author:
      Per Curiam.
     Chief Judge Cooke Fuchsberg, J.

text:
    In the Matter of Raymond E. Aldrich, Jr., as Judge of the County Court of Dutchess County, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued February 7, 1983;
    decided March 24, 1983

      POINTS OF COUNSEL

      Peter L. Maroulis for petitioner.
    I. In recent years the courts have considered recovery from alcoholism in mitigation. II. Nonalcohol related cases are instructive from the point of view of fixing the parameters as to when censure is appropriate and when removal or suppression is appropriate. (Matter of Mertens, 56 AD2d 456.) III. The Legislature and the Congress have in recent years recognized the true status of alcoholism as a disease. (Powell v Texas, 392 US 514; Matter of Quinn v State Comm. on Judicial Conduct, 54 NY2d 386.) IV. Bar associations have recently established committees seeking to rehabilitate attorneys afflicted with the disease of alcoholism: the same can be done for Judges. (Matter of Corbett, 87 AD2d 140.) V. The emphasis of the courts in disciplinary proceedings is, wherever possible, not punitive but educational and protective.

      Alan W. Friedberg for respondent.
    I. Petitioner’s misconduct warrants removal from office. (Matter of Kane, 50 NY2d 360; Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465; Matter of Steinberg, 51 NY2d 74; Matter of Shilling, 51 NY2d 397; Matter of Quinn v State Comm. on Judicial Conduct, 54 NY2d 386.) II. Petitioner’s alcoholism can provide no basis for dispensation. (Matter of Quinn v State Comm. on Judicial Conduct, 54 NY2d 386.) III. Petitioner’s sworn insistence that his conduct was proper is not consistent with the plan which is advanced on his behalf. (Matter of Shilling, 51 NY2d 397; Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Judge of the County Court of Dutchess County, brings this proceeding to review a determination of the State Commission on Judicial Conduct which ordered his removal from office. He contends that the sanction imposed is unduly harsh and should be modified to account for petitioner’s alcoholism. After reviewing the evidence before the commission, we conclude that removal is the appropriate sanction.

The. commission’s complaint sets forth two charges of misconduct during sessions of court which petitioner presided over while under the influence of alcohol. It further charged petitioner with specific acts of misconduct on these two dates while he was off the Bench. In his answer, petitioner essentially admitted many of the underlying facts by stating that he was “unable to explain [his] conduct * * * without concluding that [he] must have been under the influence of alcohol.” Petitioner also asserted as “a partial defense and in mitigation of the charges” his status as a recovering alcoholic.

Following extensive hearings, the referee appointed to hear and report to the commission found that both of the charges had been sustained. Specifically, he found as to charge I that: on June 13, 1980 petitioner was assigned as an acting Family Court Judge; that at the time he was under the influence of alcohol; during the course of the proceedings two juveniles and their parents were present and petitioner used profane, improper and menacing language and made inappropriate racial references; that during the course of the proceedings, while discussing possible incarcerations, he addressed the juveniles as follows: “You are in with the blacks from New York City, and you don’t dare go to sleep,.because if you do you will probably be raped. And not one, there may be five * * * When they get you behind those cell bars they will rape the shit out of you * * * You are going to be with the blacks in New York. You understand that?” He also became angered at one youth who had long hair and he threatened to get two deputies and a barber and cut the youth’s hair. He then picked up a pair of scissors and using obscene language threatened one of them. Later, at a conference with the juveniles’ attorneys petitioner referred to Dutchess County Executive Lucille Pattison in profane, obscene and vulgar terms, and during a telephone conversation'with Ms. Pattison, petitioner was hostile and incoherent. As to the second charge, the referee found that on March 18, 1981, a date he was assigned to preside at hearings at Mid-Hudson Psychiatric Center, petitioner was under the influence of alcohol; as he entered the hospital he threatened a security guard with a large hunting knife and demanded that he be permitted to drive his car into the facility; that he held the knife against the guard and made threatening remarks and racial slurs; that when he arrived at the hearing room that day he was so intoxicated that he was incapable of presiding over matters assigned to him and that he conducted himself in a bizarre and inappropriate manner and his speech was slurred, rambling and incoherent. As a result of his incapacity, attorneys, doctors and court personnel agreed on adjourning the matters scheduled for that day.

Based upon these findings, the referee concluded that petitioner’s conduct created an appearance of impropriety, detracted from public confidence in the judiciary, evinced an inability to maintain order in judicial proceedings, and was generally prejudicial to the fair and proper administration of justice (see Rules Governing Judicial Conduct, §§33.1, 33.2 [a], 33.3[a][l]-[5] [now 22 NYCRR 100.1, 100.2(a), 100.3(a)(l)-(5)]; Code of Judicial Conduct, canons 1, 2A, 3A). A majority of the commission adopted the referee’s findings of fact and conclusions of law. While noting that petitioner’s misconduct arose from alcoholism, they concluded that public confidence in his ability as a Judge was “irretrievably lost” requiring the sanction of removal. Three members of the commission, while adopting the referee’s factual findings, believed that the appropriate sanction was censure, two of them stating in a separate dissent that petitioner’s status as a recovering alcoholic should be given consideration in imposing a lesser sanction of censure with petitioner being placed on two years’ probation.

This court possesses broad statutory and constitutional authority to determine the appropriate sanction in matters involving judicial misconduct (NY Const, art VI, § 22, subd d; Judiciary Law, § 44, subd 9). There is, however, neither a constitutional nor a statutory basis for a contingent or probationary penalty conditioned on treatment as suggested by petitioner and the two dissenting members of the commission. The available sanctions are admonishment, censure, removal for misconduct and mandatory retirement (Judiciary Law, § 44, subd 9; see, also, NY Const, art VI, § 22, subd d).

We turn then to consider the appropriate sanction in this case. We have stated before that members of the judiciary are held to higher standards of conduct than members of the public at large and that relatively slight improprieties subject the judiciary as a whole to public criticism and rebuke (see Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462, 468-469). Moreover, aside from the gravity of any wrongdoing, the effect of the Judge’s conduct on and off the Bench upon public confidence in his character and judicial temperament must be considered (see Matter of Quinn v State Comm. on Judicial Conduct, 54 NY2d 386, 392).

Applying these principles, we agree with the majority of the commission that petitioner is unfit to continue as a Judge and should be removed from office. He has been guilty not only of serious misconduct but it has occurred in public while he was performing his duties on the Bench. Moreover, his displays of vulgarity and racism and his threats of violence both on and off the Bench have “re^ suited in [an] irretrievable loss of public confidence in his ability to properly carry out his judicial responsibilities” (see Matter of Quinn v State Comm. on Judicial Conduct, supra, p 392).

Petitioner urges a “partial defense” of alcoholism, relying upon Matter of Quinn (supra). In Quinn, we considered petitioner’s alcoholism in reducing his sanction from removal for misconduct to retirement for disability, but the dispositive issue was not the mitigating effect of alcoholism on his improper off-the-Bench activities, but the fact that the Judge had recognized his physical incapacity and had tendered his resignation and applied for retirement prior to the commission’s recommended determination of removal. Petitioner has not tendered his resignation in this proceeding, his conduct is of a more aggravated nature and apparently, as evidenced by some of his explanations, he fails to recognize the inappropriateness of his actions or attitudes. All of these things indicate to us that he is unfit to continue in office. The appropriate sanction, therefore, is removal.

Accordingly, the determined sanction should be accepted, without costs, and Raymond E. Aldrich, Jr., should be removed from the office of Judge of the County Court, Dutchess County.

Chief Judge Cooke

(dissenting). Under the circumstances, I cannot agree that petitioner’s behavior warrants his removal. Instances of misconduct occurred only on two separate days. Petitioner behaved egregiously on those two days, but it is uncontroverted that he was an alcoholic acting under the influence of alcohol. Indeed, petitioner now admits his illness. For nearly two years, however, it is indicated that he has regularly participated in Alcoholics Anonymous and has abstained from alcohol. Reference should also be made to the testimony that petitioner has otherwise always performed well on the Bench and that he has a “very high” reputation for honesty, integrity, and truthfulness. From all that appears, petitioner has succeeded in controlling his illness. In no way do I condone petitioner’s misconduct. Under the circumstances, however, censure would be an appropriate and sufficient sanction.

Fuchsberg, J.

(dissenting). However one chooses to characterize the misconduct with which petitioner has been charged, the commission has found, and the record bears it out, that “[the Judge] is an alcoholic” and “his misconduct was stimulated by his drinking”:

Thijs said, it is relevant, that, “[a]part from the criminal law the most recent development in this area has been the formal recognition by Congress and the Legislature of this State that alcoholism is an illness which must be treated as a public health problem (US Code, tit 42, § 4541, subd [a], par [6]; Mental Hygiene Law, § 1.03, subd 13). It has also been recognized as a type of disability (Mental Hygiene Law, § 1.03, subd 3; Disability Benefits-Alcoholism, Ann., 39 ALR Fed 182)” (Matter of Quinn v State Comm. on Judicial Conduct, 54 NY2d 386, 394). Nor is there any reason, in law or medicine, to believe that the framers of the constitutional provision, in this connection, intended to distinguish between alcoholism and other disabling forms of illness.

For these reasons too the insidious recurring effect on many so afflicted, particularly those who, as in this case, have suffered this malady over a long period of time, hardly compels us to honor or be controlled by the petitioner’s view that retirement would be an inappropriate disposition. This seems clear from the fact that the sanctions available to our court expressly and unqualifiedly include mandatory retirement (NY Const, art VI, § 22, subd d; Judiciary Law, § 44, subd 9), a nonstigmatizing disposition.

In my view, compulsory retirement is the disposition that suffices unto this case, and I so vote.

Judges Jasen, Jones, Wachtler, Meyer and Simons concur in Per Curiam opinion; Chief Judge Cooke dissents and votes to reject the determined sanction and censure petitioner in a separate opinion; Judge Fuchsberg' dissents and votes to reject the determined sanction and order that petitioner be retired in another opinion.

