Garfinkel v. Garfinkel

Defendant appeals from an order granting plaintiff’s motion to examine her before trial. The action is to annul the marriage of the parties upon the ground that it was induced by fraud. The New York County Supreme Court Trial Term Rules (rule XI, subd. 6) provide: “Thus, in matrimonial actions, * * * where examinations are not favored on the ground of public policy * * * the party seeking the examination of the adverse party will be obliged to establish special circumstances in order to obtain the examination.” The movant has failed to demonstrate any special circumstances. The complaint alleges the cause of action in general terms and the affidavits in support of the application are perfunctory. From the record, it is evident that no special circumstances exist in this ease. Plaintiff relies upon two Special Term decisions (Kotopoulos v. Kotopoulos, 53 N. Y. S. 2d 932; Segal v. Segal, 102 N. Y. S. 2d 772) and argues that the rule against general examinations in matrimonial actions does not appear to be so strictly limited in actions for annulment. We know of no such exception and it is not evident from the rule. Moreover, special circumstances were present in the cited cases. Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. Concur — Botein, J. P., Rabin, Frank, Valente and Bergan, JJ.