text:
    In the Matter of Joyce T. W. Burton Richardson, as Director of Monroe County Department of Social Services, Respondent; Christopher T. et al., Appellants.
    Argued March 27, 1985;
    decided May 7, 1985

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (Joan S. Kohout and Margaret A. Burt of counsel), for appellants.
    I. The court below erred as a matter of law by failing to remit the case of Joyce T. to Family Court for further hearing to determine whether long-term foster care would serve her best interests in light of the paucity of proof in the trial record relevant to that issue. (Santosky v Kramer, 455 US 745; Shelton v Tucker, 364 US 479; Matter of Peter John “DD”, 48 AD2d 956; Matter of Nereida S., 57 NY2d 636; Matter of Wesley L., 72 AD2d 137.) II. The court below’s affirmance of the Family Court’s holding that the parents were presently, and for the foreseeable future, unable, by reason of mental retardation to adequately care for the child Joyce was erroneous because the proof was not clear and convincing. (Santosky v Kramer, 455 US 745; Matter of Daniel A.D., 49 NY2d 788; Matter of Nereida S., 57 NY2d 636; Matter of Hime Y., 52 NY2d 242; Matter of Richard M., 110 Misc 2d 1031; Matter of Dochingozi B., 57 NY2d 641.) III. Social Services Law § 384-b (4) (c) denies equal protection and due process of law to mentally limited and retarded parents. (Matter of Nereida S., 57 NY2d 636; Quilloin v Walcott, 434 US 246; Santosky v Kramer, 455 US 745; Matter of Orlando F., 40 NY2d 103; United States v Carolene Prods., 304 US 144; San Antonio School Dist. v Rodriguez, 411 US 1.)

      Marcia H. Wishengrad and Milo I. Tomanovich for respondent.
    I. The court below erred as a matter of law by ruling that long-term foster care may be considered as an alternative to parental termination although it was correct in not remitting the matter herein for further hearing to consider long-term foster care as an alternative to parental termination. (Matter of Sylvia M., 82 AD2d 217, 57 NY2d 636; Matter of Ursula P., 108 Misc 2d 181; Quilloin v Walcott, 434 US 246.) II. The court below’s affirmation of the Family Court’s order holding that the respondents-appellants are presently, and for the foreseeable future will be, unable to provide adequate care for the child Joyce T. by reason of mental retardation, was correct and petitioner’s degree of proof was clear and convincing. III. Social Services Law § 384-b (4) (c) does not deny equal protection and due process of law to mentally retarded parents. (Matter of Sylvia M., 82 AD2d 217; Mathews v Lucas, 427 US 495; General

      Elec. v Gilbert, 429 US 125, 1079; Poelker v Doe, 432 US 519; James v Strange, 407 US 128; Dandridge v Williams, 397 US 471; Meyer v Nebraska, 262 US 390; Wisconsin v Yoder, 406 US 205.)

      Alan L. Offen, Law Guardian.

      Robert Abrams, Attorney-General (Robert J. Schack, Robert Hermann and Maryellen Weinberg of counsel), in his statutory capacity under Executive Law.
    Appellants’ constitutional challenges to Social Services Law § 384-b (4) (c) should not be reached if an alternative nonconstitutional ground such as the sufficiency of proof is available. (New York Tr. Auth. v Beazer, 440 US 568; People v Mobil Oil Corp., 48 NY2d 192; Matter of Peters v New York City Hous. Auth., 307 NY 519; Matter of Dochingozi B., 57 NY2d 641; New York Public Interest Research Group v Carey, 42 NY2d 527; Matter of State Indus. Commn., 224 NY 13; Tucker v Tucker, 55 NY2d 378.) II. The court below erred in requiring long-term foster care to be considered in all parental rights termination cases. Its ruling was contrary to the language and intent of Social Services Law § 384-b (4) (c) and imperils the constitutionality of the statute. (Matter of Nereida S., 82 AD2d 217, 57 NY2d 636; Matter of Richard M., 110 Misc 2d 1031; Matter of Ursula P., 108 Misc 2d 181; Matter of N. Children, 107 Misc 2d 763; Matter of Daniel A. D., 106 Misc 2d 370; Hammelburger v Foursome Inn Corp., 54 NY2d 580; Matter of Raana Beth N., 78 Misc 2d 105; Felt v Felt, 93 AD2d 396, 62 NY2d 691; James v Strange, 407 US 128; Montgomery v Daniels, 38 NY2d 41; People v Broadie, 37 NY2d 100.) III. Social Services Law § 384-b (4) (c) as applied to unfit mentally retarded parents satisfies equal protection and due process requirements. (Caban v Mohammed, 441 US 380; People ex rel. Sibley v Sheppard, 54 NY2d 320; Matter of Nereida S., 82 AD2d 217, 57 NY2d 636; Lehr v Robertson, 463 US 248; Santosky v Kramer, 455 US 745; Quilloin v Walcott, 434 US 246; Smith v Organization of Foster Families, 431 US 816; Dandridge v Williams, 397 US 471; Matter of Levy, 38 NY2d 653; Cleburne Living Center v City of Cleburne, 726 F2d 191.)
   OPINION OF THE COURT

Kaye, J.

Where a child has been in the care of an authorized agency for more than a year prior to a petition to commit guardianship and custody to the agency, and where by clear and convincing evidence the child’s parents are shown to be presently and for the foreseeable future unable, by reason of mental retardation, to provide proper and adequate care for the child, there is no per se requirement of a separate dispositional hearing for consideration of long-term foster care. We therefore affirm the order of the Appellate Division, which itself affirmed the termination of appellants’ parental rights.

I

Appellants are the parents of two children, Christopher (born Mar. 1, 1976) and Joyce (born Dec. 21, 1978). Only the younger child, Joyce, is the subject of this appeal.

As a consequence of neglect petitions filed on their behalf, both children have for a substantial period of time lived away from appellants, under the care of the Department of Social Services (DSS) — Joyce since February 2, 1979, when she was six weeks old, and Christopher since March 8, 1980, when he was four years old. On August 29, 1980, after a dispositional hearing on the neglect petitions, Family Court directed that both children be placed with DSS, for foster home placement, for an initial period of 18 months, and that intensive services be provided by DSS to the family, both to attempt to continue the family relationship and to determine if a family unit could be established. Perceiving in this instance a fundamental conflict, the court asked: “Should the rights of children for growth and development outweigh and take precedence over the rights of the parents for custody control?” While the court noted that both appellants were mildly retarded, the basis for the finding of neglect was not their retardation but their “maladaptive behavior.” Appellants appeared eager to love and care for their children, but had insufficient strengths to provide for them, and their conscious resistance to training and “incorrect priorities,” in the view of Family Court, established that the children would be damaged physically, emotionally and in their identity if they remained with their parents.

Both children have ever since resided, separately, in foster care. For several years, each of them has lived in the home of foster parents who apparently wish to adopt them. Appellants have visited their children regularly throughout these years, usually twice a week.

On April 23, 1981, the DSS Commissioner (respondent) petitioned for commitment of the guardianship and custody of the children pursuant to section 384-b of the Social Services Law, alleging that, owing to the mental retardation of the parents, the best interests of the children would thereby be promoted in that they would be in danger of becoming neglected if placed in or returned to appellants’ custody. Family Court after trial in June 1982 granted the petition.

Ten witnesses testified at the trial, including a court-appointed physician and psychologist, after which the court concluded that, though they were loving, caring and desirous of parenting their children, appellants were simply incapable of doing so. The court found that their condition of mental retardation, in the range of mild to mild-severe, originated in organic damage during the developmental period, and despite “tremendous assistance” from the community and the State in becoming independent and developing child-rearing capacities, appellants continued to suffer from an “impairment of an adaptive behavior.” “While [keeping the floor clean] may be taught and [appellants] actually performed said tasks of removal of dangerous objects from the floor, once left alone [appellants] will permit the condition to exist. Indeed, [appellants] have no ability to plan if any change occurs, even if it is expected by virtue of the fact that independent judgment is lacking and in some instances does not exist. Because of the lack of such concrete response, [appellants] are unable to meet their children’s nutritional, physical and educational needs, which is directly related to their developmental disabilities.” The court mentioned particularly, as support for its finding that appellants would not for the foreseeable future be able to parent their children, the testimony of the pediatrician who had attended the children from birth and expressed the opinion that appellants’ inability would persist for an indeterminate term, which could be up to 20 years.

Family Court found that no dispositional hearing was necessary, since it was “clearly and absolutely convinced that [appellants] will not be able at any time in the future to effectively, safely, or in any conceivable manner parent the children; and, accordingly, a dispositional order would be a redundancy.” While the court acknowledged that full-time support services would assist appellants in parenting their children, it rejected this alternative because, given appellants’ inability, the auxiliary homemakers would become the surrogate parents. Concluding that “[t]his Court must look to the future of these children”, it terminated appellants’ parental rights under section 384-b of the Social Services Law and placed both children with respondent for adoption, with a direction that respondent within seven months file appropriate petitions for court review of the adoptive status of the children.

The Appellate Division modified the Family Court order. While agreeing both (1) that there was clear and convincing evidence to support the finding of mental retardation and inability to provide proper care for the children for the foreseeable future, and (2) that section 384-b (4) of the Social Services Law is not unconstitutional, the court differed on the issue of long-term foster care. The appellate court held that Family Court had erred by refusing to consider long-term foster care as an alternative to termination. Whereas Family Court had concentrated on the status of the parents, the Appellate Division concluded that “termination of parental rights is not warranted, and certainly not mandated, if such is not in the child’s best interests, even though the statutory requirements for termination have been established.” In view of evidence of bonding between Christopher and his parents, the court found error in the exclusion of testimony that Christopher’s best interests might be better served by long-term foster care than by terminating appellants’ parental rights, and it remitted the case to permit additional evidence to determine whether Christopher’s best interests would be served by long-term foster care rather than parental termination. The order with respect to Christopher being nonfinal, this court dismissed appellants’ motion for leave to appeal (63 NY2d 603). As to Joyce, however, the Appellate Division accepted the conclusion of the Law Guardian, which it found supported by the record, that there was insufficient bonding to warrant further consideration; this portion of the order being final, we granted leave to appeal (63 NY2d 601).

Three issues are presented: (1) whether there was clear and convincing proof that appellants were presently and for the foreseeable future unable, by reason of mental retardation, to care for Joyce; (2) whether the court correctly refused to reach the issue of long-term foster care; and (3) whether the statute so construed is constitutional. All three questions we answer in the affirmative.

