Decisions of Interest

Resident Evaluations Not Discoverable in Physician's Divorce Action

Judicial Hearing Officer Stanley Gartenstein of Nassau County, NY, has ruled that hospital resident evaluations of an attending physician are privileged documents that cannot be used by the physician's wife in a divorce action to rebut his stated reduction in income because the evaluations “directly relate to medical instruction of residents at the hospital, in turn profoundly affecting the quality of care provided to patients.” Stern v. Stern, Index No. 07/202572 (Sup. Ct., Nassau Cty. 6/10/09).

In Stern, a wife who was suing her husband for divorce sought discovery of student evaluations of her husband's teaching methods. During the pendency of the divorce proceedings, the husband was stricken from the roster of attending physicians covering nights and weekends by the hospital at which he practiced. This significantly reduced his income. Because the hospital's Chairman and the husband had what the wife termed a “cordial relationship,” she suspected that his removal from these duties was prompted by the husband's interest in reducing his income for the purposes of equitable distribution of the marital property in conjunction with the divorce action.

New York's Education Law ' 6527(3) exempts from disclosure documents relating to “medical review and quality assurance functions,” participation in a malpractice prevention program and certain incident reports. The husband's attorneys argued that the teaching evaluations were related to medical quality assurance functions. The hearing officer agreed, finding that resident teaching evaluations are related to hospital decisions concerning the appointment of physicians to teaching roles. In conclusion, stated Gartenstein in his opinion, “We reject any distinction between defendant's other duties and his teaching in view of the patent reality that these responsibilities are intimately and indistinguishably woven into his duties as a member of the obstetrics department and directly impact upon the quality assurance at the hospital, ultimately inuring to the benefit of present and future patients. The evaluations at issue are therefore rules to be privileged.”

Ex-Husband Sanctioned for Misrepresenting Extent of Property Ownership

The Appellate Division, Second Department, affirmed the Supreme Court's holding of contempt against an ex-husband for his willful failure to comply with a stipulation of settlement, as he knew at the time of entering into the agreement that he had misrepresented the extent of his equity share in the marital residence. Cordova v. Cordova, — N.Y.S.2d —-, 2009 WL 1798121 (2d Dept., 6/23/09).

When the parties divorced in 2006, their stipulation of settlement provided that the marital residence, valued at about approximately $289,000 ($350,000-$61,000 still due on mortgage), would be retained by the husband, and that he would obtain a mortgage of $144,000 to pay off the wife for her share. The property had, in fact, been owned equally by the husband and his two sisters since it was acquired in 1998, and the husband was aware of this fact at the time he represented it to his wife and the court as his titled property, purchased with martial funds. The former husband did not refinance the property. Instead, by a quitclaim deed dated Feb. 16, 2007, he and his two sisters transferred the property to the sisters alone.

The ex-wife moved for an order of contempt when she did not receive the $144,000 and the court, unaware that the ex-husband did not own the property, appointed her as receiver, to sell the property and collect her share. In March 2008, a money judgment in the principal sum of $144,679 was entered upon that order.

A few months later, in July 2007, the former husband commenced an action to vacate or modify the stipulation on the ground of mutual mistake (hereinafter the reformation action). The essence of the former husband's claim was that the recital in the stipulation that he was the titled owner of the premises was incorrect, as was the assertion that the property had been purchased with marital funds. The former wife moved, inter alia, to dismiss the reformation action, and the court sided with her.

On appeal, the Second Department found that, since as the former husband acknowledged that he knew when he signed the stipulation that his characterization of the home's ownership was inaccurate and that he therefore had no intention of complying with his obligations under the agreement, the Supreme Court properly granted the former wife's motion to hold him in contempt and properly entered judgment against him in the principal sum of $144,679. In addition, the reformation action was properly dismissed because, although a stipulation may be vacated on the ground of mutual mistake, the husband's own admissions established that he was not mistaken as to the true state of ownership of the marital home. “To the contrary,” said the court, “when he signed the stipulation, he did so knowing of the discrepancy and intending merely to pay the former wife, at most, the amount he believed to be her share of his portion of the property, rather than the amount he was expressly agreeing to pay her.”

