Perry v. Fiumano

• Decision Date: 01 March 1978
• Citation: 61 A.D.2d 512,403 N.Y.S.2d 382
• Parties: Janis L. PERRY, Respondent, v. Joseph Anthony FIUMANO, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 382

403 N.Y.S.2d 382

61 A.D.2d 512

Janis L. PERRY, Respondent, v. Joseph Anthony FIUMANO, Jr., Appellant.

Supreme Court, Appellate Division, Fourth Department.

March 1, 1978.

Bruce O. Jacobs, Syracuse, for appellant; Jon Brenizer, Syracuse, of counsel.

Alderman, Alderman, Samuels & Schepp, Syracuse, for respondent; Eric Alderman, Syracuse, of counsel.

Macht & Amdursky, Syracuse, for amicus curiae, Onondaga Pastoral Counseling Center; Jon Brenizer, Syracuse, of counsel.

Before MARSH, P. J., and MOULE, SIMONS, DILLON and WITMER, JJ.

DILLON, Justice:

In this custody proceeding, petitioner seeks disclosure of records of the Onondaga Pastoral Counseling Center, Inc. (Counseling Center) pertaining to multiple consultations of the respondent with that agency prior to the termination of the marriage of the parties. Primarily, we are asked to determine whether the privilege which attaches to communications between a certified social worker and his client (CPLR 4508) renders such records unobtainable (see CPLR 3101, subd. (b)). Since it is affirmatively argued that clients of the Counseling Center have the benefit of a total service which includes evaluation by both physicians and psychologists, we deal also, at least peripherally, with the physician-patient (CPLR 4504) and psychologist-client (CPLR 4507) privileges.

Petitioner and respondent were married in 1966 and are the parents of an 11-year old son who is now in respondent's custody. In an effort to resolve matrimonial problems, they began utilizing the services of the Counseling Center in May, 1976. Initially the parties made regular visits to the Center where they were afforded both joint and private counseling. There came a time, undisclosed in the record, when the petitioner terminated counseling but the respondent continued. The Counseling Center's records reveal a total of 49 consultations by one or both of the parties.

The rehabilitative effort failed and a separation agreement was executed by the parties on August 17, 1976. While the agreement characterizes the custodial arrangement as "joint", by its terms actual custody of the child was awarded to the respondent "with reasonable rights of visitation" granted to the petitioner. The terms of the separation agreement were incorporated into a judgment of divorce entered in the Dominican Republic on October 11, 1976. Petitioner has since remarried and in February, 1977 she brought this habeas corpus proceeding in which she alleges, inter alia, that the respondent is irrational, suicidal and emotionally unstable, and consequently is unfit to care for the child. These allegations are denied by the respondent.

Upon petitioner's motion seeking a psychiatric examination of respondent, the court directed that both parties and the child be examined by Dr. Frank Mills, with copies of his reports to be submitted to the attorneys for the parties. Thereafter petitioner moved for an order pursuant to CPLR 3121 (subd. (b)) compelling the respondent to furnish written authorizations for the disclosure of the records of the Counseling Center and one Martha Brewster, a certified social worker at the Center, pertaining to the respondent's psychiatric, psychological and emotional condition. Petitioner's affidavit reasserts her opinion as to respondent's mental condition and alleges that she was advised by the said Martha Brewster that "the respondent's psychiatric and emotional stability was in effect precarious * * * ". Special Term granted petitioner's motion, and respondent appeals. He contends that his communications with the social worker, and thus with all of those employed at the Counseling Center (see CPLR 4508), were made with the expectation of confidentiality and are privileged.

Communications made in confidence are not protected purely because of their confidentiality, but may be kept secret only if premised upon a public policy expressed by statute or in furtherance of an overriding public concern of constitutional dimension (see, e. g., People v. Doe, App.Div., 403 N.Y.S.2d 375, decided herewith). It was the rule at common law and remains the rule today, that it is everyman's duty to give evidence in a court of law. We are here concerned with three statutorily created exceptions to that rule, none of which existed at common law. Whether the protected relationship involves physician, psychologist or certified social worker, all share the common purpose of encouraging the patient or client fully to disclose the nature and details of his illness or his emotions without fear of later revelation by one in whom he placed his trust and confidence (see Matter of Warrington (State of New York), 303 N.Y. 129, 135, 100 N.E.2d 170 172; Yaron v. Yaron, 83 Misc.2d 276, 372 N.Y.S.2d 518).

There is little appellate precedent to guide our deliberation of the case at bar, although the First Department has recognized that " 'despite the sacrosanct nature of the statutory prohibition', (the physician-patient privilege) may be waived or suspended for certain purposes, even if not for all purposes." (Matter of Schulman v. New York City Health & Hosps. Corp., 44 A.D.2d 482, 484, 355 N.Y.S.2d 781, 783, affd., 38 N.Y.2d 234, 379 N.Y.S.2d 702, 342 N.E.2d 501). The Second Department has ruled that the psychologist-client privilege is automatically waived by a party who actively contests custody (Baecher v. Baecher, 58 A.D.2d 821, 396 N.Y.S.2d 447). One trial court in a custody case has held that any communication which is privileged when made remains privileged forever unless affirmatively waived (see Yaron v. Yaron, 83 Misc.2d 276, 372 N.Y.S.2d 518, supra ). The prevailing trend at the nisi prius level, however, has been to carve out a limitation upon the privilege in cases involving the welfare and best interests of children (see Matter of Do Vidio v. Do Vidio, 56 Misc.2d 79, 288 N.Y.S.2d 21; People ex rel. Chitty v. Fitzgerald, 40 Misc.2d 966, 244 N.Y.S.2d 441; see also Matter of Clear, 58 Misc.2d 699, 296 N.Y.S.2d 184, rvsd. on other grounds sub nom. Matter of Klug, 32 A.D.2d 915, 302 N.Y.S.2d 418). Much reliance is placed upon a balancing of interests test expressed in Wigmore. Privileged communications should not be disclosed unless "(t)he injury that would inure to the relation by the disclosure of the communications (is) greater than the benefit thereby gained for the correct disposal of litigation." (8 Wigmore, Evidence (McNaughton rev., 1961), § 2285, p. 527, emphasis in original.)

Wigmore's test surely has relevance in a custody proceeding, as does the language of Judge Scileppi in Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857. There it was held that "by bringing or defending a personal injury action in which mental or physical condition is affirmatively put in issue, a party waives the (physician-patient) privilege." (25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 864, 250 N.E.2d 857, 861, supra, emphasis in original.) While the rule in personal injury actions is limited "to cases in which a defendant affirmatively asserts the condition either by way of counterclaim or to excuse the conduct complained of by the plaintiff" (25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 864, 250 N.E.2d 857, 861, supra ), it can safely be said that the mental and emotional state of a custodial parent is of great concern to the court regardless of the form in which the issue is presented. Nonetheless, waiver or suspension of statutory privileges is a drastic remedy which should only be granted upon a showing by the party seeking the examination of the protected records that a party's mental or emotional condition is in controversy. The affidavits seeking such relief "must contain evidentiary matter and not mere conclusory statements" (see Koump v. Smith, 25 N.Y.2d 287, 300, 303 N.Y.S.2d 858, 869, 250 N.E.2d 857, 864, supra ).

In its role as successor to the chancellor, the court acts as parens patriae in determining the custody of a minor child (Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624). That determination must be based solely upon the best interests of the child (Domestic Relations Law, §§ 70, 240) in accordance with the standard expected of a "wise, affectionate and careful parent" (Finlay v. Finlay, supra, p. 433, 148 N.E. p. 626). The court's duty as protector of children is deeply rooted in Anglo-American...