Opinion
04-15-2020
In the Matter of a Custody/Visitation Proceeding Stephen KK, Petitioner, v. Kristina KK, , Respondent.
XXXXX
By Notice of Motion, which is dated February 11, 2020, John Ferrara, Esq., as attorney for the Respondent, Kristina KK, filed an application with this Court seeking: 1) an order pursuant to CPLR §3126 compelling disclosure; or in the alternative 2) if it is determined that leave of court is required, that such leave be granted and that an Order requiring disclosure be issued.
In support of the application, the Court received the Notice of Motion dated February 11, 2020, together with the Affirmation of John Ferrara, Esq., dated February 11, 2020, and the attachments thereto, including the discovery demands previously served on the Petitioner herein. In opposition, the Court received the Affirmation of the Attorney for the Children (AFC), E. Danielle Jose-Decker, Esq., dated February 19, 2020, as well as a letter response from John R. Theodore, Esq., of the Law Offices of Brian P. Rourke, P.C., as counsel for the Petitioner, Stephen KK. The Court notes that the Law Firm of Brian P. Rourke was only retained by Mr. KK on February 26, 2020, the date of the letter.
The Respondent's demands for discovery, including a request for interrogatories, were served upon Mr. KK on February 9th. Since that period of time, there was no response submitted to the demands, which prompted counsel to file the pending motion.
Part of the response by the AFC set forth her objection to the original application by alleging that custody proceedings are "special proceedings" and therefore, any discovery requires leave of the Court. That position was joined by Mr. Theodore in his letter to the Court dated February 26, 2020.
CONCLUSIONS OF LAW
"A special proceeding is a civil judicial proceeding in which a right can be established or an obligation enforced in summary fashion. Like an action, it ends in a judgment (CPLR 411), but the procedure is similar to that on a motion (CPLR 403, 409). Speed, economy and efficiency are the hallmarks of this procedure" (Alexander, Practice Commentaries (McKinney's Cons Laws of NY, CPLR 401:1).
The CPLR provides that a special proceeding is commenced by filing a petition (CPLR 304[a]), and requires a petition, which serves as the applicant's pleading (CPLR §402) and a Notice of Petition or Order to Show Cause (CPLR §403).
Section 408 of the CPLR limits discovery in special proceedings, and provides that "leave of court shall be required for disclosure."
In the case at bar, the Petitioner and the Respondent have each filed a petition seeking custody of the parties two children, and the Court issued Orders to Show Cause on both petitions.
The Family Court Act is silent on the procedure to commence a custody proceeding in the Family Court, and Section 651(b) of the Family Court Act confers jurisdiction on the Family Court to determine custody and visitation proceedings brought by petition and order to show cause. It has been held, by at least one trial level court in an unreported case, Custody of Dominick R. v. Jean R., 7 Misc 3d 1027(A), 801 N.Y.S.2d 232 (F.Ct., Kings Co., 2005), that custody proceedings brought pursuant to the Family Court Act are "special proceedings" and that "leave of court shall be required for disclosure" pursuant to CPLR 408. Therefore, it was required that the party seeking disclosure must move by notice of motion or order to show cause demonstrating the need for it and obtain an order of the court authorizing it, citing Atkinson v. Trehan, 70 Misc 2d 612, 334 N.Y.S.2d 291 [NYC Civ.Ct. NY Co.1972] ). In Atkinson, the Court explained that one purpose of requiring parties to proceed by motion is to prevent an unwarranted delay in proceedings intended to be summary (and for the court to determine if the discovery is necessary to the party's case. Therefore, a party making such a motion should do so by notice of motion or by order to show cause returnable on the return date of the petition (CPLR 406) so that the court, if it deems the motion meritorious, may grant it without delaying the trial (id. at 613).
There have been a number of trial level courts which have held that various proceedings brought pursuant to the Family Court Act (see, Matter of Comm'r of Soc. Servs. on Behalf of R./S. Children, 170 Misc 2d 126, 647 N.Y.S.2d 361, 363 [F.Ct., Kings Co., 1996], finding that child protective proceedings are "special proceedings" and directed that leave of the Court was required for disclosure.
