Opinion
XXXXX
01-29-2018
J.B., Petitioner/Respondent, v. A.B., Respondent/Petitioner.
Attorneys in this matter are as follows: Amy P. Slotnick, Esq., for J.B.600 Mamaroneck Avenue, Suite 400Harrison, New York 10528Joanne Indriolo, Esq., for A.B.The Kitson Law Firm50 Main Street, 9th FloorWhite Plains, New York 10606Edward Lammers, Esq., for the child 505 White Plains Road, Suite 206Tarrytown, New York 10591
Attorneys in this matter are as follows: Amy P. Slotnick, Esq., for J.B.600 Mamaroneck Avenue, Suite 400Harrison, New York 10528Joanne Indriolo, Esq., for A.B.The Kitson Law Firm50 Main Street, 9th FloorWhite Plains, New York 10606Edward Lammers, Esq., for the child 505 White Plains Road, Suite 206Tarrytown, New York 10591 Arlene E. Katz, J.
On October XX, 2017, A.B. (father) filed a proposed judicial subpoena duces tecum for J.B.'s (mother) medical records relating to the above family offense proceedings. The file in this matter indicates that the Hon. Hal B. Greenwald, who was then presiding over these matters, declined to sign the subpoena. On or about October XX, 2017, the father submitted a substantially similar proposed judicial subpoena duces tecum to this Court, who was presiding over these matters at that time and at the time the motions in question were fully submitted. This Court declined to sign the subpoena as the father had failed to provide a copy to the attorney for the child. On or about November XX, 2017, the father resubmitted the proposed subpoena, having properly copied all counsel.
On November XX, 2017, the mother filed a motion to quash the subpoena seeking the following relief: (1) quashing the father's Non-Party Subpoena directed to Hospital; (2) quashing the father's Non-Party Subpoena directed to Bank; and (3) granting a protective order to prevent the unauthorized disclosure of J.B.'s privileged and confidential medical records and information.
On December XX, 2017, the father filed an opposition to the mother's motion to quash together with a cross motion. The father seeks for this Court to: (1) deny J.B.'s Notice of Motion to Quash Subpoena dated November XX, 2017, in its entirety; (2) So Order the Subpoena to Hospital; (3) direct J.B. to execute HIPAA authorizations; and (4) grant A.B. such other and further relief as the Court deems just and proper.
Respondent father included with his opposition and cross-motion 13 proposed HIPAA authorization forms for the mother's alleged medical providers.
On December XX, 2017, the mother filed a reply to the father's opposition, which has also been considered an opposition to the father's cross-motion, as this Court granted the father time to file a reply. On December XX, 2017, the father filed said reply.
Now, upon consideration of the above moving and responsive papers, J.B.'s motion and A.B.'s cross-motion are disposed of as follows:
Pursuant to Family Court Act § 165 (a), "where the method of procedure in any proceeding in which the family court has jurisdiction is not prescribed, the provisions of the civil practice law and rules shall apply to the extent that they are appropriate to the proceedings involved." The Family Court Act is silent as to discovery in family offense proceedings. As such, the relevant CPLR provisions are applicable and controlling.
"It is clear that a proceeding under Article 8 of the Family Court Act is a special proceeding as defined in Article 4 of the Civil Practice Law and Rules and therefore governed by the discovery procedures set forth in that article" (K.Z. v P.M., 29 Misc 2d 724, 725 [Fam Ct, Orange County 2010]). Pursuant to CPLR § 408, as relevant to special proceedings such as the instant matter, "[l]eave of court shall be required for disclosure." "[D]iscovery 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" (Vincent C. Alexander, 2015 Supp Practice Commentary to Civil Practice law and Rules, Section 408). "An example of an appropriate circumstance for a judicial order allowing discovery is where a trial has been ordered pursuant to CPLR 410 to resolve an issue of fact" (Vincent C. Alexander, Practice Commentaries to Civil Practice law and Rules, Section 408). It should also be noted that "a subpoena duces tecum may not be used to ascertain the existence of evidence" (People v Gissendanner, 48 NY2d 543 [1979]). As such, the provisions of CPLR article 31 are not applicable until and unless leave of court has been granted.
In addition to the proposed judicial subpoena duces tecum, the father is seeking disclosure from thirteen of the mother's purported medical providers. Furthermore, the moving and responsive papers indicate that the father has also served subpoenas upon a restaurant patronized by the parties, and upon Bank. However, the father has not requested, and this Court has not granted, leave for either party to conduct any discovery in these proceedings via any of the permissible methods of disclosure set forth in CPLR § 3102.
