The following papers numbered 1 to 6 were considered in connection with this motion (Seq. 7) by defendant Thomas Sullivan for an ORDER: (1) directing that Dr. Griffin continue to determine and maintain the appropriate drug testing regimen for defendant; (2) directing that a hearing take place on the issue of access between the defendant and the parties' sons and, in the interim, that defendant's supervised visits with his sons be expanded as specified; (3) prohibiting the release of the psychotherapy notes of James G. Katis, M.D., William Knack, Ph.D., and Gerard Vasco, CADC, to counsel for plaintiff and the Law Guardian or strictly limiting only those portions of the notes that are relevant, material and necessary to the issue of access; and the cross-motion (Seq. 8) of plaintiff for an ORDER (1) directing that the full mental health records of defendant from Dr. Katis, Dr. Knack, and Mr. Vasco, as well as all of their psychotherapy notes be provided to plaintiff's counsel and to the Law Guardian and to any neutral forensic psychiatrist performing an evaluation of defendant; (2) issuing subpoenas for and directing defendant to execute HIPAA releases for records of defendant's treatment, including any psychotherapy notes, of Dr. E. Steven Dummitt III, Vera Juter CSWR,, Rodriguez Garner, Kathleen Weiting ATR-BC, CASAC, Ms. Annette Friedman, CSR-R, CASAC, by the Therapy Center, LLP, Bedford Hills, New York, by Health Consultants Outpatient Treatment Program, White Plains, New York, by St. Vincent's Westchester, Harrison, New York, by St. Vincent Medical Center, Harrison, New York, by the Mountainside residential treatment program, by the [*2]Caron Foundation, and that defendant also execute such other HIPAA releases as are requested by any neutral forensic psychiatrist performing an evaluation for defendant; (3) directing that a commission issue in regard to defendant's treatment records at the Mountainside residential treatment program and the Caron Foundation; and (4) directing that a psychiatrist with specific expertise in bipolar disorders and substance abuse issues be appointed, that said psychiatrist be provided with all available records of defendant's treatment for substance abuse and/or mental health issues, and that defendant be evaluated by said forensic psychiatrist:

PAPERSNUMBERED

ORDER TO SHOW CAUSE/Affidavit/Affirmation/Exhibits1

Cross-Motion/Affidavit/Affirmation/Exhibits2

Affirmation of Norman B. Naishtut, Esq./Exhibits3

Law Guardian Reply Affirmation/Exhibit4

Reply Affirmation of Sheila Ginsberg Riesel, Esq.5

Law Guardian Reply Affirmation dated 1-28-086

These motions were argued before the Court on January 29, 2008 after which as to Sequence 7 the Court granted the relief hereinabove identified as "1", granted a hearing as requested in "2" and, in the interim, granted defendant expanded interim supervised access with the parties' children. The Court reserved determination as to defendant's motion ("3") for an Order prohibiting the release of the psychotherapy notes of James G. Katis, M.D., William Knack, Ph.D., and Gerard Vasco, CADC, to counsel for plaintiff and the Law Guardian or, in the alternative, strictly limiting only those portions of the notes that are relevant, material and necessary to the issue of access.

As to plaintiff's cross-motion, the Court granted that aspect of the motion seeking the appointment of a neutral forensic and, with respect thereto, directed the parties to come to terms on said appointment and, if they could not, to advise the Court of same. The Court reserved determination on "2" (Seq. 8) regarding the issuance of various subpoenas and "3", whether to grant an open commission. The relief denominated in "4" was deemed granted to the extent that the Court found it appropriate to appoint a neutral forensic evaluator.

By way of a five-page Order Appointing Forensic Evaluator of February 20, 2008, "consented to as to form and substance", the Court appointed Laurence M. Westreich, M.D. to determine:

(a) the state of defendant's mental condition and mental health, (b) the status of defendant's alleged recovery from drug and alcohol addiction, (c) defendant's capabilities as a caretaker of the parties' seven year old twin sons . . . and to render a determination as to the appropriate terms and conditions for defendant's visitation with said children.

Therein, among other things, the Court also Ordered [*3]

. . . that the parties shall provide releases such that the forensic evaluator may procure any written records from any relevant physician or therapist involved in the children's welfare, or from any physician, counselor, individual therapist, group therapist or leader, psycho-pharmacologist, or personnel from any facility involved in the treatment of the defendant, that the evaluator believed will assist the evaluator in conducting the evaluation . . .

Now, upon consideration of the moving and opposition papers, the oral argument held thereon, the nature and extent of the relief already granted, and the terms and scope of the Order Appointing Forensic Evaluator, the Court rules as follows on the open issues.

Defendant's motion for an Order prohibiting the release of the psychotherapy notes of James G. Katis, M.D., William Knack, Ph.D., and Gerard Vasco, CADC, to counsel for plaintiff and the Law Guardian is granted without prejudice as hereinbelow indicated. That aspect of the motion seeking a redaction of such records is denied as moot without prejudice.

That aspect of plaintiff's cross-motion seeking an Order directing the release to plaintiff's counsel, the Law Guardian, and to any neutral forensic psychiatrist appointed herein of defendant's full mental health records as enumerated above, including any psychotherapy notes, directing the issuance of HIPAA compliant subpoenas for said records and those otherwise enumerated in "2" to Sequence 8 and for a directive for the issuance of an open commission is denied without prejudice except as otherwise directed in the Order Appointing Forensic Evaluator. Reapplication may be made upon the completion and review of Dr. Westreich's report.

The Court notes that issues surrounding the release of some, if not all, of the records sought by plaintiff were vigorously argued by the parties. Among other things, defendant's privacy rights, statutory and otherwise, and asserted desire to maintain an open dialogue with his therapists and/or counselors without concern as to how any such conversations or interactions may be construed by plaintiff have been pitted against plaintiff's demand and asserted need to know all she can about defendant's current mental and physical status so that she can use said information in opposition to or even agreement with any position advanced by defendant with respect to the chid access issues.

The Court views the appointment of a neutral forensic psychiatrist, with unfettered access to, among other things, defendant's mental health and treatment records, as a rational accommodation of the parties' respective positions and concerns at this stage of the proceedings. More importantly, it places into the hands of a recognized and agreed upon expert, those records and resources that he deems necessary to render a neutral report to the Court on the principal issue of access.

The Court's determination is without prejudice to reapplication upon the completion and review of the anticipated neutral forensic report on whatever basis may then exist. [*4]

The Court will call this matter in for a conference immediately upon the issuance of the anticipated report to conference the matter and/or schedule the hearing herein granted.

The foregoing constitutes the Opinion, Decision & Order of the Court.

Dated: White Plains, New York

March 13, 2008

_____________________________

HON. LEWIS J. LUBELL, J.S.C.

TO:GALLO, FEINSTEIN & NAISHTUT, LLP

211 South Ridge Street

Rye Brook, NY 10573

BLANK ROME, LLP

405 Lexington Avenue

New York, NY 10174

LOIS M. DIETER, ESQ.

2 Alyce Court

Somers, NY 10589