Opinion
November 21, 1994
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
Ordered that the order dated October 17, 1991, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order dated December 16, 1991, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the appeal from the order dated November 30, 1992, is dismissed as academic, without costs or disbursements; and it is further,
Ordered that the appeal from the order dated December 7, 1992, is dismissed as abandoned, without costs or disbursements; and it is further,
Ordered that the order entered July 15, 1992, is reversed, as a matter of discretion, without costs or disbursements, and the motion to appoint a temporary receiver is denied.
The Supreme Court did not err in restraining Mustafa Serdaroglu (hereinafter Mustafa) from selling the lease to the service station located on Parsons Boulevard in Flushing, New York. Mustafa retains exclusive control over the lease to that service station, and "his unilateral decision to transfer, sell or otherwise encumber [it] may serve to deprive the [defendant] of her equitable share of it" (Frankel v. Frankel, 150 A.D.2d 520).
In addition, the Supreme Court did not err in precluding Mustafa from offering evidence or testimony with regard to the financial information sought by Sandra Serdaroglu (hereinafter Sandra) in her notice for discovery and inspection. While Sandra failed to provide Mustafa with 20 days notice to produce the demanded documents, as required by CPLR 3120 (a) (2), Mustafa waived the defect when he agreed to provide inspection of the demanded documents without complaining that the notice was defective and when he failed to raise the issue in opposition to Sandra's motion (see, e.g., Byrne v. Fordham Univ., 118 A.D.2d 525). It is well settled that "[t]he nature and the degree of the penalty to be imposed pursuant to CPLR 3126 is a matter lying soundly within the discretion of the court to which the application has been made (Associated Mut. Ins. Co. v. Dyland Tavern, 105 A.D.2d 892, 893). In view of Mustafa's continuous, willful failure to comply with the compulsory financial disclosure requirements of Domestic Relations Law § 236 (B) (4), the Supreme Court did not improvidently exercise its discretion in precluding him from offering evidence at trial with regard to his finances (Kandel v. Kandel, 129 A.D.2d 617).
With respect to the Supreme Court's order appointing a Referee to supervise disclosure in Action No. 1, the appeal is academic. All relevant discovery has been completed, and the parties concede that there is no further need for a Referee.
It was error for the Supreme Court to appoint a receiver for the gasoline service stations. It is well settled that the appointment of a temporary receiver in a matrimonial action is an extreme remedy which should not be granted lightly (Adinolfi v Adinolfi, 168 A.D.2d 401, 402; Hildenbiddle v. Hildenbiddle, 110 A.D.2d 819). Here, Sandra failed to satisfy the requirements of CPLR 6401 (a) and establish, by clear and convincing evidence, that there is a danger of irreparable loss or material injury to the stations or their assets (see, McBrien v. Murphy, 156 A.D.2d 140). Her conclusory allegations that Mustafa was secreting profits from the stations were insufficient to warrant the appointment of a receiver (see, Modern Collection Assocs. v Capital Group, 140 A.D.2d 594). Bracken, J.P., Copertino, Joy and Altman, JJ., concur.