Determined sanction accepted, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of J. Richard Sardino, as Judge of the City Court, City of Syracuse, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued February 16, 1983;
    decided March 24, 1983
    POINTS OF COUNSEL

      James L. Sonneborn and Richard D. Grossman for petitioner.
    I. Judge Sardino has been denied due process of law.
      (Matter of Sowa v Looney, 23 NY2d 329; Hannah v Larche, 363 US 420; Matter of Groban, 352 US 330; People v Singer, 44 NY2d 241; People v Staley, 41 NY2d 789; People v Ilardo, 103 Misc 2d 454; People v Taranovich, 37 NY2d 442; People v Bryant, 65 AD2d 333; United States v Lovasco, 431 US 783; People v Prosser, 309 NY 353.) II. Notice to defendants of rights and effectuation of those rights is a charge not properly before the commission. (People v Fink, 8 AD2d 859; People v Temple, 19 AD2d 919; People v McLaughlin, 291 NY 480.) III. The Judge did not ignore statements regarding indigency. (United States v Kaufman, 452 F2d 1202; United States v Ellsworth, 547 F2d 1096; United States v Schmitz, 525 F2d 793.) IV. The court can and must delegate certain of its responsibilities. V. The Judge did not have an obligation to ascertain indigency. VI. Judge Sardino did not instruct defendants likely to be indigent to retain private counsel. VII. Judge Sardino did not deny defendants the services of the Legal Aid Society and therefore fail to afford defendants their right to counsel. VIII. Judge Sardino did not refuse to assign Legal Aid attorneys when able to do so and when it was in the best interest of defendant. IX. Judge Sardino did not abuse the bail process. X. Judge Sardino did not fix bail in any case where he lacked legal authorization. XI. Judge Sardino did not hold defendants without bail in cases where the fixing of bail is required by law. XII. Judge Sardino did not arbitrarily and improperly hold defendants for mental examinations. XIII. Judge Sardino did not use the bail process in a punitive manner. XIV. Judge Sardino did not make improper inquiry of defendants nor illicit potentially incriminating statements. XV. Judge Sardino did not convey the impression that he believed defendants guilty. XVI. Judge Sardino acted properly. XVII. Judge Sardino did not improperly criticize other Judges nor fail to honor plea bargains negotiated by them. XVIII. Judge Sardino did not improperly fix bail or increase bail. XIX. Judge Sardino did not schedule and adjourn cases in a manner which was likely to deny defendants their rights. XX. Judge Sardino acted properly in People v Roy. XXI. There was no misconduct in People v Cook.

      Gerald Stern and Robert Straus for respondent.
    I. Petitioner’s lack of fitness to serve as a Judge is amply demonstrated by his proprosecution bias, intentional disregard of basic, fundamental rights, and related misconduct. (Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465.) II. Petitioner was not deprived of due process, and his numerous denials of misconduct are inconsistent with the record. (Napolitano v Ward, 457 F2d 279; Reiser v Bell, 332 F Supp 608; Matter of Richter, 42 NY2d [aa]; Matter of Waltemade, 37 NY2d [nn]; Matter of Mertens, 56 AD2d 456; Matter of MacDowell, 57 AD2d 169.) III. The conclusions of amicus appear to be based on personal views not contained in the record and consider only a small and technical part of petitioner’s conduct; accordingly, amicus’ conclusions should be disregarded.

      Joseph E. Fahey, Edward Z. Menkin, Emil M. Rossi, Jack Schultz and Morrell Southwick for Onondaga County Bar Association, amicus curiæ.

    I. Commission’s conclusions in support of sanction of removal are not legally correct or substantiated by the record. (People v Letterio, 16 NY2d 307; People ex rel. Krohn v Thomas, 133 Misc 145; People ex rel. Barna v Malcomb, 85 AD2d 313.) II. The standard of proof used by the commission is inadequate in light of the penalty exacted. (Matter of Steinberg, 51 NY2d 74; Addington v Texas, 441 US 418; Woodby v Immigration Serv., 385 US 276; Chaunt v United States, 364 US 350.) III. The sanction of removal is too severe and should be modified.
   OPINION OF THE COURT

Per Curiam.

The State Commission on Judicial Conduct has determined that petitioner, a Judge of the Syracuse City Court, engaged in various acts of misconduct demonstrating a pattern of injudicious behavior rendering him unfit to remain in judicial office. Pursuant to the State Constitution, petitioner commenced this proceeding to review the commission’s findings of fact, legal rulings and determination that he be removed from office (NY Const, art VI, § 22, subds a, d; Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465).

In 1973 petitioner was elected as a Judge of the Syracuse City Court. In 1981 the Commission on Judicial Conduct filed a complaint charging him with numerous acts of misconduct committed by him in over 60 cases at which he presided since 1979. The essence of the complaint is that the petitioner’s actions and statements in those cases revealed or created the impression that he did not respect the rights of defendants and lacked the temperament and impartiality required of a Judge.

The commission sustained over 20 charges and numerous specifications. The evidence in the record is voluminous and for the purpose of this appeal need not be discussed in detail. A summary of the salient points should suffice to illustrate the propriety of the commission’s determination.

Most of the petitioner’s misconduct occurred in open court during arraignments. The official records of these proceedings show that petitioner consistently failed (in 62 cases) to inform the accused of the right to counsel and failed to conduct even a minimal inquiry to determine whether they were entitled to assigned counsel. Indeed, even in cases where the accused persons themselves stated that they were unemployed, indigent, or unable to afford an attorney, petitioner did nothing to assist them in obtaining legal assistance. The petitioner admitted to the commission that he deliberately adopted these practices, and in doing so knowingly disregarded his statutory obligations (CPL 170.10, 180.10) because he considered it “counter productive” to read defendants their rights at arraignment.

These court records also demonstrated that the petitioner regularly abused his authority with respect to setting bail. In most of the cases under consideration he arbitrarily required defendants to post bail without inquiry or reference to the statutory standards (CPL 510.30). His conduct and statements at the time show that he was acting punitively with little or no interest in the only matter of legitimate concern, namely, whether any bail or the amount fixed was necessary to insure the defendant’s future appearances in court (CPL 510.30, subd 2, par [a]). He often ordered defendants to be held without bail for no apparent reason, even in cases where bail was required as a matter of law or the offense charged was of such a minor nature that the defendant could not ordinarily be held in custody to assure his appearance in court (see, e.g., CPL 150.75; Penal Law, § 221.05). On several occasions where defendants appeared at arraignment without counsel petitioner summarily and with no express or apparent legal or rational justification ordered that they be held in custody for “mental examinations” (CPL art 730).

The record of the court proceedings also shows that petitioner often assumed an adversarial role at arraignments by questioning defendants about the crime charged, occasionally eliciting incriminating statements and, in other cases, expressing disbelief when the defendants, their attorneys, or family members, maintained their innocence. On these occasions, in addition to treating the accusation as proved, the petitioner stated his views in sarcastic terms and displayed his animosity against the accused by resort to name-calling and dehumanizing remarks. For instance, in open court he commonly referred to those accused as “creatures”, called one defendant a “maniac”, and said that another should be “exterminated”. He informed an attorney representing a defendant charged with traffic violations that it was “[t]oo bad he [the defendant] wasn’t destroyed and the car was still here. That would be beneficial to the community”. In another case he stated that if he had found his daughter with the defendant “that would be another case of homicide”.

The petitioner concedes that these remarks were “excessive” but denies that he felt any bias against the defendants or that his actions at the arraignments were actually motivated by animosity. He also contends that his fitness as a Judge cannot be determined on the existing record because it does not take into account his performance in the more than 5,000 cases at which he presided over the years.

The ability to be impartial is an indispensable requirement for a judicial officer. Equally important is the requirement that a Judge conduct himself in such a way that the public can perceive and continue to rely upon the impartiality of those who have been chosen to pass judgment on legal matters involving their lives, liberty and property (see, e.g., Matter of Steinberg, 51 NY2d 74). If, as petitioner contends, he did not actually harbor any bias his course of conduct and concededly excessive statements could only create the impression in the mind of the public that he was predisposed against those defendants who appeared before him if not defendants generally.

Although the petitioner may not have been guilty of similar misconduct in all or most of the cases at which he presided, consistent disregard of judicial obligations, abuse of judicial power and intemperate displays of evident bias in 62 cases over a two-year period can hardly be viewed as an isolated incident. At best, the petitioner’s argument that his entire judicial career be considered, would establish that his behavior was erratic, which itself is inconsistent with a Judge’s role.

The petitioner also contends that the commission erred in refusing to allow him to present evidence that his practices were consistent with the general practice of other Judges of the City Court system. Although we doubt that many Judges follow the practices of this petitioner we agree with the commission that such evidence would be irrelevant.

Each Judge is personally obligated to act in accordance with the law and the standards of judicial conduct. If a Judge disregards or fails to meet these obligations the fact that others may be similarly derelict can provide no defense. Indeed one of the obvious reasons for establishing a permanent Commission on Judicial Conduct is to elevate judicial performance by insuring that the practices in the various courts comply with the high standards required of judicial officers.

In sum the evidence in the record amply supports the commission’s determination that “The totality of [petitioner’s] conduct shows a shocking disregard for due process of law. [He] has grossly abused judicial power and process, routinely denied defendants their rights, ignored the mandates of law, disregarded the jurisdiction of other courts, disparaged attorneys, demeaned defendants and otherwise acted in a manner bringing disrepute to the courts and the judiciary. [He] has so distorted his role as a judge as to render him unfit to remain in judicial office.”

Accordingly, the determined sanction of removal should be accepted, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur in Per Curiam opinion.

