         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
937
CA 11-02348
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


LAURIE KASH, INDIVIDUALLY AND AS LIMITED
ADMINISTRATOR OF THE ESTATE OF GERTRUDE
KASH, DECEASED, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JEWISH HEALTH CARE SYSTEM OF ROCHESTER, INC.
AND JEWISH HOME AND INFIRMARY OF ROCHESTER,
N.Y., INC., DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


FARACI LANGE, LLP, ROCHESTER (STEPHEN G. SCHWARZ OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

UNDERBERG & KESSLER LLP, BUFFALO (THOMAS F. KNAB OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Monroe County (David
Michael Barry, J.), entered November 4, 2011 in a declaratory judgment
action. The judgment, inter alia, declared that plaintiff had
breached a confidentiality agreement between the parties.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating those parts of the first
through third decretal paragraphs concerning plaintiff’s disclosure of
the resolution of the prior action and as modified the judgment is
affirmed without costs.

     Memorandum: Plaintiff’s decedent commenced an action against
defendants seeking damages for injuries she sustained as a result of
defendants’ alleged medical malpractice. When decedent died,
plaintiff was appointed the representative of her estate and continued
the action. On the eve of trial, the parties settled, and the
settlement was confirmed by an agreement by the parties dated October
11, 2010 (agreement) and a subsequent release signed on December 10,
2010 (release). A week later, plaintiff, through her attorneys,
issued a press release stating that the action had been resolved. The
press release outlined the facts constituting the claim and revealed
that Medicaid and Medicare liens would be reimbursed “as part of the
resolution.”

     Defendants, by their attorneys, issued a press release in which
they asserted that plaintiff’s press release was “inappropriate” and
that they have asked Supreme Court to “review the actions” of
                                 -2-                           937
                                                         CA 11-02348

plaintiff’s attorneys. Plaintiff then commenced this action seeking a
declaration that, inter alia, the agreement did not prohibit her or
her family members from publicly disclosing the facts regarding the
incidents that occurred when decedent was a resident of defendants’
facility. Defendants asserted a counterclaim seeking a declaration
that, inter alia, plaintiff breached the terms of the agreement and
the release by publication of plaintiff’s press release. Defendants
then moved and plaintiff cross-moved for summary judgment. As
relevant to this appeal by plaintiff, the court granted the motion in
part, declaring, inter alia, that plaintiff had breached the agreement
and release by revealing that a resolution was reached and by
revealing the terms of the resolution in the press release. Plaintiff
now appeals.

     At the outset, we agree with the parties and the court that the
agreement and release are unambiguous. It is well settled that the
interpretation of an unambiguous contract is for the court (see
Chimart Assoc. v Paul, 66 NY2d 570, 571-572). It is equally well
settled that, “when parties set down their agreement in a clear,
complete document, their writing should as a rule be enforced
according to its terms” (W.W.W. Assoc. v Giancontieri, 77 NY2d 157,
162; see R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 32, rearg
denied 98 NY2d 693). Here, the agreement provided that “the
settlement is conditioned upon a covenant of confidentiality with
respect to the terms of the resolution of the matter as to all parties
and an agreement not to disclose the terms hereof to any publication,
media, media source or outside party except for attorneys and tax
advisors.” The release provided that “this settlement is confidential
and shall not be made public in any way. Specifically, plaintiff
agrees to a covenant of confidentiality with respect to the terms of
the above described resolution of this matter as to all parties, and
agrees not to disclose the terms hereof to any publication, media,
media source, or outside party except for tax advisors and attorneys.”
We agree with plaintiff that the agreement and release prohibited
plaintiff from disclosing the terms of the settlement, but they did
not prohibit plaintiff from stating that the action had been settled.
To the extent that the court declared that plaintiff breached the
agreement and release by revealing that a resolution was reached, that
was error, and we therefore modify the judgment accordingly.

     We conclude, however, that the court properly declared that the
agreement and release prohibited plaintiff from disclosing the terms
of the resolution, that plaintiff breached her confidentiality
obligations contained in the agreement and release by disclosing terms
of the resolution in the press release, and that plaintiff shall not
in the future make public in any way the terms of the resolution
contained in the agreement and release. Contrary to plaintiff’s
contention, defendants did not waive any rights they had based on
plaintiff’s breach. The record establishes that, when they paid the
settlement amount and therefore performed their obligations under the
agreement, defendants also made a specific reservation of their rights
based on plaintiff’s breach (see Syracuse Orthopedic Specialists, P.C.
                                 -3-                  937
                                                CA 11-02348

v Hootnick, 42 AD3d 890, 892).




Entered:   September 28, 2012          Frances E. Cafarell
                                       Clerk of the Court
