Opinion
May 19, 1977
Order, Supreme Court, New York County, entered January 26, 1977, which denied appellant's cross application for pretrial examination of plaintiff and his present wife, counsel fees, accounting fees and expenses related to the proceeding is unanimously modified, on the law and the facts, to grant pretrial examination of plaintiff as to financial condition and to award counsel fees in the amount of $2,000, inclusive of services rendered on this appeal, with leave to apply to the trial court for additional counsel fees if warranted, and for any other expenses related to this proceeding, and otherwise affirmed, without costs and without disbursements. Section 250 Dom. Rel. of the Domestic Relations Law is specific in requiring compulsory disclosure of the financial status of the parties without a showing of special circumstances. (Ponard v Ponard, 52 A.D.2d 564. ) It is also clear that by the terms of the separation agreement, the parties contemplated disclosure. The plaintiff's wife, not being a party to this proceeding and no special circumstances having been found, may not be examined (CPLR 3101). In December, 1973, the parties entered into a separation agreement, the terms of which were incorporated into and survived a conversion judgment of divorce granted on January 31, 1975. The agreement set forth that in the event of a change in the husband's circumstances and a claim for downward modification based thereupon, the husband would pay reasonable legal fees and in the event that he is the unsuccessful party, reasonable accountant's fees. Under the circumstances, Special Term should have allowed appropriate fees. Counsel fees are granted as above indicated. The application for accounting fees was properly denied as premature. The separation agreement provides for such fees in the event that the plaintiff is the unsuccessful party, and, therefore, until termination of the proceedings, any motion at this time for award of accountant's fees would be premature. Settle order on notice providing for the scope and date of examination.
Concur — Kupferman, J.P., Birns, Evans, Capozzoli and Yesawich, JJ.