Packer v. Packer

¶1I would modify the IAS Court’s order to broaden the scope of plaintiff’s deposition to include questions relating to the source of funds used to purchase the property in Quogue.

¶2Plaintiff seeks to set aside the parties’ separation agreement, i.e., the stipulation of settlement, which was incorporated, but not merged, into the judgment of divorce, on the grounds of, inter alia, fraud, overreaching, unconscionability and duress. Defendant argues that, in view of plaintiff’s claims that she could not hire a lawyer because she had no money* and that the defendant took unfair advantage of her destitute status to force an unfair settlement upon her, he is entitled to financial disclosure as to the source of funds she used, one or two years after the execution of the separation agreement, to purchase a vacation home in Quogue, New York.

¶3Pursuant to CPLR 3101 (a), "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action”. "The words, 'material and necessary’, are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” (Allen v CrowellCollier Publ. Co., 21 NY2d 403, 406.) Since the source of funds plaintiff allegedly used to purchase (or obtain 80% financing for) a $500,000 residence one or two years after she executed *263the separation agreement is relevant to her claim that she had no money to hire a lawyer at the time the separation agreement was entered into, the court should have permitted inquiry as to that question.

¶4The majority’s reliance on Second Department cases which bar disclosure as to post-settlement financial circumstances is not persuasive. (See, e.g., Garguilio v Garguilio, 168 AD2d 666; Kaufman v Kaufman, 125 AD2d 293; Pentecost v Pentecost, 125 AD2d 558; Lazarus v Lazarus, 114 AD2d 1012.) In each of those cases the court held that such circumstances were irrelevant to the matters in issue. In the instant matter, however, the source of funds plaintiff used to purchase the Quogue property is manifestly relevant to her claim that, in 1988, she lacked the financial resources to hire an attorney. This is especially the case since she claims that as a result of the husband’s fraud in inducing her to enter into the separation agreement she was left in dire financial circumstances. To the extent that these cases, particularly Kaufman v Kaufman (supra),hold otherwise, I note that their reasoning has never been adopted by this Court.