
    Glenn Greenwald et al., Appellants, v H & P 29th Street Associates et al., Respondents.
    [659 NYS2d 473]
   Order, Supreme Court, New York County (David Saxe, J.), entered September 30, 1996, which in an action to recover damages for discrimination based upon defendants apartment building owner’s and managing agent’s refusal to aggregate plaintiffs’ incomes for purposes of defendants’ minimum income guidelines, inter alia, denied plaintiffs’ motion for a protective order limiting disclosure to matters not privileged under CPLR 4502 (b), unanimously affirmed, with costs.

The IAS Court correctly held that the spousal privilege of CPLR 4502 (b), which, by its terms, protects confidential communications between a “husband” and “wife” “during marriage”, does not extend, in plaintiffs’ words, “to homosexuals in a spousal relationship” (see, People v Suarez, 148 Misc 2d 95). Matter of Jacob (86 NY2d 651, 667) is distinguishable in that the adoption statute there in issue was “open to two differing interpretations”. Braschi v Stahl Assocs. Co. (74 NY2d 201, 208) is distinguishable in that the rent regulation there in issue did not define the operative term “family”. Plaintiffs’ constitutional claims are unpreserved, and we decline to reach them. Were we to review them, we would find them to be without merit. Concur—Murphy, P. J., Milonas, Ellerin, Andrias and Colabella, JJ.  