II

Family Court concluded that there was clear and convincing evidence establishing that both appellants were of subaverage intellectual functioning, which originated during their developmental period, that they were so impaired in their adaptive behavior that the children if returned to their custody would be in danger of becoming neglected children as defined in the Family Court Act, and that their inability effectively, safely or in any conceivable manner to parent the children existed not only for the present but also for the indefinite, foreseeable future. The Appellate Division affirmed that these facts had been established by clear and convincing evidence. While there must be “strict adherence to [the] statutory mandate” (Matter of Daniel A. D., 49 NY2d 788, 790), we cannot conclude that there was no evidence in the record to support these affirmed findings (Humphrey v State of New York, 60 NY2d 742, 743-744; Matter of Hofbauer, 47 NY2d 648, 654).

Both court-appointed doctors who had examined appellants gave testimony as to their physical and mental condition and its origins, and expressed the opinion that their mental retardation was an enduring condition. The psychologist, in addition — in support of his conclusion that the children would be at high physical and psychological risk in appellants’ care, a risk that would continue and escalate, despite assistance, as the children matured — testified that appellants lacked the ability to anticipate, plan, organize and deal with change; he saw no progress in the year between the examinations he had conducted. Similarly, the children’s pediatrician, who had seen each child more than 50 times and appellants with them perhaps 20 times over a five-year period, expressed the opinion that appellants were not adaptive and had extremely limited parenting abilities. While the doctor had in 1979 testified that with a homemaker, public health nurse and other support services, appellants could parent their children, he came to believe that they could not, that the full-time resident help they would require would actually provide the parenting, and that appellants’ inability would persist for the foreseeable future — possibly up to 20 years. The foster care caseworker, who visited appellants’ home more than two dozen times during 1979, 1980 and 1981, and observed them with their children, related specific incidents of appellants’ inability to tend to the physical safety and upbringing of the children. The foster parents gave their observations of appellants and appellants’ relationship with the children during visits.

Appellants urge that there was no recent contact supporting the conclusions, and that there was contrary evidence that they had made progress in their ability to groom themselves, care for their home, and seek help from others when needed. While a brief examination long prior to the hearing and a prognosis based on a medical history, with no articulated basis for the testimony concerning the extent of the illness or its manifestations, would not support the termination of parental rights (see, Matter of Dochingozi B., 57 NY2d 641; and Matter of Daniel A.D., 49 NY2d 788, 790, supra), such was hardly the case here.

The particularized testimony from medical and lay witnesses who had known, examined and worked with appellants over a long period, supporting their conclusions as to appellants’ retardation and inability to parent for the foreseeable future, with no countervailing psychiatric, psychological or medical evidence of appellants’ alleged recent progress (Social Services Law § 384-b [6] [e]), constitutes clear and convincing proof of the statutory requisites (Matter of Nereida S., 57 NY2d 636). There is no basis for disturbing the factual findings below.

Ill

Given these factual determinations, we next consider what disposition is to be made. This question is narrowed and focused by appellants’ contention that the error below was in the court’s failure to remit the case for a consideration of whether long-term foster care would serve Joyce’s best interests. The issue is not whether parental rights should be terminated because prospective parents may be more intelligent, or affluent, or “better” parents. Nor is there any question of fault on the part of appellants, or penalizing them for their inabilities. The issue is what disposition is to be made in the best interests of the child where the natural parents cannot, for now and the foreseeable future, care for her.

We agree with Family Court that, on this record, a separate dispositional hearing for consideration of long-term foster care was not required. This is not to say that in other situations it would be error for a court in its discretion to order a dispositional hearing in cases of termination based on mental retardation (see, e.g., Matter of N. Children, 107 Misc 2d 763; Matter of Daniel A.D., 106 Misc 2d 370 [upon remand 49 NY2d 788, supra]; see also, Carrieri, Practice Commentaries, McKinney’s Consolidated Laws of NY, Book 52A, Social Services Law § 384-fa, p 141). But given a record convincingly establishing appellants’ present and future inability to care for the child, despite extensive help, and given the child’s long absence from the home and long residence with foster parents apparently wishing to adopt her, we agree with Family Court that a dispositional hearing for consideration of long-term foster care would be a “redundancy,” that is not mandated by statute, and that the best interests of the child are served by freeing her for the permanence and stability of adoption.

In section 384-b, added to the Social Services Law in 1976, the Legislature brought together the various provisions governing termination of parental rights, and gave the Department of Social Services responsibility for supervision of termination proceedings. This legislation, representing the culmination of a year’s intensive research by the Temporary State Commission of Child Welfare (see, “Barriers to the Freeing of Children for Adoption” [1976 Report]), attempts to balance the interests of all concerned parties — the child, the parents and the State.

In section 384-b, the Legislature has placed primacy on the child remaining with the natural parent, because it found both that the child’s needs are usually best met in the natural home and that parents are generally entitled to bring up their own children. The State’s first obligation is to help the family stay together (Social Services Law § 384-b [1] [a] [ii], [iii]). But permanence in a child’s life also has been given a priority, because the Legislature has determined that a normal family life in a permanent home offers the best opportunity for a child to develop and thrive. Providing a fair and timely basis to free a child for adoption is a principal purpose of the statute. When it is clear that natural parents cannot offer a normal home for a child, and “continued foster care” is not an appropriate plan, the statute directs that a permanent home be sought (Social Services Law § 384-b [1] [a] [i], [iv]).

By reference to “continued foster care” the Legislature in section 384-b clearly did not contemplate foster care as a permanent condition, or even a desired goal for the long, indefinite duration, because prolonged foster care is not in a child’s best interests.* * The Legislature found that unnecessarily protracted stays in foster care deprive children of positive, nurturing family relationships, and therefore — by section 384-b — it provided timely procedures for termination of parental rights, thus furthering the best interests, needs and rights of the child by freeing the child for adoption. In connection with parental termination, in this State, foster care is viewed as a temporary way station to adoption or return to the natural parents, not the purposeful objective for a permanent way of life.

One of the five grounds specified for termination is that the parents “presently and for the foreseeable future [are] unable, by reason of mental illness or mental retardation, to provide proper and adequate care for a child who has been in the care of an authorized agency for a period of one year immediately prior to the date on which the petition is filed with the court”. (Social Services Law § 384-b [4] [c].)* ** The petition cannot be brought until the child has been in agency custody for at least one year. Termination on this basis requires a two-part determination at the fact-finding stage, first of the parents’ condition and capacity, including consideration of measures on the part of the State to maintain the family setting, and second of the anticipated effect for the foreseeable future if the child is returned to their care.

In cases of termination for mental retardation the Legislature has not provided for a separate dispositional hearing — “a hearing to determine what order of disposition should be made in accordance with the best interests of the child” (Family Ct Act § 623) — as it has in cases of termination based on permanent neglect (Social Services Law § 384-b [3] [f]; Family Ct Act §§ 611, 623). While in cases of neglect the separate hearings have been found to serve the beneficial purpose of changing parental attitudes, where parental rights are terminated because of their present and future inability, the possibility of such change by definition does not exist, and further delay and indecision do not serve the child’s best interests. Instead, the best interests of the child are subsumed in the initial fact-finding determination as to whether the child could be returned to its home in the foreseeable future (see, Matter of Nereida S., 57 NY2d, at p 640, supra, affg 82 AD2d 217, 234, 235). This is consistent with the language of the statute (see, Social Services Law § 384-b [1] [b]; [3] [i], [k]), as well as its legislative history (see, 1976 Report, at 4, 36-39), both expressly referring to the necessity for consideration of the best interests of the child. Where the requisite findings are made to support termination of parental rights for mental retardation, prolonged foster care is generally inappropriate because the proof establishes that the child cannot be returned to the care of the natural parents for the foreseeable future.

Unlike cases of abandonment, neglect and abuse, the painful process of severing parental rights on account of their inability to care for a child involves no wrongdoing or fault on their part. As here, parents may love their child, desire to parent her, and make extensive efforts to create a relationship with her. But at the heart of the matter is the fact that the parents have been convincingly shown to be wholly incapable of providing proper and adequate care for the child for the foreseeable future. In this situation the Legislature has determined that, however blameless and loving the parents, the child’s best interests demand that she be freed for a permanent home.

IV

Finally, we reject appellants’ argument that section 384-b (4) (c) of the Social Services Law is unconstitutional because it infringes on the fundamental rights of intellectually limited parents without a justifiable compelling State interest, or even a rational basis.

We find no material distinction from Matter of Nereida S. (57 NY2d 636, supra), where we concluded that there was no violation of the procedural and substantive due process or equal protection in a termination of parental rights based on mental illness. As we held in Nereida, “The statutes provide significant procedural safeguards for the natural parent’s rights and authorize termination of parental rights only when specific and definite criteria are met and when necessary in the best interest of the child. Similarly unpersuasive is the argument that the statutes authorize termination of rights on the basis of a parent’s status as mentally ill. Termination is warranted only when the parent’s mental illness manifests itself in conduct demonstrating a present and future inability to care for the child. It is the parent’s conduct and relationship with the child, not his or her status per se, that forms the predicate for terminating parental rights.” (id., at p 640.)

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Alexander concur.

Order affirmed, without costs.

      . As the court observed, appellants already had a long history of involvement with more than a dozen local agencies. The court directed continuing child protective and foster care casework services, health services, vocational/ rehabilitation services, and continuing family evaluations.

      . On the dispositional question, the issue pressed by appellants is that of long-term foster care, not parental visitation. While appellants also complain that no attention was given to sibling visitation or the sibling relationship, we do not reach the question whether, after termination of parental rights, provision may be made for some continuing tie with Joyce’s biological family, as by visitation in connection with an order of adoption (see, Matter of Anthony, 113 Misc 2d 26; cf. People ex rel. Sibley v Sheppard, 54 NY2d 320). Respondent in his brief indicates that visitation with appellants as well as with Christopher would continue after Joyce’s adoption. (See generally, Davis, Use and Abuse of the Power to Sever Family Bonds, 12 NYU Rev of Law & Social Change 557; Amadio and Deutsh, Open Adoption: Allowing Adopted Children to “Stay in Touch” with Blood Relatives, 22 J Fam Law 59.)

