Decisions of Interest

The court admitted the records after concluding that statements made to health care providers in response to their inquiries for the purpose of providing medical care are inherently reliable and admissible. “If a stranger observed a person running naked through the street screaming about aliens, the stranger's description to a responding health care worker would be extremely pertinent to the diagnosis and treatment of that person,” the judge wrote. “Of course, it can always be argued that a particular declarant might have a motive to fabricate a statement, even one made to a medical provider.” In this regard, the court noted that a statement made by Gene M.'s wife to the police might be suspect, as she could have ulterior motives in making it, such as the wish to eventually be granted custody of the couple's children. However, her “statements made about [Gene M.'s] mental health condition, made directly to a health care provider, are unlikely to serve any such ulterior motive.” Based on the medical health treatment records and other evidence, the court found that Gene M. had neglected his children.

Business Whose Ownership Is Disputed Is Not Permitted to Intervene in Divorce Action

A pizza business whose ownership was in dispute in a matrimonial action has been held to have no right to intervene in the divorce proceeding, as the court determined that even though the husband was estopped from disclaiming ownership of the pizzeria, it could calculate the value of his alleged interest yet leave intact the actual ownership of the business. Zito v. Zito, 53468/2011, NYLJ 1202662723257, at *1 (Sup. KI, Decided June 4, 2014).

As part of its efforts to appraise the value of the divorcing couple's marital estate for the purposes of determining child support and equitable distribution issues, the court assigned an appraiser to value Smiling Pizzeria, which the husband said was owned wholly by his father. However, earlier in the dissolution proceedings, the husband had claimed repeatedly that he held a 50% ownership interest.

Smiling Pizza here sought leave to intervene in the divorce action in accordance with CPLR section 1013, arguing that its interests were at stake in the divorce action and that, because the business was owned by the divorcing husband's father, it was not subject to equitable distribution. The pizzeria offered several forms of evidence to back up its position, and the wife countered with her own evidence. The court determined, however, that these did not matter to the determination of this issue, because: 1) the husband had represented in two affidavits of net worth prepared with his attorney that he owned a 50% interest in the business; 2) the husband had stated that he owned a 50% share of the pizzeria in his deposition testimony; 3) the husband had not objected to having the court-appointed appraiser value the business and had agreed to pay that appraiser; and 4) the husband had provided his former attorneys with documents evidencing his ownership interest in the pizzeria.

For these reasons, the court found that, under the doctrine of equitable estoppel, the husband must be precluded from now adopting the position that he did not own any part of the pizzeria. “This conclusion, however, does not compel the court to grant the business' motion to intervene in order to protect its interests,” stated the court. Instead, the appraiser would be permitted to give its evaluation of the dollar amount of the couple's interest in the pizzeria. The court, citing, inter alia, to O'Brien v. O'Brien, 66 NY2d 576, 589 (1985) (the court retains the discretion to make a distributive award in lieu of an actual distribution of the value of the professional spouse's license), stated it would then, “after trial considering any testimony and evidence, including expert reports, distribute a dollar amount when addressing the issue of equitable distribution of the parties' marital assets, as is done in distributing any license or business, without affecting the ownership or operation of the business.”

This being the case, “since the court at first instance will consider the dollar amount of plaintiff's interest in Smiling Pizzeria, and is not required to make an award that gives defendant an ownership interest in the business, Smiling Pizzeria has no interests to protect that would warrant an order permitting it to intervene in this matrimonial action,” stated the court. Smiling Pizzeria's motion was therefore denied in its entirety, the court concluding that “to hold otherwise would open the floodgates to party owned businesses become a third litigant in matrimonial litigation.”

'

Third-Party Statements in Health Care Records Held Admissible in Neglect Proceeding

Statements made to a physician, social worker or mental health care provider while seeking help for a medical condition are admissible hearsay in the context of a child neglect proceeding, Judge Robert Hettleman has held. Matter of A.M., NN-13027-31/13.

