author: Alexander, J.

text:
    Maria Alvarez, Respondent, v Prospect Hospital et al., Defendants, and Jesse D. Stark, Appellant. (And a Third-Party Action.)
    Argued October 6, 1986;
    decided November 11, 1986

      POINTS OF COUNSEL

      Patricia D’Alvia and James B. Reich for appellant.
    I. Dr. Stark provided sufficient proof there were no issues of fact as to deviation which was factually related to plaintiffs physical condition. He was entitled to a judgment dismissing the complaint as a matter of law. (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Neuman v Greenstein, 99 AD2d 1018; Pan v Coburn, 95 AD2d 670; Himber v Pfizer Labs., 82 AD2d 776; Banasik v Reed Prentice Div., 34 AD2d 746, 28 NY2d 770; Witt v Agin, 67 NY2d 919; Fileccia v Massapequa Gen. Hosp.,
      99 AD2d 796; Forray v New York Hosp., 101 AD2d 740.) II. Courts may not create standards of care for the radiological community. In the absence of expert opinion extending Dr. Stark’s duties as a radiologist, summary judgment should have been granted. (Toth v Community Hosp., 22 NY2d 255; Benson v Dean, 232 NY 52; Meiselman v Crown Hgts. Hosp., 285 NY 389; Gibson v D’Amico, 97 AD2d 905; Lipsius v White, 91 AD2d 271; Fiore v Galang, 64 NY2d 999; Fileccia v Massapequa Gen. Hosp., 63 NY2d 639; Pulka v Edelman, 40 NY2d 781; Millington v Southeastern Elevator Co., 22 NY2d 498.)

      Mitchell D. Kessler and Aaron J. Broder for respondent.
    I. Defendant Stark failed to come forward with appropriate evidence on his summary judgment motion. His bald assertions did not entitle him to summary judgment. (Winegrad v New York Univ. Med. Center, 64 NY2d 851.) II. A question of fact remains for the jury because under the "best judgment rule” Dr. Stark should have done more to insure that his diagnosis was considered and acted upon. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Epstein v Scally, 99 AD2d 713; Bershaw v Altman, 100 AD2d 642; Ugarriza v Schmieder, 46 NY2d 471; Toth v Community Hosp., 22 NY2d 255; Schneider v Memorial Hosp., 100 AD2d 583; Bowers v County of Essex, 118 Misc 2d 943; Scurti v City of New York, 40 NY2d 433.)
   OPINION OF THE COURT

Alexander, J.

In this medical malpractice action, the Appellate Division has affirmed Supreme Court’s denial of defendant Stark’s motion for summary judgment and has granted leave to appeal to this court on the certified question: "Was the order of Supreme Court, as affirmed by this Court, properly made?” For the reasons that follow, we reverse the order of the Appellate Division, grant defendant Stark’s motion for summary judgment, and answer the certified question in the negative.

Plaintiff Maria Alvarez was admitted to Prospect Hospital twice in 1978 and twice in 1979, each time complaining of abdominal pain. Dr. Stark, as the chief of radiology at the hospital, interpreted several radiological studies performed on plaintiff during these visits. As relevant here, during plaintiffs second visit to the hospital in 1978, Dr. Stark interpreted a barium enema X ray as revealing "cecal neoplasm” of the cecum of the colon, and so indicated in his written report transmitted to plaintiffs attending physician. Plaintiff was discharged from the hospital a short time later with a diagnosis of gastroenteritis. During plaintiffs second visit in 1979, Dr. Stark again interpreted a barium enema X ray of the plaintiff and again made a finding of "cecal neoplasm”, which was indicated in his written report again transmitted to plaintiffs attending physician. A short time later, plaintiff underwent surgery to remove a malignant growth in her colon.

This action was thereafter commenced against the hospital and nine physicians, including Dr. Stark. Plaintiffs amended complaint alleges, in general and unparticularized terms, that the medical care and treatment rendered by each defendant "was so negligent, reckless and careless as to constitute the * * * care and treatment as negligence, carelessness, recklessness, misfeasance, malfeasance and malpractice”. In her bill of particulars, plaintiff alleged that she was unable to state with exactitude which specific negligent acts were performed by each particular defendant but claimed that "defendants violated every known medical standard in existence at the time of plaintiffs care and treatment” and in over three pages of boilerplate allegations described acts and omissions constituting medical malpractice. Plaintiff relied almost entirely upon Dr. Stark’s reports indicating the presence of a cecal neoplasm in order to establish her claim of malpractice for "failing to discover and/or treat the nature and cause of lesions and/or irregularities noted in barium enemas”, "failing to explain, attempt to explain, or perform tests, procedures, examinations, and/or surgery which would have explained the inconsistency between the normal colonoscopic examination of plaintiff and the lesions and/or irregularities noted upon the barium enema(s) performed” and "failing to determine the origin, nature and/or cause of a lesion which was found in a barium enema”.

Following completion of his examination before trial, Dr. Stark moved for summary judgment, including in his motion papers an affirmation of his attorney, to which were attached the relevant hospital records and portions of his deposition testimony. The attorney’s affirmation pointed out that plaintiff had adopted Dr. Stark’s interpretations of the barium enema X rays as the basis for her claim against the other defendants that there was a failure to diagnose the cecal neoplasm at an early stage of her treatment. Counsel argued that because plaintiff had not alleged in either her complaint or bill of particulars that Dr. Stark’s interpretation of the X rays was erroneous or incomplete, judgment as a matter of law was warranted. It was argued that the hospital records supported the conclusion that Dr. Stark had made a timely and accurate diagnosis which formed the basis for plaintiff’s allegations of malpractice against her treating doctors. Dr. Stark’s deposition testimony asserted that his diagnosis was correct and that, as a radiologist, he is not required to treat patients and indeed never performed a physical examination on the plaintiff.

In an attorney’s affidavit submitted in opposition to the motion, plaintiff contended that there were issues of fact as to whether Dr. Stark, after having interpreted the radiological studies ordered by the treating physicians, should have discussed, such results with the treating physicians and should have monitored the plaintiff’s condition to insure that the treating physicians dealt properly with the plaintiff’s condition. Supreme Court denied defendant’s motion for summary judgment, finding that questions of fact had been raised concerning the duty, if any, of the defendant with respect to the plaintiff’s treatment. A divided Appellate Division affirmed (115 AD2d 444). We now reverse.

As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562). In a medical malpractice action, a plaintiff, in opposition to a defendant physician’s summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact (Fileccia v Massapequa Gen. Hosp., 63 NY2d 639, affg 99 AD2d 796; Neuman v Greenstein, 99 AD2d 1018; Buonagurio v Drago, 65 AD2d 830, lv denied 46 NY2d 708). General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician’s summary judgment motion (Fileccia v Massapequa Gen. Hosp., supra; Bustamonte v Koval, 98 AD2d 739; Pan v Coburn, 95 AD2d 670; Himber v Pfizer Labs., 82 AD2d 776; Baldwin v Gretz, 65 AD2d 876).

On this record, defendant’s submissions in support of his motion for summary judgment satisfy the prima facie showing required to warrant judgment as a matter of law if not rebutted by the plaintiff. A fair reading of the attorney’s affirmation, the hospital records and the defendant’s deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant’s supporting proof was placed before the court by way of an attorney’s affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion (Olan v Farrell Lines, 64 NY2d 1092, 1093). Dr. Stark’s deposition testimony is supported by the hospital records and rebuts with factual proof plaintiff’s claim of malpractice and thus is sufficient proof that he properly and timely diagnosed the plaintiff’s condition and did not depart from the accepted standard of care in the medical community (Witt v Agin, 67 NY2d 919, affg 112 AD2d 64; Winegrad v New York Univ. Med. Center, 64 NY2d 851, supra; Fileccia v Massapequa Gen. Hosp., 63 NY2d 639, affg 99 AD2d 796, supra; Neuman v Greenstein, 99 AD2d 1018, supra).

Winegrad (64 NY2d 851, supra) is not to the contrary. There, the plaintiff alleged, among other things, that the defendant doctors had misrepresented that the surgery was completed when in fact they had failed to complete the surgery and alleged further that they were not qualified to treat plaintiff. All that was tendered by the doctors in support of their summary judgment motion was an affidavit by each which did no more than simply state, in conclusory fashion, that they had acted in conformity with the appropriate standard of care. On the record in that case, we held that the “bare conclusory assertions echoed by all three defendants that they did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle defendants to summary judgment” (id,., at p 853). By contrast, Dr. Stark’s papers here refute by specific factual reference the allegations of malpractice made by plaintiff in her amended complaint and bill of particulars.

This case is substantially similar to Fileccia v Massapequa Gen. Hosp. (63 NY2d 639, affg 99 AD2d 796, supra), where we affirmed an Appellate Division order granting summary judgment to a defendant radiologist in a medical malpractice action. The plaintiff there was a patient in the emergency room of the hospital and was X-rayed at the attending physician’s request because of possible fractures of the cheekbone. The physician interpreted the X rays as not indicating any fractures and plaintiff was discharged. Two days later, defendant, a Board certified radiologist and head of the hospital’s pathology department, reviewed the X rays and concurred in the interpretation that no fractures were revealed. Subsequently, plaintiff was diagnosed at another hospital as having sustained fractures of certain facial bones and was hospitalized. Plaintiff commenced a medical malpractice action claiming the defendant radiologist negligently interpreted the X rays. Defendant moved for summary judgment, submitting a personal affidavit, an affirmation of his attorney and his deposition testimony, arguing that he did not perform the X-ray examination, did not treat or examine the plaintiff and that the X rays he had interpreted did not reveal any fractures. In response to defendant’s motion, plaintiff submitted an attorney’s affirmation to which was annexed copies of the medical records and X-ray reports revealing the alleged fractures. In reversing Special Term and granting summary judgment, the Appellate Division noted that the radiologist had never performed a physical examination of the plaintiff and his only contact with the plaintiff was to read X rays taken of plaintiff by others. Under these circumstances, the court ruled that defendant had established his right to judgment as a matter of law and that plaintiff’s submissions were devoid of any medical evidence tending to establish that defendant had negligently read or interpreted the X rays and therefore were not sufficient to defeat the motion for summary judgment (see also, Witt v Agin, 67 NY2d 919, affg 112 AD2d 64, supra).

Here, too, defendant’s submissions are sufficient to establish his entitlement to judgment as a matter of law and the burden thus shifted to plaintiff to produce evidentiary proof in admissible form establishing the existence of material questions of fact. Plaintiffs sole submission was an affidavit of her attorney, which attempted for the first time to create a theory of liability against defendant Stark different from that asserted in the amended complaint and the bill of particulars. This new theory was predicated on the hypothesis that Stark had a duty to consult with the attending physicians concerning his interpretation of the X rays notwithstanding that his reports containing his interpretations were forwarded to the attending physicians. Just as the burden of a party opposing a motion for summary judgment is not met merely by repeating or incorporating by reference the allegations contained in the pleadings or bills of particulars (Indig v Finkelstein, 23 NY2d 728, 729), neither is that burden met by the unsubstantiated assertions or speculations of plaintiff’s counsel that a defendant may have breached a possible duty of care (Fileccia v Massapequa Gen. Hosp., supra; Zuckerman v City of New York, supra, at p 562; see, Roche v Hearst Corp., 53 NY2d 767, 769; Barr v County of Albany, 50 NY2d 247, 257-258). In this case, in order to defeat defendant’s motion for summary judgment some statement of expert medical opinion was required to demonstrate the viability of the new theory of liability hypothesized by plaintiff’s counsel (Witt v Agin, 67 NY2d 919, affg 112 AD2d 64, supra; Fileccia v Massapequa Gen. Hosp., 63 NY2d 639, affg 99 AD2d 796, supra; Immediate v St. John’s Queens Hosp., 48 NY2d 671; Neuman v Greenstein, 99 AD2d 1018, supra; Pan v Coburn, 95 AD2d 670, supra; Himber v Pfizer Labs., 82 AD2d 776, supra).

Accordingly, the order of the Appellate Division should be reversed, Dr. Stark’s motion for summary judgment granted and the certified question answered in the negative.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Titone and Hancock, Jr., concur.

Order reversed, with costs, defendant Stark’s motion for summary judgment granted, and question certified answered in the negative.


source: Caselaw Access Project

author: Hancock, Jr. J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Michael McGee, Also Known as Farrow Gipson, Appellant.
    Argued October 8, 1986;
    decided November 18, 1986

      POINTS OF COUNSEL

      Susan P. Wheatley, Rose H. Sconiers and John A. Ziegler for appellant.
    I. Appellant was effectively denied his right to testify on his own behalf and deprived of due process of law and a fair trial by the errors and abuse of discretion committed by the trial court in considering his Sandoval application. (People v Sandoval, 34 NY2d 371; United States v Bifield, 702 F2d 342; California v Trombetta, 467 US 479; People v Ocasio, 47 NY2d 55; People v Rosa, 96 Misc 2d 491; People v Davis, 44 NY2d 269; People v Kennedy, 47 NY2d 196; People v Williams, 46 NY2d 799; United States v Figueroa, 618 US 934; Bruton v United States, 391 US 123.) II. The Trial Judge improperly and erroneously overruled the pretrial Judge’s grant of a Wade hearing. (California v Trombetta, 467 US 479; United States v Wade, 388 US 218; People v Ballott, 20 NY2d 600; Spahn v Griffith, 101 AD2d 1011; Belski v New York Cent. R. R., 38 AD2d 882; People v Calderon, 91 AD2d 1054; People v Romney, 77 AD2d 482; People v Guerra, 65 NY2d 60; People v Hooper, 22 AD2d 1006; People v Ford, 100 AD2d 941.) III. The trial court’s refusal to admit an inculpatory statement of appellant’s codefendant deprived appellant of his compulsory process and due process rights. (Washington v Texas, 388 US 14; Chambers v Mississippi, 410 US 284.) IV. The trial court abused its discretion by refusing to conduct an inquiry of a juror who observed appellant under restraint. (People v Falterman, 74 AD2d 584; People v Dell’Orfano, 72 AD2d 749; People v Harper, 47 NY2d 857; People v Morello, 61 NY2d 708; People v Palermo, 32 NY2d 222; People v Mendola, 2 NY2d 270; People v Hart, 112 AD2d 471.)

      Richard J. Arcara, District Attorney (Jo W. Faber and John J. DeFranks of counsel), for respondent.
    I. Any error committed by the trial court with respect to a Sandoval application is not reviewable by this court and, in any event, is harmless. (People v Sandoval, 34 NY2d 371; People v Crimmins, 36 NY2d 230.) II. The trial court’s disposition of the Wade issue was not erroneous nor was defendant’s objection thereto preserved for purposes of appeal. (United States v Wade, 388 US 218; People v Tutt, 38 NY2d 1011; People v Anthony, 93 AD2d 892; People v Calinda, 83 Misc 2d 520.) III. Defendant’s right to due process and compulsory process was not violated by the decision of the trial court concerning the admissibility of an out-of-court statement made by codefendant. (United States v Valenzuela-Bernal, 458 US 858; Lisenba v California, 314 US 219.) IV. The trial court did not abuse its discretion by denying defendant’s request for examination of a juror who had seen defendant in handcuffs. (People v Harper, 47 NY2d 857; Dupont v Hall, 555 F2d 15; People v Morello, 61 NY2d 708.)
   OPINION OF THE COURT

Hancock, Jr. J.

