Opinion
January 22, 1979
In a matrimonial action in which the mother was granted a judgment of divorce and custody of the two infant children, and in which the father later moved to modify the custody provisions of the judgment, the appeal is from an order of the Family Court, Rockland County, dated June 13, 1978, which denied the mother's motion, pursuant to CPLR 4506, to suppress certain taped telephone conversations. (We deem leave to appeal to have been granted by our order dated August 2, 1978, which granted appellant a stay.) Matter remanded to the Family Court for an evidentiary hearing solely on the question of whether the mother consented to the taping of her conversations and appeal held in abeyance in the interim. Whether a conversation or discussion ought to be suppressed under CPLR 4506 depends in critical part on whether there has been "the consent of at least one party" to the conversation or discussion. We remand for a determination of whether the mother consented to having her telephone conversations with her children at their father's residence recorded. Hopkins, J.P., Damiani, Titone and O'Connor, JJ., concur. [ 95 Misc.2d 33.]