Because the witness was one of plaintiff's treating physicians, CPLR 3101 (d) (1) does not apply ( see, Rook v. 60 Key Centre, 239 A.D.2d 926; Wylie v. Consolidated Rail Corp., 229 A.D.2d 966). Furthermore, because the contention that the testimony was precluded by 22 NYCRR 202.17 is being raised for the first time on appeal, it has not been properly preserved for our review ( see, CPLR 5501 [a]; Kocher v. Baird, 174 A.D.2d 1042). In any event, that rule relates to the exchange of medical reports and thus is not applicable.
Thereafter, plaintiff commenced this action to set aside the agreement on the grounds of unfairness, undue influence, lack of financial disclosure and overreaching. Defendant appeals from Supreme Court's order that denied his motion to dismiss the complaint and granted plaintiff's cross motion that sought financial disclosure and discovery. Defendant's argument that the complaint should have been dismissed because plaintiff's vague and conclusory allegations of unfairness, undue influence, lack of financial disclosure and overreaching are insufficient as a matter of law, is raised for the first time on appeal, and therefore, that argument is not properly before us (see, MacMaster v Sardina, 182 A.D.2d 1132; Kocher v Baird, 174 A.D.2d 1042). Supreme Court erred, however, in granting plaintiff's cross motion and we therefore modify the order to deny it. Plaintiff failed to establish the requisite "legitimate factual predicate" for the discovery sought and there is no basis to depart from the general rule that financial disclosure is inappropriate unless and until the existing separation agreement is set aside (see, Rupert v Rupert [appeal No. 1], 190 A.D.2d 1027 [decided herewith]; Fakiris v Fakiris, 177 A.D.2d 540, 543; Cruey v Cruey, 159 A.D.2d 241; Gilsten v Gilsten, 137 A.D.2d 411, 413; Oberstein v Oberstein, 93 A.D.2d 374).