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A.L. v C.K. (2008 NY Slip Op 28399)

Supreme Court, Kings County, October 15, 2008
APPEARANCES OF COUNSEL
Dobrish Zeif Gross & Wrubel LLP, New York City (Robert Zeif of counsel), for plaintiff. Fee Schpoont & Cavallo, LLP, New York City (Carrie Anne Cavallo of counsel), for defendant. Brad Nacht, Brooklyn, for the children.
{**21 Misc 3d at 934} OPINION OF THE COURT
Jeffrey S. Sunshine, J.
Introduction
In the instant matrimonial action plaintiff wife, A.L., moves for an order requiring the defendant husband C.K.'s treating therapist to submit to a pretrial deposition or in the alternative to produce his notes prior to trial. The husband seeks pendente lite counsel fees from the wife claiming, inter alia, a disparity in income.
The parties were married in August 1998. They resided with their three children (ages four, six, and eight) in Park Slope, Brooklyn, New York. The husband is 50 years of age and the wife is 36 years of age. [*2]
A.L. v C.K. (2008 NY Slip Op 28399)
The parties have been engaged in highly contested litigation in both the Family Court and subsequent thereto before this court. Shortly after settling the issue of custody in Family Court with a detailed custody agreement, the wife instituted this action and sought permission to relocate with the children to Pittsburgh, Pennsylvania, where she has obtained employment teaching at a university. The wife's claim for the need to obtain the husband's therapist's testimony and records is based on the wife's allegation of the husband's alleged use and abuse of alcohol and incidents of domestic violence which occurred in the presence of the children. The husband is an attorney employed by a major New York City law firm.{**21 Misc 3d at 935}
Discussion
Pretrial Disclosure
It is well settled that the parties to a contested custody proceeding place their mental condition at issue, thereby waiving the physician-patient privilege (see Torelli v Torelli, 50 AD3d 1125 [2d Dept 2008]; see also Baecher v Baecher, 58 AD2d 821 [2d Dept 1977]; Rosenblitt v Rosenblitt, 107 AD2d 292 [2d Dept 1985]). It is also well settled, however, that "[t]here first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material" (McDonald v McDonald, 196 AD2d 7, 13 [2d Dept 1994], quoting Perry v Fiumano, 61 AD2d 512, 519 [4th Dept 1978]).
In Baecher v Baecher (58 AD2d 821 [1977], supra), the Second Department held:
"The defendant's assertion of the psychologist-client privilege (see CPLR 4507) is without merit. Although, abstractly, the privilege applies in matrimonial proceedings (see Yaron v Yaron, 83 Misc 2d 276), in this case the defendant waived his right to the privilege by actively contesting custody, thereby putting his mental and emotional well

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