Defendant and codefendant Farook Amer were tried together before a jury on various charges stemming from a hold up in Buffalo. Defendant was convicted of robbery in the first degree and criminal possession of a weapon in the second degree; the Appellate Division affirmed, without opinion. He argues that we should reverse the convictions because the trial court improperly refused to give him a prospective ruling pursuant to People v Sandoval (34 NY2d 371) as to the questions which codefendant might ask him on cross-examinatian concerning previous convictions and vicious or immoral acts. The court’s refusal made it impossible for him to testify, he claims, and he was thereby deprived of his right to a fair trial. For reasons which will appear, we reject this contention and conclude that the judgment should be affirmed.

Following the robbery of a grocery store defendant fled in a car driven by Amer and jumped out a short distance from the store. The police arrested defendant after a brief chase and apprehended Amer moments later. Defendant and Amer were indicted on several counts of robbery in the first degree and criminal possession of a weapon.

At trial, when codefendant Amer rested his case without testifying, defendant asked for a Sandoval ruling. After the court made its Sandoval determination with respect to what the prosecutor could ask defendant on cross-examination, the following colloquy occurred concerning the effect of the ruling on Amer’s right to cross-examine:

"mr. lotempio [attorney for codefendant Amer]: Your Honor * * * so we don’t get into a mistrial situation * * * the Court has inst[ru]cted [that] the District Attorney not be allowed * * * to ask questions in these other areas and I just want to make sure that does not apply to me or the defendant, Amer.

* * *

"mr. lotempio: He’s asking for a Sandoval hearing. That’s fine. That only applies to the District Attorney. It does not apply to co-defendants

* * *

"the court: Just wait, Mr. LoTempio. Sandoval does apply to the District Attorney. I’ve made my ruling prior to the defendants taking the stand. I’ll not rule prior to his taking the stand on any aspects of your examination. Sandoval doesn’t apply to your client.
"mr. lotempio: Thank you, your Honor.
"mr. kulick [attorney for defendant]: Except that I would say that the purpose behind Sandoval is, obviously, to allow the person to take the stand without letting certain prior acts, as your Honor has properly ruled on here, affect the jury’s deliberation, obviously, or decision in this particular case.”

The issue is whether defendant’s prospective Sandoval ruling on the propriety of certain questions by the prosecutor should apply as well to questions by codefendant Amer.

In Sandoval we held that a court "may * * * make an advance ruling as to the use by the prosecutor of prior convictions or proof of the prior commission of specific criminal, vicious or immoral acts for the purpose of impeaching a defendant’s credibility” (People v Sandoval, 34 NY2d 371, 374, supra; emphasis added). Sandoval "did not create a new rule of substantive law,” (People v Davis, 44 NY2d 269, 275), but merely "sanctioned a procedure” (People v Ocasio, 47 NY2d 55, 58) by which the court may rule, before defendant takes the stand and outside the hearing of the jury, on the admissibility of evidence of prior bad acts which might be used on cross-examination. Postponement of the court’s ruling and the lack of a prior decision on admissibility can "cause a defendant to hide behind his or her privilege not to take the stand,” removing perhaps the "only available * * * testimony in support of the defense” (People v Ocasio, supra, at p 58). In making its prospective ruling on admissibility the trial court must balance "the probative worth of evidence of prior specific criminal, vicious or immoral acts” on the defendant’s credibility against "the risk of unfair prejudice to the defendant” (People v Sandoval, supra, at p 375), guarding against the impermissible inference that "one who has sinned before has sinned again and is guilty” (People v Carmack, 52 AD2d 264, 266 [Simons, J.], affd 44 NY2d 706). The potential prejudice may result both from the impact of such evidence if defendant testifies and from the adverse effect of its anticipated introduction on his decision whether to do so (see, People v Sandoval, supra).

It is evident that the Sandoval rationale applies only when the witness to be cross-examined is also the defendant on trial, for only then can the questioning result in improper conviction on the basis of inadmissible evidence of prior bad acts. Thus, we have held that Sandoval does not apply to a witness who is not the defendant (People v Allen, 67 AD2d 558, affd 50 NY2d 898), and that such a witness is subject to cross-examination under the usual rules of evidence (People v Schwartzman, 24 NY2d 241, 244, cert denied 396 US 846; Richardson, Evidence § 498 [10th ed]; People v Webster, 139 NY 73). Difficulties arise, however, when, as here, two defendants are tried together and one desires to testify in his own defense but may, in doing so, incriminate the other. Then the defendant, unlike the witness in People v Allen (supra), testifies in a dual role. As defendant he testifies in his own behalf. Insofar as what he says tends to incriminate the codefendant, he testifies for the prosecution.

Defendant argues that he should have a Sandoval ruling to protect him in his dual roles — as a defendant and as a witness. Unless the Sandoval ruling applies to the anticipated cross-examinations by both prosecutor and codefendant, he stresses, the ruling is of no use to him. Codefendant’s counsel may bring out the very convictions and bad acts from which the prosecutor is precluded, and the damage will be done.

Defendant’s argument ignores the distinction between the aims of cross-examination by the prosecutor and by the codefendant. The prosecutor, in questioning defendant, seeks to incriminate him directly, or indirectly by attacking his credibility. Counsel for codefendant seeks to protect his client. In conducting this cross-examination, counsel for codefendant exercises his client’s constitutional right of confrontation (US Const 6th Amend; NY Const, art I, § 6; Douglas v Alabama, 380 US 415; People v Gissendanner, 48 NY2d 543, 547-548). Of this right we have said: "it should be too obvious to need reiteration that restrictions on the right to cross-examine key prosecution witnesses can deprive a defendant of an important means of combating inculpatory testimony or at least demonstrating the existence of a reasonable doubt as to guilt (Davis v Alaska, 415 US 308, 315-317; Douglas v Alabama, 380 US 415, 418; cf. Greene v McElroy, 360 US 474, 496-497)” (People v Gissendanner, supra, at p 548). This basic right of a defendant to cross-examine witnesses does not disappear simply because the witness against him is a codefendant.

Thus, where defendants are tried jointly, the competing interests require a choice between (1) the procedural right of a defendant to a prospective ruling under Sandoval and (2) the constitutional right of a codefendant to an unimpeded cross-examination of witnesses against him. While the interest of a defendant in a prospective ruling under Sandoval is not insubstantial, it must yield to the fundamental constitutional right of the codefendant to confront and cross-examine his accusers. We therefore hold that when defendants are tried together a Sandoval ruling made with respect to one does not apply to limit the scope of cross-examination of that defendant by the other.

Potential difficulties in a joint trial arising from the parties’ opposing theories of defense may be averted. The remedy is a timely motion for severance pursuant to CPL 200.40 so that the court, mindful that Sandoval does not apply, may determine whether the rights of either defendant will likely be prejudiced in a joint trial. In a similar case, the court properly held that it "could not limit the right of either defense attorney to examine his client’s codefendant regarding prior criminal or immoral acts” (People v Rodriguez, 91 AD2d 591, 592) and that severance should be granted where a significant possibility exists that each defense will prejudice the other. If good cause is shown why the joint trial will prejudice substantial rights of the codefendants, failure to sever may amount to an abuse of discretion (see, People v La Belle, 18 NY2d 405). Here, however, defendant’s attorney neither joined in codefendant’s motion for severance nor made his own motion and, therefore, has not preserved the issue (People v Ford, 66 NY2d 428, 433).

We conclude that defendant’s remaining contentions present no basis for reversal and that, accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed.


author: Per Curiam.

text:
    In the Matter of Edward A. Baker, Appellant, v Edward V. Regan, as State Comptroller and Administrator of the New York State Employees’ Retirement System, Respondent. In the Matter of William J. Dempsey, Appellant, v Edward V. Regan, as State Comptroller and Administrator of the New York State Employees’ Retirement System, Respondent. In the Matter of William C. Brennan, Appellant, v Edward V. Regan, as State Comptroller, et al., Respondents. In the Matter of Charles P. Garvey, Appellant, v Edward V. Regan, as State Comptroller, et al., Respondents. In the Matter of Thomas V. LaFauci, Appellant, v Edward V. Regan, as State Comptroller, et al., Respondents. In the Matter of Orest V. Maresca, Appellant, v Edward V. Regan, as State Comptroller, et al., Respondents.
    Argued October 8, 1986;
    decided November 18, 1986

      POINTS OF COUNSEL

      John J. Clyne for appellant in the first above-entitled, proceeding.
    I. The Laws of 1984 (ch 117), effective May 15, 1984, is unconstitutional insofar as it purports to affect the retirement benefits of petitioner-appellant. (Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1; Public Employees Fedn. v Cuomo, 62 NY2d 450; Kleinfeldt v New York City Employees’ Retirement Sys., 36 NY2d 95; Kranker v Levitt, 30 NY2d 574; Matter of Weber v Levitt, 34 NY2d 797; Matter of Rosenthal v New York State Employees’ Retirement Sys., 89 Misc 2d 616.) II. The "elective public office” exception contained in Civil Service Law § 150 prior to the 1984 amendment applied to petitioner. (Sega v State of New York, 60 NY2d 183; Riegert Apts. Corp. v Planning Bd., 57 NY2d 206; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Matter of Erie County Agric. Socy. v Cluchey, 40 NY2d 194; Matter of Barton v Lavine, 38 NY2d 785; Zappone v Home Ins. Co., 55 NY2d 131; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463.)

      Joseph P. Famighetti for appellant in the second above-entitled proceeding.
    I. Civil Service Law § 150, prior to the 1984 amendment (L 1984, ch 117), granted petitioner-appellant the right to early retirement. (Matter of Powhatan Democratic Club v Curran, 206 Misc 960; Matter of Del Giorno v Police Dept., 33 AD2d 665, 26 NY2d 620; Jaffe Plumbing & Heating Co. v Brooklyn Union Gas Co., 51 Misc 2d 1083; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539.) II. The Laws of 1984 (ch 117) is unconstitutional as applied to petitioner-appellant as it violates NY Constitution, article V, § 7 and US Constitution, article I, § 10 by impairing and diminishing petitioner-appellant’s retirement benefits. (Kleinfeldt v New York City Employees’ Retirement Sys., 38 NY2d 95; Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1; Public Employees Fedn. v Cuomo, 62 NY2d 450; Roddy v Valentine, 268 NY 228; United States Trust Co. v New Jersey, 431 US 1; Winston v City of New York, 759 F2d 242.) III. The action of respondent in suspending the payment of retirement benefits to petitioner-appellant was unconstitutional under the Fourteenth Amendment of the United States Constitution in that that action deprived petitioner-appellant of "property” without due process of law and also deprived him of the equal protection of the law. (Board of Regents v Roth, 408 US 564; Perry v Sindermann, 408 US 593; Winston v City of New York, 759 F2d 242; Basciano v Herkimer, 605 F2d 605; Soni v Board of Trustees, 513 F2d 347; Vail v Board of Educ., 706 F2d 1435; McLaurin v Fischer, 768 F2d 98; Reed v Reed, 404 US 71; Zeigler v Jackson, 638 F2d 776; International Assn. of Firefighters v City of Sylacauga, 436 F Supp 482.) IV. The principle of estoppel must be applied to bar the new interpretation of section 150 made by respondent after petitioner-appellant relied to his detriment on the contrary interpretation made directly to him by respondent in the past. (Bender v New York City Health & Hosps. Corp., 38 NY2d 662.)

      Joseph O. Giaimo for appellants in the third, fourth, fifth and sixth above-entitled proceedings.
    I. The Legislature intended to amend section 150 to restrict its application to the same public office, not to explain the intention of previous Legislatures. (People v Fonseca, 36 NY2d 133; Sega v State of New York, 60 NY2d 183; Matter of Peterson v Daystrom Corp., 17 NY2d 32; Helvering v City Bank Co., 296 US 85; Blum v Bacon, 457 US 132.) II. Respondents are estopped to deny appellants’ pension benefits. (Quaglia v Incorporated Vil. of Munsey Park, 54 AD2d 434, 44 NY2d 772; Matter of 1555

      Boston Rd. Corp. v Finance Administrator of City of N. Y., 61 AD2d 187; Eden v Board of Trustees, 49 AD2d 277; Boylan v Morrow Co., 96 AD2d 983; Matter of Van Alstyne v David Q., 92 AD2d 971.) III. Section 150, as amended, violates the pension clause of the New York State Constitution. (Roddy v Valentine, 268 NY 228; Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1; Public Employees Fedn. v Cuomo, 62 NY2d 450; Matter of Rosenthal v New York State Employees’ Retirement Sys., 89 Misc 2d 616.) IV. Section 150, as amended, violates the impairment of contracts provision of the United States Constitution. (Allied Structural Steel Co. v Spannaus, 438 US 234.) V. The section 150 amendment violates the equal protection clause. (Matter of Abrams v Bronstein, 33 NY2d 488.) VI. The section 150 amendment violates the due process clauses of the Federal and State Constitutions. (Board of Educ. v Miles, 15 NY2d 364; Periconi v State of New York, 91 Misc 2d 823.) VIL Appellant Maresca is entitled to receive his retirement allowance pursuant to Retirement and Social Security Law § 212.

      Robert Abrams, Attorney-General (Frank K. Walsh, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents in the first, second, third, fourth, fifth and sixth above-entitled proceedings.
    I. The court below correctly held that the "elective public office” exception contained in Civil Service Law § 150 does not apply to an incumbent who wins reelection and, therefore, petitioners were not entitled to receive retirement benefits in addition to salary despite their "retirement” prior to the assumption of their new terms of office. (Zappone v Home Ins. Co., 55 NY2d 131; Matter of Radich v Council of City of Lackawanna, 93 AD2d 559, 61 NY2d 652; Kurcsics v Merchants Mut. Life Ins. Co., 49 NY2d 451; Matter of Astman v Kelly, 2 NY2d 567; Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 65 NY2d 807; State of New York v Garlick Parkside Mem. Chapels, 55 Misc 2d 797, 30 AD2d 143, 23 NY2d 754; Matter of Chatlos v McGoldrick, 302 NY 380; Matter of Russo v Valentine, 294 NY 338.) II. The issue of whether the "elective public office” exception contained in Civil Service Law § 150 applies to an incumbent who wins reelection is properly before this court. (Cook v City of Binghamton, 48 NY2d 323; Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358; Montgomery v Daniels, 38 NY2d 41; Matter of Malpica-Orsini, 36 NY2d 568; People v Pagnotta, 25 NY2d 333; Matter of Van Berkel v Power, 16 NY2d 37; New York State

      Coalition for Criminal Justice v Coughlin, 103 AD2d 40, 64 NY2d 660; American Sugar Refining Co. v Waterfront Commn. of N. Y. Harbor, 55 NY2d 11; Persky v Bank of Am. Natl. Assn., 261 NY 212; People ex rel. Roides v Smith, 67 NY2d 899.) III. Chapter 117 does not deny petitioners equal protection of the law or due process of law. (Trump v Chu, 65 NY2d 20; Maresca v Cuomo, 64 NY2d 242; Brown v New York State Teachers’ Retirement Sys., 107 AD2d 103, 66 NY2d 601; O’Connor v Levitt, 51 AD2d 1090; Board of Regents v Roth, 408 US 564; Matter of Economico v Village of Pelham, 50 NY2d 120.)
   OPINION OF THE COURT

Per Curiam.

