Reina v Robert P. Kulchinsky, M.D., P.C.

[*1] Reina v Robert P. Kulchinsky, M.D., P.C. 2005 NY Slip Op 51953(U) [10 Misc 3d 1054(A)] Decided on May 25, 2005 Supreme Court, Suffolk County Emerson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 25, 2005
Supreme Court, Suffolk County

Grace Reina, M.D., Plaintiff,

against

Robert P. Kulchinsky, M.D., P.C. and Robert P. Kulchinsky, M.D., Defendants.



390-04



David J. Sutton, PLLC.

Attorney for Plaintiff

1205 Franklin Avenue, Suite 320

Garden City, New York 11530

Wickham, Bressler, Gordon & Geasa, P.C.

Attorneys for Defendants

275 Broad Hollow Road, Suite 111

Melville, New York 11747

Elizabeth Hazlitt Emerson, J.

ORDERED that the motion by the plaintiff for an order granting summary judgment in her favor and the cross motion by the defendants, inter alia, for leave to amend the answer are determined as follows:

On January 21, 1999, the parties entered into an employment agreement in which they agreed that the plaintiff would perform medical services at the defendants' clinic for a period of four years from July 1, 1999, through June 30, 2003. During the term of her employment, the defendant Robert P. Kulchinsky, M.D., P.C., agreed to pay the plaintiff a base salary plus additional compensation. The agreement defines "additional compensation" as an amount equal to 30% of the aggregate money collected by the practice attributable to the provision of professional medical services rendered during each employment year to the extent that such aggregate money collections exceed the base amount of $250,000 for the first employment year, $300,000 for the second employment year, $350,000 for the third employment year, and $400,000 for the fourth employment year. Paragraph 3(c)(vii) defines "aggregate money collections" as follows: In calculating the amount of aggregate money collections by the Practice for each Employment Year, such amount shall be equal to: (a) the total amount of money or funds actually received by the Practiceduring the Employment Year in question, plus 90 days thereafter; (b) as a result of professional medical services provided by any Practice physician (whether an independent contractor or employee of the Practice) during the Employment Year in question; (c) from either the patient and/or the patient's third party commercial insurance carrier, capitated contract arrangement, or other governmental payor; (d) irrespective of the amount billed for such services by the Practice; (e) less any offsets, recoupments, or deductions with respect to prior amounts paid to the Practice by the patient and/or the patient's third-party insurance carrier or governmental payor during the Employment Year in question plus 90 days thereafter. The parties acknowledge that the calculation of the aggregate money collections shall not be reduced for any other expenses of the Employer unless specifically stated herein otherwise (emphasis added).[*2]

The defendants did not pay the plaintiff any additional compensation during the term of her employment. She subsequently commenced this action to recover, inter alia, such additional compensation. She now moves for summary judgment on the ground that the parties' agreement is unambiguous. The defendants oppose the plaintiff's motion, arguing that the parties did not intend to include revenue generated by Dr. Kulchinsky, the owner of the practice, in calculating the amount of aggregate money collected. The defendants cross move (1) for leave to amend the answer to include counterclaims for reformation and the defenses of waiver and estoppel, (2) for discovery, and (3) for summary judgment dismissing the complaint insofar as it is asserted against Dr. Kulchinsky individually.

Preliminarily the court notes that Dr. Kulchinsky did not sign the parties' agreement in his individual capacity, but as President of Robert P. Kulchinsky, M.D., P.C. The cross motion is, therefore, granted to the extent that it seeks dismissal of the complaint insofar as it is asserted against Dr. Kulchinsky individually. The cross motion is otherwise denied.

When parties set down their agreement in a clear, complete document, their writing should, as a rule, be enforced according to its terms (see, Signature Realty Inc. v Tallman, 2 NY3d 810). Evidence outside the four corners of the document as to what was really intended, but unstated or misstated, is generally inadmissible to add to or vary the writing (see, W.W.W. Associates v Giancontieri, 77 NY2d 157, 162; Automotive Mgmt. Group v SRB Mgmt. Co. 239 AD2d 450; Matter of Estate of Ajar 237 AD2d 597). Rather, the contract should be enforced according to its terms see, W.W.W. Associates v Giancontieri, supra, at 162), and effect must be given to the parties' intent as indicated by the language used without regard to extrinsic evidence (see, Schmidt v Magnetic Head Corp., 97 AD2d 151, 157). The courts may not by construction add or excise terms, nor distort the meaning of those used, and thereby make a new contract for the

parties under the guise of interpreting the writing (see, Reiss v Financial Performance Corp., 97 NY2d 195, 199). Whether an ambiguity exists must be ascertained from the face of the agreement without regard to extrinsic evidence, and subjective intent is irrelevant (see, Schmidt v Magnetic Head Corp., supra, at 157). In the absence of any ambiguity, there are only documents to interpret, and the issue is one of law to be determined by the court (see, Automotive Mgmt. Group v SRB Mgmt. Co., supra).

Construing the parties' agreement most strongly against the party who prepared it (see, Hilldern Corp. v Tejpaul, 274 AD2d 500; Strauss Paper Co. v RSA Executive Search, 260 AD2d 570), in this case the defendants, the court finds that it is unambiguous. It expressly [*3]provides that aggregate money collections shall include professional medical services provided by any practice physician (whether an independent contractor or employee of the practice) during the employment year in question. The defendants' contentions to the contrary notwithstanding, the language in parenthesis does not exclude Dr. Kulchinsky, the owner of the practice. The court finds that the language in parenthesis defines, rather than limits, the term "practice physician" to include independent contractors and employees of the practice. Had the parties intended to exclude Dr. Kulchinsky as a practice physician, they very easily could have done so.

Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties (see, George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219). To overcome the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties, evidence of a very high order is required. The right to reformation must be proved by clear and convincing evidence (id, see also, Surlak v Surkal, 95 AD2d 371). Here, the defendants have failed to meet their burden of proof. The evidence submitted by the defendants demonstrates a unilateral mistake, which is insufficient to invoke reformation (see, George Backer Mgt. Corp. v Acme Quilting Co., supra, at 219).

Finally, there is no evidence that the plaintiff waived her rights under the parties' agreement by waiting until termination of her employment to raise the issue of her additional compensation, nor is she estopped from raising it now.

In view of the foregoing, the plaintiff's motion for summary judgment is granted on the issue of liability insofar as the plaintiff's claim for additional compensation is concerned, and the parties are directed to proceed to trial on the issue of damages.

The defendants do not contest the plaintiff's claims that, under their agreement, she is entitled to reimbursement for continuing medical education expenses and the cost of medical malpractice "tail" insurance. The parties' agreement provides that the plaintiff shall be reimbursed up to $1,500 per year for continuing medical education expenses and one-half the cost of "tail" insurance. The plaintiff has produced proof of her continuing medical education expenses for 2002 and the cost of her medical malpractice "tail" insurance. It is undisputed that the defendants have

not reimbursed her therefor. Accordingly, summary judgment is granted in favor of the plaintiff in the amount of $1,500 with interest from December 3, 2003, for her unreimbursed continuing medical education expenses and in the amount of $15,612 with interest from September 3, 2003, for one-half the cost of her unreimbursed medical malpractice "tail" insurance. [*4]

DATED: May 25, 2005

J. S.C.