HAUZINGER v. Carl R. Vahl, Esq., Appellant. (2008)

Court of Appeals of New York.

Richard M. HAUZINGER, Respondent v. Aurela G. HAUZINGER, Respondent. Carl R. Vahl, Esq., Appellant.

Decided: June 26, 2008

Abel & Brustein-Kampel, P.C., New City (Steven L. Abel and Robert S. Thaler of counsel), for appellant. Moriarty & Grocott, Buffalo (Steven H. Grocott of counsel), for Aurela G. Hauzinger, respondent. Uncyk, Borenkind & Nadler, L.L.P., New York City (Matthew B. Millman and Eli Uncyk of counsel), for Association for Conflict Resolution and others, amici curiae.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Plaintiff husband executed a signed waiver releasing the nonparty mediator from maintaining mediation confidentiality, and insofar as defendant wife seeks disclosure of matters pertaining to the mediation, she too is deemed to have waived mediation confidentiality. Further, the mediation agreement provided that if both parties consent, the mediator may communicate with an attorney for either party and release documents to third parties. The mediator's claim that a qualified privilege exists, pursuant to CPLR 3101(b), in maintaining mediation confidentiality is without merit where the privilege has been waived. Under these circumstances, the courts below did not abuse their discretion by ordering disclosure. We do not address what, if any, mediation confidentiality privilege exists under CPLR 3101(b).

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, etc.

MEMORANDUM.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.

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