         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1268
CA 12-00868
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.


CHAMBERLAIN, D’AMANDA, OPPENHEIMER &
GREENFIELD LLP, PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

REBECCA P. WILSON, DEFENDANT-APPELLANT.
---------------------------------------
J. RICHARD WILSON AND STEPHEN M.
JACOBSTEIN, RESPONDENTS.


M W MOODY LLC, NEW YORK CITY (MARK WARREN MOODY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN, LLP, ROCHESTER
(RICHARD GLEN CURTIS OF COUNSEL), FOR RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered August 10, 2011. The order, among other things,
denied in part the motion of defendant to compel disclosure from J.
Richard Wilson and Stephen M. Jacobstein.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the condition in the third
ordering paragraph and as modified the order is affirmed without
costs.

     Memorandum: Defendant appeals from an order that, inter alia,
denied her motion to compel insofar as it sought disclosure from her
ex-husband, nonparty respondent J. Richard Wilson, and conditioned
disclosure from her ex-husband’s attorney, nonparty respondent Steven
M. Jacobstein, upon her stipulation not to seek to “re-open” the
divorce from her ex-husband.

     Contrary to defendant’s contention, the ex-husband did not waive
his objection to the disclosure sought by failing to seek a protective
order in a timely manner. The party seeking disclosure is obligated
to move to compel such disclosure when confronted with a refusal to
disclose; “no longer may the party who served a discovery notice rely
upon the recipient’s failure to seek a protective order” (Pyron v
Banque Francaise du Commerce Exterieur, 256 AD2d 204, 205).

     Defendant further contends that Supreme Court erred in both
denying her motion to compel to the extent that it sought disclosure
from her ex-husband, a nonparty to the underlying action between
                                 -2-                          1268
                                                         CA 12-00868

defendant and her former attorneys, and in imposing a condition on the
disclosure from the ex-husband’s attorney. “The supervision of
discovery, the setting of reasonable terms and conditions for
disclosure, and the determination of whether a particular discovery
demand is appropriate, are all matters within the sound discretion of
the trial court” (Kooper v Kooper, 74 AD3d 6, 17). While we conclude
that the Court did not abuse its discretion under the circumstances of
this case by refusing to compel disclosure from defendant’s ex-husband
(see CPLR 3101 [a] [4]; cf. CPLR 3101 [a] [1]), we do agree with
defendant that the court abused its discretion by conditioning
disclosure from her ex-husband’s attorney “upon defendant supplying
[the attorney] with a stipulation not to seek re-opening [of] any
aspect of the divorce, within five (5) days of this Order.” We
therefore modify the order by vacating that condition.




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