The Administration for Children' s Services (ACS) filed a neglect proceeding against Gene M., a man with a long history of mental illness, drug abuse and domestic violence. During a hearing, ACS offered Judge Hettleman plaintiff Gene M.'s in-patient mental health treatment records. Although such records are often admitted without argument in child neglect proceedings, these records contained numerous comments made by third parties, including Gene M.'s wife, his other health care providers and his parents.

The court admitted the records after concluding that statements made to health care providers in response to their inquiries for the purpose of providing medical care are inherently reliable and admissible. “If a stranger observed a person running naked through the street screaming about aliens, the stranger's description to a responding health care worker would be extremely pertinent to the diagnosis and treatment of that person,” the judge wrote. “Of course, it can always be argued that a particular declarant might have a motive to fabricate a statement, even one made to a medical provider.” In this regard, the court noted that a statement made by Gene M.'s wife to the police might be suspect, as she could have ulterior motives in making it, such as the wish to eventually be granted custody of the couple's children. However, her “statements made about [Gene M.'s] mental health condition, made directly to a health care provider, are unlikely to serve any such ulterior motive.” Based on the medical health treatment records and other evidence, the court found that Gene M. had neglected his children.

Business Whose Ownership Is Disputed Is Not Permitted to Intervene in Divorce Action

A pizza business whose ownership was in dispute in a matrimonial action has been held to have no right to intervene in the divorce proceeding, as the court determined that even though the husband was estopped from disclaiming ownership of the pizzeria, it could calculate the value of his alleged interest yet leave intact the actual ownership of the business. Zito v. Zito, 53468/2011, NYLJ 1202662723257, at *1 (Sup. KI, Decided June 4, 2014).

As part of its efforts to appraise the value of the divorcing couple's marital estate for the purposes of determining child support and equitable distribution issues, the court assigned an appraiser to value Smiling Pizzeria, which the husband said was owned wholly by his father. However, earlier in the dissolution proceedings, the husband had claimed repeatedly that he held a 50% ownership interest.

Smiling Pizza here sought leave to intervene in the divorce action in accordance with CPLR section 1013, arguing that its interests were at stake in the divorce action and that, because the business was owned by the divorcing husband's father, it was not subject to equitable distribution. The pizzeria offered several forms of evidence to back up its position, and the wife countered with her own evidence. The court determined, however, that these did not matter to the determination of this issue, because: 1) the husband had represented in two affidavits of net worth prepared with his attorney that he owned a 50% interest in the business; 2) the husband had stated that he owned a 50% share of the pizzeria in his deposition testimony; 3) the husband had not objected to having the court-appointed appraiser value the business and had agreed to pay that appraiser; and 4) the husband had provided his former attorneys with documents evidencing his ownership interest in the pizzeria.

For these reasons, the court found that, under the doctrine of equitable estoppel, the husband must be precluded from now adopting the position that he did not own any part of the pizzeria. “This conclusion, however, does not compel the court to grant the business' motion to intervene in order to protect its interests,” stated the court. Instead, the appraiser would be permitted to give its evaluation of the dollar amount of the couple's interest in the pizzeria. The court, citing, inter alia , to O'Brien v. O'Brien , 66 NY2d 576, 589 (1985) (the court retains the discretion to make a distributive award in lieu of an actual distribution of the value of the professional spouse's license), stated it would then, “after trial considering any testimony and evidence, including expert reports, distribute a dollar amount when addressing the issue of equitable distribution of the parties' marital assets, as is done in distributing any license or business, without affecting the ownership or operation of the business.”

This being the case, “since the court at first instance will consider the dollar amount of plaintiff's interest in Smiling Pizzeria, and is not required to make an award that gives defendant an ownership interest in the business, Smiling Pizzeria has no interests to protect that would warrant an order permitting it to intervene in this matrimonial action,” stated the court. Smiling Pizzeria's motion was therefore denied in its entirety, the court concluding that “to hold otherwise would open the floodgates to party owned businesses become a third litigant in matrimonial litigation.”

'