                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   517860
________________________________

CAREN EE.,
                    Respondent,
     v                                      MEMORANDUM AND ORDER

ALAN EE.,
                    Appellant.
________________________________


Calendar Date:   November 20, 2014

Before:   McCarthy, J.P., Garry, Lynch and Clark, JJ.

                             __________


     Cynthia Feathers, Glens Falls, for appellant.

      Pope & Schrader, LLP, Binghamton (Alan J. Pope of counsel),
for respondent.

      Sheila E. Shea, Mental Hygiene Legal Service, Albany (April
J. Smith of counsel), on behalf of the parties' child.

      Battisti & Garzo, PC, Binghamton (F. Paul Battisti of
counsel) and Robert G. Behnke, County Attorney, Binghamton
(Philomena M. Stamato of counsel), for the coguardians of the
parties' child.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (Guy, J.),
entered November 21, 2013 in Broome County, which denied
defendant's motion for, among other things, a permanent
injunction.

      Plaintiff (hereinafter the wife) and defendant (hereinafter
the husband) are the parents of an adult son who is diagnosed
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with autism and has received media attention for his achievements
as a visual artist. When the parties divorced in 2002, they
entered into an opting-out agreement and an oral stipulation, and
consented to the entry of a judgment of divorce that incorporated
several agreed-upon provisions pertaining to mutual management of
the son's affairs. In particular, the parties agreed in
paragraph 36 that "[a]ny books or movies dealing with [the son]
or his artwork" were to be contracted by the parties' mutual
agreement.

      In 2012, the wife published a book about a certain medical
disorder that, in her opinion, is present in the son and is often
present but undiagnosed in other autistic children. The book is
based in part on the wife's research, and in part on her personal
experiences as the son's mother. It includes multiple references
to the son, who is identified by a pseudonym. The wife did not
obtain the husband's consent before contracting for the book's
publication. Upon learning of the book following publication,
the husband moved by order to show cause to enforce paragraph 36,
contending that his consent should have been obtained prior to
publication as the book "deal[s] with" the son. The husband
sought relief pursuant to the parties' agreement, including
counsel fees, and further sought temporary and permanent
injunctive relief to prevent the wife from "making bookstore,
media or any other promotional appearance[s] and/or engaging in
any profit driven enterprise related to [the son's] health
condition." Supreme Court denied the husband's application for a
preliminary injunction, and subsequently denied the application
in its entirety. The husband appeals.

      As a preliminary matter, the husband appropriately moved by
order to show cause to enforce the parties' agreement; contrary
to the wife's contention, he was not required to commence a
separate action (see e.g. Bishopp v Bishopp, 104 AD3d 1121, 1122
[2013]; Dalton v Posada, 81 AD3d 1142, 1142 [2011]; see also
Rawlings v Rawlings, 50 AD3d 998, 999 [2008]). As for the
merits, where, as here, a divorce judgment is silent as to
whether the parties' agreement was to survive or merge therein,
survival is presumed unless the parties' language is ambiguous as
to their intent. Here, the language of the parties' agreement
pertaining to mutual management of the son's affairs clearly
                              -3-                517860

reveals that the parties intended it to survive the judgment (see
Ventura v Leong, 68 AD3d 1318, 1319-1320 [2009]; Von Schaaf v Von
Schaaf, 257 AD2d 296, 298 [1999]). Thus, the disputed provision
must be interpreted according to the principles of contract law
to give effect to the parties' intentions (see Desautels v
Desautels, 80 AD3d 926, 928 [2011]; Matter of Heinlein v Kuzemka,
49 AD3d 996, 997 [2008]).

      The husband contends that the wife violated the parties'
agreement by publishing a book that "deal[s] with" the son
without obtaining his consent. The wife contends that the son's
role is minor, the book is primarily about the general issue of
the undiagnosed disorder in people with autism, and the book does
not violate the parties' agreement because it is not solely and
predominantly about the son. Upon review, we agree with the wife
that the scope of the book is not solely limited to the son, but
is also concerned, to a large degree, with data, research and
interviews that led the wife to conclude that many autistic
children, including the son, suffer from the disorder in
question. Nevertheless, we disagree with the wife's contention
that this alone provides a sufficient basis for determining that
the book does not violate the parties' agreement.

