DECISION AFTER MOTION TO QUASH & FOR ISSUANCE OF A PROTECTIVE ORDER The parties are divorced and have four children-in-common. The mother, K.M. (hereinafter “Mother” or “Ms. M”), is the residential custodial parent of the parties’ children. On January 8, 2024, Ms. M filed an enforcement petition against the children’s father, A.M. (hereinafter “Father” or “Mr. M”). See Petitioner (Violation of Court Order) (M, 01/05/2024), Nassau County Family Court Docket Number F-09759-19/24I. On that same date, Ms. M filed an upward modification petition against Mr. M. See Petition for Modification of an Order of Support (M, 01/05/2024), Nassau County Family Court Docket Number F-09759-19/24J. On January 10, 2024, Mr. M filed a downward modification petition against Ms. M. See Petition for Modification of an Order of Support (M, 01/10/2024), Nassau County Family Court Docket Number F-09759-19/24K. On January 12, 2024, the parties appeared before the Court. Ms. M was represented by retained counsel, Jennifer Coden, Esq. (hereinafter “Ms. Coden”) and Mr. M was represented by assigned counsel, The Legal Aid Society by Delaney Beckhorn, Esq. (hereinafter “Ms. Beckhorn”). The Court issued a pre-trial order and scheduled the matter for a trial to take place on April 9, 2024 and April 10, 2024. On that same date, Ms. M submitted a subpoena to Mr. M’s employer for the Court’s signature. On January 22, 2024, Ms. M submitted two additional subpoenas, one to Mr. M’s sober living home and the other to his substance abuse/mental health counselor, for the Court’s signature. The Court endorsed all three subpoenas. On February 5, 2024, Mr. M filed a motion to quash and for the issuance of a protective order. See Not. of Mot. (Beckhorn, 02/05/2024), Nassau County Family Court Docket Number F- 09759-19/24I, 24J, 24K; Mot. to Quash and Issue Protective Order (Beckhorn, 02/05/2024), Nassau County Family Court Docket Number F-09759-19/24I, 24J, 24K. Mr. M argued that the subpoenas Ms. M served had failed to comply with the rules governing discovery in a special proceeding, were improperly served upon him, and that the subpoenas were irrelevant to the issues to be decided by the Court. On February 23, 2024, Ms. M filed opposition papers. See Aff. in Opp’n to Resp’t's Mot. to Quash and Issuance of Protective Order (Coden, 02/22/2024), Nassau County Family Court Docket Number F-09759-19/24I, 24J, 24K. On February 28, 2024, the parties’ attorneys appeared for oral argument. Ms. Beckhorn withdrew Mr. M’s motion as against Ms. M’s subpoenas to Mr. M’s employer and sober living home. The sole remaining subpoena for the Court to rule upon is the one served on Mr. M’s substance abuse/mental health counselor, which is a subpoena ad testificandum joined with a subpoena duces tecum. After having considered the parties’ papers, their arguments, and having applied them to the law, the Court’s determination follows: MR. M’S ARGUMENT THAT MS. M FAILED TO COMPLY WITH THE DISCOVERY RULES GOVERNING SPECIAL PROCEEDINGS IS UNPERSUASIVE New York State Family Court Act §424-a (hereinafter “§424-a”) requires parties in a support proceeding to comply with mandatory financial disclosure to aid the court towards a well-reasoned determination. See e.g. N.Y. FAM. CT. ACT §424-a (McKinney’s 2024) (setting forth provisions of child support compulsory financial disclosure law); see also Genender v. Genender, 2007 N.Y. Misc. LEXIS 5435, at *15-*19 (Orange Cty. Fam. Ct., July 2, 2007) (summarizing child support mandatory financial disclosure law), aff’d Genender v. Genender, 51 A.D.3d 669 (2d Dep’t 2008). Parties must file a correctly completed financial disclosure affidavit as well as proof of income, including the parties’ most recently filed tax returns, W-2s or its equivalent, and recent pay stubs or its equivalent. See N.Y. FAM. CT. ACT §424-a (McKinney’s 2024); see also Michael R. v. Amanda R., 175 A.D.3d 1134, 1136 (1st Dep’t 2019) (finding mother properly complied with §424- a by submitting recent tax return, financial disclosure affidavit, and other documentation of income, employment status and unemployment benefits in Israel). Child support actions are special proceedings. See N.Y. C.P.L.R. ART. 4 (McKinney’s 2024) (special proceedings brought by petition and parties are petitioner and respondent); see also N.Y. FAM. CT. ACT §§423, 523 (McKinney’s 2024) (paternity and child support proceedings brought by petition and parties are petitioner and respondent). Leave of court is required for additional disclosure beyond what is mandated by §424-a. See N.Y. C.P.L.R §408 (McKinney’s 2024) (special proceedings disclosure); see also Bramble v. New York City Dept. of Educ., 125 A.D.3d 856, 857 (2d Dep’t 2015) (broad discretion for judges ordering disclosure in special proceedings). A Support Magistrate has the authority to order such further relevant discovery. See Barrett v. Barrett, 281 A.D.2d 799, 801 (3rd Dep’t 2001) (“Respondent’s suggestion that Family Court Act §424-a is the exclusive vehicle for financial disclosure in child support proceedings in Family Court — to the exclusion of the CPLR — is without merit.”). On January 12, 2024, the Court issued a pre-trial order which states in pertinent part: “The parties are directed to submit subpoenas, for the Court’s signature, in a timely fashion so that all documents will be received by the scheduled trial date.” Pre-Trial Order (Mendelson-Toscano, 01/12/2024), Nassau County Family Court Docket Number F-09759-19/24I, 24J, 24K. The Court views this directive as authorization for the issuance of Ms. M’s subpoena subject to any legal arguments other than failure to comply with the rules governing discovery in special proceedings. Thus, the Court finds that Ms. M complied with the discovery rules governing special proceedings. MR. M’S ARGUMENT THAT MS. M IMPROPERLY SERVED HIM WITH THE SUBPOENA AT ISSUE IS WITHOUT MERIT A subpoena ad testificandum may be issued requiring the attendance of a person to give testimony at trial or a subpoena duces tecum may be issued requiring the production of books, papers and other things. See N.Y. C.P.L.R.§2301 (McKinney’s 2024). A subpoena duces tecum may be joined with a subpoena ad testificandum. See N.Y. C.P.L.R.§2305(b)(1) (McKinney’s 2024). A subpoena may be issued by a court order or without a court order by those authorized under the law. See N.Y. C.P.L.R.§2302 (McKinney’s 2024). Subpoenas must be served in the same manner as a summons. See N.Y. C.P.L.R.§2303(a) (McKinney’s 2024); see also Gibson, Dunn & Crutcher LLP v. Koukis, 215 A.D.3d 448, 451 (1st Dep’t 2023) (upholding quashing of subpoenas since not served in the manner of summons). After a subpoena has been served upon a witness and before the production of materials, a copy of such subpoena must be promptly served upon each party who has appeared in the civil judicial proceeding. See N.Y. C.P.L.R.§2303(a) (McKinney’s 2024). Mr. M’s motion papers acknowledge that on January 30, 2024, he and his attorney were served with a copy of Ms. M’s subpoena to Mr. M’s substance abuse/mental health counselor. See e.g. Nizen v. Jacobellis, 203 A.D.3d 719, 720 (2d Dep’t 2022) (in child support actions, proper service upon represented party’s attorney or, if unrepresented, service upon party); Etuk v. Etuk, 300 A.D.2d 483, 484 (2d Dep’t 2002) (finding Family Court Act complimentary to Civil Practice Law and Rules regarding service on opposing party). The affidavit of service, dated January 30, 2024, annexed to Ms. M’s opposition papers establishes that Mr. M’s substance abuse/mental health counselor was served on January 26, 2024. That is to say, Mr. M and his attorney were served four days after the subpoena was served upon Mr. M’s substance abuse/mental health counselor and the same day that the affidavit of service was signed by the process server. Thus, the Court finds that Mr. M and his attorney were promptly served with Ms. M’s subpoena to Mr. M’s substance abuse/mental health counselor within the meaning of New York Civil Practice Law and Rules §2303(a). MR. M’S MOTION TO QUASH IS HEREBY DENIED AND MR. M’S MOTION FOR THE ISSUANCE OF A PROTECTIVE ORDER IS HEREBY GRANTED New York State Civil Practice Law and Rules §3101(a) provides for liberal disclosure of all material and necessary information. See e.g. N.Y. C.P.L.R. §3101(a) (McKinney’s 2024) (“There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.”); Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406- 408 (1968) (holding information sought in action material and necessary, and noting information sought in good faith for possible use at trial should be considered material to action); Matter of Grover S. (Jonathan H.G. — Galt N.), 176 A.D.3d 828, 829 (2d Dep’t 2019); Eremina v. Scparta, 120 A.D.3d 616, 618 (2d Dep’t 2014). Notwithstanding, substance abuse and mental health records are generally confidential and not subject to disclosure. See e.g. 42 USC §290dd-2(a) (regulation of substance abuse information disclosure); 42 U.S.C.§1320d(6) et seq. (regulation of mental health information disclosure); N.Y. MENTAL HYG. LAW §22.05 (McKinney’s 2024) (regulating disclosure of chemical dependence records in the manner set forth in New York State Mental Hygiene Law §33.13 and §33.16); N.Y. MENTAL HYG. LAW §33.13 (McKinney’s 2024) (regulating disclosure of all clinical records). Under Federal law, where good cause is shown, use and disclosure of substance abuse and mental health information may be obtained by court order. See 42 U.S.C. §290dd-2(b)((2)(C) (2024) (substance abuse records); 45 C.F.R. §164.512(e)(1)(i) (2024) (protected health information); 42 C.F.R. §2.64(d) (2024) (patient records other than for criminal investigation or prosecution). In determining whether good cause exists, a court is required to weigh the public interest and the need for disclosure against injury to the patient, the physician-patient relationship, and the treatment services. See 42 U.S.C. §290dd-2(b)(2)(C) (2024); see also 42 C.F.R. §2.64(d)(2) (2024). Moreover, a court must find that alternative ways of obtaining the information are unavailable or would be ineffective. See 42 C.F.R. §2.64(d)(1) (2024). Where a court finds that good cause exists, the court must limit the extent of the information released to only that portion of the record which is necessary and must impose appropriate safeguards against unauthorized disclosure. See 42 U.S.C. §290dd-2(b)(2)(C) (2024); see also 42 C.F.R. §2.13(a) (2024); 42 C.F.R. §2.64(e) (2024). Likewise, under New York law, substance abuse and mental health records may be obtained by court order. See N.Y. MENTAL HYG. LAW §22.05(b) (McKinney’s 2024) (chemical dependence records disclosed in accordance with applicable provisions of public health law, any other state law, federal law and duly executed court orders); see also N.Y. MENTAL HYG. LAW §33.13(c)(1) (McKinney’s 2024) (clinical records disclosed pursuant to order of court of record). A court must find that the interests of justice outweigh the need for confidentiality. See N.Y. MENTAL HYG. LAW §33.13(c)(1) (McKinney’s 2024); see also J. Z. v. South Oaks Hosp., 67 A.D.3d 645, 645-46 (2d Dep’t 2009) (absent showing that interests of justice outweighed patient’s right to confidentiality, plaintiffs not entitled to medical information in clinical record). Moreover, New York State privileges exist to protect against disclosure of substance abuse and mental health information. See N.Y. C.P.L.R.§4504 (McKinney’s 2024) (medical provider privilege); see also N.Y. C.P.L.R.§4507 (McKinney’s 2024) (mental health provider privilege); N.Y. C.P.L.R.§4508 (McKinney’s 2024) (social worker privilege). Only the patient has the authority to waive those privileges, which may be waived either expressly or impliedly. See id.; see e.g. Bruzzese v. Bruzzese, 152 A.D.3d 563, 567 (2d Dep’t 2017) (privilege waived where party placed their mental and emotional well-being at issue in matrimonial proceeding); Baecher v. Baecher, 58 A.D.2d 821, 821 (2d Dep’t 1977) (same). A party may use a subpoena to “compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding.” In re Terry D., 81 N.Y.2d 1042, 1044 (1993); see also Fugazy v. Fugazy, 210 A.D.3d 653, 657 (2d Dep’t 