      . As stated in the Memorandum of the Temporary State Commission on Child Welfare:
      “This bill, introduced at the request of the Temporary State Commission on Child Welfare, is a major product and component of a Title IV-B funded, research and demonstration project, conducted by the Commission for the State Department of Social Services. The purpose of the study entitled ‘Barriers to the Freeing of Children for Adoption’, was to determine why existing statutes relating to termination of parental rights have failed (as evidenced by unconscionable delays in freeing children or, even worse, by failure to free children resulting in many instances of needless and detrimental continuation of children in the limbo of foster care) and to recommend remedial action.
      “The bill reflects the Commission’s many statutory recommendations arising from its Study which was based, in large part, on interviews with those responsible for administering or implementing the laws: Family Court judges, surrogates, administrative, supervising and casework staff in public and voluntary child care agencies, and attorneys representing agencies, parents and children. The bill represents, probably for the first time, a comprehensive, unified approach to a complex, highly specialized field and its inherent and systemic problems.
      “Public costs for foster care in New York State aggregate more than $270 million on an annual basis, and are expended for nearly 49,000 children. For several thousands of these children whose families cannot be reunited and who, therefore, cannot return to their own homes, foster care has been inappropriately extended for large parts of childhood and adolescence, necessitating consistently high levels of public expenditure, when in fact such children should be legally freed for adoption and placed in adoptive homes.” (1976 New York Legis Ann, “Health and Social Services”, at 239.) “Foster guardianship” has been proposed (see, e.g., S 240, A 7585, 1981 Reg Sess; S 7460, 1978 Reg Sess) but not adopted by the Legislature.

      . An increasing concern for the interests of the child and the child’s right to a normal, permanent family life may be seen in the expansion of grounds for termination of parental rights (1976 Report, at 10-14; see also, Matter of Bennett v Jeffreys, 40 NY2d 543, 546). While abandonment prior to 1959 was the major ground for parental termination, strict judicial interpretation of the concept of “abandonment” led to the adoption of a permanent neglect standard in 1959; mental illness was added in 1973, mental retardation in 1975, and abuse in 1981 (L 1981, ch 739).

      . “[T]he majority of Family Court judges preferred that the dispositional hearing be retained, indicating that during the hiatus between the two hearings, parental attitudes and behavior may change — often as a result of the impact or shock of the fact-finding hearing itself.” (1976 Report, at 28.)

      . Appellants point to the fact that Family Court insisted that the proof at trial be limited to the status of the parents, and excluded evidence (most often tendered by respondent) regarding the mental, physical and emotional health of both children. While the statute necessarily encompasses the best interests of the child as part of the fact-finding determination, on this record — particularly given the affirmed findings and the fact that the alleged error consists of a failure to consider long-term foster care — we cannot say that the exclusion of such evidence here constituted reversible error.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    In the Matter of Farmland Dairies et al., Appellants, v J. Roger Barber, as Commissioner of New York State Department of Agriculture and Markets, Respondent.
    Argued March 28, 1985;
    decided May 7, 1985
    POINTS OF COUNSEL

      Stuart I. Friedman for appellants.
    I. The Commissioner’s denial of Fair Lawn’s extension application violated the full faith and credit clause of the United States Constitution. (Underwriters Assur. Co. v North Carolina Life, 455 US 691; Parker v Hoefer, 2 NY2d 612, 355 US 833; Matter of Braunstein v Board

      of Examiners, 90 AD2d 565, 92 AD2d 1061; Pearson v Pearson, 118 Misc 2d 850; Matter of Ethel K. v Sheldon K., 107 Misc 2d 405; United States v Fryer, 402 F Supp 831, 545 F2d 11; People ex rel. Monastra v Damon, 33 AD2d 944; Durfee v Duke, 375 US 106.) II. Imposition upon Farmland of a “three-year moratorium” on license extensions exceeds the Commissioner’s authority, directly contravenes the statute, is unsupported by the record, and is arbitrary and capricious. (Matter of Sowa v Looney, 23 NY2d 329.) III. The Commissioner’s determination that issuance of the extension license would tend to a destructive competition in a market already adequately served is not supported by a preponderance of the evidence. (Matter of Grimsteed v Carey, 1 AD2d 985; Matter of Tuscan Dairy Farms v Barber, 45 NY2d 215, 439 US 1040.)

      Michael McCormick, Thomas G. Conway and Joan A. Kehoe for respondent.
    I. The Commissioner was not obligated to give extraterritorial effect to New Jersey’s evidentiary rule in deciding the weight to be given to a New Jersey criminal conviction in a New York proceeding. Therefore, there was no violation of the full faith and credit clause of the United States Constitution. (Matter of Friendship Dairies v Du Mond, 284 App Div 147; Thomas v Washington Gas Light Co., 448 US 261; Sherrer v Sherrer, 334 US 343; Alaska Packers Assn, v Commission, 294 US 532; Pacific Ins. Co. v Commission, 306 US 493; Nevada v Hall, 440 US 410; Matter of Tuscan Dairy Farms v Barber, 45 NY2d 215, 439 US 1040; Allstate Ins. Co. v Hague, 449 US 302.) II. The finding of the court below that the evidence contained in the record was sufficient to support respondent’s determination is a factual question and is not subject to review by this court. (Matter of Echelman v Du Mond, 283 App Div 276; Nishman v De Marco, 62 NY2d 926; Matter of Rivera v Smith, 63 NY2d 501.) III. The Commissioner’s conditional continuation of appellant’s milk dealer licenses was statutorily authorized and properly imposed. (Glen & Mohawk Milk Assn. v Barber, 77 AD2d 127, 52 NY2d 704.) IV. Respondent’s determination is supported by a preponderance of the evidence in the record. (Matter of Williams v Du Mond, 282 App Div 76; Matter of Grimsteed v Carey, 1 AD2d 985; Matter of Kotcher v Carey, 3 AD2d 957.)
   OPINION OF THE COURT

Simons, J.

The provisions of the Agriculture and Markets Law require all milk dealers in New York to be licensed. The Commissioner of the Department of Agriculture and Markets may deny an application for a new license or an application to continue or extend an existing one if he finds by a preponderance of the evidence, after a hearing, one or more of the following: (1) that the applicant is not qualified by character, experience, financial responsibility or equipment to conduct the proposed business, (2) that issuance of the license will tend to destructive competition in a market already adequately served or (3) that issuance of a license is not in the public interest (Agriculture and Markets Law § 258-c). The Commissioner may also deny an application or revoke or suspend a license already granted for any one of several specific reasons listed in the statute, including a finding that the dealer has been a party to a combination to fix prices contrary to law (id. § 258-c [f]) or that the applicant or licensee has been convicted of a felony (id. § 258-c [i]). A partnership or corporation application may be denied if an individual holding a position of power or control has been found responsible for such acts (id. § 258-c [j]).

Petitioner Farmland Dairies was convicted of price rigging in New Jersey while an application to extend its license was pending in New York. Under New York law, the New Jersey judgment would be admissible in the New York proceedings, it would be conclusive proof of the underlying facts (see, S. T. Grand, Inc. v City of New York, 32 NY2d 300) and it would, without more, warrant denial of petitioners’ application. The judgment contained a condition, however, providing that it was not to be used for evidential purposes in any civil proceeding. The issue presented on this appeal is whether the full faith and credit clause of the Federal Constitution mandates recognition of that condition to bar use of the New Jersey judgment in the New York administrative proceeding. We hold that it does.

Petitioner Farmland Dairies is a closely held New Jersey dairy manufacturing corporation which holds New York licenses to purchase and sell raw milk in this State. Petitioners Fair Lawn Dairies, Inc., and Fairdale Milk Company are its wholly owned New Jersey-based subsidiaries. Fair Lawn is licensed to sell and distribute packaged milk in Westchester, Rockland and Orange Counties, and to sell processed milk products in other areas in the State. In 1979, following acquisition of a Long Island milk dealer, Fair Lawn applied to the Department of Agriculture and Markets for an extension of its New York dealer’s license to Nassau and Suffolk Counties. While that application was still pending, Farmland and various other New Jersey milk dealers were charged by the Attorney-General of New Jersey with criminally conspiring to rig bids for the sale of dairy products in that State in violation of the New Jersey antitrust laws. A comprehensive plea bargain was made to settle the action by which, inter alia, each defendant agreed to plead guilty to the charge, pay a $50,000 fine, and receive back all documents previously obtained by the prosecution during the course of the investigation. Of particular significance here, the Attorney-General also agreed that as a condition to the pleas defendants’ motions pursuant to rule 3:9-2 of the New Jersey Court Rules Governing Criminal Practice would be granted. Rule 3:9-2 provides that “for good cause shown the court may, in accepting a plea of guilty, order that such plea not be evidential in any civil proceeding.” The Trial Judge incorporated that specific direction in the final judgment of conviction.

In May 1981, the Department gave notice to petitioners of a hearing to consider whether (1) Farmland’s New York license should be revoked because of its antitrust violations in New Jersey and the participation of one of its officers in that activity, and (2) whether Fair Lawn’s extension application should be denied for the same reasons, plus certain alleged violations of conditions attached to a prior extension of Fair Lawn’s license to Westchester County and the effect of the further extension Fair Lawn was seeking would have on competition in the Nassau/ Suffolk market. An evidentiary hearing was held in which testimony was given on the merits, both for and against Fair Lawn’s extension application, and a certified copy of Farmland’s New Jersey conviction was received in evidence. At the conclusion of the hearing, the hearing officer recommended that Farmland’s license not be revoked and that Fair Lawn’s extension application be granted. Respondent Commissioner of the Department of Agriculture and Markets rejected that recommendation. Instead, he denied the extension application, relying on the evidence of Farmland’s New Jersey conviction, the nature of the market in Nassau and Suffolk Counties and Fair Lawn’s history of concentrating sales to large supermarket chains which he found were already adequately served. The Commissioner refrained from revoking all of petitioners’ existing licenses on condition that they file periodic reports on their New York bidding activities.

Petitioners then instituted this proceeding to obtain extension of Fair Lawn’s license to Nassau and Suffolk Counti’es, to annul the reporting requirements and, insofar as the order may be construed as barring further extension applications for a specified time, to annul that provision. They claim that the order must be vacated because it was based improperly upon consideration of the New Jersey judgment and because it is not supported by a preponderance of the evidence. Respondent contends that he properly considered the New Jersey judgment but that even if he should not have considered it, his decision was based on other permissible grounds and supported by the evidence.

