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 N.Y.2d 651, 667) is distinguishable in that the adoption statute there in issue was "open to two differing interpretations". Braschi v. Stahl Assocs. Co. ( 74 N.Y.2d 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.