Determined sanction accepted, without costs, and J. Richard Sardino removed from the office of Judge of the City Court, City of Syracuse.


author: Jones, J. Meyer, J.

text:
    Joseph Murphy, Appellant, v American Home Products Corporation, Respondent.
    Argued January 10, 1983;
    decided March 29, 1983

      POINTS OF COUNSEL

      Melvyn I. Weiss, Richard M. Meyer and Jeremy Heisler for appellant.
    I. This court should recognize a cause of action for wrongful discharge. (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; Barr v Wackman, 36 NY2d 371; Edwards v Codd, 59 AD2d 148; Smith v Kirkpatrick, 305 NY 66; Dulberg v Mock, 1 NY2d 54; Astrocom Electronic v Lafayette Radio Electronics Corp., 63 AD2d 765; Harlee v Oswego-Apalachin School Dist., 100 Misc 2d 1103; Texas &

      New Orleans R. R. Co. v Railways Clerks, 281 US 548; Chin v American Tel. & Tel. Co., 96 Misc 2d 1070, 70 AD2d 791, 48 NY2d 603; Savodnick v Korvettes, Inc., 488 F Supp 822.) II. Plaintiff’s cause of action for age discrimination was timely. (Clough v Board of Educ., 56 AD2d 233; Cheselka v Eastern Air Lines, 93 Misc 2d 219; Harriss v Tams, 258 NY 229; Rucher Ford Sales v Glens Falls Ins. Co., 32 Misc 2d 468,16 AD2d 1034; Webber v Socony Mobil Oil Co., 41 Misc 2d 153; Andrews v Donabella, 60 Misc 2d 1007; Town Bd. of Town of Fallsburgh v National Sur. Corp., 53 Misc 2d 23, 29 AD2d 726; Jagoda v City of Dunkirk, 43 AD2d 795; Owen v Palm Tree Nursing Home, 50 AD2d 865; Kemp v Rubin, 188 Misc 310, 273 App Div 789, 298 NY 590.) III. Plaintiff’s discharge breached his contract of employment. (Wernham v Moore, 77 AD2d 262; Williams v Action for Better Community, 51 AD2d 876; Grozek v Ragu Foods, 63 AD2d 858; Brown v Babcock, 265 App Div 596; Suslak v Rokeach & Sons, 269 App Div 779.) IV. The courts below erred in dismissing plaintiff’s cause of action in prima facie tort. (Opera on Tour v Weber, 285 NY 348; Burns Jackson Miller Summit & Spitzer v Lindner, 108 Misc 2d 458; Callarana v Associates Discount Corp. of Del., 69 Misc 2d 287; Scheman v Schlein, 35 Misc 2d 581; Sadowy v Sony Corp. of Amer., 496 F Supp 1071; Hsing Chow v Union Cent. Life Ins. Co., 457 F Supp 1303.) V. Plaintiff stated a valid cause of action for the intentional infliction of mental distress. (Nader v General Motors Corp., 25 NY2d 560; Halio v Lurie, 15 AD2d 62; Placos v Cosmair, Inc., 517 F Supp 1287.)

      Samuel W. Murphy, Jr., Paul A. Crotty and David L. Suggs for respondent.
    I. Appellant’s at-will employment could be terminated for any reason: this State does not recognize a tort of wrongful discharge and should not do so now, especially on the facts alleged in count one of the amended complaint. (Martin v New York Life Ins. Co., 148 NY 117; Watson v Gugino, 204 NY 535; Parker v Borock, 5 NY2d 156; Weiner v McGraw-Hill, Inc., 83 AD2d 810; Kushner v Ciba-Geigy Corp., 76 AD2d 950; Grozek v Ragu Foods, 63 AD2d 858; Laiken v American Bank & Trust Co., 34 AD2d 514; Pavolini v Bard Air Corp., 88 AD2d 714; Edwards v Citibank, 100 Misc 2d 59, 74 AD2d 553, 51 NY2d 875; Marinzulich v National Bank of North Amer., 73 AD2d 886.) II. Plaintiff’s age discrimination claim is time barred. (Matter of Obolensky v New York State Div. of Human Rights, 67 AD2d 1069; State Div. of Human Rights v Westmoreland Cent. School Dist., 56 AD2d 205; Cheselka v Eastern Air Lines, 93 Misc 2d 219; Lanzer v Fairchild Pub., 46 AD2d 644; Beckford v Corning Glass Works, 75 AD2d 835.) III. Plaintiff’s breach of contract argument is specious. (Williams v Action for Better Community, 51 AD2d 876; Chase v United Hosp., 60 AD2d 558; Brown v Babcock, 265 App Div 596.) IV. Plaintiff’s allegations of mental and emotional distress are not sufficient to allege any cause of action arising from the termination of his at will employment. (James v Board of Educ., 37 NY2d 891; Kushner v Ciba-Geigy Corp., 76 AD2d 950; Cartwright v Golub Corp., 51 AD2d 407; Pirre v Printing Devs., 432 F Supp 840; Placos v Cosmair, Inc., 517 F Supp 1287.)
   OPINION OF THE COURT

Jones, J.

This court has not and does not now recognize a cause of action in tort for abusive or wrongful discharge of an employee; such recognition must await action of the Legislature. Nor does the complaint here state a cause of action for intentional infliction of emotional distress, for prima facie tort, or for breach of contract. These causes of action were, therefore, properly dismissed. Appellant’s cause of action based on his claim of age discrimination, however, should be reinstated. The period of time for commencement of a judicial action for unlawful discrimination in employment is the three-year period of CPLR 214 (subd 2) and "not the one-year period prescribed in subdivision 5 of section 296 of the Executive Law.

Plaintiff, Joseph Murphy, was first employed by defendant, American Home Products Corp., in 1957. He thereafter served in various accounting positions, eventually attaining the office of assistant treasurer, but he never had a formal contract of employment. On April 18,1980, when he was 59 years old, he was discharged.

Plaintiff claims that he was fired for two reasons: because of his disclosure to top management of alleged accounting improprieties on the part of corporate personnel and because of his age. As to the first ground, plaintiff asserts that his firing was in retaliation for his revelation to officers and directors of defendant corporation that he had uncovered at least $50 million in illegal account manipulations of secret pension reserves which improperly inflated the company’s growth in income and allowed high-ranking officers to reap unwarranted bonuses from a management incentive plan, as well as in retaliation for his own refusal to engage in the alleged accounting improprieties. He contends that the company’s internal regulations required him to make the disclosure that he did. He also alleges that his termination was carried out in a humiliating manner.

As to the second basis for his termination, plaintiff claims that defendant’s top financial officer told him on various occasions that he wished he could fire plaintiff but that, because to do so would be illegal due to plaintiff’s age, he would make sure by confining him to routine work that plaintiff did not advance in the company. Plaintiff also asserts that a contributing factor to his dismissal was that he was over 50 years of age.

On April 14, 1981, plaintiff filed a summons in the present action with the New York County Clerk pursuant to CPLR 203 (subd [b], par 5). The summons described the action as a suit “to recover damages for defendant’s wrongful and malicious termination of plaintiff’s employment”. Another summons and a complaint were served on defendant on June 5, 1981. The complaint set up four causes of action. As his first cause of action, plaintiff alleged that his discharge “was wrongful, malicious and in bad faith” and that defendant was bound “not to dismiss its employees for reasons that are contrary to public policy”. In his second cause of action, plaintiff claimed that his dismissal “was intended to and did cause plaintiff severe mental and emotional distress thereby damaging plaintiff”. His third claim was based on an allegation that the manner of his termination “was deliberately and viciously insulting, was designed to and did embarrass and humiliate plaintiff and was intended to and did cause plaintiff severe mental and emotional distress thereby damaging plaintiff”. In his fourth cause of action, plaintiff asserted that, although his employment contract was of indefinite duration, the law imposes in every employment contract “the requirement that an employer shall deal with each employee fairly and in good faith”. On that predicate he alleged that defendant’s conduct in stalling his advancement and ultimately firing him for his disclosures “breached the terms of its contract requiring good faith and fair dealing toward plaintiff and damaged plaintiff thereby”. Plaintiff demanded compensatory and punitive damages.

Following a stipulation extending defendant’s time to answer or to move with respect to the complaint, defendant moved on July 27, 1981 to dismiss the co'mplaint on the grounds that it failed to state a cause of action and that the fourth cause of action was barred by the Statute of Frauds. Defendant contended that plaintiff was an at-will employee subject to discharge at any time, that New York does not recognize a tort action for abusive or wrongful discharge, and that the prima facie tort and intentional infliction of emotional distress claims were unavailable and insufficient.

On October 16, 1981, plaintiff served an amended complaint with his opposing papers on the motion. The amended complaint, among other things, added a fifth cause of action, alleging that plaintiff was denied advancement due to his age which constituted “illegal employment discrimination on the basis of age in violation of New York Executive Law § 296”.

Special Term denied defendant’s motion to dismiss the wrongful discharge tort claim but granted the motion as to the causes of action for breach of contract, prima facie tort, intentional infliction of emotional distress, and age discrimination. Although the court noted that New York had not yet adopted the doctrine of abusive discharge, it- declined to put plaintiff out of court before he had had opportunity by means of disclosure procedures to elicit evidence which might put his claim on firmer footing. Special Term held the cause of action for breach of contract barred by the Statute of Frauds. As to the second and third causes of action the court ruled that plaintiff’s allegations as to the manner of his dismissal were not sufficient to support causes of action for intentional infliction of emotional distress or for prima facie tort. Finally, applying the one-year period set out in the Executive Law (§ 297, subd 5), Special Term ruled that plaintiff’s age discrimination claim was untimely because the amended complaint was served over a year after his dismissal and could not be related back to the original complaint because “[n]othing in either summons or the first complaint gave notice to the defendant of the age discrimination cause of action” (112 Misc 2d 507, 511).

