FLACH v. FLACH


114 A.D.2d 929 (1985)

Nancy Flach, Appellant-Respondent, v. William Flach, Respondent-Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 18, 1985


Orders dated July 12, 1984 and September 21, 1984 affirmed, and orders dated January 24, 1984 and September 27, 1984 affirmed, insofar as appealed from, without costs or disbursements.

Despite an earlier order in this action which deferred an award of attorney's fees until trial, Special Term properly awarded the wife pendente lite relief upon subsequent motions in light of the wife's financial need, the parties' financial disparity, and the then protracted nature of the proceedings (see, Maretea v Maratea, 103 A.D.2d 799; Ahern v Ahern, 94 A.D.2d 53; Hinden v Hinden, 122 Misc.2d 552; Lehman v Lehman, 117 Misc.2d 719). Although testimonial or other trial evidence should be taken before a final award of counsel fees is fixed, there was no need to conduct a full evidentiary hearing before making an interim award because of Special Term's complete familiarity with the facts and circumstances of the case through numerous prior motions (see, Sadofsky v Sadofsky, 78 A.D.2d 520; Matter of Hatz v Hatz, 116 Misc.2d 490, affd 97 A.D.2d 629).

Special Term properly denied the wife's motion for an order authorizing discovery of the pension evaluation report prepared by the husband's expert, as that report was immune from discovery pursuant to CPLR 3101 (d), and it was not shown that its contents could not be duplicated by the wife's own actuary (see, Myers v Myers, 108 Misc.2d 553). Nor was she entitled to an order, at the time her motion was made, permitting her to serve interrogatories upon her husband's employer pursuant to CPLR 3130 (2), since it appeared that the financial information she sought was also within her husband's control (see, Kaye v Kaye, 102 A.D.2d 682, 690-691).


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