Opinion
August 13, 1981
Order, Supreme Court, New York County (Gomez, J.), entered March 17, 1981, which denied defendant's motion to strike the action from the calendar and granted plaintiff's motion to quash "to the extent of referring [the] motion to the Trial Court for determination", unanimously modified, on the law, without costs or disbursements, so as to strike the action from the calendar and to grant unconditionally the motion to quash. This matrimonial action was commenced on October 15, 1980. On December 18, 1980, two days after issue was joined by service of a reply, plaintiff served a note of issue and statement of readiness. In the interim plaintiff had furnished an affidavit of net worth and his 1979 income tax return. After moving to strike the case from the calendar on the ground that the matter was not ready for trial, defendant served a subpoena duces tecum with a 29-paragraph rider. While it is true, as Special Term found, that defendant had not formally sought a deposition or discovery, and although we recognize that plaintiff has a right to proceed expeditiously to bring this litigation to a conclusion, this is a case which, from our review, is clearly not ready for trial. At issue, at the very least, are equitable distribution rights arising out of a 22-year marriage. Since defendant may now proceed by discovery the need for the subpoena duces tecum becomes academic and the court sua sponte, grants the motion to quash. In any event, our examination of the rider to the subpoena leads us to conclude that it is so overly broad and cumbersome as to be oppressive.
Concur — Murphy, P.J., Kupferman, Sullivan and Ross, JJ.