On cross appeals, the Appellate Division modified, to the extent of granting the motion to dismiss the first cause of action, and otherwise affirmed the order of Special Term. The court noted that it does not appear that New York recognizes a cause of action for abusive discharge and that, in any event, plaintiff had failed to show the type of violation of penal law or public policy that has been held sufficient in other jurisdictions to support a cause of action for abusive discharge. According to the appellate court, plaintiff’s charge that the corporation’s records were not kept in accordance with generally accepted accounting principles appeared to involve a dispute over a matter of judgment as to the proper accounting treatment to be given the terms involved and not a dispute over false book entries. As to the other causes of action, the court ruled that Special Term had properly dismissed them either for failure to state a cause of action, failure to comply with the Statute of Frauds or, regarding the age discrimination claim, failure to assert it within the statutory time period (88 AD2d 870). We modify the order of the Appellate Division from which plaintiff appeals by reinstating the fifth cause of action for age discrimination and otherwise affirm.

With respect to his first cause of action, plaintiff urges that the time has come when the courts of New York should recognize the tort of abusive or wrongful discharge of an at-will employee. To do so would alter our long-settled rule that where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason (see Martin v New York Life Ins. Co., 148 NY 117; Parker v Borock, 5 NY2d 156). Plaintiff argues that a trend has emerged in the courts of other States to temper what is perceived as the unfairness of the traditional rule by allowing a cause of action in tort to redress abusive discharges. He accurately points out that this tort has elsewhere been recognized to hold employers liable for dismissal of employees in retaliation for employee conduct that is protected by public policy. Thus, the abusive discharge doctrine has been applied to impose liability on employers where employees have been discharged for disclosing illegal activities on the part of their employers (Sheets v Teddy’s Frosted Foods, 179 Conn 471; Palmateer v International Harvester Co., 85 Ill 2d 124; Harless v First Nat. Bank in Fairmont, 246 SE2d 270 [W Va]), where employees have been terminated due to their service on jury duty (Nees v Hocks, 272 Ore 210), and where employees have been dismissed because they have filed workers’ compensation claims (Kelsay v Motorola, Inc., 14: Ill 2d 172; Frampton v Central Ind. Gas Co., 260 Ind 249). Plaintiff would have this court adopt this emerging view. We decline his invitation, being of the opinion that such a significant change in our law is best left to the Legislature.

Those jurisdictions that have modified the traditional at-will rule appear to have been motivated by conclusions that the freedom of contract underpinnings of the rule have become outdated, that individual employees in the modern work force do not have the bargaining power to negotiate security for the jobs on which they have grown to rely, and that the rule yields harsh results for those employees who do not enjoy the benefits of express contractual limitations on the power of dismissal. Whether these conclusions are supportable or whether for other compelling reasons employers should, as a matter of policy, be held liable to at-will employees discharged in circumstances for which no liability has existed at common law, are issues better left to resolution at the hands of the Legislature. In addition to the fundamental question whether such liability should be recognized in New York, of no less practical importance is the definition of its configuration if it is to be recognized.

Both of these aspects of the issue, involving perception and declaration of relevant public policy (the underlying determinative consideration with respect to tort liability in general, see, e.g., Pulka v Edelman, 40 NY2d 781; Prosser, Torts [4th ed], § 3, pp 14-16) are best and more appropriately explored and resolved by the legislative branch of our government. The Legislature has infinitely greater resources and procedural means to discern the public will, to examine the variety of pertinent considerations, to elicit the views of the various segments of the community that would be directly affected and in any event critically interested, and to investigate and anticipate the impact of imposition of such liability. Standards should doubtless be established applicable to the multifarious types of employment and the various circumstances of discharge. If the rule of nonliability for termination of at-will employment is to be tempered, it should be accomplished through a principled statutory scheme, adopted after opportunity for public ventilation, rather than in consequence of judicial resolution of the partisan arguments of individual adversarial litigants.

Additionally, if the rights and obligations under a relationship forged, perhaps some time ago, between employer and employee in reliance on existing legal principles are to be significantly altered, a fitting accommodation of the competing interests to be affected may well dictate that any change should be given prospective effect only, or at least so the Legislature might conclude.

For all the reasons stated, we conclude that recognition in New York State of tort liability for what has become known as abusive or wrongful discharge should await legislative action.

Plaintiff’s second cause of action is framed in terms of a claim for intentional infliction of emotional distress. To survive a motion to dismiss, plaintiff’s allegations must satisfy the rule set out in Restatement of Torts, Second, which we adopted in Fischer v Maloney (43 NY2d 553, 557), that: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (§ 46, subd [1]). Comment d to that section notes that: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community”. The facts alleged by plaintiff regarding the manner of his termination fall far short of this strict standard. Further, in light of our holding above that there is now no cause of action in tort in New York for abusive or wrongful discharge of an at-will employee, plaintiff should not be allowed to evade that conclusion or to subvert the traditional at-will contract rule by casting his cause of action in terms of a tort of intentional infliction of emotional distress (cf. Fischer v Maloney, 43 NY2d 553, 557-558, supra).

Plaintiff’s third cause of action was also properly dismissed. If considered, as plaintiff would have us, as intended to allege a prima facie tort it is deficient inasmuch as there is no allegation that his discharge was without economic or social justification (Morrison v National Broadcasting Co., 24 AD2d 284, 287, revd on other grounds 19 NY2d 453; see Drago v Buonagurio, 46 NY2d 778, 779). Moreover, we held in James v Board of Educ. (37 NY2d 891, 892), which also involved the exercise of an unrestricted right to discharge an employee, that: “Plaintiff cannot, by the device of an allegation that the sole reason for the termination of his employment by these public officials acting within the ambit of their authority was to harm him without justification (a contention which could be advanced with respect to almost any such termination), bootstrap himself around a motion addressed to the pleadings”. Nor does the conclusory allegation of malice by plaintiff here supply the deficiency. As with the intentional infliction of emotional distress claim, this cause of action cannot be allowed in circumvention of the unavailability of a tort claim for wrongful discharge or the contract rule against liability for discharge of an at-will employee.

Plaintiff’s fourth cause of action is for breach of contract. Although he concedes in his complaint that his employment contract was of indefinite duration (inferentially recognizing that, were there no more, under traditional principles his employer might have discharged him at any time), he asserts that in all employment contracts the law implies an obligation on the part of the employer to deal with his employees fairly and in good faith and that a discharge in violation of that implied obligation exposes the employer to liability for breach of contract. Seeking then to apply this proposition to the present case, plaintiff argues in substance that he was required by the terms of his employment to disclose accounting improprieties and that defendant’s discharge of him for having done so constituted a failure by the employer to act in good faith and thus a breach of the contract of employment.

No New York case upholding any such broad proposition is cited to us by plaintiff (or identified by our dissenting colleague), and we know of none. New York does recognize that in appropriate circumstances an obligation of good faith and fair dealing on the part of a party to a contract may be implied and, if implied will be enforced (e.g., Wood v Duff-Gordon, 222 NY 88; Pernet v Peabody Eng. Corp., 20 AD2d 781). In such instances the implied obligation is in aid and furtherance of other terms of the agreement of the parties. No obligation can be implied, however, which would be inconsistent with other terms of the contractual relationship. Thus, in the case now before us, plaintiff’s employment was at will, a relationship in which the law accords the employer an unfettered right to terminate the employment at any time. In the context of such an employment it would be incongruous to say that an inference may be drawn that the employer impliedly agreed to a provision which would be destructive of his right of termination. The parties may by express agreement limit or restrict the employer’s right of discharge, but to imply such a limitation from the existence of an unrestricted right would be internally inconsistent. In sum, under New York law as it now stands, absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired.

Of course, if there were an express limitation on the employer’s right of discharge it would be given effect even though the employment contract was of indefinite duration. Thus, in Weiner v McGraw-Hill, Inc. (57 NY2d 458), cited by plaintiff, we recently held that, on an appropriate evidentiary showing, a limitation on the employer’s right to terminate an employment of indefinite duration might be imported from an express provision therefor found in the employer’s handbook on personnel policies and procedures. Plaintiff’s attempts on this appeal to bring himself within the beneficial scope of that holding must fail, however. There is here no evidence of any such express limitation. Although general references are to be found in his brief in our court to an employer’s “manual”, no citation is furnished to any provision therein pertinent to the employer’s right to terminate his employment, and the alleged manual was not submitted with his affidavit in opposition to the motion to dismiss his complaint.

Accordingly, the fourth cause of action should have been dismissed for failure to state a cause of action.

As to his fifth cause of action for age discrimination, plaintiff correctly contends that in dismissing this cause of action as barred by the Statute of Limitations the courts below applied the wrong statute. They invoked the one-year period prescribed in subdivision 5 of section 297 of the Executive Law: “Any complaint filed pursuant to this section must be * * * filed within one year after the alleged unlawful discriminatory practice”. The Legislature clearly intended this restriction to apply to complaints of discrimination filed with the Division of Human Rights under subdivision 1 of section 297 of the Executive Law. The issue presented in this case is whether it was intended that the one-year period should also apply to civil actions brought under subdivision 9 of section 297.

Initially it is to be observed that a civil action is. not instituted by the “filing of a complaint”. Rather a civil action is commenced by service, delivery, or filing of a summons (or in some instances by an order for a provisional remedy) (CPLR 203, subd [b]). More significant, there are persuasive reasons why provision should be made for different periods of time within which claims for unlawful discrimination may be made — one for administrative relief, the other for judicial remedy. The procedures, practices, and remedies, indeed the entire perspective of administrative intervention under the Human Rights Law, differ radically from the traditional course of judicial adjudication. Moreover, in this instance, subdivision 9 expressly provides that where the division, on the grounds of administrative convenience, dismisses a complaint filed with it, the complainant may then bring a civil suit. This possibility suggests the practical desirability if not necessity of staggered periods of limitation, with a longer period fixed for the commencement of civil actions. (Relief in the reverse order is not permitted; initiation of a civil action forecloses all recourse to the Division of Human Rights [§ 297, subd 9].) We conclude, therefore, that the one-year period of subdivision 5 was intended to apply only to the filing of complaints with the Division of Human Rights.

In enacting subdivision 9 of section 297, the Legislature created a new cause of action not previously cognizable, but, in doing so, provided no specific period of limitations for such action. Consequently the institution of civil actions to recover damages for unlawful discriminatory practices under subdivision 9 is governed by the three-year period of limitations prescribed in CPLR 214 (subd 2) applicáble to “an action to recover upon a liability, penalty or forfeiture created or imposed by statute” (emphasis added; contrast State of New York v Cortelle Corp., 38 NY2d 83, 86 [holding that statutory provisions did not create “new claims but only provide particular remedies and standing in a public officer”]). It was, therefore, error to dismiss plaintiff’s cause of action for age discrimination as barred by the one-year period prescribed in subdivision 5 of section 297.

For the reasons stated, the order of the Appellate Division should be modified, with costs, to reinstate plaintiff’s fifth cause of action for age discrimination.

Meyer, J.

(dissenting in part).The harshness of a rule which permits an employer to discharge with impunity a 30-year employee one day before his pension vests (see United Steelworkers of Amer., Local No. 1617 v General Fireproofing Co., 464 F2d 726; and Savodnick v Korvettes, Inc., 488 F Supp 822) or for no other reason than that he filed a compensation claim (2A Larson, Workmen’s Compensation Law, § 68.36), the bizarre origin of the termination-at-will rule, the change of economic and constitutional philosophy that has occurred since its adoption, the exclusion of a substantial segment of the working community from its effects through “just cause” limitations upon the right to fire resulting from collective bargaining, and the inconsistency of the rule not only with the common law of England and with earlier New York decisions but also with the law of most industrial countries of the world, have caused an outpouring of judicial and scholarly writings intended to ameliorate, if not abolish, the rule. I agree with the majority that we should not now adopt the tort remedies proposed in those writings, because such remedies are essentially grounded in public policy, the declaration of which is a function of both the Legislature and the courts, because the New York Legislature has not been reticent in the area, and because of the difficulty encountered by the courts adopting such remedies in articulating the exact nature of the public policy which will bring them into play (compare Adler v American Std. Corp., 291 Md 31, with Hinrichs v Tranquilaire Hosp., 352 So 2d 1130 [Ala]; and see De Giuseppe, 10 Ford Urban LJ, at p 36 ff).

I agree also with so much of the majority opinion as holds the fourth cause of action not barred by the Statute of Frauds and the fifth cause of action not barred by the Statute of Limitations. I cannot, however, accept the majority’s refusal to follow precedent decisional law recognizing an implied-in-law obligation on the part of the employer not to discharge an employee for doing that which the employment contract obligated him to do or to differentiate between that existing contract obligation and the public policy laden tort of abusive discharge (at pp 305-306, n 2). Plaintiff’s complaint alleges that “defendant’s internal regulations * * * required that plaintiff report any deviation from proper accounting practice to defendant’s top management” and that he was dismissed as a result of his doing just that. Because those allegations sufficiently state a cause of action for breach of contract not only under decisions of other States but as a matter of New York law as well, I dissent from the majority’s affirmance of the dismissal of the fourth cause of action.

I do not gainsay that Martin v New York Life Ins. Co. (148 NY 117), however questionable its origin and continued existence, is the New York rule concerning employment contracts of unspecified duration. So in Haines v City of New York (41 NY2d 769, 772) we took pains to point out that unlike other contracts of unspecified duration, as to which the law will imply that the parties “intended performance to continue for a reasonable time”, that rule “[f]or compelling policy reasons * * * has not been, and should not be, applied to contracts of employment”. But the policy reasons behind refusing to read a durational term into employment contracts do not require reading out of such contracts the “implied covenant of fair dealing and good faith” which “is implicit in all contracts” (Van Valkenburgh, Nooger & Neville v Hayden Pub. Co., 30 NY2d 34, 45; accord Kirke La Shelle Co. v Armstrong Co., 263 NY 79, 87) and is “a contractual obligation of universal force which underlies all written agreements” (Brassil v Maryland Cas. Co., 210 NY 235, 241).

I refer not to the promise that each party will use reasonable efforts to carry out the contract purpose, which may be implied-in-fact from the contract negotiations to establish consideration though the writing be “imperfectly expressed” in that respect (Wood v Duff-Gordon, 222 NY 88, 91), but to the covenant implied by the law that the parties will not “frustrate the contracts into which they have entered” and that one party will “not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his part” (Grad v Roberts, 14 NY2d 70, 75) or that may hinder or obstruct his doing that which the contract stipulates he should do (Patterson v Meyerhofer, 204 NY 96, 101).

Under this principle it was held in Meyerhofer that by entering into a contract to purchase from plaintiff property which defendant knew plaintiff would have to buy at a foreclosure sale in order to convey, defendant impliedly agreed that she would do nothing to prevent him from acquiring the property at such sale and, having outbid him at the sale, was liable to him for the difference between the contract price and the price she paid to the referee in foreclosure. Indeed, more than 100 years ago we applied the principle to a broker’s commission contract, though terminable at will, holding in Sibbald v Bethlehem Iron Co. (83 NY 378, 384) that “Where no time for the continuance of the contract is fixed by its terms, either party is at liberty to terminate it at will subject only to the ordinary requirements of good faith” (emphasis supplied; see, also, Goodman v Marcol, Inc., 261 NY 188; Carns v Bassick, 187 App Div 280). And though a broker’s employment is occasional rather than continuous, we have recognized the role of good faith even as it relates to continuous employment, saying in Arentz v Morse Dry Dock & Repair Co. (249 NY 439, 444) with respect to a claimed contract of permanent employment of a general manager that “Plaintiff was not obliged to stay with the defendant for life, neither was defendant obliged to employ him beyond the time when in good faith it had no further use for his services” (emphasis supplied).

The principle, moreover, is espoused by the Restatement of Contracts, Second (§ 205), which flatly states that “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement,” and which in Comment e and the Reporter’s Notes thereto indicates its application to the “abuse of a power * * * to terminate the contract” (at p 102) including “an express power to terminate a contract at will” (at p .104). It is recognized as well in section 1-203 of the Uniform Commercial Code and by Williston, Contracts (3d ed, §§670, 1295), which tells us in section 1295 (vol 11, p 39) that: “Wherever, therefore, a contract cannot be carried out in the way in which it was obviously expected that it should be carried out without one party or the other performing some act not expressly promised by him, a promise to do that act must be implied.” The same reasoning that reads into an output contract the requirement that the manufacturing plant continue to perform in good faith (Feld v Levy & Sons, 37 NY2d 466, 471) and into the contract of an employee hired to invent that the resulting patent belongs to the employer (Cahill v Regan, 5 NY2d 292, 296) though no express provision to such effect be contained in the contract requires reading into the contract the present plaintiff alleges a provision that he will not be terminated for doing that which the parties have expressly contracted he shall do. To be borne in mind is the fact that we deal not with a contract which by its expressed term authorizes the employer to terminate without cause, but with one in which, because no durational term has been expressed, the law implies a right of termination. In the latter situation only the strongest of policy reasons can sustain reading the implied right of termination as a limitation upon the express obligation imposed upon the employee (see Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv L Rev 369, 399-401; Summers, General Duty of Good Faith — Its Recognition and Conceptualization, 67 Cornell L Rev 810, 827; Summers, “Good Faith” In General Contract Law and the Sales Provisions of The Uniform Commercial Code, 54 Va L Rev 195, 251).

There is, moreover, no compelling policy reason to read the implied obligation of good faith out of contracts impliedly terminable at will. To do so belies the “universal force” of the good faith obligation which, as we have seen, the law reads into “all contracts.” Nor can credence be given the in terrorem suggestion that to limit terminable-at-will contracts by good faith will drive industry from New York (see Weiner v McGraw-Hill, Inc., 57 NY2d 458, 469 [dissenting opn]). That is no more than speculation and hardly appears acceptable in the face of (1) the recognition without apparent industrial exodus of the even more burdensome tort remedy for discharge of at-will employees by such industrial States as California, Connecticut, Illinois, Indiana, Maryland, Massachusetts, Michigan, New Jersey, Pennsylvania and Wisconsin (see Committee Report, at p 211, n 130; and De Giuseppe, 10 Ford Urban LJ, at p 23, n 101), and (2) the responses reported in Ewing, What Business Thinks About Employee Rights, a Harvard Business Review survey of employers reprinted in Individual Rights In The Corporation: A Reader On Employee Rights (Western & Salisbury eds), at page 21. The more particularly is this so because collective bargaining “just cause” provisions, which impose a greater burden on employers than does a good faith limitation (see Toussaint v Blue Cross & Blue Shield of Mich., 408 Mich 579) have not done so, and because employers can obtain a large measure of protection by expressly reserving in the employment contract the right to terminate without cause.

The fact that the Legislature has limited at-will discharge in the several ways listed in footnote 5 above but has not expressly established a breach of contract action for termination of at-will employment which violates the implied-in-law obligation of good faith provides no reason to await action by the Legislature. The at-will rule was created by the courts and can properly be changed by the courts but, more importantly, as demonstrated above, the rule has for at least a century been subject to the “universal force” of the good faith rule. The Legislature, therefore, had no reason before the present decision to believe that action on its part was required.

Nor ought we succumb to any “floodgates” argument. “This court has rejected as a ground for denying a cause of action that there will be a proliferation of claims. It suffices that if a cognizable wrong has been committed that there must be a remedy, whatever the burden on the courts” (Tobin v Grossman, 24 NY2d 609, 615; accord Prosser, Torts [4th ed], p 51). The argument is, moreover, specious. It is plaintiff’s burden if he is to avoid summary judgment to come forward with admissible evidence that he was terminated because he reported, as required, a deviation from proper accounting practice (Gelder Med. Group v Webber, 41 NY2d 680, 684) and it will be his burden to establish that fact before the jury (see Goodman v Marcol, Inc., 261 NY 188, supra; Sibbald v Bethlehem Iron Co., 83 NY 378, 390, supra; McDonnell Douglas Corp. v Green, 411 US 792). And though the burden of going forward, once plaintiff establishes a prima facie case, will shift to defendant (see Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 9; cf. Mt. Healthy City Bd. of Educ. v Doyle, 429 US 274, 287; Committee Report, at p 195), it will remain the plaintiff’s burden to convince the jury that he was fired for the reason he alleged, not the employer’s burden to convince them that he had other good cause to fire the employee (see Blades, 67 Col L Rev, at p 1429). True, the evidence presented by an employer in such a situation will normally be of other cause to fire, but there is no reason to believe that under proper instruction from the court as to burden of proof (cf. PJI 4:31) a jury cannot be trusted to determine the good faith issue thus presented as they now regularly do in all the other good faith situations presented to them.

It may well be that plaintiff’s fourth cause of action will not survive a motion for sunimary judgment or, if it does, will not succeed before a jury. To dismiss it at this stage, on the pleadings alone, is, however, wholly inconsistent with the prior holdings of this and other courts with respect to the implied-in-law obligation of good faith. I therefore, cannot vote for doing so.

Chief Judge Cooke and Judges Jasen, Wachtler, Fuchsberg and Simons concur with Judge Jones; Judge Meyer dissents in part and votes to further modify by reinstating the fourth cause of action in a separate opinion.

Order modified, with costs to appellant, by reinstating the fifth cause of action and, as so modified, affirmed.

      . Employees in New York have already been afforded express statutory protection from firing for engaging in certain protected activities (e.g., Judiciary Law, § 519 [prohibiting discharge of employee due to absence from employment for jury service]; Executive Law, § 296, subd 1, par [e] [barring discharge of employees for opposing unlawful discriminatory practices or for filing a complaint or participating in a proceeding under the Human Rights Law]; Labor Law, § 215 [proscribing discharge of employee for making a complaint about a violation of the Labor Law or for participating in a proceeding related to the Labor Law]).
      In fact, legislation has been proposed but not adopted which would protect employees who have been terminated for taking actions which benefit the general public or society in general (e.g., 1981 NY Assembly Bill A 2566), for disclosure of violations of law or regulation which pose a substantial and impending danger to public health or safety (e.g., 1982 NY Senate-Assembly Bill S 9566, A 12451), or for disclosure of certain illegal or hazardous activities of their employers (e.g., 1983 NY Senate Bill S 1153).

      . [4] Both courts below dismissed this cause of action under the Statute of Frauds. This appears to have been error, inasmuch as the contract of employment was not one which by its terms could not have been performed within one year (General Obligations Law, § 5-701, subd a, par 1) and does not otherwise come within the reach of the Statute of Frauds (Weiner v McGraw-Hill, Inc., 57 NY2d 458, 463).
      We reject the view of the dissenter that a good faith limitation should now be judicially engrafted on what in New York has been the unfettered right of termination lying at the core of an employment at will (Weiner v McGraw-Hill, Inc., 57 NY2d 458,467 [dissenting opn]). We do so for precisely the reasons which persuade him as well as the other members of the court that we should now refrain from judicial recognition of the tort action for abusive discharge. As the dissenter is at pains to note, there has been much criticism of the traditional conception of the legal obligations and rights which attach to an employment at will. It may well be that in the light of modern economic and social considerations radical changes should be made. As all of us recognize, however, resolution of the critical issues turns on identification and balancing of fundamental components of public policy. Recognition of an implied-in-law obligation of good faith as restricting the employer’s right to terminate is as much a part of this matrix as is recognition of the tort action for abusive discharge. We are of the view that this aggregate of rights and obligations should not be approached piecemeal but should be considered in its totality and then resolved by the Legislature (see at pp 301-302, supra).

      . Subdivision 9 provides “Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this chapter, provided that, where the division has dismissed such complaint on the grounds of administrative convenience, such person shall maintain all rights to bring suit as if no complaint had been filed. No person who has initiated any action in a court of competent jurisdiction or who has an action pending before any administrative agency under any other law of the state based upon an act which would be an unlawful discriminatory practice under this article, may file a complaint with respect to the same grievance under this section or' under section two hundred ninety-six-a.”

      . Martin v New York Life Ins. Co. (148 NY 117, 121) accepted as correct the rule stated in section 136 of Wood, Master and Servant (2d ed) that “the fact that the compensation is measured at so much a day, month or year does not necessarily make such hiring a hiring for a day, month or year, but that in all such cases the contract may be put an end to by either party at any time, unless the time is fixed”. Though later stated to have been “deliberately adopted, all the judges concurring, to settle the differences of opinion which had prevailed in the lower courts” (Watson v Gugino, 204 NY 535, 541-542), Martin’s adoption of the rule may fairly be characterized as bizarre in light of (1) Wood’s concession that “In England it is held that a general hiring, or a hiring by the terms of which no time is fixed, is a hiring by the year”, (2) the contrary statement of the rule in Adams v Fitzpatrick (125 NY 124) in reliance upon the English cases cited at pages 128 and 130 and the New York cases cited at page 130 (see, also, Davis v Gorton, 16 NY 255; and Bleeker v Johnson, 51 How Prac 380), (3) the fact, documented in the Annotation at 11 ALR 469, 476, and in a number of the articles referred to in footnote 4 below, that Wood’s rule was not supported by any of the cases cited by him, and (4) the logical inconsistency of a rule the ultimate statement of which is that “permanent employment means nothing more than that the employment is to continue indefinitely and until one or the other of the parties wishes for some good reason to sever the relation” (Arentz v Morse Dry Dock & Repair Co., 249 NY 439, 444).

      . The concept that a restriction upon an employer's right to terminate was a violation of due process (Adair v United States, 208 US 161; Coppage v Kansas, 236 US 1) has long since given way to decisions upholding the constitutionality not only of various labor acts but also of restrictions upon discharge for reasons of race, sex, age, political affiliation and the like (see n 5 below).

      . (Report of Committee on Labor and Employment Law, At-Will Employment and the Problem of Unjust Dismissal, 36 Record of Assn of Bar of City of New York [hereafter “Committee Report”] 170, 175 ff.)

      . (Committee Report, op. cit.; Blades, Employment. At Will vs. Individual Freedom: On Limiting The Abusive Exercise of Employer Power, 67 Col L Rev 1404; Blumrosen, Workers’ Rights Against Employers and Unions: Justice Francis — A Judge For Our Season, 24 Rutgers L Rev 480; Christiansen, A Remedy for The Discharge Of Professional Employees Who Refuse To Perform Unethical Or Illegal Acts: A Proposal In Aid Of Professional Ethics, 28 Vand L Rev 805; Conway, Protecting The Private Sector At Will Employee Who “Blows The Whistle”: A Cause Of Action Based On Determinants Of Public Policy, 1977 Wis L Rev 777; De Giuseppe, Effect of the Employment-At-Will Rule on Employee Rights to Job Security and Fringe Benefits, 10 Ford Urban LJ 1; Feerick, Continued Erosion of Employment-At-Will, NYLJ, Feb. 4, 1983, p 1, col 1; Feinman, Development of the Employment at Will Rule, 20 Am J Leg Hist 118; Gelb, Non-Statutory Causes of Action For an Employer’s Termination of an “At Will” Employment Relationship: A Possible Solution to the Economic Imbalance in the Employer-Employee Relationship, 24 NY L School L Rev 743; Glendon and Lev, Changes In the Bonding of the Employment Relationship: An Essay on the New Property, 20 BC L Rev 457; Harmon and Kolko, Developments In the Law Covering Abusive Discharges, NYLJ, Aug. 26,1982, p 1, col 3; Madison, Employee’s Emerging Right To Sue For Arbitrary Or Unfair Discharge, 6 Employee Relations LJ 422; Mathews, A Common Law Action for The Abusively Discharged Employee, 26 Hastings LJ 1435; Peck, Unjust Discharges From Employment: A Necessary Change In The Law, 40 Ohio St U 1; Peck, Some Kind of Hearing For Persons Discharged From Private Employment, 16 San Diego L Rev 313; Shapiro and Tune, Implied Contract Rights To Job Security, 26 Stanford L Rev 335; Shemaria-Weber, A Remedy for Malicious Discharge of the At-Will Employee, 7 Conn L Rev 758; Summers, Individual Protection Against Unjust Dismissal: Time For A Statute, 62 Va L Rev 481; Travis, Abusive Discharge Cases To Test Common-Law Rule, NYU, Sept. 24, 1982, p 1, col 2; Vernon and Gray, Termination At Will — The Employer’s Right to Fire, 6 Employee Relations U 25; Weyand, Present Status of Individual Employee Rights, NYU 22d Annual Conf on Labor, p 171; Willis, Contracts — Employee’s Discharge Motivated By Bad Faith, Malice or Retaliation Constitutes a Breach of an Employment Contract Terminable at Will, 43 Ford L Rev 300; Note, Protecting At Will Employees Against Wrongful Discharge: The Duty To Terminate Only In Good Faith, 93 Harv L Rev 1816; in addition to the articles listed, pertinent annotations will be found at 51 ALR2d 742; 63 ALR3d 979; 93 ALR3d 659; 9 ALR4th 329; 12 ALR4th 544.)
      The judicial writings are too numerous to list, but see Committee Report (at p 211, n 130) and De Giuseppe (10 Ford Urban U, at p 23, n 101).

      . (E.g., Civil Rights Law, §§ 47-a, 79-i; Civil Service Law, §§ 75-76; CPLR 5252; Election Law, § 17-154, subd 3; Executive Law, §§ 292, 296; General Obligations Law, § 5-301; Labor Law, § 27-a, subd 10; § 662, subd 1; § 704, subd 8; §§ 736, 880, subd 3; Military Law, §§ 317, 318; Workers’ Compensation Law, § 120.) A “whistle-blower” bill (A 12451; S 9566) failed to pass the 1982 Legislature, but has been reintroduced at the present session (Legislative Gazette, Feb. 7, 1983, p 9).