Appellants are sitting Judges of the Unified Court System who, following their respective reelections in November of various years since 1977 but prior to commencing their new terms of office in January of the following year, applied to the New York State Retirement System for retirement benefits and thereafter retired on or before the date of the commencement of their new term of office. After the commencement of their respective new terms of office, each appellant received both retirement benefits and the salary for their judicial offices simultaneously until the Comptroller suspended the payment of retirement benefits following enactment by the Legislature of chapter 117 of the Laws of 1984.

Appellants then successfully instituted these article 78 proceedings challenging the determinations of the Comptroller. The Appellate Division, with two Justices dissenting, reversed the Special Term judgments and appellants have appealed to this court as of right (CPLR 5601 [a]).

All parties agree that the 1984 amendment to Civil Service Law § 150 (L 1984, ch 117) prospectively prohibits incumbents who have won reelection to the same office from receiving salary payments and retirement benefits simultaneously where they have retired subsequent to reelection but prior to assuming their new term of office. Likewise, all parties agree that the 1984 amendment cannot be applied retroactively (see, Public Employees Fedn. v Cuomo, 62 NY2d 450; Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1) and that if the relevant statutes in effect at the time that the appellants retired (all of the appellants retired prior to the effective date of the 1984 amendment to Civil Service Law § 150) authorized an incumbent to win reelection, retire, and upon assumption of his new term of office receive both salary payments and retirement benefits, then the subsequent suspension of the retirement benefits would violate NY Constitution, article V, § 7.

Our Legislature has for over a half century evinced a strong public policy in favor of the suspension of retirement benefits of a person who after retiring accepts an office in the civil service of the State (see, Civil Service Law § 32, added by L 1932, ch 78, repealed by L 1958, ch 790; Civil Service Law § 71-a, added by L 1921, ch 207, repealed by L 1947, ch 841; Civil Service Law § 150, added by L 1958, ch 790; Retirement and Social Security Law § 101, added by L 1955, ch 687). Although exceptions have been made to this general proscription, it is clear that such exceptions were enacted for limited purposes and were not meant to abrogate or dilute the longstanding and overriding State policy to prohibit the receipt of retirement benefits and salary at the same time which could constitute an abuse of the public fisc.

We must reject appellants’ argument that they fall within the exception provided in Civil Service Law § 150 for an "elective public office” (see, Retirement and Social Security Law § 101 [d] [3]). As initially interpreted (see, 1947 Opns Atty Gen 138; 1936 Opns Atty Gen 178; 1935 Opns Atty Gen 145; 1935 Opns Atty Gen 144) and subsequently codified (see, L 1955, ch 687, adding Retirement and Social Security Law § 101), this exception was limited to local elective public officers, who it was feared, would be discouraged from seeking local elective offices, which traditionally were low-paying, if their retirement benefits thereby would be suspended (see, 1947 Opns Atty Gen 138, 139; 1955 NY Legis Ann, at 84, 86). Moreover, the expansion of this exception in 1975 by the amendment of Retirement and Social Security Law § 101 (d) (3) to include both State and local elective officers was intended to do no more than "provide that retired police and firemen that are elected to state elective public office are exempt from the requirement that retirement pensions or annuities be suspended during the period of renewed service” (Memoranda of Assemblyman Stephen R. Greco, 1975 NY Legis Ann, at 75). To extend this limited exception beyond its intended application would, in these circumstances, be illogical, and would effectively defeat the intent and purpose of the Legislature in enacting the broader statutory scheme and would contravene the established public policy of this State. Accordingly, we conclude that appellants had no statutory or contractual entitlement to receive their retirement benefits while simultaneously receiving salary payments for their judicial offices and that the suspension of those benefits by the Comptroller did not contravene NY Constitution, article V, §7.

We have considered appellants’ other Federal and State constitutional arguments as well as their contention that estoppel is available against the State under these circumstances and conclude that these arguments are without merit.

We would note that inasmuch as appellant Maresca, who reached the age of 70 on May 27, 1984, claims that Retirement and Social Security Law § 212 exempts him from the suspension of his retirement allowance and respondents having not disputed the applicability of this statute to him, the order of the Appellate Division should be reversed and the petition of appellant Maresca granted. Based on the foregoing, however, the remaining orders of the Appellate Division should be affirmed, with costs.

Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion; Chief Judge Wachtler taking no part.

In Matter of Baker v Regan, Matter of Dempsey v Regan, Matter of Brennan v Regan, Matter of Garvey v Regan, and Matter of LaFauci v Regan: Order affirmed, with costs.

In Matter of Maresca v Regan: Order reversed, with costs, and petition granted.

       NY Constitution, article V, § 7 states: "After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.”


text:
    William F. Kidney, Jr., an Infant, by William F. Kidney, His Father and Natural Guardian, et al., Plaintiffs, v Kolmar Laboratories, Inc., Appellant, et al., Defendant, and Orange County Department of Social Services, Respondent.
    Decided November 18, 1986

      APPEARANCES OF COUNSEL

      Jeffrey J. Ellis for Kolmar Laboratories, Inc., defendant.

      James G. Sweeney, County Attorney, for Orange County Department of Social Services, respondent.
   OPINION OF THE COURT

Per Curiam.

Where an insurer, on behalf of its insured, prior to a judgment or settlement in a tort action, makes voluntary advances for medical treatment to an injured party receiving public assistance, those advances do not constitute "the payment of any moneys” within Social Services Law § 104-b, so as to defeat the lien of the social services agency for its payments for medical treatment.

On June 7, 1981, plaintiff William Kidney, Jr., an infant, suffered serious injuries when he climbed on a transformer located on the property of defendant Kolmar Laboratories, Inc. On July 13, 1981 and again on July 1, 1982, Liberty Mutual Insurance Co., on behalf of Kolmar (its insured), voluntarily made advances of $30,000 for William Jr.’s medical treatment to the infant’s parents, intending that these advances be offset against any ultimate award. Respondent, the Orange County Department of Social Services (DSS), also made payments (totaling $27,503.33) to the boy’s father for William Jr.’s medical treatment. An action against Kolmar and Orange and Rockland Utilities, Inc., in the United States District Court for the Southern District of New York, resulted in a judgment in the amount of $637,500 for William Jr. and $37,500 for his father, plaintiff William Sr. Kolmar’s share of the judgment payable to William Sr. was $22,500.

Two weeks after entry of judgment, DSS served and filed a notice of lien, pursuant to Social Services Law § 104-b, for the $27,503.33 previously paid to William Sr. Plaintiffs moved for an order vacating the lien, effectuating the satisfaction of the judgment, and approving the distribution of the proceeds received in satisfaction of the judgment; DSS cross-moved for an order directing plaintiffs to pay the full value of the lien and sought enforcement of the lien against the award.