Under our Federal structure, each State has its own judicial system capable of adjudicating the rights and responsibilities of the parties brought before it. Given this structure, there is always a risk that two or more States will exercise their power over the same case or controversy with the uncertainty, confusion, and delay that necessarily accompany relitigation of the same issue. The purpose of the full faith and credit clause was to avoid such conflicts and weld the independent States into a Nation (Underwriters Assur. Co. v North Carolina Life, 455 US 691, 704; Sherrer v Sherrer, 334 US 343, 355; see generally, Reese and Johnson, The Scope of Full Faith and Credit to Judgments, 49 Colum L Rev 153). Its provisions require that the public acts, records and judicial proceedings of each State shall be given full faith and credit in every other State (US Const, art IV, § 1). The doctrine does not make a foreign State judgment a judgment in the forum State (Riley v New York Trust Co., 315 US 343). Before that occurs and a locus remedy may be obtained, an action must be brought and a judgment entered on the foreign judgment in the forum State. The doctrine establishes a rule of evidence, however, which requires recognition of the foreign judgment as proof of the prior-out-of-State litigation and gives it res judicata effect, thus avoiding relitigation of issues in one State which have already been decided in another (see, Parker v Hoefer, 2 NY2d 612, cert denied 355 US 833; Durfee v Duke, 375 US 106; Magnolia Petroleum Co. v Hunt, 320 US 430, 438; Riley v New York Trust Co., supra). The rule is not absolute; the judgment of one court is conclusive and binding in another State only if the first court had jurisdiction to render it (Underwriters Assur. Co. v North Carolina Life, supra, pp 704-705; Durfee v Duke, 375 US 106, 110, supra), but if the foreign court had jurisdiction, as New Jersey did here, the courts of every other State must give it the same credit, validity and effect as it has in the State which rendered it and this is so even though suit could not have been maintained on the cause of action in the forum State (see, eg., Parker v Hoefer, supra [Vermont judgment for alienation of affections]) or the judgment is based upon a mistake of law (see, eg., Fauntleroy v Lum, 210 US 230 [action on gambling debt]). Whatever could have been pleaded in opposition to the judgment in the foreign State may be pleaded in opposition to it in the forum State, but the judgment can be given no less force or effect than it has in the State rendering it (Parker v Hoefer, supra, p 616; Matter of Johnson, 301 NY 13, 20; Durfee v Duke, supra, p 109).

New Jersey’s highest court has decided the effect to be given in that State to a judgment such as petitioners’. In Gallo Asphalt Co. v Sagner (71 NJ 405, 365 A2d 932) State officials administratively debarred plaintiffs from bidding on public contracts because they had previously pleaded guilty to conspiring to fix bids and other related charges. The judgment entered on their pleas contained the same limitation found in petitioners’ judgment preventing evidential use of it in any pending or future civil proceeding. Notwithstanding this condition, the New Jersey Department of Transportation relied on the judgment to debar plaintiff from bidding on public works contracts. In an action to review that determination, the New Jersey Supreme Court held that the administrative proceeding was a civil proceeding and that neither plaintiffs’ pleas nor the judgment entered on them could be considered in support of an order debarring them from bidding on future contracts. The full faith and credit clause requires us to give Farmland’s judgment the same effect in New York.

The Appellate Division held that the evidence was admissible on several grounds. First, it held that the judgment is a criminal judgment and that the full faith and credit clause does not require recognition of foreign criminal judgments. It also analogized the proceeding to those in which the forum State recognized a judgment of conviction although the defendant had subsequently been pardoned by the executive of the convicting State (see, Thrall v Wolfe, 503 F2d 313; Groseclose v Plummer, 106 F2d 311). It held that full faith and credit applied only to the res judicata effect of the judgment and that the Commissioner had used it permissibly only as prima facie evidence of bad character, not to prove guilt conclusively. Finally, it held that because the restriction against using the judgment was only a court rule that should not have been incorporated in it, the issue was really one of choice of law in which New York’s interests prevailed.

The courts have stated as a general proposition that criminal judgments are not entitled to full faith and credit because no State is bound to enforce the penal laws of another State or to punish a person for a wrong committed against it (see, Nelson v George, 399 US 224). The rationale for this exception to the constitutional requirement is that each sovereignty is free to determine what conduct shall be proscribed within its jurisdiction and the wrong committed by violating such proscription is local, not transitory. The penal laws within the exception are those which seek to redress wrongs done to the public generally (Huntington v Attrill, 146 US 657, 668). Thus, States have denied recognition to foreign judgments relied upon by one State to recover penalties assessed against a criminal defendant found within their boundaries (see, e.g., Wisconsin v Pelican Ins. Co., 127 US 265, 290; but cf. Milwaukee County v White Co., 296 US 268). The exception has no application in this case because New York is not being asked by the State of New Jersey to enforce its penal laws. Quite the contrary, respondent wishes to recognize the New Jersey judgment as evidence of the misconduct underlying it.

Nor do we find the pardon cases cited by the Appellate Division persuasive. In those cases the courts held judgments of conviction valid and subsisting, notwithstanding the fact that the defendant had been pardoned, because the pardons, by their terms, only abolished the restrictions on defendants’ liberty and civil rights. They did not extinguish the judgments and thus the judgments could be used to establish the prior convictions. Consistent with constitutional requirements, the judgments in each case were given the same effect in the forum State as they had in the foreign State. That rule is incorporated into New York law by statute (see, Penal Law § 70.06 [1] [b] [i]; § 70.10 [1] [b] [iii]).

The circumstances in the present appeal are closer to those in enhanced sentencing cases in which the predicate felony is a foreign State youthful offender adjudication which is entered on the condition that it may not be used as an adult conviction. The condition of those judgments has been recognized and given the same effect in New York as it has in the rendering State (see, People v Burgos, 98 Misc 2d 923; see also, People v Carpenteur, 21 NY2d 571). Also similar are the facts in Matter of Braunstein v Board of Examiners (90 AD2d 565, read on other grounds on rearg 92 AD2d 1061) which involved the same New Jersey court rule as the present case. In that matter, the condition did not restrict the State from using the judgment evidentially, only third parties. The Appellate Division gave the judgment the same effect in New York, holding that inasmuch as New Jersey could use the judgment for evidence of the underlying felony, the State of New York was entitled to the same right and could use it in an administrative hearing to revoke petitioners’ New York license.

Moreover, we see no distinction to be drawn between using the judgment as prima facie evidence of the underlying facts or as conclusive proof of them. The judgment provides that it shall not be used for evidential purposes at all. Respondent cannot recognize one portion of the judgment and ignore the remainder, nor can he avoid the constitutional requirement by assigning some lesser evidentiary weight to it. Whether the limitation should have been incorporated in the judgment is not for us to say. The fact is that the New Jersey court put it there and we are required to recognize it.

Finally, we disagree that choice of law considerations permit use of the judgment. It is not infrequent in litigation involving multistate contacts or parties residing in different States for conflicting statutory or common-law rules to be implicated in the litigation. The forum State is free to resolve those conflicts and choose the applicable law based upon an evaluation of the State contacts with the parties and the transactions. No constitutional problems arise unless the choice is arbitrary or fundamentally unfair (Allstate Ins. Co. v Hague, 449 US 302, 308; Alaska Packers Assn. v Industrial Acc. Commn., 294 US 532). This case concerns a judgment, however, and the States enjoy no such flexibility in deciding whether they will recognize foreign judgments (see, Allstate Ins. Co. v Hague, supra, p 308, n 10). There are some rare cases, other than those involving penal laws, in which the national policy of interstate comity has given way to paramount local interests resulting in a State’s refusal to recognize a foreign judgment (see, Williams v North Carolina, 325 US 226; see also, Alaska Packers Assn. v Industrial Acc. Commn., supra, p 546, and cases cited thereat), but this is not one of them. New York has an abiding interest in the character of its licensees, of course, and respondent may establish petitioners’ past misconduct in New Jersey at its administrative hearings. But we do not perceive any overriding interest in the State of New York which would permit its agencies to rely on the New Jersey judgment to prove the misconduct but disregard the condition in it which induced the plea on which the judgment is based. This State is bound by the bargain just as New Jersey is and must give the judgment the same effect as New Jersey courts give it (cf. Santobello v New York, 404 US 257).

Because the evidence before respondent included the New Jersey judgment and he relied on it in his findings and conclusions, his order must be annulled and the matter remitted for a redetermination of the merits without considering that evidence. Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court with directions to remand to respondent for reconsideration.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye and Alexander concur.

Judgment reversed, etc.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, Louis Guerra, Appellant.
    Argued March 28, 1985;
    decided May 9, 1985
    POINTS OF COUNSEL

