
    Theresa C. Prink, as Administratrix of the Estate of Robert V. Prink, Deceased, Appellant, v Rockefeller Center, Inc., et al., Respondents.
    Argued September 6, 1979;
    decided November 15, 1979
    
      POINTS OF COUNSEL
    
      Arthur B. Sheehan for appellant.
    I. The court below erred in holding that since plaintiff has commenced an action seeking damages for the pecuniary injuries resulting from the death of plaintiff’s intestate, that the spousal privilege provided by CPLR 4502 (subd [b]), when considered with the disclosure provisions provided by CPLR 3121, must yield and plaintiff must testify further and answer questions concerning conversations had between plaintiff and plaintiff’s intestate pertaining to decedent’s consultations with a psychiatrist. (Merlin v Aetna Life Ins. Co., 180 F Supp 90.) II. Plaintiff’s postmortem conversation with decedent’s psychiatrist did not effect a waiver of the physician-patient privilege against disclosure. (Matter of A & M, 61 AD2d 426; Denaro v Prudential Ins. Co. of Amer., 154 App Div 840.) III. The bringing of the within action for wrongful death did not place in issue the mental and physical condition of plaintiff’s intestate by reason of defendants’ pleading the affirmative defense of self-destruction. (Koump v Smith, 25 NY2d 287; Freeman v Corbin Ave. Bus Co., 60 AD2d 824; Eder v Cashin, 281 App Div 456; Constantine v Diello, 24 AD2d 821.) IV. No waiver of the privilege against disclosure of confidential information having taken place in this wrongful death action, a determination of the factors necessary to the consideration of what is "fair and just compensation” is a decision to be made by the trial court. (Mercado v City of New York, 46 Misc 2d 358.) V. The moving papers of defendant-respondent Van Summern & Weigold, Inc., failed to comply with CPLR 2215 and should be disregarded in their entirety.
    
      Richard Bakalor for Rockefeller Center, Inc., respondent.
    I. Plaintiff by bringing the within action for wrongful death has placed into controversy the mental and physical condition of the decedent. (Kraus v Ford Motor Co., 55 AD2d 851, 42 NY2d 1093; Rothman v St. Barnabas Hosp. for Chronic Diseases, 20 AD2d 531; Mercado v City of New York, 46 Misc 2d 358; Weiner v Arrowbrook Gardens Dev. Corp., 18 AD2d 815; Matter of Beeler v Hildan Crown Container Corp., 26 AD2d 163; Koump v Smith, 25 NY2d 287; Freeman v Corbin Ave. Bus Co., 60 AD2d 824; Eder v Cashin, 281 App Div 456.) II. Since plaintiff by bringing the within action for wrongful death has placed into controversy the mental health of the decedent, plaintiff has waived the physician-patient privilege pertaining to same. (Sito v Neumann, 92 Misc 2d 97; Constantine v Diello, 24 AD2d 821.) III. Since testimony of what decedent’s psychiatrist stated to plaintiff is being sought from plaintiff, rather than from the psychiatrist, at the examination before trial, there is, in any event, no physician-patient privilege to be properly claimed. (Denaro v Prudential Ins. Co. of Amer., 154 App Div 840.) IV. Since plaintiff by bringing the within action for wrongful death has placed into controversy the mental health of the decedent, plaintiff has waived the husband-wife privilege pertaining to same. (Merlin v Aetna Life Ins. Co., 180 F Supp 90.)
    
      Richard T. Andrias and Andrew P. Davis for Van Summern & Weigold Planning Associates, Inc., respondent.
    I. By bringing the within action for wrongful death, plaintiff has placed into controversy the mental and physicial condition of decedent. (Kraus v Ford Motor Co., 55 AD2d 851; Rothman v St. Barnabas Hosp. for Chronic Diseases, 20 AD2d 531; Feldman v Allegheny Airlines, 382 F Supp 1271, 524 F2d 384; Merchant’s Nat. Bank & Trust Co. of Fargo v United States, 272 F Supp 409; Freeman v Corbin Ave. Bus Co., 60 AD2d 824; Constantine v Diello, 24 AD2d 821; Weiner v Arrowbrook Gardens Dev. Corp., 18 AD2d 815; Matter of Beeler v Hildan Crown 
      
      Container Corp., 26 AD2d 163.) II. By bringing the within action for wrongful death, plaintiff has waived any privilege with respect to decedent’s medical condition. (Koump v Smith, 25 NY2d 287; Walsh v Parkchester Gen. Hosp., 33 AD2d 540.) III. Respondent Van Summern’s cross motion was served timely within the three-day period required by CPLR 2215.
   OPINION OF THE COURT

Meyer, J.

The question presented by this appeal is whether evidentiary privileges prevent disclosure in a wrongful death action concerning the mental condition of the decedent whose unwitnessed death occurred under circumstances consistent with either negligence of the defendant or suicide. We hold that since decedent himself could not have prevented disclosure, his personal representative may not do so in an action brought under EPTL 5-4.1.

Plaintiff is the administratrix of the estate of her husband, Robert Prink, who was an associate of a law firm whose offices were at 30 Rockefeller Plaza in New York City. On March 1, 1976, he was found dead on the sixth floor setback of the building. The window of the 36th floor office Mr. Prink had occupied was open. There were no eyewitnesses, but the deputy chief medical examiner noted on Mr. Prink’s death certificate that Dr. Thomas Doyle, Mr. Prink’s psychiatrist, had reported to him that Mr. Prink had been acutely tense and depressed.

Thereafter plaintiff commenced the present action against defendants, the owners and architects respectively of 30 Rockefeller Center, claiming that negligence in the design and installation of the window alcove desk at which decedent worked and in the maintenance of the window required that he kneel on the desk in order to open the window which was jammed, and that he lost his balance and fell when he attempted to do so. During the examination of plaintiff before trial she admitted that her husband had told her sometime before his death that he was seeing Dr. Doyle, a psychiatrist, but refused on the basis of the spousal privilege to disclose what her husband had said about why he was seeing Dr. Doyle. She also admitted that after her husband’s death she had spoken with Dr. Doyle, but refused to disclose the content of the conversation, claiming privilege. On defendants’ motion for an order compelling plaintiff to testify concerning the content of her conversations with her husband and Dr. Doyle, Special Term ordered the questions answered. The Appellate Division affirmed, but certified to us the question "Was the order of the Supreme Court, as affirmed by this Court, properly made?” We answer the certified question in the affirmative and, therefore, affirm the Appellate Division’s order.

The initial inquiry is whether privilege ever attached. The conversation between Mr. and Mrs. Prink occurred during marriage and was of a nature that it would not have been made but for the confidence induced by the marital relationship. It would, therefore, be within the protection of CPLR 4502 (subd [b]). Less certain is whether Dr. Doyle’s conversation with Mrs. Prink after her husband’s death is privileged for Mrs. Prink did not consult Dr. Doyle as a patient. Mr. Prink did, however, and Dr. Doyle’s information concerning him was, therefore, "acquired in attending a patient in a professional capacity” within the meaning of CPLR 4504 (subd [a]) and for purposes of the present inquiry at least may be presumed to have been "necessary to enable him to act in that capacity” as required by that provision.

Neither the spousal (see Southwick v Southwick, 49 NY 510, 518; Richardson, Evidence [10th ed — Prince], § 455) nor the physician-patient privilege (CPLR 4504, subd [cj; Davis v Supreme Lodge, Knights of Honor, 165 NY 159; 8 Wigmore, Evidence [McNaughton rev], § 2341) is terminated by death alone. Both privileges, therefore, apply unless waived in some manner. To be borne in mind in deciding whether there has been a waiver is that the conjugal privilege belongs not to the witness but to the spouse against whom the testimony is offered (People v McCormack, 278 App Div 191, 194, affd 303 NY 782; see People v Melski, 10 NY2d 78, 80, n 1; Richardson, op. cit, § 453) and that the physician-patient privilege belongs to the patient (CPLR 4504, subd [a]; Richardson, Evidence, § 434). From the latter fact it follows that Dr. Doyle’s voluntary disclosures to the chief medical examiner and to Mrs. Prink after her husband’s death, proper though they undoubtedly were as a matter of professional ethics (see Lanza v New York State Joint Legislative Comm., 3 NY2d 92, 97; 45 NY Jur 371, Physicians & Surgeons, § 119), cannot constitute a waiver making an otherwise privileged statement admissible (see Matter of City Council of City of N. Y. v Goldwater, 284 NY 296; Davis v Supreme Lodge, Knights of Honor, 165 NY 159, supra; People v Harris, 39 Misc 2d 193; Richardson, op. cit., §§ 440, 452; 8 Wigmore, op. cit., § 2381). To hold that a recipient of confidential information by his sole fiat may destroy the privilege would be directly contrary to the salutary purpose for which the privilege was adopted.