The District Court concluded that the award to William Sr. included payment for his son’s medical expenses, and therefore was subject to recoupment, and it upheld the DSS lien on that award. Recognizing that the effectiveness of the DSS lien under Social Services Law § 104-b (2) turned on whether Kolmar had been notified of the existence of the lien "prior to the payment of any moneys to [the] injured party,” the District Court noted that the statutory phrase "the payment of any moneys” was susceptible of two interpretations, and that the choice presented a question of first impression. The phrase could be read broadly to include any delivery of money, or narrowly to include only required transfers. The court looked to the legislative intent embodied in the statute, and chose the more limited definition, confining the word "payment” to sums delivered only after judgment or settlement. The court observed that "[interpreting payment as occurring after the resolution of a dispute defends the public weal from plaintiffs who would seek to turn an accident into a windfall. By law, agencies like the Orange County Department of Social Services must pay the medical expenses of injured indigents. The people of the State of New York have chosen to confer this benefit upon the disadvantaged. However, the State’s citizens have not sought to give indigent plaintiffs both their medical expenses and other sums which they can obtain from insurers eager to settle a claim quickly and inexpensively. This sort of double recovery at public expense is exactly what the several parts of § 104 are designated to prevent.” (83 Civ 8578, US Dist Ct, SDNY, Nov. 4, 1985, Gagliardi, J.)

On Kolmar’s appeal, the United States Court of Appeals certified to us the following question (which we accepted for review): "whether money advanced by an insurer on behalf of its insured to an injured party, prior to settlement or judgment of a tort action, is 'the payment of any moneys’ within the meaning of section 104-b (2) of the New York Social Services Law.” We conclude that it is not.

Social Services Law § 104-b allows social service agencies, in certain instances, to recoup public assistance payments for "assistance and care” from recipients who subsequently obtain recoveries in personal injury actions. Section 104-b (1), in particular, authorizes these agencies to fix liens against the recoveries, thereby enabling the agencies to recover the payments directly from the tort-feasors or their insurers. Section 104-b (2), however, imposes a notice requirement: "No such lien shall be eifective * * * unless a written notice * * * is * * * served [upon the tort-feasor and its insurer] prior to the payment of any moneys to such injured party”. The validity of the DSS lien here depends on whether or not the voluntary advances by Kolmar’s insurer constitute "the payment of any moneys” within the meaning of section 104-b (2).

We agree with the conclusion of the District Court that "the payment of any moneys” as used in Social Services Law § 104-b (2) means payments made as a matter of obligation, not voluntary advances. Reading the word "payment” to mean performance of a duty or obligation, or discharge of a debt (see, Black’s Law Dictionary, at 1016-1017 [5th ed]), in this case supports the legislative purpose in enacting Social Services Law § 104-b — to facilitate recoupment of public funds by social services agencies (see, Baker v Sterling, 39 NY2d 397, 405-406). Conversely, the interpretation urged by appellant— that "the payment of any moneys” means any transfer of money — would enable a tort-feasor or its insurer, by even minimal voluntary advances to an injured indigent person, to defeat the agency’s lien and thereby render the statute meaningless. While defendant urges that public policy will be disserved by our reading of the statute, because tort-feasors and their insurers will be discouraged from making voluntary advances, it remains for the Legislature to amend the law if our construction does not conform to the legislative purpose.

Accordingly, the certified question should be answered in the negative.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion.

On review of submissions, following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this court pursuant to section 500.17 of the Rules of Practice of the New York State Court of Appeals (22 NYCRR 500.17), certified question answered in the negative.

       Although William Sr. is subject to suit for recoupment of the medical expenses paid to him by Kolmar, he is without assets. Thus, as a practical matter, the priority of the claims will determine whether Kolmar or DSS suffers a loss. The court concluded that amounts paid to the infant himself were not subject to recoupment, and this is not in issue before us.


text:
    In the Matter of Anthony Rush, Respondent, v Norman Mordue, as County Court Judge for the County of Onondaga, et al., Appellants.
    Argued October 7, 1986;
    decided November 18, 1986

      POINTS OF COUNSEL

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando
      and Maureen A. MacPherson of counsel), for appellants.
    I. The court below erroneously held that a CPLR article 78 proceeding was proper. (Matter of Dondi v Jones, 40 NY2d 8; Matter of State of New York v King, 36 NY2d 59; Matter of Nigrone v Murtagh, 36 NY2d 421; Matter of Lee v County Ct., 27 NY2d 432; Matter of Carey v Kitson, 93 AD2d 50; Matter of Brockway v Monroe, 89 AD2d 771.) II. The court below erred in holding that respondent could not be prosecuted for perjury under Penal Law §§ 210.10 and 210.20. (United States v Apfelbaum, 445 US 115; United States v Wong, 431 US 174; United States v Mandujano, 425 US 564; United States v Knox, 396 US 77; Bryson v United States, 396 US 64; People v Sobotker, 61 NY2d 44; People v Rappaport, 47 NY2d 308; People v Chin, 67 NY2d 22; People v Polk, 100 Misc 2d 435).

      Langston C. McKinney for respondent.
    I. A claim of transactional immunity is properly cognizable in a CPLR article 78 proceeding in the nature of prohibition. (Matter of Hogan v Culkin, 18 NY2d 330; Matter of Lee v County Ct., 27 NY2d 432; Matter of Steingut v Gold, 42 NY2d 311; Matter of State of New York v King, 36 NY2d 59; Matter of Blake v Hogan, 25 NY2d 747; Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560; Matter of Wiley v Altman, 52 NY2d 410; People v Williams, 81 AD2d 418, 56 NY2d 916; Matter of Brockway v Monroe, 89 AD2d 771, 59 NY2d 179; Matter of Carey v Kitson, 93 AD2d 50, 60 NY2d 553.) II. Respondent’s testimony before the Onondaga County Grand Jury resulted in his receiving transactional immunity for his prior inconsistent written statement. (People v McFarlan, 89 Misc 2d 905, 52 AD2d 112, 42 NY2d 896; People v Williams, 81 AD2d 418, 56 NY2d 916; People v Rappaport, 47 NY2d 308; Matter of Anonymous Attorneys, 41 NY2d 506; Matter of Second Additional Grand Jury [CiofjiJ 8 NY2d 220; People v Reila, 7 NY2d 571; Matter of Carey v Kitson, 93 AD2d 50, 60 NY2d 553; People v Pardo, 81 AD2d 530.) III. Prosecution of respondent on indictment No. 85-547-1 is prohibited, inasmuch as the indictment is predicated in part on respondent’s immunized written statement. (People v Williams, 81 AD2d 418, 56 NY2d 916; People v Sobotker, 61 NY2d 44; People v Chin, 67 NY2d 22.)
   OPINION OF THE COURT

Alexander, J.

Where a witness is called before a Grand Jury and, without having executed a waiver of immunity, gives testimony concerning the truthfulness of a prior sworn statement and disavows that prior statement as having been false when given, transactional immunity resulting from the compelled testimony is acquired with respect to that prior statement, and the witness may not thereafter be prosecuted for perjury based upon the inconsistency between the prior sworn statement and the Grand Jury testimony. Where such prosecution is threatened, a writ of prohibition under CPLR article 78 will lie to raise the claim of immunity and interdict the prosecution.

I

While standing outside a liquor store in Syracuse with two other men, petitioner Anthony Rush heard shots ring out. He was questioned by the police during the ensuing investigation and told them he saw one of the men, Lucas Bouges, shoot the victim, Leroy Johnson. He signed a sworn statement to that effect, which was the basis for the subsequent issuance of a felony complaint (CPL 100.20) and the arrest of Bouges. In the course of seeking an indictment against Bouges, the People called Rush to testify before the Grand Jury. Rush, without executing a waiver of immunity, told the Grand Jury he had lied in his sworn statement to the police; that in fact he never had seen Bouges shoot Johnson. Thereafter, a separate Grand Jury indicted Rush for the crime of second degree perjury (Penal Law § 210.10) charging that he swore falsely either when he gave his sworn statement to the police, or when he testified before the Grand Jury, because the statements were so inconsistent that one of them was necessarily false (Penal Law § 210.20). Rush moved to dismiss the indictment claiming that because he was granted transactional immunity in exchange for compelled testimony, he could not be prosecuted for any crime (including perjury) on the basis of his sworn police statement, nor could the People use the police statement as evidence against him in a prosecution for perjury allegedly committed before the Grand Jury. Trial court denied the motion but found that although the evidence was insufficient to support a charge of perjury in the second degree, it was sufficient to support the lesser included crime of perjury in the third degree. Trial court also rejected Rush’s immunity claim, holding that a Grand Jury witness has no immunity against a charge of perjury knowingly and intentionally committed before the same body. Rush then commenced a CPLR article 78 proceeding in the nature of prohibition at the Appellate Division seeking to enjoin his prosecution under the perjury indictment.

The Appellate Division granted Rush’s petition and dismissed the indictment, concluding that a proceeding pursuant to article 78 seeking a writ of prohibition is available to assert a claim of immunity from prosecution, and that, because Rush had acquired immunity from prosecution for and therefore could not be convicted of perjury as to the sworn statement given to the police, an indictment that would permit the jury to return a perjury conviction based on that sworn statement was fatally defective, and the court was without jurisdiction to try him thereunder. We granted leave to appeal (67 NY2d 604).

II

The initial question we consider is whether the remedy of prohibition under CPLR article 78 is available to a petitioner to raise a claim of immunity from prosecution. We again observe that although CPLR 7803 (2) authorizes a proceeding under article 78 to test "whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction”, the extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court (if a court is involved) acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction (Matter of Steingut v Gold, 42 NY2d 311, 315; Matter of Dondi v Jones, 40 NY2d 8, 13; La Rocca v Lane, 37 NY2d 575, 578-579; Matter of State of New York v King, 36 NY2d 59, 62; Matter of Proskin v County Ct., 30 NY2d 15, 18; Matter of Lee v County Ct., 27 NY2d 432, 436-437). Use of the writ is, and must be, restricted so as to prevent incessant interruption of pending judicial proceedings by those seeking collateral review of adverse determinations made during the course of those proceedings. Permitting liberal use of this extraordinary remedy so as to achieve, in effect, premature appellate review of issues properly reviewable in the regular appellate process would serve only to frustrate the speedy resolution of disputes and to undermine the statutory and constitutional schemes of ordinary appellate review (Matter of Dondi v Jones, supra, at p 21 [Breitel, J., dissenting]; La Rocca v Lane, supra, at p 579; Matter of State of New York v King, supra, at pp 63-64).

While we have heretofore allowed use of this extraordinary remedy in respect to pending criminal proceedings, we have stressed it should be available only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding, as for example, the prosecution of a crime committed beyond the county’s geographic jurisdiction (see, e.g., Matter of Steingut v Gold, 42 NY2d 311, supra). This type of error is to be distinguished from errors of substantive law or procedure committed within a proceeding which is properly maintainable, even though concededly "there is no sharp line between a court acting in error under substantive or procedural law and a court acting in excess of its powers, if only because every act without jurisdiction or in excess of [authorized] powers * * * of necessity involves an 'error of law’ ” (La Rocca v Lane, supra, at p 580). Notwithstanding the difficulty in drawing subtle distinctions, we have said, and now reiterate with emphasis, that prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power (Matter of Steingut v Gold, supra, at p 315; Matter of State of New York v King, supra, at p 62).

Even in those rare circumstances where an arrogation of power would justify burdening the judicial process with collateral intervention and summary correction, the writ of prohibition nonetheless does not issue as of right, but only in the sound discretion of the court (Matter of Dondi v Jones, supra, at p 13; La Rocca v Lane, supra, at p 579; see also, Matter of Culver Contr. Corp. v Humphrey, 268 NY 26, 39). In exercising that discretion, a court must weigh a number of factors: the gravity of the harm caused by the act sought to be performed by the official; whether the harm can be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity; and whether prohibition would furnish "a more complete and efficacious remedy * * * even though other methods of redress are technically available” (Matter of Dondi v Jones, supra, at p 14; La Rocca v Lane, supra, at pp 579-580; Matter of State of New York v King, supra, at p 62; Matter of Lee v County Ct., supra, at p 437; Matter of Culver Contr. Corp. v Humphrey, supra, at p 40).

Generally, the ordeal of a criminal trial and the possibility of conviction, by themselves, are insufficiently harmful to warrant use of the writ (Matter of Dondi v Jones, supra, at p 14). Moreover, the fact that the harm sought to be redressed implicates a constitutional right, does not necessarily command availability of the writ, for not all constitutional claims are cognizable by way of prohibition (see, e.g, Matter of Blake v Hogan, 25 NY2d 747 [prohibition does not lie where claim is denial of right to speedy trial]). Prohibition may lie, however, where the claim is substantial, implicates a fundamental constitutional right, and where the harm caused by the arrogation of power could not be adequately redressed through the ordinary channels of appeal. (La Rocca v Lane, supra, at pp 579-581.) Thus, for example, when a defendant is about to be prosecuted in violation of his constitutional right against double jeopardy, we have concluded that the harm that he would suffer — prosecution for a crime for which he cannot constitutionally be tried — is so great and the ordinary appellate process so inadequate to redress that harm, that prohibition will lie to raise the claim (see, e.g., Matter of Kraemer v County Ct., 6 NY2d 363).

Here, petitioner raises a claim of similar magnitude. Although his claim of immunity from prosecution arising out of compelled testimony before a Grand Jury is grounded in a statutory grant of immunity (CPL 190.40), the statute grants such immunity in recognition of the fundamental constitutional privilege against self-incrimination. If petitioner is correct in his assertion of immunity, the prosecution threatened here would proceed in violation of his Fifth Amendment privilege, and the harm he would suffer would be — as in the case of double jeopardy — prosecution for a crime for which he cannot constitutionally be tried. Furthermore, the prosecution of a crime foreclosed by the protection of immunity implicates the propriety of the entire proceeding (accord, Matter of Brockway v Monroe, 89 AD2d 771, affd on other grounds 59 NY2d 179; Matter of Carey v Kitson, 93 AD2d 50). Consequently, we conclude that in the circumstances of this case, an article 78 proceeding in the nature of prohibition may properly be utilized to assert a claim of immunity from prosecution arising out of compelled testimony before a Grand Jury.

Ill

Turning to the merits, we conclude that the Appellate Division correctly determined that petitioner received immunity relating to his sworn statement to the police, and that therefore he may not be prosecuted for perjury based upon that sworn statement or through the use of that sworn statement. In our State, a witness at a Grand Jury proceeding is compelled to give any evidence legally requested (CPL 190.40 [l]). In exchange for that compelled testimony and in recognition of the witness’s constitutional privilege against self-incrimination, CPL 190.40 (2) confers automatic immunity from prosecution of any offenses concerning the compelled testimany, with exceptions not relevant here. CPL 50.10 (1), defining the scope of the conferred immunity, provides that a person who has been a witness in a legal proceeding cannot be prosecuted for any offense "on account of any transaction, matter or thing concerning which he gave evidence therein”, and we have interpreted this as a grant of full "transactional” immunity for any topic discussed by the witness within the scope of the proceeding (Matter of Brockway v Monroe, 59 NY2d 179, 189, supra; see also, People v Chin, 67 NY2d 22, 33, n 4, and cases cited therein).