      In determining the meaning of unambiguous language, a court
must give contractual terms their plain and ordinary meaning (see
Bauersfeld v Board of Educ. of Morrisville-Eaton Cent. School
Dist., 46 AD3d 1003, 1005 [2007], lv denied 10 NY3d 704 [2008]).
The parties' agreement does not specifically define the phrase
"deal[] with." Dictionaries define this phrase to mean "to have
to do: concern oneself" (Webster's Third New International
Dictionary of the English Language 581 [1976]), to "take or have
as a subject; discuss" (The New Oxford American Dictionary 435
[2d ed 2005]), "[t]o be occupied or concerned" (The American
Heritage Dictionary of the English Language 466 [5th ed 2011]),
and "to concern oneself or itself" (Merriam-Webster Online
Dictionary, http://www.merriam-webster. com/dictionary/deal
[accessed Dec. 1, 2014]). Notably, none of these definitions
includes qualifying words such as "primarily" or "solely" that
would narrow the meaning of the phrase as the wife contends, nor
does any such limiting language appear in the disputed provision.
The parties could have included such language if they had wished
                              -4-                517860

to narrow the scope of their agreement to books that dealt mainly
or exclusively with the son, but they did not do so, and a court
may not create a new contract in the guise of interpretation by
adding terms to the language chosen by the parties (see Smith v
Smith, 59 AD3d 905, 906 [2009]). Accordingly, the book "deal[s]
with" the son if it can be said to have to do with the son, take
him as a subject, discuss him or concern itself with him.

      The book makes dozens of references to the son, albeit
under a pseudonym, and includes biographical information,
specific accounts of his medical diagnoses and treatments, and
many detailed anecdotes describing his experiences and behaviors.
The first of the book's nine chapters is exclusively about the
son, describing his birth, the progression of his symptoms, his
diagnosis, and the process by which the wife eventually formed
the opinion that he also suffers from the undiagnosed disorder.
Although the book's remaining eight chapters address more general
subjects such as medical information and the experiences of other
families, they also include additional references to the son,
with details about his behavior, diagnoses and treatment, as well
as direct quotations from him. Only three of the book's nine
chapters make no reference to the son. He is also discussed in
the book's acknowledgments, introduction and conclusion. Thus,
we find that the book concerns the son and takes him as a
subject, and that it "deal[s] with" the son within the meaning of
the parties' agreement. Therefore, the wife breached the
agreement as a matter of law by contracting for the book's
publication without obtaining the husband's consent.

      The disputed provision directs that the net proceeds from
any book "dealing with" the son are to be deposited in a joint
account established by the parties for the son's benefit, and
that the disposition of the funds is to be determined by mutual
agreement or, if necessary, "by a court after the appointment of
a Guardian ad Litem." A separate paragraph further provides that
where a breach of the divorce judgment has been established to
the satisfaction of a court, the party who was obliged to take
legal action to cure the breach is entitled to reasonable counsel
fees and expenses. The husband has demonstrated that he is
entitled to relief under both provisions. Thus, the matter must
be remitted to Supreme Court to determine the disposition of any
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net proceeds from the book and the amount of counsel fees and
expenses to be awarded to the husband.

      We reach a different conclusion as to the husband's request
for an injunction. A permanent injunction "is an extraordinary
remedy to be granted or withheld by a court of equity in the
exercise of its discretion. Not every apprehension of injury
will move a court of equity to the exercise of its discretionary
powers" (Kane v Walsh, 295 NY 198, 205 [1946] [internal citation
omitted]). To be entitled to permanent injunctive relief, a
party must demonstrate irreparable harm and the absence of an
adequate remedy at law (see Guido v Town of Ulster Town Bd., 74
AD3d 1536, 1538 [2010]; McDermott v City of Albany, 309 AD2d
1004, 1005 [2003], lv denied 1 NY3d 509 [2004]). A party must
further establish that the balance of equities favors the
granting of relief (see McDermott v City of Albany, 309 AD2d at
1005-1006; DiMarzo v Fast Trak Structures, 298 AD2d 909, 911
[2002]). We are unpersuaded that the requisite showing has been
made.

      The husband's contentions with regard to irreparable injury
are essentially derivative. He argues that the son, who does not
know that the book exists, would suffer irreparable harm in the
form of emotional distress, behavioral difficulties and
regression if he learned about the book because of the personal
and potentially embarrassing details it contains, and that this
would detrimentally impact the husband, with whom the son
presently resides. Because the book had already been published
before the husband filed his application, he does not seek to
withdraw it from circulation; instead, he seeks to curtail the
wife's promotional activities on the ground that they are likely
to bring the book to the son's attention. As for the adequacy of
a remedy at law, the husband acknowledges that the remedies
contained in the judgment are sufficient to protect his economic
interests and those of the son, but argues that they are
inadequate to protect either of them from the threatened
emotional and behavioral harm that could result from the son's
discovery of the book's existence.

