Opinion
January 26, 1998
Appeal from the Surrogate's Court, Queens County (Nahman S.).
Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements; and it is further,
Ordered that the parties are directed to each bear their own costs in the proceeding to vacate the adoption; and it is further,
Ordered that the matter is remitted to the Surrogate's Court, Queens County, for further proceedings consistent herewith, including (1) a determination on the merits, with all deliberate speed, of the petitioner's applications for visitation, (2) a reopening of the trial so to complete the testimony of Rabbi Jay Goldberg, and (3) the making of new findings of fact and a new determination on the petition to vacate the adoption, based upon the expanded record.
We agree with the biological mother's contention that the adoptive parents waived their clergy-penitent privilege concerning certain conversations they allegedly had with Rabbi Jay Goldberg which would be relevant to the biological mother's claim of fraud ( see, Drimmer v. Appleton, 628 F. Supp. 1249; McDonough v. Pinsley, 239 A.D.2d 109; Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 162 A.D.2d 577; Jacobleff v. Cerrato, Sweeney Cohn, 97 A.D.2d 834, 835; Merrill Lynch Realty Commercial Servs. v. Rudin Mgt. Co., 94 A.D.2d 617). Under the circumstances of this case, the matter must be remitted to the Surrogate's Court, Queens County, and the trial reopened for the taking of further testimony by Rabbi Goldberg, and for the Surrogate to make new findings of fact and a new determination based upon the expanded record. In determining whether the petitioner's consent was induced by fraud, the Surrogate should consider her claims that her counsel was ineffective and affected by a conflict of interest, allowing her to be deceived.
The appellant's contention that the Surrogate erred when he limited the evidence of fraud in the inducement to events which occurred prior to the adoption becoming final is without merit ( see, Taub v. Sylvan Farms, 269 App. Div. 860).
We further note that the Surrogate's Court has jurisdiction to determine visitation issues. Those issues should be determined on the merits with all deliberate speed ( see, Matter of Abraham L., 53 A.D.2d 669).
Under the circumstances of this case, we deem it appropriate that the parties bear their own costs.
Miller, J.P., Ritter, Goldstein and Florio, JJ., concur.