      Gerald B. Lefcourt and Erica Horwitz for appellant.
    I. The suppression court erroneously believed it lacked the power to review the ex parte decision by a Judge of coordinate jurisdiction to issue a warrant, and,, therefore, failed to give appellant’s constitutional and statutory claims meaningful, independent review, denying appellant due process. (United States v White, 401 US 745; Matter of De Joy v Zittell, 67 AD2d 1076; People v Sossa, 77 Misc 2d 98; People v Fusco, 75 Misc 2d 981; People v Fox, 56 NY2d 615; People v Romney, 77 AD2d 482.) II. The warrantless seizure of evidence by use of a pen register device, which invaded appellant’s substantial privacy interest in the telephone numbers he called, violated appellant’s rights under the New York Constitution. (United States v New York Tel. Co., 434 US 159; Smith v Maryland, 442 US 735; Oregon v Hass, 420 US 714; People v Smith, 59 NY2d 454;People v Adams, 53 NY2d 241; People v Elwell, 50 NY2d 231; People v Settles, 46 NY2d 154; People v Isaacson, 44 NY2d 511; Katz v United States, 389 US 347; People v Magril, 38 AD2d 698, 31 NY2d 802.) III. The eavesdropping violated appellant’s constitutional and statutory rights because the People did not establish the reliability of the informant or his specific information, thereby failing to demonstrate probable cause to believe he was committing drug offenses. (Burger v New York, 388 US 41; People v Gnozzo, 31 NY2d 134; Aguilar v Texas, 378 US 108; People v Elwell, 50 NY2d 231; People v Hanlon, 36 NY2d 549; People v Rodriguez, 52 NY2d 483; People v Hendricks, 25 NY2d 129; People v Penna, 53 AD2d 941; People v Di Figlia, 50 AD2d 709; People v Landy, 59 NY2d 369.) IV. The application for the eavesdropping warrant failed to establish probable cause to believe appellant’s home telephone was being used to commit drug offenses, thereby violating appellant’s constitutional and statutory rights. (United States v Aloi, 449 F Supp 698; United States v Archer, 486 F2d 670; People v Martin, 32 NY2d 123; Matter of Tejada v Christian, 71 AD2d 527; People v Trapier, 47 AD2d 481; United States v Di Re, 332 US 581; People v Di Carlo, 43 AD2d 797; People v Gnozzo, 31 NY2d 134; Berger v New York, 388 US 41; People v Miller, 36 AD2d 898.) V. The trial court erroneously refused to order evidentiary hearings on the inclusion in the wiretap application of false statements essential to the finding of probable cause and on the misleading omissions of material facts. (Franks v Delaware, 438 US 154; People v Slaughter, 37 NY2d 596; People v Solimine, 18 NY2d 477; People v Alfinito, 16 NY2d 181; People v Elwell, 50 NY2d 231; United States v Vazquez, 605 F2d 1269; United States v Lefkowitz, 618 F2d 1313; United States v Chesher, 678 F2d 1353; United States v Rios, 611 F2d 1335.) VI. Given the People’s utter failure to meet their burden of proof on the minimization issue, the trial court improperly denied appellant’s motion for a minimization hearing and for suppression. (People v Floyd, 41 NY2d 245; People v Brenes, 42 NY2d 41; People v Di Stefano, 38 NY2d 640; People v Sardegna, 91 AD2d 671; People v Calogero, 75 AD2d 455; Scott v United States, 436 US 128; People v Frank, 85 AD2d 109; People v Castania, 73 Misc 2d 166; People v Holder, 69 Misc 2d 863.)

      Robert M. Morgenthau, District Attorney (John Latella and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s motion to suppress received full and fair consideration by the court. (People v Ford, 62 NY2d 275; People v Foster, 19 NY2d 150; People v Versace, 73 AD2d 304; People v Basilicato, 114 Misc 2d 619.) II. The use of a pen register device without prior judicial approval was constitutional. (Franks v Delaware, 438 US 154; People v Seidita, 49 NY2d 755; People v Penna, 53 AD2d 941; People v Di Raffaele, 55 NY2d 234; United States v Todisco, 667 F2d 255, 455 US 906; People v Stewart, 73 Misc 2d 399.) III. The affidavit in support of the warrant established the reliability of both the informant and his information and demonstrated probable cause to believe that defendant was using his home telephone to conduct his illegal drug business. (People v Harrison, 57 NY2d 470; People v Oden, 36 NY2d 382; People v Nieves, 36 NY2d 396; People v Wirchansky, 41 NY2d 130; People v Rodriguez, 52 NY2d 483; People v McRay, 51 NY2d 594; People v Elwell, 50 NY2d 231; Aguilar v Texas, 378 US 108; People v Landy, 59 NY2d 369; People v Comforto, 62 NY2d 725.) IV. The lower court correctly denied, without a hearing, defendant’s motion to suppress because certain statements in the affidavit in support of the warrant application, even if false, were not material to a finding of probable cause. (Franks v Delaware, 438 US 154; People v Plevy, 52 NY2d 58; United States v Vazquez, 605 F2d 1269; People v Slaughter, 37 NY2d 596; People v Solimine, 18 NY2d 477; United States v Barnes, 604 F2d 121, 446 US 907; United States v Webb, 623 F2d 758.) V. The court properly denied defendant’s request for a hearing on the issue of minimization. (People v Kaminski, 58 NY2d 886; People v Allweiss, 48 NY2d 40; Scott v United States, 436 US 128; People v Floyd, 41 NY2d 245; United States v Daly, 535 F2d 434; United States v Manfredi, 488 F2d 588; People v Di Stefano, 38 NY2d 640; People v Sardegna, 91 AD2d 671; People v Calogero, 75 AD2d 455.)
   OPINION OF THE COURT

Per Curiam.

The order of the Appellate Division should be affirmed.

The defendant pleaded guilty after the denial of his motion to suppress evidence seized pursuant to an eavesdropping warrant.

The Appellate Division affirmed, without opinion (100 AD2d 982).

On this appeal the defendant argues that a number of errors were committed in connection with the motion to suppress. Only two points warrant discussion.

First the defendant argues that the court denied his motion to suppress without considering the merits of his contention that the warrant application did not establish probable cause. The defendant notes that the suppression court expressed some reluctance to review the probable cause determination made by the Judge who issued the warrant, a Justice of coordinate jurisdiction (CPL 700.05). This concern was unfounded. By statute the court had jurisdiction to entertain the defendant’s motion to suppress (CPL 710.50) and could not summarily deny it simply because the warrant had been issued by another Justice of the court (CPL 710.60 [2], [3]; cf. Matter of De Joy v Zittell, 67 AD2d 1076). Although the Judge who issued the warrant had determined that probable cause existed, the law of the case doctrine did not preclude the defendant from seeking to have that determination reviewed in the context of a motion to suppress submitted to another Judge of that court. The warrant was an ex parte order and the law of the case doctrine does not prevent the defendant from challenging a determination which he had no opportunity to litigate at the time it was made (21 CJS, Courts, § 195, at 334-335; Levy v Paramount Publix Corp., 149 Misc 129, affd 241 App Div 711, affd 265 NY 629; People v Martin, 97 Mise 2d 441, revd on other grounds 71 AD2d 928). To the extent that People v Romney (77 AD2d 482) holds to the contrary it is erroneous and should not be followed.

However, the defendant is mistaken in his belief that the court rejected his probable cause argument on this procedural ground. The record shows that despite the initial reluctance the court did entertain the motion on the merits and concluded that probable cause was not lacking.

Second, the defendant urges that the suppression court erred in concluding that the police did not violate his constitutional rights by using a pen register on his telephone line without a warrant. Evidence obtained in this manner was later included in the application for the eavesdropping warrant. The defendant concedes that the use of the pen register did not violate his rights under the 4th Amendment (Smith v Maryland, 442 US 735), but urges that he is afforded greater protection in this regard under the State Constitution (art I, § 12). This court rejected a similar argument in an analogous case involving toll billing records (People v Di Raffaele, 55 NY2d 234, 241-242). The defendant seeks to distinguish this case on the ground that pen register records are potentially more revealing than toll records because they provide a list of all numbers dialed, both local and long distance or toll calls and therefore are entitled to greater protection from police scrutiny. In each instance, however, the information is available to the telephone company and, as we noted in People v Di Raffaele (supra), the defendant “had no legitimate expectation of privacy in the records maintained by the telephone company”.

Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed.

       Designated pursuant to NY Constitution, article VI, § 2.


author: Kaye, J.

text:
    James H. Bleiler, Sr., et al., Respondents, v Roman Bodnar et al., Defendants; Tioga General Hospital, Appellant.
    Argued March 28, 1985;
    decided May 2, 1985
    POINTS OF COUNSEL

      Roy E. Pomerantz, Kenneth S. Fiorella and Alvin P. Bluthman for appellant.
    The 1975 medical malpractice legislation, the legislative history, prior cases under this enactment and the reasonable expectations of the affected hospital institutions mandate dismissal of the complaint. (Musso v Westfield Mem. Hosp., 64 AD2d 851; Bamert v Central Gen. Hosp., 77 AD2d 559.)

      Cyril A. Krenzer for respondents.
    I. The plain language of the medical malpractice legislation of 1975 dictates that CPLR 214-a does not apply to the activities of the hospital or nurse. (Matter of Albano v Kirby, 36 NY2d 526; Matter of Petterson v Daystrom Corp., 17 NY2d 32; Department of Welfare v Siebel, 6 NY2d 536; Waddell v Elmendorf, 10 NY 170; Kurlander v Incorporated Vil. of Hempstead, 31 Misc 2d 121; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Matter of Collins v National Aniline Div., 8 AD2d 900; Jackson v Citizens Cas. Co., 252 App Div 393, 277 NY 385.) II. The reversal of Tioga County Special Term by the court below is well supported by legislative history, case law, and reasonable expectations. (Van Slyke v Columbia Mem. Hosp., 118 Misc 2d 203; Wieland v Walkes, 117 Misc 2d 277; Nembard v Brookdale Hosp. Med. Center, 115 Misc 2d 46; Schwartz v Unger, 108 Misc 2d 456; Pizzingrilli v Von Kessel, 100 Misc 2d 1062; Musso v Westfield Mem. Hosp., 64 AD2d 851; Bamert v Central Gen. Hosp., 77 AD2d 559; Huntley v State of New York, 62 NY2d 134.)
   OPINION OF THE COURT

Kaye, J.

A claim against a hospital for the negligence of its medical personnel in treating a patient is governed by the Statute of Limitations for medical malpractice, as is a direct cause of action against the doctor and the nurse. However, a claim that the hospital failed to provide competent personnel or to promulgate appropriate emergency room rules sounds in negligence, and is subject to the three-year limitations period (CPLR 214), rather than the shorter medical malpractice limitations period (CPLR 214-a).

I

On October 9, 1980, plaintiff James Bleiler visited the emergency room of Tioga General Hospital in Waverly, New York, seeking treatment for an eye injury he had suffered at work the day before. An unidentified nurse, denominated “Jane Doe” in the complaint, took Bleiler’s medical history, after which he was examined and treated by Dr. Roman Bodnar, an emergency room physician. Bodnar, apparently failing to detect a metal fragment in Bleiler’s right eye, directed him to apply an ointment and wear an eyepatch for three days. If pain and redness persisted, Bleiler was to seek further treatment at the Guthrie Eye Clinic of Robert Packer Hospital in nearby Sayre, Pennslyvania. Bleiler went that very day to the clinic. Surgery was performed on his eye the next day at the Pennslyvania hospital, where he remained until October 20,1980, but sight in his right eye was lost.

The present action against Bodnar, Doe and Tioga Hospital was commenced by Bleiler and his wife on April 11, 1983, two days after expiration of the 21/2-year Statute of Limitations for medical malpractice actions (see, CPLR 214-a). Consequently, Bleiler’s causes of action can survive this motion to dismiss only if they are for negligence, not medical malpractice.

According to the complaint, the emergency room physician, Bodnar, “was negligent in failing to take a proper medical history * * * and in his examination, care and treatment of Mr. Bleiler.” Doe, the emergency room nurse, similarly “was negligent in taking or recording the history of Mr. Bleiler” which was relied upon by Bodnar. Bleiler seeks to hold the hospital liable (a) vicariously for the conduct of Bodnar and Doe, (b) for failure to provide Bleiler with “competent and qualified nurses and emergency room physicians”, (c) for failure to promulgate rules, regulations and procedures regarding the taking of histories from patients and requiring that emergency room patients complaining of eye injuries be seen by eye specialists, and (d) for “being otherwise negligent,” the hospital as an entity having undertaken “to attend to and care for Mr. Bleiler.”

Special Term dismissed the complaint, holding that all of Bleiler’s causes of action are governed by the 2y2-year medical malpractice Statute of Limitations. The Appellate Division modified, affirming as time-barred the dismissal of the causes of action against Bodnar and the hospital as vicariously liable for Bodnar’s conduct, but reinstating the remaining causes of action. The Appellate Division granted the hospital leave to appeal to this court, and certified the following question: “Did this court err as a matter of law in reversing so much of Special Term’s order as dismissed the direct causes of action against defendants hospital and nurse as well as the cause of action against defendant hospital for vicarious liability because of the negligence of its employee-nurse?” The causes of action against Bodnar and against the hospital as vicariously liable for Bodnar’s malpractice are beyond the scope of the certified question, and thus no longer in issue.

II

Before the CPLR became effective, actions for malpractice, including medical malpractice, were governed by a two-year Statute of Limitations, along with actions to recover damages for assault, battery, false imprisonment and malicious prosecution {see, Civ Prac Act § 50 [1]). Thereafter, actions for all professional malpractice were subject to a three-year limitations period {see, CPLR 214 [6]). In 1975, however, the Legislature responded to a crisis in the medical profession posed by the withdrawal and threatened withdrawal of insurance companies from the malpractice insurance market in this State. Believing that all residents of the State were at risk and that prompt action was essential to forestall a collapse of medical services in New York {see generally, Lombardi, Medical Malpractice Insurance: A Legislator’s View, at 85-102), the Legislature enacted chapter 109 of the the Laws of 1975, a comprehensive plan amending the Public Health Law, Insurance Law, Workers’ Compensation Law, CPLR, Judiciary Law, Education Law and Business Corporation Law {see, L 1975, ch 109; see also, Memorandum of State Executive Department, 1975 McKinney’s Session Laws of NY, at 1599-1602).

As the Executive Department, in its statement in support of the bill, noted: “[t]he health and welfare of the people of this State are gravely threatened by the inability of health care providers to get malpractice insurance at reasonable rates. Twenty-three major hospitals will have to close their doors on June 1,1975, if no solution is found for the current crisis. Fifty-seven others carried by the same insurer will have to close as the anniversary dates of their policies are reached. Young doctors cannot afford to set up practice here; middle age doctors are leaving the State for this reason; and, older doctors are driven into early retirement. This serious problem — the adequate delivery of health care services — must be solved.” (Memorandum of State Executive Department, 1975 McKinney’s Session Laws of NY, at 1601-1602, supra.) On signing chapter 109 into law, Governor Carey declared that the “purpose of the bill is to deal comprehensively with the critical threat to the health and welfare of the State as a result of the lack of adequate medical malpractice insurance at reasonable rates”, and that a principal goal of the law was “to assure the prompt and fair disposition of medical malpractice claims” (Governor’s Memorandum, 1975 McKinney’s Session Laws of NY, at 1739).

One of the reforms effected by chapter 109 — perceived to be in the interest of the citizenry generally — was the addition of CPLR 214-a, which provides: “An action for medical malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure”. “Medical malpractice” is not defined.

On this appeal we must decide whether any of the claims before us allege medical malpractice within the meaning of chapter 109. We conclude that Bleiler’s claims for negligent medical care against the hospital directly, against the nurse directly, and against the hospital as vicariously liable for the conduct of the nurse, are for medical malpractice and therefore time-barred. Bleiler’s claims against the hospital for failure to provide competent emergency room personnel and for failure to promulgate proper regulations, however, are for negligence and thus timely. In the ensuing sections, we deal first with the claim against the hospital directly, next with the causes of action involving the nurse, and finally with the negligent administration claims.

Ill

“Medical malpractice” should not be read to exclude hospitals sued for negligent treatment rendered by their medical personnel. When the Legislature in 1975 shortened the Statute of Limitations for medical malpractice claims as a means of addressing a crisis affecting society, it necessarily included hospitals sued for negligent medical treatment by their employees.

Neither the statute itself nor the legislative history explicitly addresses the issue. Bleiler urges, in support of a restricted definition of medical malpractice, that the phrase “medical or hospital malpractice” used in chapter 109 — for example, in adding section 681 (2) to the Insurance Law and amending section 76 (2-a) (1) of the Workers’ Compensation Law (see, L 1975, ch 109, §§ 17, 19) — indicates a legislative intent to distinguish between the two. But the Legislature also defined “medical malpractice insurance,” for purposes of establishing the Medical Malpractice Insurance Association, to mean insurance against both medical and hospital malpractice (id. § 17, adding Insurance Law § 681 [2]), and it included claims against hospitals in the provision for reporting claims for medical malpractice (id. § 2, amdg Insurance Law § 335 [2] [a]). Nor does the statutory definition of the “practice” of medicine resolve the issue. The Legislature defined the practice of medicine, for licensing, as “diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition” (Education Law § 6521). Because under the Education Law only physicians are licensed to practice medicine, it is suggested that only a licensed physician can commit medical malpractice. The argument is not persuasive. The sound public policy of this State may be to license and regulate those wishing to practice medicine as “physicians,” but this does not mean that the hospitals where they practice also cannot, if the physicians are negligent in treating patients, commit medical malpractice.

That the Legislature did not intend one Statute of Limitations to apply to actions directly against a physician and another to actions against a hospital for the same conduct is evident in the genesis and expressed purposes of chapter 109. The perceived threat was not only to physicians but also to health care providers, particularly hospitals, and the Legislature’s comprehensive response cannot be read so restrictively as to exclude them. The hospitals, also threatened by the insurance crisis, participated extensively in the lawmaking process (see, Bill Jacket, L 1975, ch 109; Memorandum of State Executive Department, 1975 McKinney’s Session Laws of NY, at 1599-1602, supra; Lombardi, Medical Malpractice Insurance: A Legislator’s View, at 90, 99, 102,105, supra; see also, Musso v Westfield Mem. Hosp., 64 AD2d 851, appeal dismissed 45 NY2d 834, lv denied 45 NY2d 714). Moreover, we are mindful of the practical consequences of applying one statute to doctors and another to the hospitals in which they practice. Were a hospital to be sued for the malpractice of a physician-employee during the last six months of a three-year Statute of Limitations, it would likely implead its employee, and the legislative reform could thereby be defeated (see, Heinsohn v Putnam Community Hosp., 65 AD2d 767; Macon v Parsons Hosp., 26 AD2d 584).

A hospital can render medical care only through its physicians and medical staff. We reject the notion that the Legislature shortened the Statute of Limitations for physicians but ignored hospitals sued for their negligence. Thus, we conclude that where — as here — a hospital is sued by a patient for negligent medical treatment, such claims are governed by the 2y2-year Statute of Limitations for medical malpractice.

IV

The same considerations lead us to the conclusion that Bleiler’s causes of action involving Doe, the emergency room nurse, also sound in medical malpractice and are governed by the 2V2-year Statute of Limitations.

While courts have in the past held that a nurse could be liable for negligence, but not for malpractice (see, e.g., Wolff v Jamaica Hosp., 11 AD2d 801, 802; Isenstein v Malcomson, 277 App Div 66, 68; Wildey v Kertzman, 44 Misc 2d 258, 260, affd 24 AD2d 519), “the role of the registered nurse has changed, in the last few decades, from that of a passive, servile employee to that of an assertive, decisive health care provider. Today, the professional nurse monitors complex physiological data, operates sophisticated lifesaving equipment, and coordinates the delivery of a myriad of patient services. As a result, the reasonably prudent nurse no longer waits for and blindly follows physicians’ orders” (1 Louisell & Williams, Medical Malpractice, H 16A.01, at 16A-2). Accordingly, in Bamert v Central Gen. Hosp. (53 NY2d 656, affg 77 AD2d 559), we held that “a nurse is legally capable of committing malpractice” (accord, Beardsley v Wyoming County Community Hosp., 79 AD2d 1110; Musso v Westfield Mem. Hosp., 64 AD2d 851, appeal dismissed 45 NY2d 834, lv denied 45 NY2d 714, supra; cf. Nembard v Brookdale Hosp. Med. Center, 115 Misc 2d 46; contra, 1979 Opns Atty Gen 49, 50; Schwartz v Unger, 108 Misc 2d 456). Although Bamert involved a question of submission of a claim to a medical malpractice panel pursuant to section 148-a of the Judiciary Law, the same reasoning is applicable here.

Chapter 109 itself recognized that nurses can commit medical malpractice: added to the Insurance Law when section 214-a was added to the CPLR was a section requiring all insurance companies issuing “professional medical malpractice insurance” to file reports of “all claims for medical malpractice” made against any “physician, nurse, hospital or other person or institution” (Insurance Law § 335 [2] [a]; L 1975, ch 109, § 2).

Obviously, not every negligent act of a nurse would be medical malpractice, but a negligent act or omission by a nurse that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice. Such a conclusion is warranted here. Doctor Bodnar and Nurse Doe, who assisted him in the emergency room, are both charged with having failed to take a proper medical history — a crucial element of diagnosis and treatment. Bodnar’s alleged failure to elicit all information pertinent to treatment could unquestionably constitute medical malpractice. The conclusion is no different with respect to the emergency room nurse, functioning in that role as an integral part of the process of rendering medical treatment to a patient.

Huntley v State of New York (62 NY2d 134) does not compel a different result. In Huntley, a psychiatric hospital employee failed to satisfy her duty of taking adequate measures to ensure the safety of a patient who had told her of a plan to commit suicide (cf. Zophy v State of New York, 27 AD2d 414,416, affd 22 NY2d 921; Callahan v State of New York, 179 Misc 781, 784-785, affd 266 App Div 1054). This duty — which included an obligation to inform the staff psychiatrist — was independent of the hospital’s obligation to provide proper medical treatment, and therefore constituted common-law negligence, not medical malpractice (62 NY2d, at pp 137-138).