There is, however, another basis upon which we hold not only the doctor-patient but also the spousal privilege waived. The instant action is brought pursuant to EPTL 5-4.1, which authorizes an action for wrongful death only "for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued” (emphasis supplied). Thus to succeed in this action, which is wholly statutory in nature, plaintiff must establish that it could have been maintained by decedent had he survived (Emery v Rochester Tel. Corp., 271 NY 306 [not maintainable where there was no direct interference with decedent’s person]; Barnhart v American Concrete Steel Co., 227 NY 531 [not maintainable when barred by release in contract of employment]; Kelliher v New York City & Hudson Riv. R. R. Co., 212 NY 207 [not maintainable where Statute of Limitations had run during decedent’s lifetime]) and that defendants’ wrongful act caused his death. In final analysis, therefore, the issue is whether had Mr. Prink survived and brought the action he could successfully have resisted defendants’ demand, in their effort to establish that his injuries resulted from attempted suicide rather than defendants’ negligence, for disclosure of his conversations with Dr. Doyle and with his wife.

Clearly his privilege against self incrimination would not have helped him, for that privilege does not permit a plaintiff to claim affirmative relief and at the same time refuse to disclose information bearing upon his right to maintain his action (Levine v Bornstein, 13 Misc 2d 161, affd 7 AD2d 995, affd 6 NY2d 892). For essentially the same reason (the unfairness of mulcting a defendant in damages without affording him an opportunity to prove his lack of culpability [cf. Chambers v Mississippi, 410 US 284]), Mr. Prink as plaintiff could assert neither the physician-patient privilege (Koump v Smith, 25 NY2d 287, 294; see People v Al-Kanani, 33 NY2d 260, cert den 417 US 916) nor, we now hold, the conjugal privilege to foreclose inquiry concerning whether his injury was the result of an attempt at suicide.

In Koump plaintiff demanded authorization pursuant to CPLR 3121 to obtain defendant’s hospital record in an effort to show that defendant was intoxicated at the time his car crossed a center divider striking plaintiff’s car and injuring plaintiff. We upheld defendant’s claim of privilege in that case because defendant had done no more than deny plaintiff’s allegation that defendant was intoxicated and plaintiff’s only evidence of intoxication was an attorney’s affidavit reciting that the police report of the accident contained a hearsay statement that defendant appeared intoxicated. Nevertheless, we recognized (25 NY2d, at p 294): "that by bringing or defending a personal injury action in which mental or physical condition is affirmatively put in issue, a party waives the privilege” (emphasis in original).

Whatever the ultimate determination of the triers of fact may be in the present case and notwithstanding the presumption against suicide which they will have to consider in reaching their determination, we conclude that it is a matter of common knowledge which we can judicially notice (Richardson, op. tit., § 44) that many apparently accidental deaths are in fact suicides and that a wrongful death complaint predicated upon an alleged accidental fall from a 36th story window is sufficiently equivocal in that respect to put in issue, by plaintiffs affirmative act in bringing the action, decedent’s mental condition (see Matter of Beeler v Hildan Crown Container Corp., 26 AD2d 163 [mental condition in issue where claimant’s decedent died in a fall from a 12th floor office]; see, also, Farber, Theory of Suicide, p 7; Gibbs Suicide, Introduction, p 13; Porterfield, Problem of Suicide [in Gibbs, Suicide], pp 33-34). To hold otherwise is to ignore the realities of the factual situation and to come perilously close to a taking of defendants’ property without due process of law (cf. Chambers v Mississippi, 410 US 284, supra). An additional reason, not however essential to our conclusion, for holding the privileges waived by the bringing of the action is that determination of the pecuniary injury sustained by Mr. Prink’s death necessarily involved his mental condition (see Freeman v Corbin Ave. Bus Co., 60 AD2d 824, mot for lv to app den 44 NY2d 649).

Bearing in mind the purpose for which the privileges in question were created (see Richardson, op. tit, §§ 428, 447), the affirmative stance of plaintiff who claims on behalf of decedent’s distributees to have sustained pecuniary injury as a result of defendants’ negligence, and the unfairness of permitting plaintiff to succeed by hiding behind the privileges asserted, we are satisfied on balance that the better policy is to hold the privileges waived. The basis for that conclusion as to the physician-patient privilege is set forth in Koump v Smith (25 NY2d 287, supra; see, also, Wigmore, op. tit., § 2380a). As to the spousal privilege, its basis is well stated in McCormick, Evidence (2d ed, § 86, p 173) as follows:

"while the danger of injustice from suppression of relevant proof is clear and certain, the probable benefits of the rule of privilege in encouraging marital confidences and wedded harmony, is at best doubtful and marginal.
"Probably the policy of encouraging confidences is not the prime influence in creating and maintaining the privilege. It is really a much more natural and less devious matter. It is a matter of emotion and sentiment. All of us have a feeling of indelicacy and want of decorum in prying into the secrets of husband and wife. It is important to recognize that this is the real source of the privilege. When we do, we realize at once that this motive of delicacy, while worthy and desirable, will not stand in the balance with the need for disclosure in court of the facts upon which a man’s life, liberty, or estate may depend.”

Accordingly the certified question should be answered in the affirmative and the order of the Appellate Division should be affirmed.

Chief Judge Cooke

(dissenting in part). I dissent in part. I would modify the order of the Appellate Division and answer the certified question in the negative.

The order of the Appellate Division affirms an order of Special Term directing plaintiff to appear for oral examination concerning her conversations both with decedent, her late husband, and with decedent’s psychiatrist occurring after decedent’s death. I concur in permitting disclosure of the latter, but I would preclude the questioning of plaintiff about her discussions with decedent concerning the reasons for and circumstances of psychiatric care.

There is no quarrel with the determination that the commencement of the wrongful death action placed in issue decedent’s mental condition, requiring disclosure of the communications between decedent and his psychiatrist. While plaintiff may not rely on the doctor-patient privilege with respect to her talks with the psychiatrist, I cannot concur in the majority’s abrogation of the privilege for confidential marital communications. The result reached today is not supported by the legislative statement codifying the privilege; nor is it justified in the circumstances of this case. More fundamental, however, this result seriously undermines the strong social policy supporting the privilege and marks an unexplained departure from prior precedent (see Warner v Press Pub. Co., 132 NY 181).

The privilege for marital communications was born of the recognition that the privacy surrounding the marital relation should be held inviolate in order to foster mutual confidence between husband and wife (see People v Daghita, 299 NY 194, 199; 8 Wigmore, Evidence [McNaughton rev], § 2332). To prevent destruction of the confidence and trust existing between spouses, it has long been recognized that confidential communications "should not be drawn from either party by any process of law” (People v Hayes, 140 NY 484, 495).

Of course, to mandate such extraordinary protection, the communication must have been made in confidence, for the privilege "encompasses only those statements that are 'confidential’ that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship” (Poppe v Poppe, 3 NY2d 312, 315; see, also, People v Melski, 10 NY2d 78, 80). Thus, there is no privilege for communications that are designed to injure the other spouse or that reflect a disregard of the very relation justifying the privilege (Poppe v Poppe, supra). Nor is testimony concerning a physical assault prohibited merely because it was committed in the absence of third persons (see Poppe v Poppe, supra, at p 317; People v McCormack, 278 App Div 191, 196-197). But a communication that is made in confidence, induced by and in reliance on the marital relationship and indicative of the trust between spouses, is shielded by the privilege. Such confidence should not be destroyed by forces outside the marriage, whether by legal compulsion or otherwise.

The majority does not dispute that the communications sought to be disclosed in the instant case come within the long-honored privilege. Trust in the inviolability of communications to a spouse clearly would prompt one to reveal what are often the painful experiences and feelings necessitating psychiatric treatment. Notwithstanding the conceded applicability of the privilege, the majority overrides its salutary purpose and holds, based upon its view of "the better policy”, that the privilege may not be ' invoked by a plaintiff. A Hobson’s choice thus confronts a litigant: betray the trust and confidence of one’s spouse or forego one’s right to seek redress for a grievous wrong.

The rule codifying the privilege permits no such drastic result. CPLR 4502 (subd [b]) provides that "[a] husband or wife shall not be required, or, without the consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.” By its terms, the death of one spouse does not destroy the privilege and the surviving spouse may, but cannot be compelled to, disclose the communications by the deceased spouse (see Richardson, Evidence [10th ed — Prince], § 455). And the rule does not mandate that the privilege be available only in a defensive posture. While the Legislature has made the privilege subject to certain exceptions (e.g., Family Ct Act, § 1046, subd [a], par [vii] [privilege not available in a proceeding alleging child abuse or neglect]; Social Services Law, § 384-b, subd 3, par [h] [privilege not available in proceeding to terminate parental rights]), there is no legislative expression that a plaintiff may not employ the shield of the privilege.

Prior to today, waiver of a privilege was accomplished by express consent of the spouse or by failure to interpose a timely objection (Parkhurst v Berdell, 110 NY 386). Indeed, this court has allowed a party seeking affirmative relief to invoke the marital privilege (Warner v Press Pub. Co., 132 NY 181, supra). But, purportedly in the name of fairness, the majority overrides this well-settled principle and concludes that the holder of a privilege waives it when he or she brings an action to seek redress for a wrong committed by another. Such restriction is unwarranted. Any rule of evidence that excludes relevant testimony potentially works some unfairness as a result (see, e.g., CPLR 4519; see, generally, Richardson, § 396 [criticism of the dead man’s statute]). But it is no more unjust to permit a plaintiff to invoke a privilege than it is to permit a defendant to defeat a meritorious claim by hiding behind the same privilege.

The judgment of the Legislature, reflected in the codification of the privilege, expresses the long-standing social policy that the injury to domestic harmony and marital privacy occasioned by the unrestricted search for relevant information is too great to endure (see People v Hayes, 140 NY 484, 496, supra; Common Law Commission, Second Report 13 [1853], quoted in 8 Wigmore, at § 2332). Thus, the balance between potential unfairness to opposing litigants and preservation of the marital privilege has been struck in favor of the privilege —whether information is sought to establish a claim or to defend against it. While some may disagree with the wisdom of this choice, it is improper for a court to substitute its judgment for that of the Legislature (see National Psychological Assn. for Psychoanalysis v University of State of N. Y., 8 NY2d 197, 203, app dsmd 365. US 298; Thompson v Wallin, 301 NY 476, 488, affd sub nom. Adler v Board of Educ., 342 US 485).

These considerations notwithstanding, the majority has placed its imprimatur on a practice which compels a spouse to testify to the contents of communications made in confidence, thereby eviscerating the sphere of marital privacy long cherished in our society. Wholesale destruction of the marital privilege is unnecessary to ensure the integrity of the judicial process and such a drastic rule serves no purpose where the information sought is available through other sources. The impact at trial, if any, of the exercise of the privilege can be minimized by the less drastic measure of permitting the fact finder to draw an unfavorable inference from the failure to disclose. Accordingly, I do not join in this needless assault upon the marital bond.

Fuchsberg, J.

(dissenting in part). Agreeing wholeheartedly with the views expressed by Chief Judge Cooke, I but add that our continued support rather than abandonment of the inter-spousal privilege is indorsed by the psychological and sociological human need for someone in whom to confide and the growing recognition of the constitutional right of privacy (see, e.g., Griswold v Connecticut, 381 US 479; Roe v Wade, 410 US 113; Doe v Bolton, 410 US 179; Matter of Quinlan, 70 NJ 10).

Judges Jasen, Jones and Wachtler concur with Judge Meyer; Chief Judge Cooke dissents in part and votes to modify in an opinion in which Judge Gabrielli concurs and in which Judge Fuchsberg concurs in a separate dissenting memorandum.

Order affirmed, with costs. Question certified answered in the affirmative. 
      
      . While plaintiffs testimony concerning what Dr. Doyle told her is clearly hearsay, that would not protect her from the disclosure required by CPLR 3101 which requires revelation of inadmissible testimony that may lead to discovery of admissible evidence (Baxter v Orans, 63 AD2d 875; see Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3101.05).
     
      
      .  To be distinguished, of course, is the common-law rule permitting an eavesdropper to testify concerning an otherwise privileged communication (see Lanza v New York State Joint Legislative Comm., 3 NY2d 92, 97, cert den 355 US 856; Richardson, op. cit., §§ 421, 443, 451 [a rule which, curiously, the Legislature has modified only as to the attorney-client privilege (CPLR 4503) and illegal eavesdropping (CPLR 4506) and not as to all privileges]). Thus, had Mrs. Prink overheard Dr. Doyle’s conversation with her husband as an eavesdropper rather than having learned its content from the doctor she could be required to disclose its content. The distinction, perhaps filagree in nature, is between the unauthorized act of the recipient of the confidence and the act of the eavesdropper who unauthorizedly intrudes himself upon the confidential conference. It results, apparently, from the confidant’s negligence in the eavesdropper situation in not assuring absolute secrecy at the time of disclosure, and the contradiction in terms that would be involved in taxing the confidant with negligence in relying upon the trust which is the very root of his relationship to the person in whom he has confided.
     
      
      . Since we are, thus, concerned with the effect of EPTL 5-4.1 on Mr. Frink’s hypothetical action, we do not reach the effect of CPLR 4504 (subd [c]) and its troublesome exception of "information which would tend to disgrace the memory of the decedent” (see Tinney v Neilson’s Flowers, 35 AD2d 532; Richardson, op. cit., § 435) or the equally troublesome question whether suicide disgraces memory (see Richardson, loc. cit.).
      
     
      
      . In light of that holding it is unnecessary for us to consider whether absent the extraordinary facts of the instant case, decedent’s mental condition was put in issue by defendants’ plea of an affirmative defense of suicide (see Constantine v Diello, 24 AD2d 821; Sito v Neumann, 92 Misc 2d 97; see, also, Koump v Smith, 25 NY2d 287, 296-300, supra).
      
     
      
      . (Accord Hutchins & Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn L Rev 675, 682; Hines, Privileged Testimony of Husband and Wife in California, 19 Cal L Rev 390, 410-414.)
      The injustice involved is the more apparent when, as here, the widow will benefit substantially from the recovery and, as the dissent concedes, CPLR 4502 (subd [b]) does not prevent her disclosure of her deceased husband’s statements. The Hobson’s choice suggestion of the dissent simply emphasizes the injustice; there was no grievous wrong for which to seek redress if decedent in fact committed suicide. Nor bearing in mind the presumption against suicide can it be said that the widow’s testimony "serves no purpose” because similar testimony may be available through the physician. Finally, with respect to Warner v Press Pub. Co. (132 NY 181), relied on by the dissent, while its holding was stated in terms of spousal privilege, the final paragraph of the decision strongly suggests that the true rationale for it was the court’s view of the husband’s motivation for his testimony, a factor affecting its weight but which should not affect its admissibility.
     
      
       While the Constitution might require that rules of evidence or privileges give way in a criminal proceeding (see Davis v Alaska, 415 US 308 [confrontation clause prevents invocation of privilege against disclosure of juvenile delinquency proceeding]; Chambers v Mississippi, 410 US 284 [confrontation clause and due process override rule prohibiting impeachment of one’s own witness and objection based on hearsay]), no case has been discovered which even intimates that application of the ordinary rules of evidence would be unconstitutional in the civil context.
      That we have apparently accepted the proposition that, as a matter of policy, a plaintiff may not sue on a claim and yet assert the constitutionally guaranteed privilege against self incrimination (see Levine v Bornstein, 6 NY2d 892; Steinbrecher v Wapnick, 24 NY2d 354) does not mean that every privilege must fall without regard to the circumstances of the case or the opposing litigant’s need for the information (cf. 30 Stan L Rev 935 [suggesting that even where confrontation and compulsory process rights are implicated, the defendant’s need for the information in the particular case must be balanced against the interest sought to be protected by the privilege asserted]; see, also, 60 Minn L Rev 1086). Indeed, in Steinbrecher, it was noted that "courts will not permit [the use of the privilege] as a weapon to unfairly prejudice an adversary” (24 NY2d, at p 362 [emphasis added]). Given the unavailability of the doctor-patient privilege here, it cannot be said that defendants will be prejudiced by nondisclosure of marital communications concerning the same matter.
     