Resident Evaluations Not Discoverable in Physician's Divorce Action

Judicial Hearing Officer Stanley Gartenstein of Nassau County, NY, has ruled that hospital resident evaluations of an attending physician are privileged documents that cannot be used by the physician's wife in a divorce action to rebut his stated reduction in income because the evaluations “directly relate to medical instruction of residents at the hospital, in turn profoundly affecting the quality of care provided to patients.” Stern v. Stern, Index No. 07/202572 (Sup. Ct., Nassau Cty. 6/10/09).

In Stern, a wife who was suing her husband for divorce sought discovery of student evaluations of her husband's teaching methods. During the pendency of the divorce proceedings, the husband was stricken from the roster of attending physicians covering nights and weekends by the hospital at which he practiced. This significantly reduced his income. Because the hospital's Chairman and the husband had what the wife termed a “cordial relationship,” she suspected that his removal from these duties was prompted by the husband's interest in reducing his income for the purposes of equitable distribution of the marital property in conjunction with the divorce action.

New York's Education Law ' 6527(3) exempts from disclosure documents relating to “medical review and quality assurance functions,” participation in a malpractice prevention program and certain incident reports. The husband's attorneys argued that the teaching evaluations were related to medical quality assurance functions. The hearing officer agreed, finding that resident teaching evaluations are related to hospital decisions concerning the appointment of physicians to teaching roles. In conclusion, stated Gartenstein in his opinion, “We reject any distinction between defendant's other duties and his teaching in view of the patent reality that these responsibilities are intimately and indistinguishably woven into his duties as a member of the obstetrics department and directly impact upon the quality assurance at the hospital, ultimately inuring to the benefit of present and future patients. The evaluations at issue are therefore rules to be privileged.”

Ex-Husband Sanctioned for Misrepresenting Extent of Property Ownership

The Appellate Division, Second Department, affirmed the Supreme Court's holding of contempt against an ex-husband for his willful failure to comply with a stipulation of settlement, as he knew at the time of entering into the agreement that he had misrepresented the extent of his equity share in the marital residence. Cordova v. Cordova, — N.Y.S.2d —-, 2009 WL 1798121 (2d Dept., 6/23/09).

When the parties divorced in 2006, their stipulation of settlement provided that the marital residence, valued at about approximately $289,000 ($350,000-$61,000 still due on mortgage), would be retained by the husband, and that he would obtain a mortgage of $144,000 to pay off the wife for her share. The property had, in fact, been owned equally by the husband and his two sisters since it was acquired in 1998, and the husband was aware of this fact at the time he represented it to his wife and the court as his titled property, purchased with martial funds. The former husband did not refinance the property. Instead, by a quitclaim deed dated Feb. 16, 2007, he and his two sisters transferred the property to the sisters alone.

The ex-wife moved for an order of contempt when she did not receive the $144,000 and the court, unaware that the ex-husband did not own the property, appointed her as receiver, to sell the property and collect her share. In March 2008, a money judgment in the principal sum of $144,679 was entered upon that order.

A few months later, in July 2007, the former husband commenced an action to vacate or modify the stipulation on the ground of mutual mistake (hereinafter the reformation action). The essence of the former husband's claim was that the recital in the stipulation that he was the titled owner of the premises was incorrect, as was the assertion that the property had been purchased with marital funds. The former wife moved, inter alia, to dismiss the reformation action, and the court sided with her.

On appeal, the Second Department found that, since as the former husband acknowledged that he knew when he signed the stipulation that his characterization of the home's ownership was inaccurate and that he therefore had no intention of complying with his obligations under the agreement, the Supreme Court properly granted the former wife's motion to hold him in contempt and properly entered judgment against him in the principal sum of $144,679. In addition, the reformation action was properly dismissed because, although a stipulation may be vacated on the ground of mutual mistake, the husband's own admissions established that he was not mistaken as to the true state of ownership of the marital home. “To the contrary,” said the court, “when he signed the stipulation, he did so knowing of the discrepancy and intending merely to pay the former wife, at most, the amount he believed to be her share of his portion of the property, rather than the amount he was expressly agreeing to pay her.”