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BURGEL v. BURGEL

141 A.D.2d 215 (1988)

Ninni Burgel, Appellant, v. Frank Burgel, Respondent

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 24, 1988

Attorney(s) appearing for the Case

Ferraro Rogers Dranoff Greenbaum Goldstein & Miller, P. C. (Sanford S. Dranoff, Raimonde Schwarz and Sylvia Goldschmidt on the brief), for appellant.

Bronstein, Van Veen & Bronstein, P. C. (Peter E. Bronstein and Donna S. Levin on the brief), for respondent.

KUNZEMAN, J. P., and RUBIN, J., concur with BALLETTA, J.; SULLIVAN and KOOPER, JJ., dissent in a separate opinion by SULLIVAN, J., who dissents and votes to reverse the order entered December 16, 1987, insofar as appealed from, to reverse the order entered January 7, 1988, and to remit the matter to the Supreme Court, Westchester County, for a hearing and new determination as to that branch of the defendant husband's motion which was for an order directing the plaintiff to appear at the offices of a physician and submit samples of her hair for testing.

BALLETTA, J.

Both parties seek custody of their two children in a pending divorce action. To this end, the defendant claims that the plaintiff used, and continues to use, cocaine. Although the plaintiff concedes that she used cocaine, she claims to have ceased using it a number of months ago. The defendant sought to have a physician cut several strands of the plaintiff's hair in order to perform a radioimmunoassay...

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