Burgel v. Burgel

OPINION OF THE COURT Balletta, J. Both parties seek custody of their two children in a pending divorce action. To this end, the defendant claims that the plaintiff used, and continues to use, cocaine. Although the plaintiff concedes that she used cocaine, she claims to have ceased using it a number of months ago. The defendant sought to have a physician cut several strands of the plaintiffs hair in order to perform a radioimmunoassay (hereinafter RIA) test and confirmatory tests on it to determine whether the plaintiff has continued to use cocaine. The theory behind the test is that cocaine fossilizes in the user’s hair as it grows. Therefore, the test could purportedly indicate use of cocaine several months prior to the test (unlike blood and urine tests which only determine ingestion within days of the test). It is well settled that there is to be liberal discovery in civil actions. CPLR 3101 (a) provides for discovery of all "material and necessary” evidence. Discovery is limited by the test of materiality to one of usefulness and reason (see, Hoenig v Westphal, 52 NY2d 605; Allen v Crowell-Collier Publ. Co., 21 NY2d 403). Moreover, when, as here, a party’s physical and mental condition is in issue (see, Rosenblitt v Rosenblitt, 107 AD2d 292), CPLR 3121 (a) provides for a physical or mental examination of that party. CPLR 3121 (a) was intended to broaden the discovery permitted by CPLR 3101 (see, Hoenig v Westphal, supra). In addition, absent an improvident exercise of discretion, a court’s decision with respect to discovery will not be disturbed (see, Crow-Crimmins-Wolff & Munier v County of Westchester, 110 AD2d 871, 873). The broad scope of discovery permitted under the CPLR takes on particular significance in child custody disputes. As the welfare of the children is at stake, and the best interest of these children the paramount concern (see, Eschbach v Eschbach, 56 NY2d 167), the broadest possible latitude should be accorded to a reasonable discovery request. Turning then to the case at bar, we cannot say that the court improvidently [217] exercised its discretion in granting the defendant’s discovery request. The information which the defendant seeks is clearly relevant to the custody dispute. Further, contrary to the position of the dissenters, the findings may have more than "some impact on the question of the plaintiff’s truthfulness”. Principally, they concern the plaintiff’s continuing use of cocaine and, thus, are relevant to her fitness to be granted custody of the children. In this regard, the findings go to the very heart of the custody dispute. Our dissenting colleagues agree that discovery in this case should be broad, but would, nevertheless, remit this matter for "a preliminary hearing and judicial determination regarding the reliability and validity of the proposed hair analysis” before considering whether that discovery may proceed. They find support for this position in two criminal matters, Matter of Abe A. (56 NY2d 288) and Matter of Barber v Rubin (72 AD2d 347). We do not share the dissenters’ view that these cases should guide the determination in the instant matter. In Matter of Abe A. (supra) and Matter of Barber v Rubin (supra), the courts’ principal concern was the protection of the individual criminal defendant’s Fourth Amendment rights against the pressures exerted by government. Indeed, the Court of Appeals in Matter of Abe A. (supra, at 290 [emphasis added]) expressed how crucial these Fourth Amendment considerations were: "One of the greatest contributions of American law may be the protection it affords the individual against the power of the government itself. However, the values this bespeaks often require a delicate balancing of the individual interest in privacy and dignity against circumstances which may call for intrusion by organized society. In this context, we now are called upon to determine the extremely sensitive issue of whether a suspect in a homicide investigation may be compelled, pursuant to court order, to supply the People with corporeal evidence” (see also, Matter of Barber v Rubin, supra, at 352). Although the dissenters concede that such Fourth Amendment precepts are not implicated in the case at bar, they conclude that the novelty of the proposed test, as well as the potential that it might be abused as a discovery device, mandate a preliminary hearing. However, it is precisely because the Fourth Amendment protections were integral to the decisions in Matter of Abe A. (supra) and Matter of Barber v Rubin (supra) that those cases should not guide the case at bar. In stark contrast to the aforementioned cases, this is a [218] civil matter in which the plaintiff has affirmatively placed her mental and physical health in issue. As importantly, the plaintiff has placed her very use of cocaine in issue by conceding that she used cocaine in the past. Particularly under these circumstances, neither the alleged novelty of the procedure nor the potential for its abuse provides a tenable analogy to the Fourth Amendment concerns expressed by the courts in Matter of Abe A. (supra) and Matter of Barber v Rubin (supra), so as to warrant a preliminary hearing in a civil matter. Moreover, both of the concerns expressed by the dissenters are mitigated in the case at bar. The dissenters’ concern about the novelty of the test is a concern which is relevant to admissibility, not to discovery. As this court has opined, "The rules governing disclosure differ from those concerning admissibility, and questions of admissibility are to be reserved for the trial court” (Suzuki Performance v Utica Mut. Ins. Co., 121 AD2d 530, 530-531). As do the dissenters, we express no opinion in regard to whether the test results would be admissible. However, it is pertinent to note that the material which the defendant seeks to discover, even if not admissible itself, may be discovered if it could lead to the discovery of admissible evidence. Furthermore, unlike the dissenters, we do not find the potential for abuse of this procedure as a discovery mechanism to be a reason to deny discovery in this case. Most importantly, it is clear that there is no such abuse in the case at bar. The plaintiff’s own admission of prior cocaine use, up to months before the discovery request, gives rise to reasonable grounds for the request. While, undoubtedly, there will be litigants who will attempt to use such discovery to harass and delay, courts will be vigilant in denying discovery requests when, unlike the case at bar, appropriate grounds for them do not exist. In fact, we do not see how the potential for abuse of this procedure is so much greater than the potential for abuse of other discovery procedures that it provides an independent ground for denying the request. As is true with other discovery devices, the courts are empowered to guard against abuse. Furthermore, the court did not improvidently exercise its discretion by allowing a female representative of the defendant to be present at the hair cutting procedure. In conclusion, we find that the court did not improvidently exercise its discretion in granting the defendant’s request for [219] a physician to conduct this minimally intrusive procedure because the material sought is relevant, and reasonable grounds exist for the request. We have considered the plaintiffs remaining contentions and find that they are without merit. Accordingly, the order entered December 16, 1987, should be affirmed insofar as appealed from, and the order entered January 7, 1988, should be affirmed.