Anonymous v. Anonymous , 734 N.Y.S.2d 115 ( 2001 )

—Order, Supreme Court, New York County (Judith Gische, J.), entered May 21, 2001, which, in an action for divorce, to the extent appealed from as limited by the brief, granted defendant’s motion to restrain plaintiff from permitting his female friend from entering the mayoral residence or its grounds to attend public functions while the parties’ children continue to reside there, affirmed, without costs or disbursements.

The order was properly granted as necessary to avoid the risk of an accidental first meeting between the children and plaintiffs friend, which admittedly would be harmful to the children’s emotional well-being and otherwise not in their best interests (cf., Hummel v Hummel, 191 AD2d 296). The record supports defendant’s assertion that at least insofar as the children are concerned, the residence had never been divided into distinct “public” and “private” zones. The children’s free access to all of the areas of the residence should not be presently curtailed in an effort to lessen the risk of an accidental meeting and accommodate plaintiff’s desire for companionship at public functions in the residence. We reject plaintiff’s argument, apparently adopted by the dissent, that the separation of powers doctrine precludes the courts from ruling upon who may attend public events in the mayoral residence. It can scarcely be contended that the invitations the Mayor seeks to extend to his friend are “lawful acts of executive branch officials, performed in satisfaction of responsibilities conferred by law.” (Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233, 239.) The issue before us arises in the context of a matrimonial action and plaintiff’s desire for his friend’s presence at public functions is clearly personal in nature. Her judicially mandated absence in furtherance of the children’s best interests can have no effect on plaintiff’s ability to perform official duties (cf., Matter of Green v Giuliani, 187 Misc 2d 138, 147-148). We have considered plaintiff’s other arguments and find them unavailing. Concur— Sullivan, P. J., Ellerin and Wallach, JJ.

Rubin and Buckley, JJ., dissent in a memorandum by Buckley, J., as follows: