Opinion
Argued February 16, 1970
Decided March 4, 1970
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, RAYMOND E. ALDRICH, JR., J.
Ben-Allen Breslow and Nathaniel Rubin for appellant.
Mark H. Alcott, Martin Kleinbard and Lloyd L. Rosenthal for respondent.
Order affirmed, with costs, and the question certified answered in the affirmative in the following memorandum:
The order of the Appellate Division should be affirmed, with costs, and question certified answered in the affirmative on the ground that respondent-appellant failed to move for a protective order under CPLR 3122 or to show cause why his failure to so move was excusable ( Zeif v. Zeif, 31 A.D.2d 625; Coffey v. Orbachs, Inc., 22 A.D.2d 317, 319-320), and neither the Appellate Division nor the Family Court exercised discretion to excuse compliance with CPLR 3122, a discretion which either court undoubtedly had. No other issue is passed upon.
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.