SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1118
CA 11-01104
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ.
KATHLEEN T. D’ANGELO, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
JOHN D. D’ANGELO, DEFENDANT-RESPONDENT.
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GRANDMAR ASSOCIATES, LP, JOHNFRAN ASSOCIATES, LP,
NICHOLAS D’ANGELO AND JOSEPHINE D’ANGELO,
NONPARTY RESPONDENTS-APPELLANTS.
WOODS OVIATT GILMAN LLP, ROCHESTER (F. MICHAEL OSTRANDER OF COUNSEL),
FOR NONPARTY RESPONDENTS-APPELLANTS.
THE LEGAL AID SOCIETY OF ROCHESTER, ROCHESTER (VIVIAN M. AQUILINA OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (Joanne
M. Winslow, J.), entered October 29, 2010 in a divorce action. The
order, among other things, compelled nonparty respondents GrandMar
Associates, LP, JohnFran Associates, LP, Nicholas D’Angelo and
Josephine D’Angelo to submit to third-party discovery by answering
certain interrogatories.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this matrimonial action, plaintiff moved for an
order directing nonparty respondents to answer interrogatories
pursuant to CPLR 3130 (2). Defendant and nonparty respondents opposed
the motion, contending that the information sought in the
interrogatories was “irrelevant to the underlying matrimonial action”
inasmuch as defendant’s sole involvement in the limited partnerships
that are the subject of the interrogatories was as custodian for the
interests held by the parties’ six children. Supreme Court granted
the motion, concluding that the information sought was limited in
scope and that child support would be directly affected by any tax
liability of the children or any assets held by them. We affirm.
Contrary to the contention of nonparty respondents, the court’s
interpretation of CPLR 3130 (2) is not subject to de novo review
inasmuch as the issue whether the court properly granted the relief
sought by plaintiff does not involve “a question ‘of pure statutory
reading and analysis, dependent only on accurate apprehension of
legislative intent’ ” (Weingarten v Board of Trustees of N.Y. City
-2- 1118
CA 11-01104
Teachers’ Retirement Sys., 98 NY2d 575, 580). Rather, the issue is
whether plaintiff established that the information sought in the
interrogatories “concern[ed] a party, and . . . [was] both reasonable
and necessary in the prosecution or the defense of such matrimonial
action” (CPLR 3130 [2]). Our scope of review is thus to determine
whether the court abused its discretion in granting the motion (see
Moro v Moro, 124 AD2d 792, 793; see also Kaye v Kaye, 102 AD2d 682,
690).
Under the circumstances of this case, we conclude that there was
no abuse of discretion. The information sought in the interrogatories
concerned defendant, in his role as custodian of the children’s
interests in certain limited partnerships, and the information was
both reasonable and necessary in plaintiff’s prosecution of the
matrimonial action. Nonparty respondents contend for the first time
in their reply brief that plaintiff could have obtained the
information directly from defendant pursuant to EPTL 7-6.12 (e) and
thus that contention is not properly before us (see Ponzi v Ponzi, 45
AD3d 1327, 1328; Turner v Canale, 15 AD3d 960, lv denied 5 NY3d 702).
Entered: November 10, 2011 Patricia L. Morgan
Clerk of the Court