BIGGIO v. BIGGIO (2005)

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), dated November 19, 2004, as granted that branch of the defendant wife's motion which was for leave to reargue that branch of his prior motion which was to preclude her from offering any financial evidence at trial, and deeming all financial issues resolved against her, which had been granted by order of the same court dated August 19, 2004, and upon reargument, vacated the prior determination.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly granted leave to reargue that branch of the plaintiff's prior motion which was for preclusion, and upon reargument, properly vacated its earlier determination granting that branch of the motion.   The preclusion order overlooked the plaintiff's failure to make full disclosure, including disclosure of financial information regarding assets and expenses clearly within his sole control.   Under the circumstances, the plaintiff was in no position to argue that the court should sanction the defendant with the penalty of preclusion (see Richter v. Richter, 131 A.D.2d 453, 454-455, 515 N.Y.S.2d 876).

The plaintiff's remaining contentions are either without merit or need not be reached in light of the foregoing determination.