This non-primary holdover proceeding was commenced in July 2004. The petitioner alleges that the respondent maintains his primary residence in New Jersey and has done so since September 2001.

Pursuant to an order by Hon. Jose Rodriguez, dated December 9, 2004, leave was granted to the petitioner to conduct discovery and the matter was marked off calendar for that purpose. The order reads, in relevant part, as follows:

This court finds that the ample need' requirement for discovery has been met and the factual details regarding whether the respondent has been occupying the subject apartment as his primary residence are likely to be exclusively within his knowledge and control therefore relevant to this proceeding. This court further finds it would not be burdensome for respondent to produce this information and therefore it would not be prejudicial to conduct the requested discovery.

Deposition or discovery, of non-party witnesses under CPLR Section 3104(a)(4)[sic]^[FN1] is denied.*** If necessary, the non-party witness can be brought to court by subpoena during the trial phase of this proceeding.

On January 17, 2005, the respondent was served with a Notice of Examination Before Trial which was finally conducted on July 28, 2005. The petitioner alleges that the respondent has failed to respond to a Notice to Settle the Transcript, served on or about September 2, 2005, and, therefore, pursuant to CPLR 3116(a), the transcript of the deposition is deemed to be accurate.

According to the petitioner,

[t]he following documents were demanded of Respondent at his deposition: properly redacted income tax returns (the returns that were provided were not only redacted as to numerical sums for income, but also as to whether taxes were filed in New Jersey, whether property tax deductions were claimed for the residence in New Jersey, the amount of those claimed deductions for real estate taxes, mortgage interest & points paid for the property in New [*2]Jersey, etc.), the names and addresses of the closing attorney & bank for the New Jersey property, a copy of the mortgage application, unredacted credit card statements showing statement period dates, a copy of the original lease. (Affirmation in support of the motion, ¶ 5)

Now, two years after the prior court's order, the petitioner moves to restore this matter tothe Court's calendar for immediate trial and, pursuant to CPLR 3124 & 3126,^[FN2] for an order either compelling disclosure, or preclusion of the items requested that were not provided, or that were improperly redacted, and for an inference favorable to the petitioner with regard thereto.Upon review of the excerpts of the respondent's examination before trial on July 28, 2005 (Pet. Exhibits C & E), the Court notes the following:

The respondent testified that he was "temporarily" living at 1 Christine Drive, Parsippany, New Jersey for approximately three years (5, 7)^[FN3], more than six months per year (58). Since September 2001, he commuted from New Jersey to work at Federal Plaza, in New York City, instead of from Brooklyn (27). The respondent deducted real estate taxes from his New Jersey residence on his federal taxes and considered New Jersey as his qualified residence for tax purposes (42, 45). In 2002, he did not file taxes in New York State and filed as a non-residence commuter (58). He did not pay New York City local taxes because he was considered a resident of New Jersey by both New York State and the Internal Revenue Service (59). The respondent has had a New Jersey driver's license since 1995 because he was required to have one by the title company or holder of his mortgage and he surrendered his New York State license that same year [*3](67). He purchased a new car in New Jersey in 2001 - it is registered, insured and parked in New Jersey, never garaged in Brooklyn, and serviced in New Jersey (68-70). Respondent owns a dog, licensed in New Jersey and uses a veterinarian in New Jersey (70). He has a membership for Bally's fitness centers and works out in New Jersey, never in Brooklyn (87-88) and has a barber in Parsippany, New Jersey that he uses on a regular basis (91). Regarding purchases, the respondent stated that he has made almost none in Brooklyn since 1996 (87).

In opposition to the petitioner's motion, the respondent's counsel relies on that portion of Judge Rodridguez's order, as cited above, which denied the discovery of a non-party witness, in this case, the respondent's wife, as the rationale for refusing to provide various documents; i.e: tax returns; mortgage applications; etc. That restriction by the court, under the circumstances herein, becomes a direct contradiction to the purpose of the order itself, because it prevents the very discovery that the court intended of the party respondent. As previously noted, the court found "ample need" to discover matters that are exclusively within the respondent's knowledge and control and therefore relevant to this proceeding and that providing the information sought by the petitioner "would not be burdensome for the respondent to produce".

While not attempting to act as an appellate court sitting in review of a colleague's decision, in a court of concurrent jurisdiction, this Court does not believe that the prior decision/order granting discovery was intended to be negated by the denial of discovery of any non-party witness.

Clearly, the respondent cannot use the protection afforded his spouse as a shield to avoid providing essential information available to him and otherwise properly discoverable. In virtually every situation where married couples file joint tax returns, or jointly apply for mortgages, credit cards, loans or joint bank accounts, etc., it would be impossible to obtain information if, as here, one spouse is protected by a court order as a non-party witness, while the other, as a party to an action, is ordered to produce documents and refuses to do so on the grounds that it would violate his or her spouse's confidentiality and/or privileged information. When two or more persons jointly enter into any venture, such as the filing of taxes, etc., they become as one, totally entwined and equally entitled to any benefits or responsible for any consequences.^[FN4] [*4]

The prior court, in the case at bar, held in no uncertain terms, without limitations or exceptions, that the respondent was required to respond to the petitioner's discovery requests. As there was no appeal of that decision, or any subsequent motions seeking a protective order, the respondent cannot at this juncture, two years after that decision was rendered, seek to undo the letter and spirit of that order.

It is the opinion of this Court, that the respondent, as requested by petitioner, provide copies of all tax returns filed from 1995 through 2005.^[FN5] Except as items directly pertaining to the residence at 1 Christine Drive, Parsippany, New Jersey, said taxes may be redacted as to social security numbers and dollar amounts, and any other information that can be shown to pertain exclusively to the respondent's spouse.

The respondent is further directed to provide a copy of the mortgage application for the premises located at 1 Christine Drive, Parsippany, New Jersey. Redactions may be made pertaining to any items that pertain exclusively to the respondent's spouse. Respondent must provide any information contained therein regarding the nature and/or the use of the subject premises, i.e.: residence, summer home, investment, etc.

In addition, the respondent is directed to provide copies of credit card statements as previously requested, redacting the account numbers and the amounts of purchases.

The name and address of the closing attorney for the mortgage has already been provided and the respondent is directed to provide the name of the bank he applied to for the mortgage as agreed to by his counsel during the deposition (38).

Regarding petitioner's request for a copy of the original rent control lease, respondent's counsel represents that he is unable to locate it after four decades, and that, in any event, it is irrelevant.

Based upon counsel's representation to the Court that respondent is unable to locate said lease, its production will not be required.

The respondent is directed to comply with the production of all documents as set forth above no later than February 28, 2007. Failure to comply will preclude the respondent from utilizing any such items and/or documents in defense of this proceeding at trial, and the court can draw whatever inferences it deems appropriate under the circumstances.

This matter is calendered for March 14, 2007 for trial. The parties are directed to appear, trial ready, on that date at 9:30 A.M. in Part C, at which time the matter will be referred to the expediter for trial.

Accordingly, the petitioner's motion for restoration and preclusion is granted as stated herein.

This constitutes the decision and order of the Court.

Dated: January 30, 2007_____________________________

GEORGE M. HEYMANN, J.H.C.