Opinion
2012-10-23
Rita SCABA, Plaintiff–Respondent, v. Moshe SCABA, Defendant–Appellant.
Oved & Oved LLP, New York (Edward C. Wipper of counsel), for appellant. Elliott Scheinberg, Staten Island, for respondent.
Oved & Oved LLP, New York (Edward C. Wipper of counsel), for appellant.Elliott Scheinberg, Staten Island, for respondent.
, J.P., ANDRIAS, SAXE, DeGRASSE, MANZANET–DANIELS, JJ.
Appeal from order, Supreme Court, New York County (Saralee Evans, J.), entered September 20, 2011, which, inter alia, granted plaintiff's motion to direct defendant to allow plaintiff access to all digital storage media containing records of defendant's businesses and financial interests, unanimously dismissed, without costs, as moot.
Following Supreme Court's order, we stayed electronic discovery, but permitted the rest of this matrimonial action to proceed (2012 N.Y. Slip Op. 63300[U], 2012 WL 372714 [1st Dept.2012] ). It did, and it appears that defendant's businesses provided the information sought by plaintiff in non-electronic form. Indeed, Supreme Court has concluded that discovery is complete and the matter has been referred to a referee for trial. Accordingly, since discovery is complete, there is no actual controversy for this Court to consider ( see e.g. Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ).
Were we to consider the merits of the appeal, we would affirm the court's discovery order. Defendant contends that plaintiff's motion should have been denied for her failure to comply with 22 NYCRR 202.7. However, this Court has excused compliance with that rule where, as here, any effort to resolve the dispute non-judicially would have been futile ( see Baulieu v. Ardlsey Assoc., L.P., 84 A.D.3d 666, 923 N.Y.S.2d 326 [1st Dept.2011] ).
To the extent defendant argues that plaintiff was required to identify specific electronic documents that would have been responsive to her requests, plaintiff's ability to do so was hampered by defendant's obstructive tactics. Finally, defendant's argument that plaintiff was required to submit, and the court promulgate, a protocol pursuant to which electronic discovery would be conducted, is unavailing. Plaintiff did request that the court direct electronic discovery to proceed in accordance with Etzion v. Etzion, 7 Misc.3d 940, 796 N.Y.S.2d 844 [Sup. Ct. Nassau County 2005], and the court providently exercised its discretion in fashioning protections for defendant in the order.