Handel v. Handel — 26 N.Y.2d 853

Majority

p. 853

In the Matter of Estelle D. Handel, Respondent, v. Bernard Handel, Appellant.

Argued February 16, 1970;

decided March 4, 1970.

p. 854

Ben-Allen Breslow and Nathaniel Rubin for appellant.

Mark H. Alcott, Martin Kleinbard and Lloyd L. Rosenthal for respondent.

p. 855

The order of the Appellate Division should be affirmed, with costs, and question certified answered in the affirmative on the ground that respondent-appellant failed to move for a protective order under CPLR 3122 or to show 'cause why his failure to so move was excusable (Zeif v. Zeif, 31 A D 2d 625 ; Coffey v. Orbachs, Inc., 22 A D 2d 317 , 319-320), and neither the Appellate Division nor the Family Court exercised discretion to excuse compliance with CPLR 3122, a discretion which either court undoubtedly had. No other issue is passed upon.

Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson.

Cases cited

Coffey v. Orbachs, Inc. 22 A D 2d 317 N.Y. App. Div. 1964-12-22 at 319-320 p. 855