Opinion
No. 183 SSM 16.
Decided June 26, 2008.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of that Court, entered September 28, 2007. The Appellate Division affirmed an order of the Supreme Court, Cattaraugus County (Michael L. Nenno, A.J.), which had, in a divorce action, denied a motion by the nonparty witness seeking to quash a subpoena issued by defendant wife. The following question was certified by the Appellate Division: "Was the order of this Court, entered September 28, 2007, properly made?"
Hauzinger v Hauzinger, 43 AD3d 1289, affirmed.
Abel Brustein-Kampel, P.C., New City ( Steven L. Abel and Robert S. Thaler of counsel), for appellant.
Moriarty Grocott, Buffalo ( Steven H. Grocott of counsel), for Aurela G. Hauzinger, respondent.
Uncyk, Borenkind Nadler, L.L.P., New York City ( Matthew B. Millman and Eli Uncyk of counsel), for Association for Conflict Resolution and others, amici curiae.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
Plaintiff husband executed a signed waiver releasing the nonparty mediator from maintaining mediation confidentiality, and insofar as defendant wife seeks disclosure of matters pertaining to the mediation, she too is deemed to have waived mediation confidentiality. Further, the mediation agreement provided that if both parties consent, the mediator may communicate with an attorney for either party and release documents to third parties. The mediator's claim that a qualified privilege exists, pursuant to CPLR 3101 (b), in maintaining mediation confidentiality is without merit where the privilege has been waived. Under these circumstances, the courts below did not abuse their discretion by ordering disclosure. We do not address what, if any, mediation confidentiality privilege exists under CPLR 3101 (b).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.