Summary
In Nalbandian v Nalbandian (117 A.D.2d 657 [2d Dept 1986]), Mrs. Nalbandian sought an award of maintenance because she claimed that she suffered from a psychological disorder which prevented her from working.
Summary of this case from Koons v. KoonsOpinion
February 10, 1986
Appeal from the Supreme Court, Westchester County (Delaney, J., Ritter, J.).
Order entered March 25, 1985 modified by striking therefrom the authorization for counsel for defendant to be present during the further psychiatric examination of the plaintiff. As so modified, order entered March 25, 1985 affirmed, without costs or disbursements.
Order dated May 28, 1985 affirmed, insofar as appealed from, without costs or disbursements.
We agree with Special Term that the plaintiff wife placed her psychiatric condition in issue with regard to her claim for maintenance by asserting during her examination before trial that her inability to work was due to a psychiatric condition. Accordingly, the defendant was properly permitted to notice her for a psychiatric examination. For the same reasons, it was proper to deny plaintiff's motion for a protective order against defendant's request for authorizations to inspect her psychiatric records (see, Hoenig v. Westphal, 52 N.Y.2d 605). We find, however, that there was no basis for permitting defendant's counsel, against plaintiff's wishes, to be present during the psychiatric examination. The cases cited by Special Term in support of its decision concern the right of the person being examined to have his or her own counsel present, not opposing counsel (Ponce v. Health Ins. Plan, 100 A.D.2d 963; Jakubowski v Lengen, 86 A.D.2d 398). While it is true that defendant will eventually have access to the results of the psychiatric examination, we find that the plaintiff is entitled to be examined only in the presence of the examining physician, and her own counsel if that be her desire (see, Ponce v. Health Ins. Plan, supra). With respect to plaintiff's own counsel, we would add that if he is present, he is not to interfere with the conduct of the examination (see, Rosenblitt v. Rosenblitt, 107 A.D.2d 292, 300-301 [partial concurring and dissenting opn of Lazer, J.P.]). Mollen, P.J., Gibbons, Brown, Niehoff and Eiber, JJ., concur.