action), is undenied. Indeed it appears from an affidavit offered on his behalf in response to the wife’s motion for temporary alimony and counsel fees, that he admits living with another woman and fathering her child. Financial disclosure was therefore warranted even under our former criteria unless special circumstances exist indicating such disclosure would be improper. Since defendant opposes disclosure of his financial condition the burden of making that showing is on him. (Plancher v Plancher, supra; Stern v Stern, 39 AD2d 87.) The conclusory averments, offered on his behalf, that defendant is being harassed and if allowed the pretrial examination would occasion a worsening of the relationship between the parties, are insufficient to satisfy that burden. On the other hand, inasmuch as the parties have been living separate and apart since mid-1972, there is substance to the wife’s claim that she has only limited knowledge of her husband’s financial resources. And the fact that she has been furnished with copies of his income tax returns does not obviate the need for the disclosure she seeks. (Legname v Legname, 43 AD2d 543; Stern v Stern, supra.) Concur—Murphy, J. P., Silverman, Lane and Yesawich, JJ.; Lupiano, J., concurs in the following memorandum: