Yaron v. Yaron

• Decision Date: 08 September 1975
• Citation: 83 Misc.2d 276,372 N.Y.S.2d 518
• Parties: Violet S. YARON, Plaintiff, v. Nissim M. YARON, Defendant.
• Court: New York Supreme Court

Page 518

372 N.Y.S.2d 518

83 Misc.2d 276

Violet S. YARON, Plaintiff, v. Nissim M. YARON, Defendant.

Supreme Court, Special Term, New York County, Part 5B.

Sept. 8, 1975.

Jules Teitelbaum by Norman Klasfeld, New York City, of counsel, for plaintiff.

Shaw, Bernstein, Scheuer, Boyden & Sarnoff by William Bernstein, New York City, for defendant.

ARTHUR E. BLYN, Justice.

Is privilege a right?

This question arose in this matrimonial proceeding in which the plaintiff seeks the dissolution of the marriage and both the plaintiff and defendant wish custody of the three infant issue of the marriage.

A number of years prior to the commencement of this proceeding the parties who had been having marital problems, sought the help, advice and guidance of the Jewish Family Service. Both were interviewed by staff personnel of that agency, including social workers and at least one psychiatrist. It is clear that both parties were interviewed together on a number of occasions. It is not clear, from the record, whether either or both were ever interviewed without the other being present. At that time there was no intention to dissolve the marriage, nor was there any question of a dispute as to custody of the children. As a matter of fact the parties had sought the help of the Jewish Family Service in an attempt to preserve the marriage.

During the trial the attorney for the defendant served a subpoena duces tecum on the Jewish Family Service calling upon it to produce its records and reports covering the consultations, examination, interviews, etc., relating to the parties. He also made an offer of proof to the effect that he wished to produce as a witness the psychiatrist on the staff of that agency who had interviewed the parties.

The attorney for the plaintiff objected to the production and admission into evidence of the records and reports of the agency on the grounds that they were not business records as defined in Section 4518 of the CPLR and that in any event they were privileged under the relevant section of the CPLR and that the offer of proof to produce the psychiatrist should be denied on the grounds of privilege. The court reserved decision at that time.

The Jewish Family Service thereafter informally sought permission to appear as amicus curiae and was permitted to submit a memorandum of law opposing the production of its records and reports on the grounds of the privilege granted in Section 4508 of the CPLR.

The court is of the opinion that the totality of the Jewish Family Service function falls within the ambit of protection afforded by various sections of the CPLR. Section 4508 for certified social worker-client relationships; Section 4507 for registered psychologist-client relationships; and Section 4504 for physician (psychiatrist)-patient relationships; and all of the other staff personnel of that agency by virtue of their relationsh to the protected communications. (People v. Decina, 2 N.Y.2d 133, pages 142, 143, 157 N.Y.S.2d 558, 566, 567, 138 N.E.2d 799, 805.) Persons who voluntarily seek the aid of such an agency in connection with inter-personal problems, whether the family unit or other, must, if such aid is to be successful, deal with the staff of such agency with the utmost candor, revealing and laying bare all of their secret feelings, resentments, hostilities, fantasies, desires, etc. To embark on this most difficult task of stark self revelation the parties must have absolute confidence that total privacy (read privilege) protects such baring of their souls.

Some judges have dealt with privilege in a manner not calculated to encourage this essential element of confidence in the total privacy (read privilege) of such disclosures.

They have placed great reliance on Wigmore's four fundamental conditions claimed to be necessary to establish the privilege against disclosure between persons standing in given relationships. (8 Wigmore, Evidence, McNaughton rev. 1961, Section 2285, page 527.) They read as follows:

'(1) The communication must originate in a Confidence that they will not be disclosed.

(2) This element of Confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The Relation must be one which in the opinion of the community ought to be sedulously Fostered.

(4) The Injury that would inure to the relation by the disclosure of the communications must be Greater than the benefit thereby gained for the correct disposal of litigation.'

These judges have interpreted the fourth condition in such a way as to negate the privilege of Section 4508 CPLR. For example in the case of In the Matter of Humphrey, 79 Misc.2d 192, 359 N.Y.S.2d 733, involving a paternity proceeding the court found that no privilege existed as to testimony by a social worker of the Jewish Family Service who interviewed both the petitioner and the alleged putative father (respondent) during the pregnancy of the petitioner.

The respondent maintained that any statements made by him while both he and the petitioner were meeting with the social worker were privileged under Section 4508. The court in that case stated that the respondent had failed to meet the fourth condition of Wigmore in the following words: 'The disclosure of evidence relevant to a correct determination of paternity is of far greater importance than any injury that might inure to the relationship between the social worker and his clients. (See People ex rel. Chitty v. Fitzgerald, 40 Misc.2d 966, 244 N.Y.S.2d 441.)' In passing it should be noted that the court in People ex rel. Chitty, supra, begged the real question posed as to whether privilege can be breached at the discretion of a judge.

The court in Matter of Humphrey, supra, perhaps a little uncertain as to the validity of this interpretation based on Wigmore's fourth condition then added the following: 'The statute (Sec. 4508, CPLR) is relatively new and there has been relatively little case law on it. However, it has long been held that 'If two or more persons consult an attorney in regard to a matter of common interest to them, nothing that is said by the parties or the attorney is deemed confidential, in an action arising subsequently thereto between the parties or their personal representatives. " (Matter in brackets added.) (Citing Hurlburt v. Hurlburt, 128 N.Y. 420, 28 N.E. 651 (an 1891 case); Wallace v. Wallace, 216 N.Y. 28, 109 N.E. 872 (1915), and Lawless v. Schoenaker, 147 Misc. 626, 264 N.Y.S. 280 (1933). The court in the Matter of Humphrey, supra, then reasoned: 'By analogy and on the same theory, where two or more persons consult a social worker in regard to a matter of common interest to them, nothing that is said by the parties or the social worker is deemed confidential in an action arising subsequently thereto between the parties.' So much for the sanctity of this privilege granted by the Legislature in Section 4508. More on this point later.

Another judge in the Matter of Clear, 58 Misc.2d 699, 296 N.Y.S.2d 184, resorted to the same fourth condition of Wigmore to find that privilege under Section 4508 could be breached by the court, using the same phrase about balancing the conflicting interests as appeared in the Matter of Humphrey, supra. The court in the Matter of Clear, supra, not satisfied with reliance only on the fourth condition of Wigmore interpreted the second and third conditions of Wigmore to support its conclusion that it could breach the privilege of Sec. 4508. This involved a certain amount of straining to conclude that the mother of the infant in that proceeding was not protected by the privilege because the 'primary responsibility and relationship of the authorized agency ran to the child committed to its care by the Department of Social Services and not to the child's mother.'

Of course the communication to which the privilege was claimed was not between the child and the agency staff but between the mother and the agency staff. That court then launched into the following hyperbole to rationalize its breach of the privilege: 'In regard to the second condition there is no evidence as to the essentiality of confidentiality between the social worker and the mother, and no evidence has been submitted as to the character or the extent of the relationship between the social worker and the mother.'

In a footnote the judge makes the same reference to Hurlburt v. Hurlburt, supra, as was made by the judge in Matter of Humphrey, supra. Again so much for the sanctity of Sec. 4508's privilege. Again more on this point later.

It is customary for courts to resolt to extra-judicial material in many matters involving interpretation of the law. Such sources as law school reviews, law school professors' writings, Richardson on Evidence and Wigmore on Evidence are examples.

In the matter under discussion here the point has been made that a number of judges have alluded to the 'four fundamental conditions . . . as necessary to the establishment of a privilege against the disclosure of communications.' 8 Wigmore, Evidence, McNaughton rev. 1961, page 527.

This court also on occasion resorts to the extra-judicial material referred to when case law is not relevant to an issue. However unlike case and statutory law the court is not bound by such extrajudicial sources. Judges ought not to accept uncritically the interpretations of law expounded, and yes even espoused, in such source material.

For example, the great emphasis on the four fundamental conditions alluded to earlier. Besides the attorney-client privilege, which existed in the common law before it was given statutory authority, all the...