Nurse Doe was one of the professionals who undertook to treat Bleiler at the hospital emergency room. The claim against her for having allegedly failed to render proper medical care to plaintiff is thus subject to the 2V2-year Statute of Limitations applicable to medical malpractice actions, and time-barred. The cause of action against the hospital for her alleged misconduct, being wholly derivative, is precluded as well (cf. Ruane v Niagara Falls Mem. Med. Center, 60 NY2d 908, 909; City of Buffalo v Maggio, 21 NY2d 1017, 1018).

V

We next consider Bleiler’s claims against the hospital for improper or inadequate hiring practices and administrative procedures.

Bleiler alleges that the hospital was “negligent in failing to provide Mr. Bleiler with competent and qualified nurses and emergency room physicians; in failing to promulgate rules, regulations and procedures requiring nurses and doctors to take adequate and proper histories from patients; in failing to promulgate rules requiring that emergency room patients suffering from eye injuries be seen by eye specialists and in being otherwise negligent.” While no factual specificity is set forth to support these conclusory assertions, since this motion to dismiss is based solely on the Statute of Limitations we reach neither the sufficiency of the pleading nor the merit of the causes of action.

A hospital in a general sense is always furnishing medical care to patients, but clearly not every act of negligence toward a patient would be medical malpractice. Where a claim for breach of duty to use due care in the selection of doctors and nurses, and to furnish competent medical personnel, has been recognized (see, Bryant v Presbyterian Hosp., 304 NY 538, 541-542; 1 Louisell & Williams, Medical Malpractice, 1116.08 [1], at 16-38; 1Í 16.09 [2]), the requisite elements have been markedly different from a malpractice cause of action. For example, plaintiff would have to establish that the hospital failed to use due care in selecting and furnishing personnel — that is, that it failed to make an “ ‘appropriate investigation of the character and capacity of the agencies of service’ ” (Lewis v Columbus Hosp., 1 AD2d 444, 447) — and that such failure was a proximate cause of his injury. Such a claim of negligence would be governed by the three-year Statute of Limitations (see, Gautieri v New Rochelle Hosp. Assn., 4 AD2d 874, affd mem 5 NY2d 952; Van Slyke v Columbia Mem. Hosp., 118 Misc 2d 203, 204-205).

Similarly, a hospital’s failure to adopt and prescribe proper procedures and regulations has given rise to a cause of action (see, Topel v Long Is. Jewish Med. Center, 55 NY2d 682, 684; Fatuck v Hillside Hosp., 45 AD2d 708, affd 36 NY2d 736), the elements of which differ from medical malpractice. Here too — like a cause of action for negligent maintenance of a sidewalk (Cole v City of Albany, 80 AD2d 656) or failure to provide a functioning wheelchair to a patient (McCormack v Mount Sanai Hosp., 85 AD2d 596, 597) — the cause of action would be subject to a three-year Statute of Limitations. In both instances, the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital’s failure in fulfilling a different duty.

VI

In sum, Bleiler’s causes of action against the hospital and the nurse for negligent medical treatment are governed by the 2Vz-year medical malpractice Statute of Limitations, and thus time-barred. Only the claims that the hospital failed to provide competent medical personnel and to promulgate and enforce appropriate regulations and procedures, which claims sound in negligence, are timely. The order of the Appellate Division should therefore be modified in accordance with this opinion, and as so modified, affirmed, with costs to appellant, and the question certified should be answered in the affirmative.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Alexander concur.

Order modified, etc.

      . Bleiler’s contention that the continuous treatment doctrine applied because of the instruction to seek further treatment at the eye clinic was rejected by Special Term and affirmed by the Appellate Division, and is not involved in this appeal.

      . As the Report of the Special Advisory Panel on Medical Malpractice observes: “Testimony given by trial attorneys also indicates that there is little likelihood that the reduction in the statute of limitations is going to result in fewer claims. Its major result is likely to be that claims will be brought somewhat sooner than they would otherwise.” (Report of the Special Advisory Panel on Medical Malpractice, at 36-37 [Jan. 1976].)

      . In a Report issued in January 1976 by the Special Advisory Panel on Medical Malpractice, the Panel found that the hospitals were experiencing raging insurance costs and difficulty in securing insurance renewals — the same concerns that led to chapter 109. (Report of Special Advisory Panel on Medical Malpractice, at 17-18.)

      . According to the hospital, Doe was a “triage nurse” working in the emergency room, who screened patients in order to establish the nature and severity of the condition, so as to place patients in line for treatment.

      . See also, Report of the Special Advisory Panel on Medical Malpractice, at 1 (Jan. 1976), which states that one of the purposes of the “tort law/liability insurance system [is to] protect the assets of physicians, hospitals and other health care providers.” While the recodified Insurance Law (L 1984, ch 367) does not contain the cited reference to claims of malpractice against hospitals and nurses formerly in section 335 (which purportedly was combined with former section 335-a to form new section 315), the expressed legislative intent was simply to recodify the Insurance Law without any substantive change (Insurance Law § 102, L 1984, ch 367).


author: Per Curiam. Kaye, J.

text:
    Pat A. Meyers, Appellant, v Waverly Fabrics, Division of F. Schumacher & Company, Respondent.
    Argued March 19, 1985;
    decided May 7, 1985

      POINTS OF COUNSEL

      Joel L. Hecker and Ellen P. Chapnick for appellant.
    I. Defendant’s motion for summary judgment must be denied as a matter of law. (North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171; Silberberg v Haber, 42 AD2d 552; Montgomery v Futuristic Foods, 66 AD2d 64; Bleistein v Donaldson Lithographing Co., 188 US 239.) II. The court below erroneously reversed the denial of defendant’s motion for summary judgment because a trial is required on issues of fact. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Musman v Modern Deb, 56 AD2d 752.) III. Defendant should not be permitted to use the Statute of Frauds as a bar to a contract fairly, and admittedly, made. (Cohon & Co. v Russell, 23 NY2d 569; Club Chain of Manhattan v Christopher & Seventh Gourmet, 74 AD2d 277; Canda v Totten, 157 NY 281; Babdo Sales v Miller-Wohl Co., 440 F2d 962.) IV. The court below erroneously reversed the denial of defendant’s motion for summary judgment because defendant had not satisfied the evidentiary requirements of CPLR 3212 (b). (Roche v Hearst Corp., 53 NY2d 767; Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 54 NY2d 715; Executive Secs. Corp. v Gray, 67 AD2d 870; Stainless, Inc. v Employers’ Fire Ins. Co., 69 AD2d 27, 49 NY2d 924; Trepuk v Frank, 86 AD2d 578, 56 NY2d 779.) V. The trial court properly conditioned the right to amend upon reopening of limited discovery at defendant’s cost. (New Is. Investors v Insurance Co., 61 AD2d 1026; Mirabella v Banco Indus. de la Republica Argentina, 34 AD2d 630.) VI. The other causes of action pleaded are not barred by the application of the Statute of Frauds; therefore they should not have been dismissed.

      Albert J. Breneisen and Louis C. Dujmich for respondent.
    I. Defendant is entitled to summary judgment as a matter of law. (Tyler v Windels, 186 App Div 698, 227 NY 589; Marcraft Recreation Corp. v Devlin Co., 506 F Supp 1081; Advocat v Nexus Indus., 497 F Supp 328; Pollard v Meyer, 61 AD2d 766; Sawyer v Sickinger, 47 AD2d 291; Health Delivery Sys. v Scheinman, 42 AD2d 566; Montgomery v Futuristic Foods, 66 AD2d 64; Policemen’s Benevolent Assn. v City of New York, 27 NY2d 410; Intercontinental Planning v Daystrom, Inc., 24 NY2d 372; Weiner v McGraw-Hill, Inc., 57 NY2d 458.) II. The court below correctly granted defendant’s motion for summary judgment because there are no genuine issues of fact. (Rogoff v San Juan Racing Assn., 77 AD2d 831, 54 NY2d 883; Polykoff Adv. v Houbigant, Inc., 43 NY2d 921; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Shaw v Time-Life Records, 38 NY2d 201; Freedman v Chemical Constr. Corp., 43 NY2d 260; Balducci v Merchants Natl. Bank & Trust Co., 74 Misc 2d 406, 41 AD2d 1030; Walpole v Whitsell, 110 Misc 2d 508; Szajna v Rand, 75 AD2d 617; Leandre v Sharperson, 96 AD2d 883; Dorkin v American Express Co., 43 AD2d 877.) III. The Copyright Act of 1976 does not preclude the grant of summary judgment to defendant in this case. IV. Each cause of action is premised on an oral agreement which violates the Statute of Frauds and is therefore barred. (Editorial Photocolor Archives v Granger Collection, 61 NY2d 517; Montgomery v Futuristic Foods, 66 AD2d 64; Smith v Stewart, 45 AD2d 853, 38 NY2d 747.) V. Special Term abused its discretion by conditionally awarding costs and attorneys’ fees to plaintiff. (Lermit Plastics Co. v Lauman & Co., 40 AD2d 680; Price v Giffin, 32 AD2d 868.)
   OPINION OF THE COURT

Per Curiam.

Plaintiff is a designer who sold to defendant, a fabric manufacturer, a design referred to as “Cook’s Stripe.” She seeks damages and an injunction in a complaint alleging five causes of action: for breach of an express oral contract or a contract implied in fact; for misrepresentation through false labeling; for unauthorized licensing; for damages to her reputation through the inferior quality of the product licensed; and for interference with her contract relationships. Special Term permitted defendant to amend its answer to allege a Statute of Frauds defense, but concluded that the evidentiary matter presented by defendant was insufficient to warrant the granting of its motion for summary judgment. On appeal to the Appellate Division that court (two Justices dissenting) modified, on the law, by granting defendant’s motion dismissing the complaint.

The issues argued before us are the extent to which section 301 of the Copyright Act (17 USC § 301) deprives the courts of New York of subject matter jurisdiction over the causes of action pleaded by plaintiff, and the extent to which General Obligations Law § 5-701 bars such causes of action as are not preempted by the Copyright Act. Although plaintiff disavows reliance on the Copyright Act, she has not disputed that the design which is the basis for her causes of action was copyrightable or that her transaction with defendant took place after the effective date of section 301.

Subdivisions (a) and (b) (3) of section 301 recognize that only “legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright” are preempted (see, Editorial Photocolor Archives v Granger Collection, 61 NY2d 517). House Report No. 94-1476 states with respect to equivalency that “common law rights of ‘privacy,’ ‘publicity’, and trade secrets * * * would remain unaffected as long as the causes of action contain elements, such as an invasion of personal rights or a breach of trust or confidentiality, that are different in kind from copyright infringement” and that “to the extent that the unfair competition concept known as ‘interference with contract relations’ is merely the equivalent of copyright protection, it would be preempted” (1976 US Code Cong & Admin News, at 5748). It notes, however, that “[sjection 301 is not intended to preempt common law protection in cases involving activities such as false labeling, fraudulent representation, and passing off even where the subject matter involved comes within the scope of the copyright statute” (id.; emphasis supplied) and that “[njothing in the bill derogates from the rights of parties to contract with each other and to sue for breaches of contract” (id.). It follows that plaintiff’s first cause of action for breach of contract and her second cause of action for false labeling are not preempted, but that the third, fourth and fifth are, because not different in kind from copyright infringement.

Though not preempted, the first cause of action is, however, barred by General Obligations Law § 5-701, for it alleges that defendant’s licensing of others to reproduce the design on products other than fabric was “in direct contravention of the terms of the agreement between plaintiff and defendant” which sold to defendant the right to produce the design solely on fabric. Such a contract limitation, because it cannot be performed within one year from its making, is barred unless in writing (Tyler v Windels, 227 NY 589, affg 186 App Div 698; Montgomery v Futuristic Foods, 66 AD2d 64). Plaintiff’s full performance of her obligations under the contract within a year is insufficient to take the oral contract out of the statute (id.) and we decline plaintiff’s invitation to hold her unilateral performance sufficient to do so (see, Montgomery v Futuristic Foods, 66 AD2d 64, 66-69, supra).

On the present record, however, the second cause of action cannot be dismissed as barred by the Statute of Frauds. This cause of action alleges not only that defendant licensed use of plaintiff’s design by others on products other than fabric but also that it required its licensees to place on their products a credit for the design stating that it was “designed by Waverly”, even though defendant knew that the pattern was designed by plaintiff. By so doing, plaintiff argues, defendant was “thereby deceiving the public.”

Defendant’s answer denies those allegations. Defendant argues that it purchased the design for all purposes, not just for use on fabric, but presents nothing to suggest that it was authorized to represent the design as its own rather than plaintiff’s. The only evidence in the record bearing on what the contract between the parties was is plaintiff’s deposition testimony that “it was ordered as a fabric design.” The Statute of Frauds constitutes no bar to the second cause of action if that be true. Defendant’s liability on that cause of action will arise, if at all, not from the use of the design on products other than fabric in violation of the contract, but from its violation of the law of unfair competition by misrepresenting the design, which it knew to be plaintiff’s, as its own (see, International News Serv. v Associated Press, 248 US 215; Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556, 567; Germanov v Standard Unbreakable Watch Crystals, 283 NY 1, 18-19; Gotham Music Serv. v Denton & Haskins Music Pub. Co., 259 NY 86, 90; Fisher v Star Co., 231 NY 414, 427; Dior v Milton, 2 AD2d 878, affg 9 Misc 2d 425; Metropolitan Opera Assn. v Wagner-Nichols Recorder Corp., 279 App Div 632, affg 199 Misc 786; Madison Sq. Garden Corp. v Universal Pictures Co., 255 App Div 459, 464; but see, White Studio v Dreyfoos, 221 NY 46, 48; Kaylon, Inc. v Collegiate Mfg. Co., 255 App Div 209, 210).

Thus, plaintiff’s second cause of action has not been demonstrated to be dismissible on the preemption and Statute of Frauds grounds urged by defendant. Not argued by defendant and, therefore, not considered by us is whether on the facts plaintiff can establish her cause of action. Accordingly, the order of the Appellate Division should be modified by reinstating the second cause of action, without prejudice, however, if defendant be so advised, to a further motion for summary judgment as to that cause of action, and except as so modified the Appellate Division’s order should be affirmed, with costs, to appellant.

Kaye, J.

(dissenting in part). I concur in the majority’s conclusions that the third, fourth and fifth causes of action are preempted by the Copyright Act, and the first cause of action — while not preempted — must fail by reason of the Statute of Frauds. But I respectfully dissent with respect to the surviving cause of action for “misrepresentation through false labeling.” With the understanding that the court does not today decide whether a cause of action for common-law misappropriation is preempted by the Copyright Act, I agree with so much of the majority’s holding as states the legal principle that an action for “false labeling” may be maintained notwithstanding Federal preemption. I cannot, however, agree with the application of that principle to the facts of this.

It is well to begin by focusing on the complaint, particularly the second cause of action, characterized as one for “misrepresentation through false labeling” — which are the words of the majority, nowhere found in the complaint. In the second cause of action, after identifying the parties, plaintiff alleges that she sold to defendant the right to produce her design solely on fabric and that defendant without authorization thereafter licensed Sunweave Linen Corp. and Lord & Taylor to reproduce the design on products other than fabric “in direct contravention of the terms of the agreement between plaintiff and defendant.” Plaintiff concludes: “Defendant required Sunweave and Lord & Taylor, to place on certain of the unauthorized products sold by Sunweave and Lord & Taylor, containing the Design, a credit for the Design stating it was ‘designed by Waverly’, even though in truth and in fact defendant knew that such pattern was designed by the plaintiff, to the damage of the plaintiff in the sum of $25,000.” It is undisputed that the contract referred to by plaintiff was never reduced to writing.

The oral contract is thus plainly at the heart of the second cause of action. Plaintiff contends that she sold a limited right, permitting defendant to use the design solely on fabric and wallpaper, while defendant claims that it purchased all of plaintiff’s right, title and interest in the design, and consequently that its use was unrestricted. If plaintiff sold a limited right only — her version of the contract — defendant breached the contract and thereby misappropriated the design and misrepresented ownership. If plaintiff sold defendant all rights in the design — defendant’s version of the contract — then it could lawfully place its own name on and market its property, without further permission from plaintiff.

Even if the second cause of action were not preempted by Federal law, still there would be no enforceable claim because of the Statute of Frauds. The very design of the Statute of Frauds was “not to trust to the memory of witnesses for a longer time than one year.” (Smith v Westfall, 1 Lord Raymond 316, 317 [1697], quoted in D & N Boening v Kirsch Beverages, 63 NY2d 449, 454.) The requirement of a writing assures that there will be reliable evidence of the terms of a contract, an objective which is defeated and circumvented by permitting plaintiff, inva dispute over the terms of a contract, to enforce what is merely one version of the contract in the guise of a tort.

A reading of the second cause of action as pleaded in the complaint reveals that it is not, as the majority describes, premised on “unfair competition” (majority opn, at p 79), but — to use plaintiff’s own words — on “direct contravention of the terms of the agreement between plaintiff and defendant.” (Complaint H 7.) In contracts for the sale of products, any purchaser exercising dominion over the products, including placing its name on what it believes it rightly owns, can be said by a seller charging breach of contract to be misappropriating, misrepresenting, falsely labeling, or using the property in “other and deceitful ways” (majority opn, at p 80, n 2), but a contract action does not without more become a tort action. In the cases cited by the majority for the proposition that the use of property in “other and deceitful ways” may give rise to a tort action — North Shore Bottling (22 NY2d 171), Rich (87 NY 382), Fantis Foods (49 NY2d 317) and Albemarle Theatre (27 AD2d 172) (majority opn, at p 80, n 2) — there was not, as here, a fundamental dispute regarding the terms of the contract, which would itself be wholly determinative of the “tort” issue.

Characterization of the alleged breach of contract as a tort does not breathe vitality into a contract otherwise unenforceable for want of a writing. (See, e.g., Intercontinental Planning v Daystrom, Inc., 30 AD2d 519, affd 24 NY2d 372.) Not one of the misappropriation cases cited by the majority (majority opn, at pp 79-80) involves an acknowledged contract between the parties permitting defendant in the first instance to use plaintiff’s property, and a mere dispute as to the reach of the contract.

We have only recently reaffirmed the principle with respect to the Statute of Limitations that where an action is fundamentally contractual, plaintiff cannot rely on incidental allegations of fraud to keep its lawsuit viable. (Queensbury Union Free School Dist. v Walter Corp., 101 AD2d 992, 993, affd 64 NY2d 964.) By the same token, plaintiff should not be permitted to avoid the Statute of Frauds by enforcing an oral contract as a tort action for “false labeling.”

I would therefore affirm the Appellate Division order in its entirety.

Chief Judge Wachtler and Judges Jasen, Meyer and Kane concur in Per Curiam opinion; Judge Kaye dissents in part and votes to affirm in a separate opinion in which Judge Simons concurs; Judge Alexander taking no part.

Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to plaintiff.

      . The suggestion of the dissent that the second cause of action is not for false labeling because the words “direct contravention of the terms of the agreement” appear in paragraph 7 of the complaint (part of the first cause of action) is a misreading of the complaint. Paragraph 7 states that the granting of a license by defendant to others “to reproduce the Design on products other than fabric” was in contravention of the agreement. The repetition of paragraph 7 as part of the second cause is but a predicate for paragraph 11, which recites that defendant also required those others to place “on certain of the unauthorized products sold by [the others] a credit for the Design stating it was ‘designed by Waverly’, even though in truth and in fact defendant knew that such pattern was designed by the plaintiff”. Thus, the second cause of action is for defendant’s misrepresenting the design as its own, not for breach of contract.

      . If in fact plaintiff sold only the right to use the design on fabric, the use of it in other and deceitful ways is no less a tort because it has its genesis in contract, for it is “plain that a contracting party may be charged with a separate tort liability arising from a breach of duty distinct from, or in addition to, the breach of contract” (North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171, 179), as when it springs “from extraneous circumstances, not constituting elements of the contract as such although connected with and dependent upon it, and bom of that wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud” (Rich v New York Cent. & Hudson Riv. R.R. Co., 87 NY 382, 398; and see, Fantis Foods v Standard Importing Co., 49 NY2d 317, 324; Albemarle Theatre v Bayberry Realty Corp., 27 AD2d 172).

       Designated pursuant to NY Constitution, article VI, § 2.