SINOSKY v. SINOSKY (2006)

 Plaintiff by order to show cause sought an order terminating his maintenance obligation.   Supreme Court denied plaintiff's application to depose defendant, and the court thereafter granted defendant's motion seeking dismissal of the motion of plaintiff to terminate his maintenance obligation.   We agree with plaintiff that the court abused its discretion in denying his application to depose defendant.  “Pursuant to CPLR 3101(a), ‘[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof’ ” (Matter of New York County DES Litig., 171 A.D.2d 119, 122-123, 575 N.Y.S.2d 19).  “This provision has been liberally construed to require disclosure where the matter sought will ‘assist preparation for trial by sharpening the issues and reducing delay and prolixity.’   Thus, restricted only by a test for materiality ‘of usefulness and reason,’ pretrial discovery is to be encouraged” (Hoenig v. Westphal, 52 N.Y.2d 605, 608, 439 N.Y.S.2d 831, 422 N.E.2d 491, quoting Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430).   While a court has broad discretion in controlling discovery and disclosure, “ ‘a clear abuse of discretion will prompt appellate action’ ” (Bozeman v. Jaffey, 21 A.D.3d 1344, 1344, 801 N.Y.S.2d 187, quoting Geary v. Hunton & Williams, 245 A.D.2d 936, 938, 666 N.Y.S.2d 804).   We conclude that there was a clear abuse of discretion herein because plaintiff has established that the opportunity to depose defendant would likely have assisted him in proving his case (see generally New York County DES Litig., 171 A.D.2d at 122-123, 575 N.Y.S.2d 19).   We therefore reverse the order, grant the application and remit the matter to Supreme Court for further proceedings consistent with this decision.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the application is granted and the matter is remitted to Supreme Court, Cattaraugus County, for further proceedings.

MEMORANDUM: