Opinion
October 5, 1987
Appeal from the Supreme Court, Queens County (Hyman, J.).
Ordered that the order is modified, by deleting the provision thereof which denied that branch of the motion which was to strike the note of issue, substituting therefor a provision granting that branch of the motion, and removing the action from the Trial Calendar; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
This divorce action was instituted in May 1985 and issue was joined in December 1985. The defendant, who alleges that her husband has significant ownership interests in certain corporations which he has either secreted or transferred to third parties, has, in the interim, been attempting to substantiate her claim through discovery of both her husband and these entities. Despite the fact that substantial discovery had yet to be completed, the plaintiff filed a note of issue in March 1986, only three months after issue had been joined, certifying that all discovery had been completed.
The defendant wife's attempt to join alleged transferees of marital property as necessary parties to this action (see, CPLR 1001 [a]) was properly rejected by the court since the defendant's claims remained, at that juncture, speculative (see, Deleno v. Deleno, 61 A.D.2d 788).
The court did, however, erroneously deny that branch of the motion which was to strike the note of issue since a reasonable time to conduct discovery proceedings in this action to dissolve a 23-year marriage had not elapsed, and the defendant wife, confronted with a spouse reluctant to disclose information as to his assets, had not been afforded an adequate opportunity to substantiate her claims. The note of issue should be stricken and the case removed from the calendar (see, Carella v. Carella, 97 A.D.2d 393; Gross v. Gross, 83 A.D.2d 809).
Upon the record before us, we perceive no basis upon which to modify the court's denial of the defendant wife's request for temporary maintenance since she has not demonstrated financial need. Moreover, she has not demonstrated an inability to pay such expenses as would warrant a pendente lite award of counsel fees (see, Cook v. Cook, 95 A.D.2d 768), nor has her application for accountants' and appraisers' fees set forth with the requisite specificity her financial inability to retain such experts (see, Ahern v. Ahern, 94 A.D.2d 53).
Finally, that branch of the defendant wife's motion which was for temporary exclusive occupancy of the marital residence was properly denied in the absence of a showing that it is necessary to protect the safety of persons or property (see, Purdy v Purdy, 117 A.D.2d 659; Rauch v. Rauch, 83 A.D.2d 847). Kunzeman, J.P., Kooper, Spatt and Sullivan, JJ., concur.