The Third Department recognized in a child protective proceeding, In re John H., 56 AD3d 1024, 1026, 868 N.Y.S.2d 790 (3 Dept., 2008), that "the specific provisions of Family Court Act article 10 override the general discovery limitations placed on special proceedings under CPLR 408," impliedly recognizing that an article 10 proceeding is considered a special proceeding (see also, Solangee Z. v. Kahir E., 107 AD3d 428, 967 N.Y.S.2d 46 [1 Dept., 2013]; cf, Matter of Comm'r of Soc. Servs. on Behalf of R./S. Children, 170 Misc 2d 126, 647 N.Y.S.2d 361, 363 [F.Ct., Kings Co., 1996]). The Court of Appeals, in Lebedeff v. Lebedeff, 17 NY2d 557, 558, 268 N.Y.S.2d 323 (1966), recognized that a proceeding under the former Uniform Support Dependents Law (USDL), Article 3-A of the Family Court Act was a special proceeding(see also, Matter of K.Z. v. P.M., 29 Misc 3d 572, 573, 906 N.Y.S.2d 724 [F.Ct., Orange Co., 2010] [family offense is special proceeding]; Matter of E.T.N., 42 Misc 3d 526, 529, 977 N.Y.S.2d 632 [F.Ct., Orange Co., 2013] [guardianship is a special proceeding]). It is also noted that CPLR §408 specifically exempted proceedings in a surrogate's court from the provisions of this section, it did not similarly exempt proceedings in the family court (see, Matter of Comm'r of Soc. Servs. on Behalf of R./S. Children, supra.).
Therefore, the Court finds that a proceeding under Article 6 of the Family Court Act is a special proceeding as defined in Article 4 of the Civil Practice Law and Rules, and is governed by the discovery procedures set forth in that article. Pursuant to CPLR § 408, "[l]eave of court shall be required for disclosure" in special proceedings, and "discovery should not be granted unless the movant's need for discovery outweighs opposing interests in expediency and confidentiality. The discovery, therefore, must be necessary and must not cause undue delay" (Alexander, 2015 Supp Practice Commentaries (McKinney's Cons Laws of NY) Section 408).
While it is true that parties to a contested custody proceeding place their physical and mental condition at issue ( Matter of Ortiz v. Winig, 82 AD3d 1520, 920 N.Y.S.2d 441 [3 Dept., 2011]; Moor v. Moor, 75 AD3d 675, 903 N.Y.S.2d 822 [3 Dept., 2010]. Rosenblitt v. Rosenblitt, 107 AD2d 292, 486 N.Y.S.2d 741 [2 Dept., 1985]), the Court has broad discretionary power to limit disclosure and grant protective orders in a custody case (Ryan v. Nolan, 134 AD3d 1259, 21 N.Y.S.3d 469 [3 Dept., 2015]; (Wilson v. Hendrickson, 88 AD3d 1092, 931 N.Y.S.2d 170 [3 Dept., 2011]), Matter of Cool v. Malone, 66 AD3d 1171, 887 N.Y.S.2d, 334 [3 Dept., 2009];Garvin v. Garvin, 162 AD2d 497, 499, 556 N.Y.S.2d 699, 701 [2 Dept., 1990]).
In the case at bar, it has not been disclosed in any of the submissions to the Court how long the parties have known one another, but the parties' oldest child was born in 2013. In light of that fact, the Court shall direct that the Petitioner shall provide a list of all psychiatric hospitals for which he has received either in-patient care or out-patient care, as well as any mental health clinics, facilities, hospitals or institution hospitals for which he has received care for a period of time commencing in 2013, and he shall fully respond to all the interrogatories set forth in paragraphs 1, 2, 3, 4, and 5, and he shall execute the HIPAA authorizations. The Petitioner shall also be required to respond to paragraphs 6 and 7, with the exception of the interrogatories in paragraphs 6c, and 7c. The Petitioner shall also respond to the paragraph 8, but with regard to paragraph 8c, he will be limited to elocution that he made before any Court concerning those convictions.
The Petitioner shall also comply with the demand for witnesses and expert witnesses, as well as the demand to produce, with the exception of the demand in paragraph 1, which the Court finds to be overly broad (Saratoga Harness Racing Inc. v. Roemer, 274 AD2d 887, 711 N.Y.S.2d 603 [3 Dept., 2000]).
Accordingly, the Petitioner is directed to comply with the Respondent's demands within 21 days of the date of the entry of this Order.
This shall constitute the Decision and Order of the Court.
ENTER
Dated:April 15, 2020