Opinion
November 13, 1998
Appeals from Amended Order and Judgment of Supreme Court, Yates County, Falvey, J. — Maintenance.
Present — Denman, P. J., Wisner, Pigott, Jr., Callahan and Fallon, JJ.
Amended order and judgment unanimously modified in the exercise of discretion and as modified affirmed without costs in accordance with the following Memorandum: Defendant contends that Supreme Court erred in denying her cross motion for additional discovery regarding the finances of a closely held corporation owned by plaintiff's family. We disagree. The record establishes that defendant's cross motion was made approximately 10 months after plaintiff filed a note of issue and statement of readiness. Because defendant failed either to object to that filing or move to strike the note of issue, she waived her right to further discovery ( cf., Giglio v. Carucci, 116 A.D.2d 1040). Furthermore, defendant failed to demonstrate any unusual or unanticipated circumstances that warranted further discovery ( see, 22 NYCRR 202.21 [d]; Simpson v. K-Mart Corp., 245 A.D.2d 991, 992, lv denied 91 N.Y.2d 813; Welch v. County of Clinton, 203 A.D.2d 749; S.A.B. Enters. v. Village of Athens, 178 A.D.2d 820). Moreover, the court did not foreclose defendant from obtaining those records; rather, the court denied the cross motion without prejudice to the issuance of a subpoena for those records at trial. Defendant failed to subpoena those records.
In the exercise of our discretion, we modify the amended order and judgment by providing in the 13th ordering and decretal paragraph that the duration of maintenance shall be for a period of 10 years ( see, Mann v. Mann, 244 A.D.2d 928, 929; Kret v. Kret, 222 A.D.2d 412, 412-413; Lampard v. Lampard, 219 A.D.2d 835; Schlosberg v. Schlosberg, 163 A.D.2d 381). In modifying maintenance, we consider the duration of the marriage, the marital lifestyle, the property distribution, the health of the parties, the disparity in their respective incomes, the presence of a child or children in the home, defendant's sacrifice of career opportunities during the marriage, and defendant's capacity to become self-supporting ( see, Domestic Relations Law § 236 [B] [6] [a] [1]-[6]).
We conclude that the court did not abuse its discretion in denying defendant's request for counsel fees and expert witness fees ( see, Pejo v. Pejo, 213 A.D.2d 918, 919, lv denied 85 N.Y.2d 811). Finally, we reject the contention raised by plaintiff in his cross appeal.