      Initially, the wife contends that the son is not a party to
the agreement and that the husband lacks authority to act on his
                               -6-                517860

behalf.1 The husband responds that the son is a third-party
beneficiary in that he and the wife intended their valid and
binding agreement for the mutual management of his affairs to
benefit the son, and the son's interest in enforcement "is
sufficiently immediate, rather than incidental, to indicate the
assumption by the [husband and wife] of a duty to compensate [the
son] if the benefit is lost" (Mendel v Henry Phipps Plaza W.,
Inc., 6 NY3d 783, 786 [2006] [internal quotation marks and
citation omitted]; accord Boyd v Hall, Ltd., 307 AD2d 624, 626
[2003]). While we agree that the son would have authority to
make an independent application to enforce the provision on this
ground, neither his present coguardians nor his court-appointed
legal counsel did so in this case. However, after Supreme Court
placed them on notice of the husband's application, they appeared
and fully participated in the subsequent proceedings and this
appeal, supporting the husband's position and arguing on the
son's behalf that the wife's promotional activities pose a threat
of irreparable harm to the son and that injunctive relief is
appropriate. Under these circumstances, any procedural issues
posed by the lack of a separate application on the son's behalf
are less significant to our analysis than the substantive
question of whether it has been established that injunctive
relief is necessary to avoid irreparable injury.

      In our view, the very personal information contained in the
book – such as highly specific details of the son's medical
condition and treatment and episodes of difficult behavior –
might reasonably be anticipated to cause distress to any young
adult who learned that it had been made public without his
knowledge or consent, and perhaps more so in the circumstances
presented here. Moreover, although the book uses a pseudonym for
the son, his identity can readily be ascertained; the wife
published the book under her own name, and the text includes many
details that will easily identify the son to himself or those who
know him. The son – who is presently a college student – is
apparently capable of reading, using the Internet, and following


     1
        The husband and wife were formerly the son's coguardians,
but they were both removed from these roles in 2009 and replaced
by court-appointed coguardians (see SCPA 1750-a).
                              -7-                517860

media reports. Thus, there is a clear and undeniable risk that
he will someday learn about the book, whether or not the wife
continues to promote it. The parties agree that the son may be
harmed by discovering the book's existence and should be
protected from learning about it. Both parties have expressed
concern that the other's activities may lead the son to discover
the book. In fact, Supreme Court directed them not to inform the
son about the book and warned that to do so would be "a heinous
act," and the wife responded that she was "thankful" that the
court had made this direction. Nevertheless, they disagree as to
whether the emotional harm that he may experience will be so
severe as to constitute irreparable injury justifying a permanent
injunction. Injunctive relief is ordinarily available only to
prohibit interference with property or other recognized legal
rights (see generally 67A NY Jur 2d, Injunctions § 11), but is
sometimes appropriate to prevent emotional distress or mental
anguish in special circumstances (see e.g. Pantel v Workmen's
Circle/Arbetter Ring Branch 281, 289 AD2d 917, 918 [2001]). This
may apply where, as here, the injured party has potential special
vulnerabilities. Nonetheless, we need not determine whether the
threatened harm constitutes irreparable injury as a matter of
law, as we are unpersuaded that the proposed remedy will be
sufficiently effective to prevent it.

      The wife's book was first published in 2012, and has been
available for purchase online and in bookstores ever since.
Notably, despite the wife's active promotion of the book during
this time, it does not appear that the son has yet discovered its
existence. It is now the ongoing existence and public
availability of the book that poses the most substantial risk
that the son may discover the book in the future, and – as the
husband has never sought to withdraw the book from circulation –
in simple colloquial terms, that horse has left the barn. Put
another way, given the book's longstanding availability and the
publicity it has already received, any future restraint on
additional promotional activities in which the wife may still be
engaged will offer only minimal protection to the son. Moreover,
the relief sought constitutes, in effect, a prior restraint on
the wife's freedom of speech; although she agreed that she would
not contract for the publication of a book that dealt with the
son without the husband's consent, she did not agree that she
                              -8-                  517860

would never express her views about the son in other contexts.
To enjoin her from doing so under the circumstances presented
here poses significant constitutional concerns that are not
justified by the limited and imperfect protection of the son's
interests that may result (compare Porco v Lifetime Entertainment
Servs., LLC, 116 AD3d 1264, 1265-1266 [2014]). Accordingly,
despite our determination that legal remedies for the wife's
breach of the agreement are appropriate and necessary, we find no
abuse of discretion in Supreme Court's refusal to grant a
permanent injunction, and will not disturb it (see McDermott v
City of Albany, 309 AD2d at 1005-1006; Danchak v Tuzzolino, 195
AD2d 936, 937 [1993]).

     McCarthy, J.P., Lynch and Clark, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as denied that part of
defendant's motion as sought enforcement of paragraph 36 of the
parties' divorce judgment and sought remedies pursuant to said
judgment; motion granted to that extent and matter remitted to
the Supreme Court for further proceedings not inconsistent with
this Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