2022); Capacity Group of NY, LLC v. Duni, 186 A.D.3d 1482, 1484 (2d Dep’t 2020). A motion to quash may be filed to challenge the validity of a subpoena. See N.Y. C.P.L.R. §2304 (McKinney’s 2024). A motion to quash should only be granted where the movant meets his or her burden of showing that the requested information is “utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious.” Hersko v. Hersko, 2024 N.Y. Slip. Op. 00894, at *1 (2d Dep’t 2024); Matter of Maragos v. Town of Hempstead Indus. Dev. Agency, 174 A.D.3d 611, 614-15 (2d Dep’t 2019). A court may impose reasonable conditions upon the granting or denial of a motion to quash. See N.Y. C.P.L.R. §2304 (McKinney’s 2024). A court may also issue a protective order “denying, limiting, conditioning or regulating the use of [a subpoena]…to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” N.Y. C.P.L.R.§3103(a) (McKinney’s 2024); see also County of Suffolk v. Long Is. Power Auth., 100 A.D.3d 944, 946 (2d Dep’t 2012) (upholding protective order). Mr. M filed a downward modification petition. In his petition, he alleged that he “was dealing with a chronic alcoholism problem. [He] was in and out of multiple rehabs from 2016-2022. [He has] now gotten counseling and [is] in a state to modify the order to reflect the current situation.” Petition for Modification of an Order of Support, p. 4 (M, 01/10/2024), Nassau County Family Court Docket Number F-09759-19/24K. He attached a letter from his substance abuse/mental health counselor, dated August 4, 2023, in support of his petition. Mr. M has failed to meet his burden of showing that the requested information is irrelevant to the proceedings or futile. His allegations, along with the letter he attached to his petition, put his mental and emotional well-being and treatment squarely at issue in the proceedings and waive any privileges he may have had. Thus, the Court finds that the records are material, necessary, and relevant to the proceedings and good cause exists for their disclosure. The Court also finds that the interests of justice outweigh the need for confidentiality. The Court further finds that in light of the confidential nature of the documents sought, there is no alternative, effective means for Ms. M to access the information sought for trial. Thus, the Court finds that Mr. M’s motion to quash must be denied. Notwithstanding, given the Court’s responsibility to restrict the amount of information released to only what is necessary and to impose safeguards against unauthorized disclosure, the Court finds that reasonable conditions as well as a protective order are necessary and appropriate. Mr. M’s substance abuse/mental health counselor shall appear to testify about, and disclose records and/or notes for, the time period between July 1, 2021 and March 8, 2024. Such testimony and disclosure shall be limited to the following: (1) Mr. M’s sobriety issues and recovery; (2) Mr. M’s current mindset relating to his ability and/or desire to maintain employment; and, (3) Mr. M’s current mindset relating to his relationship with his ex-wife and/or children with regards to any aversion to paying child support. Such confidential information shall be disclosed only to court personnel and the parties directly involved in the instant proceeding. Such confidential information shall be limited to use for trial. Such confidential information shall not be retained, and shall be destroyed, after the proceedings and any appeals have been completed. The Court reserves the parties’ rights to make additional arguments at trial that either further information should be redacted, or that information has been redacted wrongfully, from the records. Accordingly, Mr. M’s substance abuse/mental health counselor shall appear for trial with his original, unredacted records. This constitutes the decision, opinion, and order of the Court. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATEISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL BY WAY OF OBJECTION MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: Dated: March 11, 2024