The People argue that Rush was not called before the Grand Jury to ascertain whether he lied to the police, but to recount his observations at the scene of the homicide. Consequently, they contend, the immunity that Rush received does not extend to the truth or falsity of his statement to the police, but only to crimes relating to the transaction under investigation — the homicide. This record conclusively demonstrates, however, that petitioner’s statements that he lied to the police and never saw Bouges shoot Johnson were in direct response to the prosecutor’s questions concerning the veracity of the sworn statement petitioner had given to the police. Although this portion of petitioner’s testimony does not relate to the underlying transaction for which he was called to testify, the instant offense for which he was indicted was charged "on account of’ the prior sworn police statement, the veracity of which in fact became a subject of the prosecutor’s inquiry, no matter that it was not initially so intended (Matter of Brockway v Monroe, supra). Thus petitioner received full transactional immunity from prosecution of any offense "on account of any transaction, matter or thing concerning which he gave evidence”, including the truth or falsity of the sworn statement given to the police.

CPL 50.10 (1) provides further that a person who possesses transactional immunity by virtue of having been a witness in a legal proceeding "may nevertheless be convicted of perjury as a result of having given false testimony in such legal proceeding”. Petitioner’s transactional immunity, therefore, does not foreclose a prosecution for any perjury allegedly committed before the Grand Jury, and petitioner concedes as much.

Here, however, the People have charged petitioner with perjury in reliance on Penal Law § 210.20 which provides that "[w]here a person has made two statements under oath which are inconsistent to the degree that one of them is necessarily false * * * the inability of the people to establish specifically which of the two statements is the false one does not preclude a prosecution for perjury [and] the indictment * * * may set forth the two statements and, without designating either, charge that one of them is false and perjuriously made”. Under an indictment drafted pursuant to Penal Law § 210.20, the jury is not called upon to determine on which occasion the petitioner lied. Any guilty verdict would be based on the jury’s conclusion that he lied in either the one statement or the other. Therefore, this indictment permits the jury to consider the prior sworn police statement in order to reach a conclusion that petitioner committed perjury before the Grand Jury, or to find that petitioner told the truth to the Grand Jury, but lied in his sworn statement to the police. Conviction based upon the falsity of the sworn statement given to the police, however, is precluded by the immunity conferred upon petitioner when he testified before the Grand Jury regarding that statement. And, although the possibility of a conviction for perjury committed before the Grand Jury would not be precluded, the sworn statement given to the police may not be used to prove that perjury. Because this indictment would permit the jury either to convict petitioner of the very crime for which he has been granted immunity, or to use evidence of that crime to convict him of perjury committed before the Grand Jury, and because prosecution thereunder necessarily implicates a violation of petitioner’s privilege against self-incrimination, it is fatally defective.

The People argue that under Penal Law § 210.20, the offense of perjury does not arise until the second, and inconsistent, sworn statement is made. This argument is specious. Penal Law § 210.20 does not define a substantive offense, it merely provides a method of pleading and proving the already defined offense of perjury (Penal Law § 210.10). The People’s remaining arguments have been considered and found to be without merit.

Based upon the foregoing, the judgment of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Titone concur; Judge Hancock, Jr., taking no part.

Judgment affirmed, without costs.

      . By stipulation of the parties, the underlying criminal case (People v Rush) has been stayed pending determination of this appeal.

      . For historical perspective, we note that originally, the English Kings issued writs of prohibition to restrict the powers of ecclesiastical courts over temporal matters and the remedy has since evolved into a basic means of protection for the individual in his relations with the State (Matter of Dondi v Jones, 40 NY2d 8, 12; La Rocca v Lane, 37 NY2d 575, 578). The remedy of prohibition is firmly rooted in our common law and has been codified in this State for many years (see, CPLR art 78; Civ Prac Act art 78; see also, Matter of Dondi v Jones, supra, at p 12; La Rocca v Lane, supra, at pp 578-579; see generally, Comment, Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76, 76-84; Wolfram, "Ancient and Just” Writ of Prohibition in New York, 52 Colum L Rev 334, 338-353).

      . Furthermore, in order for prohibition to lie, the writ must be directed to some inferior judicial tribunal or officer and must seek to prevent or control judicial or quasi-judicial action only as opposed to legislative, executive or administrative acts (Matter of Steingut v Gold, 42 NY2d 311, 315; Matter of Dondi v Jones, 40 NY2d 8, 13). There is no dispute here that "[a] public prosecutor is a quasi-judicial officer, who performs important duties within our judicial system, and is subject to prohibition under proper circumstances” (Matter of Dondi v Jones, supra, at p 13; see, e.g., Matter of Simonson v Cahn, 27 NY2d 1, 2 [article 78 proceeding brought to prohibit prosecution of a felony absent indictment by a Grand Jury]).

      . We have permitted an article 78 proceeding in the nature of prohibition to interrupt pending criminal proceedings on other rare occasions. In La Rocca v Lane (37 NY2d 575), we permitted petitioner, a catholic priest and defense attorney, to use prohibition to vindicate a claimed violation of his First Amendment right of freedom of religion, and in Matter of Lee v County Ct. (27 NY2d 432), we permitted defendant-petitioner to use prohibition to vindicate a claimed violation of his Fifth Amendment privilege against self-incrimination.

      . The United States Supreme Court has characterized the privilege against self-incrimination as " 'the hallmark of our democracy’ ” and "the essential mainstay of our adversary system” (Miranda v Arizona, 384 US 436, 460). See, Miranda, supra, at pp 458-466, for a comprehensive review of the roots, historical development and fundamental nature of the Fifth Amendment’s privilege against self-incrimination.

      . CPL 190.40 (1) provides: "Every witness in a grand jury proceeding must give any evidence legally requested of him regardless of any protest or belief on his part that it may tend to incriminate him.”

      . CPL 190.40 (2) provides that "[a] witness who gives evidence in a grand jury proceeding receives immunity unless * * * [h]e has effectively waived such immunity * * * or [s]uch evidence is not responsive to any inquiry and is gratuitously given or volunteered by the witness with knowledge that it is not responsive.”

      . "Legal proceeding” is defined in CPL 50.10 (2) as "a proceeding in or before any court or grand jury, or before any body, agency or person authorized by law to conduct the same and to administer the oath or cause it to be administered”.

      . The Grand Jury testimony in pertinent part was as follows:
      "Q. [T]his is your statement you gave to the police that night?
      "A. Yes.
      "Q. Did you tell the truth to the police that night?
      "A. No.
      "Q. You lied to the police that night?
      "A. I lied to the police.
      "Q. Doesn’t it say in your statement, T have read this statement which consists of one page and the facts contained therein are true and correct to the best of my knowledge. I have also been told that swearing to a false statement can make me guilty of perjury.’ Did the cop—
      "A. Didn’t I just tell you I lied to you?
      "Q. So you lied under oath to the policemen?
      "A. Right.
      * * *

        "Q. Why did you lie to the police?
      "A. Because I lied.”

      . The Appellate Division based its determination in part upon its reading of this second sentence of CPL 50.10 (1), concluding that because petitioner’s sworn statement to the police was not given, in "a legal proceeding”, the CPL 50.10 (1) exception does not apply and the People may not charge petitioner with perjury based on that statement. This analysis implies that had petitioner’s prior sworn statement been made in "a legal proceeding” as that term is defined in CPL 50.10 (2), the instant perjury charge might have fallen within the statutory exception and been permissible. We find it unnecessary to consider that possibility since we conclude • that this indictment must, in any event, be dismissed.