      . (Pugh v See’s Candies, 116 Cal App 3d 311; Cleary v American Airlines, 111 Cal App 3d 443; Magnan v Anaconda Inds., 37 Conn Sup 38; Higdon Food Serv. v Walker, 641 SW2d 750 [Ky]; Fortune v National Cash Register Co., 373 Mass 96; Toussaint v Blue Cross & Blue Shield of Mich., 408 Mich 579; Gates v Life of Mont. Ins. Co., 638 P2d 1063 [Montf]; Cloutier v Great Atlantic & Pacific Tea Co., 121 NH 915; Pierce v Ortho Pharm. Corp., 84 NJ 58; Rees v Bank Bldg. & Equip. Corp. of Amer., 332 F2d 548 [applying Mo law]; but see Whittaker v Care-More, Inc., 621 SW2d 395 [Tenn].) For discussion of the implied obligation of good faith as a limitation upon the right to terminate an at-will employee see Committee Report (at p 182 if; De Giuseppe, 10 Ford Urban LJ, at p 24; Glendon and Lev, 20 BC L Rev, at pp 471-472; Madison, 6 Employee Relations LJ, 422; Note, 93 Harv L Rev 1816; Comment: Employment Contracts — Implied Covenant of Good Faith, 62 Mass LQ 241).

      . Ironically, the employer’s implied absolute right to terminate at-will employment for any reason or for no reason had its origin in the necessity of according the employer mutuality with the right of the employee to quit his job at any time (Blades, 67 Col L Rev, at p 1419). Logically, of course, the same principle of mutuality requires that if, as plaintiff alleges and must prove in order to succeed, defendant’s contract with him required him to report to defendant’s top management any deviation from proper accounting practice, plaintiff’s employment not be terminated because he did so.

      . Such a contract is not per se unconscionable (Zapatha v Dairy Mart, 381 Mass 284).


author: Wachtler, J.

text:
    City of Rochester, Respondent, v Angelo Chiarella et al., Individually and on Behalf of All Payers of Real Property Taxes to the City of Rochester for the Fiscal Years 1974-1975 through 1977-1978, Appellants, and Stephen J. Sercu et al., Respondents.
    Argued February 8, 1983;
    decided March 29, 1983

      POINTS OF COUNSEL

      Kenneth A. Payment, A. Paul Britton, Jr., and Fred G. Aten, Jr., for Angelo Chiarella, appellant.
    I. The city’s system of superior tax liens and penalties compelled payment of illegal taxes so that lack of protest cannot affect the right to recovery. (Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418; Peyser v Mayor of City of N. Y., 70 NY 497; Adrico Realty Corp. v City of New York, 250 NY 29; People ex rel. Wessell, Nickel & Gross v Craig, 236 NY 100; People ex rel. American Exch. Nat. Bank v Purdy, 196 NY 270; American Dist. Tel. Co. v City of New York, 213 App Div 578, 243 NY 565; Aronoff v Levine, 190 App Div 172, 232 NY 529; Kamenitsky v Corcoran, 177 App Div 605; Goldberg v City of New York, 260 App Div 61, 285 NY 705; Title Guar. & Trust Co. v City of New York, 265 App Div 304, 290 NY 910.) II. The protest issue in the context of this case raises public policy issues of the first impression; consideration of these issues compels the conelusion that the equitable defense of protest: (1) is not available to the city to begin with by virtue of the notice supplied by Hurd and by the numerous protests that were in fact filed by taxpayers; (2) has been waived by the city in its own repeated recognition of the inequity of the defense in this context; (3) is unavailable to the protestors as a sword against the nonprotestors. (Paramount Film Distr. Corp. v State of New York, 30 NY2d 415; Strusburgh v Mayor of City of N. Y., 87 NY 452; Lemon v Kurtzman, 411 US 192; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418; Angelone v City of Rochester, 72 AD2d 445, 52 NY2d 982; City of Buffalo v Wysocki, 112 Misc 2d 543; Virginian Ry. v Federation, 300 US 515; United States v FirstNat. City Bank, 379 US 378; Hecht Co. v Bowles, 321 US 321.)

      Byron Johnson for Quality Packaging Supply Corp. and others, appellants.
    Protest is not prerequisite to recovery by a taxpayer of an unconstitutionally levied tax. (Marbury v Madison, 1 Cranch [5 US] 137; Saratoga State Waters Corp. v Pratt, 227 NY 429; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418; Adrico Realty Corp. v City of New York, 250 NY 29.)

      Louis N. Kash, Corporation Counsel, for City of Rochester, respondent.
    I. The nonprotestors are subject to the New York law of tax refunds. The leading cases clearly establish that taxes paid under a mistake of law, and without protest, cannot be recovered unless payment was coerced; and that routine payment of taxes in the face of a commonplace lien and interest only on delinquent installments, and under no threat of any type of enforcement proceedings, are not coerced. (Strusburgh v Mayor of City of N. Y., 87 NY 452; Flower v Lance, 59 NY 603; Peyser v Mayor of City of N. Y., 70 NY 497; Purssell v Mayor of City of N. Y., 85 NY2d 330; Bruecher v Village of Port Chester, 101 NY 240; Brehm v Mayor of City of N. Y., 104 NY 186; Aetna Ins. Co. v Mayor of City of N. Y., 153 NY 331; Tripler v Mayor of City of N. Y., 125 NY 617 Pooley v City of Buffalo, 122 NY 592; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418.) II. Application of the New York law of tax refunds to the nonprotestors demonstrates that their payment of the taxes at issue was not coerced, and therefore required protest, absent which they cannot recover refunds as a matter of legal right. This court has previously indicated that this law should be applied to the taxes at issue. The nonprotestors are not in so special a position as to warrant changing the law, which is reasonable in determining the rights, and practical in balancing the needs, of government and its taxpayers, and should be preserved and reaffirmed. (Hurd v City of Buffalo, 34 NY2d 628; Title Guar. & Trust Co. v City of New York, 265 App Div 304, 290 NY 910; Five Boro Elec. Contrs. Assn. v City of New York, 12 NY2d 146; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418; Waldert v City of Rochester, 44 NY2d 831; Angelone v City of Rochester, 72 AD2d 445.) III. The city’s consistent policy to treat all taxpayers fairly, and its formal proposal in this class action to make refunds equally to protestors and nonprotestors alike, do not constitute any waiver of any defense based on the law of tax refunds. The “notice” supplied to the city by Hurd did not serve to expand its liability, and was also available to the nonprotestors to act upon. The city did not act in bad faith from 1974 to 1978. (Waldert v City of Rochester, 44 NY2d 831; Angelone v City of Rochester, 72 AD2d 445, 52 NY2d 982; Hurd v City of Buffalo, 34 NY2d 628.)

      David J. Angelone for Stephen J. Sercu and another, respondents.
    I. Under the circumstances of this case, the law of protest applies and protest must exist to allow recovery. (Hurd v City of Buffalo, 41 AD2d 402, 34 NY2d 628; Waldert v City of Rochester, 61 AD2d 147, 44 NY2d 831; Angelone v City of Rochester, 100 Misc 2d 917, 72 AD2d 445, 52 NY2d 982; Central Buffalo Project Corp. v City of Buffalo, 74 D2d 336, 52 NY2d 986; Jenad, Inc. v Village of Scarsdale, 23 AD2d 784; Austin Instrument v Loral Corp., 29 NY2d 124; American Dist. Tel. Co. v City of New York, 213 App Div 578, 243 NY 565; China City Corp. v State of New York, 51 Misc 2d 429; Five Boro Elec. Contrs. Assn. v City of New York, 14 AD2d 679, 12 NY2d 146; Paramount Film Distr. Corp. v State of New York, 30 NY2d 415; Title Guar. & Trust Co. v City of New York, 265 App Div 304, 290 NY 910.) II. Public policy issues are not present which would support a recovery absent protest. (Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418; City of Buffalo v Cargill, Inc., 44 NY2d 7; Matter of Rein v Wagner, 49 Misc 2d 683, 25 AD2d 356, 18 NY2d 989; Frankfater v State of New York, 54 Misc 2d 159, 31 AD2d 231; Tucker v Toia, 89 Misc 2d 116; City of Buffalo v Wysocki, 112 Misc 2d 543; Cathedral Academy v State of New York, 47 AD2d 390, 39 NY2d 1021, 343 US 125, 43 NY2d 940; Matter of Antonopoulou v Beame, 32 NY2d 126.)

      John M. Wilson, II, for Rochester Area Chamber of Commerce, Inc., amicus curiae. Public policy and equitable principles require the equal treatment of nonprotestors and protestors in the ultimate resolution of this case.
   OPINION OF THE COURT

Wachtler, J.

Appellant is the representative of a subclass of real property owners in the City of Rochester whose property was assessed for real property taxes in excess of the tax limitations imposed by our State Constitution. Refunds are sought in the amount of the excess taxes paid pursuant to the unconstitutional levy for the tax years 1974-1975 through 1977-1978, although the taxpayers in the subclass had paid taxes for those years without protest. Special Term concluded that, under the circumstances of this case, the taxpayers’ failure to protest payment of the excess taxes should not bar recovery. The Appellate Division reversed, holding that, absent appropriate protest or payment of the taxes under duress, these taxpayers are not entitled to refund of the excess taxes as a matter of legal right. There should be an affirmance.

The background of the present appeal begins with this court’s decision in Hurd v City of Buffalo (34 NY2d 628, affg 41 AD2d 402). At issue in Hurd was a provision of the Local Finance Law which excepted from the 2% constitutional limitation on real property taxation (NY Const, art VIII, § 10) taxes levied for pension and retirement benefits. Although the statute and the tax levied pursuant to it Were held unconstitutional, retrospective relief was withheld, because the municipality had relied upon the statute in preparing its budget. Under the circumstances, “to mandate repayment of amounts illegally collected in the past would place an impossible burden upon [the municipality]” (41 AD2d, at p 406).