This Court has reviewed the cases cited by the father and finds them to be unpersuasive and inapposite. For example, Matter of Marie H. (25 AD3d 704 [2d Dept 2006]) involved a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of an alleged incapacitated person. The purpose of a guardianship proceeding is
"to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person's life" (Mental Hygiene Law § 81.01).A guardian may be appointed if the court determines that two conditions exist: first, "that the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to management property and financial affairs of that person" (id. § 81.02 [a] [1]), and second, "that the person agrees to the appointment, or that the person is incapacitated as defined [in the Mental Hygiene Law]" (id. § 81.02 [a] [2]). Such a proceeding requires the appointment of a court evaluator (id. § 81.09 [a]). "A determination must be based on clear and convincing evidence" (id. § 81.12 [a]) and, "for good cause shown, [the court may] waive the rules of evidence" (id. § 81.12 [b]). The purposes of and procedures for guardianship proceedings are more distinguishable from family offense proceedings than any similarities that they may have in common.
Likewise, Matter of B. Children (23 Misc 3d 1119[A] [Fam Ct, Kings County 2009]), while a Family Court matter, involved an abuse/neglect proceeding pursuant to article 10 of the Family Court Act. Family Court Act § 1038 (d) specifically provides that "the provisions and limitations of article thirty-one of the civil practice law and rules shall apply to proceedings under this article." As such, this type of proceeding explicitly permits the full range of discovery devices pursuant to the CPLR and is not subject to the restrictions on discovery in an article 8 proceeding.
As the father has not sought leave of this Court to conduct discovery as is required, his request that this Court so order the proposed subpoena is denied without prejudice. While the mother also argues that the subpoena is facially deficient, improper and overly broad, such issues are not ripe for determination. However, as dicta, based upon the information contained in the moving and responsive papers, it could be that the father's desire to obtain information from thirteen of the mother's medical providers is excessive given the nature of the proceeding, the issues of privacy involved and the goals of speed and economy in special proceedings.
The mother also seeks to quash the father's subpoena duces tecum to Bank. CPLR § 2304 requires "a request to withdraw or modify the subpoena" prior to filing a motion to quash a subpoena not returnable to a court, such as the subpoena to Bank. The mother did not present to this Court any indication that she had made such a request but was unsuccessful. However, the relief will not be denied for failing to satisfy this statutory condition precedent as the father's issuance of the subpoena was improper in the first place without leave of court to conduct such discovery.
Judge Greenwald previously declined to sign a subpoena for the mother's hospital records. "A court of coordinate jurisdiction has no authority to rule on a matter already reviewed by another Judge of equal authority" (DeLanoy v O'Rourke, 276 AD2d 728,729 [2d Dept 2000]. This Court has coordinate jurisdiction, as both judges are duly elected judges of the Family Court in Westchester County. As such, absent an application for leave of court to conduct discovery, it would be inappropriate for this Court to reconsider the same issue, regardless of whether or not the reasoning is the same (see Hummel v Hummel, 62 Misc 2d 595 [Sup Ct, New York County 1970]).
Although the mother seeks a protective order, this Court does not find such an order necessary at this time, as all counsel are directed not to engage in any impermissible, prohibited and/or unethical discovery practices, and should be mindful of the serious consequences thereof (see e.g. In re Winiarsky, 104 AD3d 1 ; Nagel v Grayson, 24 Misc 3d 476 [Civ Ct, New York County 2009]).
To avoid unnecessary future delay, all counsel should be aware that even if a motion for leave of court for disclosure is filed and granted, the court will not sign any subpoena or order the execution of any HIPAA authorization for medical records that designate counsel's offices as the location to which the medical records are to be sent. Unlike general pretrial disclosure, such records sought by the father may only be returnable to the Court, and will not automatically or necessarily be available to counsel in their entirety (see Coderre v Coderre, 1990 WL 312774, *3 [Sup Ct, Suffolk County] ["a party's medical records [would] be reviewed by the Court, and only those portions of the records deemed to be relevant and material [would] be disclosed"]).
ACCORDINGLY, IT IS HEREBY
ORDERED that the mother's motion to quash the subpoena duces tecum for Hospital is granted; and it is further
ORDERED that the mother's motion to quash the subpoena duces tecum for Bank is granted;
ORDERED that the father's cross motion to deny the mother's motion to quash is denied; and it is further
ORDERED that the father's cross motion to so order the proposed subpoena to Hospital is denied without prejudice; and it is further
ORDERED that the father's cross motion to direct the mother to execute HIPAA authorizations is denied without prejudice; and it is further
ORDERED that parties and counsel are prohibited from engaging in any impermissible, prohibited and/or unethical discovery practices; and it is further
ORDERED that counsel shall recall any and all subpoenas issued without leave of court and notify all other counsel of same; and it is further
ORDERED that counsel shall, forthwith, identify to all other counsel any and all documents, items and things of any type and in any format which have been produced in response to any subpoenas issued without leave of court; and it is further
ORDERED that any relief sought by either party not expressly granted above is hereby denied without prejudice.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Dated: January 29, 2018
ENTER
____________________________________ HON. Arlene E. Katz, J.F.C.