Family Court, Sullivan County, April 15, 2020

John Ferrara for respondent.

Law Offices of Brian P. Rourke, P.C. (John Theadore of counsel) for petitioner.

Ricciani & Jose, LLP (E. Danielle Jose-Decker of counsel), Attorney for the Children.

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 3124 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. Theadore, 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. Theadore in his letter to the court dated February 26, 2020.

"A special proceeding is a civil judicial proceeding in which a right can be established or an obligation{**69 Misc 3d at 188} 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" (Vincent C. Alexander, Practice Commentaries, McKinney's [*2]Cons Laws of NY, CPLR C401:1).

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 "[l]eave 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, Matter of Dominick R. v Jean R. (7 Misc 3d 1027[A], 2005 NY Slip Op 50776[U], *3 [Fam Ct, Kings County 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 [Civ Ct, NY County 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 (Atkinson at 613).

There have been a number of trial level courts which have held that various proceedings brought pursuant to the Family{**69 Misc 3d at 189} Court Act are special proceedings (see Matter of Commissioner of Social Servs., 170 Misc 2d 126 [Fam Ct, Kings County 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, Matter of John H. (56 AD3d 1024, 1026 [3d Dept 2008]), that "the specific provisions of Family Ct 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 Matter of Solangee Z. v Kahir E., 107 AD3d 428 [1st Dept 2013]; cf. Matter of Commissioner of Social Servs., 170 Misc 2d 126 [Fam Ct, Kings County 1996]). The Court of Appeals, in Lebedeff v Lebedeff (17 NY2d 557, 559 [1966]), recognized that a proceeding under the former Uniform Support Dependents Law, article 3-A of the Domestic Relations Law, was a special proceeding (see also Matter of K.Z. v P.M., 29 Misc 3d 572, 573 [Fam Ct, Orange County 2010] [family offense is special proceeding]; Matter of E.T.N., 42 Misc 3d 526, 529 [Fam Ct, Orange County 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 [*3]of Commissioner of Social Servs.).

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" (Vincent C. Alexander, 2015 Supp Practice Commentaries, McKinney's Cons Laws of NY, CPLR 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 [3d Dept 2011]; Moor v Moor, 75 AD3d 675 [3d Dept 2010]; Rosenblitt v Rosenblitt, 107 AD2d 292 [2d Dept 1985]), the court has broad discretionary power to limit disclosure and grant protective orders in a custody case (Matter of Ryan v Nolan, 134 AD3d 1259 [3d Dept 2015]; Matter{**69 Misc 3d at 190} of Wilson v Hendrickson, 88 AD3d 1092 [3d Dept 2011]; Matter of Cool v Malone, 66 AD3d 1171 [3d Dept 2009]; Garvin v Garvin, 162 AD2d 497, 499 [2d 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 inpatient care or outpatient 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 paragraph 8, but with regard to paragraph 8c, he will be limited to allocution 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 v Roemer, 274 AD2d 887 [3d 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.