In response to the Hurd decision, the Legislature attempted, in successive enactments, to alleviate the fiscal crisis faced by municipalities and school districts caused by the limitations on their taxing authority. To this end, chapters 496 and 497 of the Laws of 1974 continued the exception from the constitutional limitation for pension and retirement benefits on a temporary, emergency basis. The same legislation established a temporary commission on constitutional tax limitations, which was to make recommendations for a more permanent solution to the local finance problem. Thereafter, a proposed constitutional amendment to modify or repeal the real property taxing limitations was defeated by the voters.

The Legislature responded to this defeat by passing an additional enactment (L 1976, ch 349), again designed to allow certain municipalities and school districts to exclude pension and retirement benefits from the applicable constitutional tax limitations. Although the purpose of this legislation was stated to be the enactment of emergency provisions for the temporary solution of local finance problems, it was nevertheless held unconstitutional. As this court noted, this legislative effort amounted to “nothing more than an attempt to circumvent the constitutional limitation upon the amount of revenue that may be raised by local subdivisions of the State through the taxation of real property” (Bethlehem Steel Corp. v Board of Educ., 44 NY2d 831, 834, modfg 61 AD2d 147, app dsmd sub nom. City of Rochester v Waldert, 439 US 922). However, unlike the situation in Hurd, where the municipalities had relied upon the statute authorizing the excessive levies, thus justifying the Withholding of retroactive relief to the taxpayers, the municipalities in Bethlehem Steel had received ample notice, by virtue of the Hurd decision itself, that such a disregard of constitutional limits on their taxing authority would not be tolerated. Accordingly, we held that the taxpayers were entitled to establish their right to a refund of taxes paid in excess of the constitutional limitations “if such taxes were paid under appropriate protest” (id., at p 835).

The City of Rochester, acting pursuant to the legislation described above, had continued to levy real property taxes in excess of the constitutional limitations for the tax years 1974-1975 through 1977-1978. Many real property owners paid the excess taxes “under protest”, but the taxpayers represented by appellant failed to register any protest to payment of their taxes. Following the decision in Bethlehem Steel, the city commenced this defendant class action against its taxpayers in order to prevent a multiplicity of separate lawsuits and to have all claims concerning the excessive levies resolved in one forum. Defendants interposed counterclaims on behalf of themselves and members of the class for refunds of the excess taxes paid. Special Term certified the class action, appointed class representatives and set down for threshold determination the issue of whether the nonprotesting taxpayers were entitled to recovery of the illegal taxes paid. On the protest issue, Special Term ultimately concluded that the nonprotesting taxpayers are entitled to refunds, notwithstanding their failure to protest formally, because the imposition of a lien upon the real property and the exaction of interest for delinquent payment rendered the payments involuntary, thus excusing protest.

The Appellate Division reversed, holding that the routine creation of a lien and the exaction of interest for nonpayment were insufficient to constitute the duress or coercion necessary to excuse the requirement of formal protest. The court also restructured the classes placing protestors and nonprotestors into separate subclasses, inasmuch as its determination of the protest issue rendered the interests of the two groups adverse. The Appellate Division then granted the nonprotestors leave to appeal to this court, certifying a question as to the correctness of its order concerning the protest issue.

The rules concerning the circumstances under which recovery of a payment made pursuant to an assessment later declared illegal may ber had are well settled. Generally, the voluntary payment of a tax or fee may not be recovered (Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418, 424-425; Adrico Realty Corp. v City of New York, 250 NY 29; Pooley v City of Buffalo, 122 NY 592). When a payment is made under a mistake of law, with actual or constructive knowledge of the facts, as in the present case, it is incumbent upon the taxpayer to demonstrate that payment was made involuntarily (Adrico Realty Corp. v City of New York, supra). Payment of a tax under appropriate protest will ordinarily suffice to indicate the involuntary nature of the payment (Mercury Mach. Importing Corp. v City of New York, supra, at p 425). The failure to register formal protest, however, will be excused in cases in which the payment is made under duress or coercion. The duress necessary to indicate involuntariness is present in circumstances where payment of a tax is necessary to avoid threatened interference with present liberty of person or immediate possession of property (Mercury Mach. Importing Corp. v City of New York, supra, at p 425; Tripler v Mayor of City of N. Y., 125 NY 617, 626-627; see Five Boro Elec. Contrs. Assn. v City of New York, 12 NY2d 146, 150).

Although the test of involuntariness is easily stated, it is not quite as easy to apply. Recognizing that all governmental assessments are, in a sense, paid involuntarily, the determination is primarily one of degree, turning upon numerous factors, including: “[T]he right of the taxing authorities to rely on objection if there be resistance to payment, the likelihood that authentic resistance will be asserted, the unavoidable drastic impact of the taxes or fees on the claimant, and the impact on the public fisc, if revenues raised long ago and expended are subject to reimbursement” (Paramount Film Distr. Corp. v State of New York, 30 NY2d 415, 420, cert den 414 US 829).

Turning to the present case, it is urged on behalf of the nonprotesting taxpayers that the circumstances under which the illegal taxes were paid demonstrate that the payments were coerced or involuntary. Pursuant to section 6-78 of the Charter of the City of Rochester, real property taxes become a lien on the property on the date they are levied (July 1). Although taxes are due on July 31, taxpayers are permitted to pay them in four installments; interest at an annual rate of 12% during the period in question is charged on delinquent payments. If the taxes remain unpaid, the lien may eventually be foreclosed and the property sold to satisfy the tax obligation. Moreover, under the standard mortgage, the mortgagee can require that the tax lien be removed to avoid a default on the mortgage. The nonprotestors maintain that payment of'a tax to remove the cloud on title caused by the tax lien and to avoid interest charges is involuntary. The city contends that, in the absence of enforcement proceedings or the threat of the same, the payments should not be considered coerced. In its view, the routine tax lien does nothing more than provide a warning of record to prospective purchasers that property is carrying unpaid property taxes, and the interest exacted is at a level which is not exorbitant or excessive.

We agree with the city that, considering the circumstances under which the nonprotestors paid real property taxes for the tax years in question, the payments were not made in a manner indicating “authentic resistance” to the tax. The city had taken no steps to enforce the remedy available to it to compel payment, nor had it threatened to do so; therefore payments made merely to remove the routine lien and to avoid interest charged at a reasonable level were not necessary to prevent interference with immediate possession of the taxpayers’ property. The method used by the city to compute real property taxes had been declared unlawful as early as 1974, putting all taxpayers on notice of the continuing possibility that taxes so levied, although pursuant to legislation, were constitutionally infirm. Yet, the nonprotestors continued to pay their taxes routinely and without resistance of any kind. It cannot be said that payments made under these circumstances were involuntary.

We recognize that there are cases indicating that duress may exist where an assessment is paid to remove a cloud on title and to halt the accrual of interest. In those cases, however, other factors were present further demonstrating the involuntary nature of the payments involved, including: the threat of proceedings to compel payment of the assessment (Boris Leasing Corp. v City of New York, 285 App Div 126, affd no opn 309 NY 682; see Bruecher v Village of Port Chester, 101 NY 240); the commencement by the taxpayer of proceedings to set aside or otherwise challenge the assessment before payment (People ex rel. Wessell, Nickel & Gross v Craig, 236 NY 100; Purssell v Mayor of City of N. Y., 85 NY 330); or the filing of some form of actual protest to payment (Adrico Realty Corp. v City of New York, supra; Effell Realty Corp. v City of New York, 165 Misc 176, affd no opn 256 App Div 972, affd no opn 282 NY 541). Moreover, the weight of more recent authority in this State is to the effect that imposition of a lien and/or exaction of interest, without more, falls short of what is to be recognized as duress in this context (see, e.g., Riverdale Country School v City of New York, 13 AD2d 103, affd no opn 11 NY2d 741; Title Guar. & Trust Co. v City of New York, 265 App Div 304, affd no opn 290 NY 910; Goldberg v City of New York, 260 App Div 61, affd no opn 285 NY 705).

Although it is difficult to classify precisely the holdings in the numerous cases decided on the issue of involuntariness, an examination of the varying contexts in which they have arisen demonstrates that the ultimate resolution turns upon consideration of the totality of the circumstances surrounding a given payment. Where such consideration leads to the conclusion that a payment was made without any indication of authentic resistance, then the payment must be considered voluntary.

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

Chief Judge Cooke and Judges Jasen, Jones, Fuchs-berg and Meyer concur; Judge Simons taking no part.

Order affirmed, without costs, and question certified answered in the affirmative.

      . The effectiveness of this enactment was later extended through fiscal year 1975-1976 (L 1975, chs 322-325).

      . Special Term’s initial order provisionally certified the class action, stayed commencement of additional lawsuits against the city and stayed the class action itself pending this court’s decision in a related case (Angelone v City of Rochester, 72 AD2d 445, affd 52 NY2d 982). Following this court’s affirmance in Angelone, Special Term ordered the city to submit a refund plan pursuant to the alternative prayer for relief in the city’s complaint. The refund plan thereafter submitted proposed to refund one half of the taxes illegally collected to all taxpayers, whether they protested or not. Although the city maintains that the nonprotestors are not entitled to refunds as a matter of legal right, it argued in the proceedings below that it may nevertheless recognize an equitable obligation to the nonprotestors pursuant to subdivision 5 of section 20 of the General City Law.

      . Special Term’s ruling on protest rendered unnecessary any consideration of the city’s refund plan (see n 2, supra).

      . The Appellate Division refused to consider the propriety of the city’s refund plan for the first time on appeal. Accordingly, issues concerning that proposal are not before this court (see nn 2, 3, supra).

      . Thereafter, Special Term appointed provisional class representatives and counsel for the new subclasses for purposes of pursuing this appeal.

      . Payments made pursuant to a mistake of fact, often present different considerations (e.g., Aetna Ins. Co. v Mayor of City of N. Y., 153 NY 331; Brehm v Mayor of City of N. Y., 104 NY 186, 189; Strusburgh v Mayor of City of N. Y., 87 NY 452, 456).