Rabin, Acting P. J., Hopkins, Latham and Brennan, JJ., concur; Benjamin, J., concurs in the determination upon the appeal from the order concerning the calendar and note of issue, but dissents from the determination upon the appeal from the other order and votes to reverse that order and to grant defendant’s motion for examination of plaintiff before trial on all four causes of action in the complaint, for the reasons stated in his dissenting memorandum in Miles v. Miles (32 A D 2d 553).
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PANETTA v. PANETTA,35 A.D.2d 967[2d Dept 1970]
ARMAND A. PANETTA, Respondent, v. CARMELLA PANETTA, Appellant.
Appellate Division of the Supreme Court of New York, Second Department.
In an action for divorce, to compel defendant to convey title to certain real property to plaintiff, and to recover money allegedly converted, defendant appeals from two orders of the Supreme Court, Queens County, both entered July 29, 1970, one denying her motion to examine plaintiff before trial and the other denying her motion to strike the action from the calendar and vacate the note of issue. Order denying the motion for examination of plaintiff modified by adding thereto, immediately after the decretal provision that the motion is "denied", the following: "except that it is granted with respect to the third and fourth causes of action in the complaint", i.e., the causes as to the real property and for a money judgment. As so modified, order affirmed, without costs. The examination shall proceed at the Supreme Court, Kings County, Special Term, Part II, upon 10 days' written notice by defendant or at such other time and place as the parties may agree by written stipulation. Order denying the motion to strike the action from the calendar and vacate the note of issue reversed, without costs, and motion granted. Defendant has failed to show special circumstances justifying an examination before trial as to plaintiff's finances (Campbellv.Campbell,7 A.D.2d 1011). However, the causes of action concerning the realty and the moneys are separate causes of action unconnected to the divorce causes of action and are joined therewith only because of the newly enacted procedural device empowering the court to decide such questions in one proceeding (Domestic Relations Law, §234). As to such causes of action, defendant would be entitled to examine plaintiff if they were brought in a separate action and there is no justification for removing or qualifying such right merely because plaintiff took advantage of the procedural device afforded by section 234 Dom. Rel. of the Domestic Relations Law. By virtue of the above, defendant has not had an opportunity to conclude all proceedings necessary to preparation for trial. Therefore, the motion to strike the case from the calendar and to vacate the note of issue should have been granted. Rabin, Acting P.J., Hopkins, Latham and Brennan, JJ., concur; Benjamin, J., concurs in the determination upon the appeal from the order concerning the calendar and note of issue, but dissents from the determination upon the appeal from the other order and votes to reverse that order and to grant defendant's motion for examination of plaintiff before trial on all four causes of action in the complaint, for the reasons stated in his dissenting memorandum inMilesv.Miles(32 A.D.2d 553).