author: Meyer, J.

text:
    Joseph Aboujdid et al., Appellants-Respondents, v Singapore Airlines, Ltd., Respondent, and Gulf Aviation, Ltd., Respondent-Appellant. Naim El-Mani, Appellant-Respondent, v Gulf Aviation, Ltd., Respondent-Appellant, and Singapore Airlines, Ltd., Respondent.
    Argued March 17, 1986;
    decided June 3, 1986

      POINTS OF COUNSEL

      Sally L. Schneider for appellants-respondents.
    I. Singapore waived any defense of immunity under the Foreign Sovereign Immunities Act. (Verlinden B. V. v Central Bank of Nigeria, 461 US 480; Canadian Overseas Ores v Compania de Acero del Pacifico, 528 F Supp 1337, 727 F2d 274; Ahders v Southhampton Hosp., 90 AD2d 508.) II. Singapore’s commercial activities come within the act’s exceptions to immunity. (Matter of Rio Grande Transp., 516 F Supp 1155; Upton v Empire of Iran, 459 F Supp 264, 607 F2d 494; Harris v Vao Intourist, Moscow, 481 F Supp 1056; Close v American Airlines, 587 F Supp 1062.) III. The order of the court below affirming the dismissal of Gulfs motion to dismiss was properly made. (Matter of Fermaglich [Levine], 41 AD2d 70; Canadian Overseas Ores v Compania de Acero del Pacifico, 727 F2d 274; Verlinden B. V. v Central Bank of Nigeria, 461 US 480.) IV. As a matter of law, Gulf waived its immunity under the Foreign Sovereign Immunities Act. (Verlinder B. V. v Central Bank of Nigeria, 461 US 480; Canadian Overseas Ores v Compania de Acero del Pacifico, 528 F Supp 1337, 727 F2d 274; Frolova v Union of Soviet Socialist Republics, 761 F2d 370; Chrysler Corp. v Feders Corp., 540 F Supp 706.) V. Gulfs commercial activities come within the act’s exceptions to immunity. (Matter of Rio Grande Transp., 516 F Supp 1155; Upton v Empire of Iran, 459 F Supp 264, 607 F2d 494; Harris v Vao Intourist, Moscow, 481 F Supp 1056; Close v American Airlines, 587 F Supp 1062.)

      Claudia Fucigna and Desmond T. Barry, Jr., for respondent-appellant.
    I. The defense of sovereign immunity under the Foreign Sovereign Immunities Act is not waived if omitted from a first responsive pleading in cases where amendment has been permitted under applicable procedural rules. (Advocat v Nexus Indus., 497 F Supp 328; Fahey v County of Ontario, 44 NY2d 934; Penniman v Fuller & Warren Co., 133 NY 442; Wrobleski v Wakefield Homes, 46 AD2d 805; Stahl v Stahl, 18 AD2d 617; Canadian Overseas Ores v Compania de Acero del Pacifico, 727 F2d 274; Pacific Seafarers v Pacific Far E. Line, 404 F2d 804, 393 US 1093; Laker Airways v Sabena, Belgian World Airlines, 731 F2d 909; Ruggiero v Compania Peruana de Vapores "Inca Capac Yupanqui”, 639 F2d 872; Verlinden B. V. v Central Bank of Nigeria, 461 US 480.) II. The holding of the court below that jurisdiction over the within actions may not be premised upon the FSIA’s commercial activity exceptions to sovereign immunity should be affirmed. (Ministry of Supply, Cairo v Universe Tankships, 708 F2d 80; Gemini Shipping v Foreign Trade Org., 647 F2d 317; Vencedora Oceanica Navigacion v Compagnie Nationale Alger

      ienne de Navigacion, 730 F2d 195, 734 F2d 1479; Gilson v Republic of Ireland, 682 F2d 1022; Castillo v Shipping Corp. of India, 606 F Supp 497; Tigchon v Island of Jamaica, 591 F Supp 765; Chicago Bridge & Iron Co. v Islamic Republic of Iran, 506 F Supp 981; Harris v Vao Intourist, Moscow, 481 F Supp 1056; Upton v Empire of Iran, 459 F Supp 264, 607 F2d 494; Texas Trading & Milling Corp. v Federal Republic of Nigeria, 647 F2d 300, 454 US 1148.)

      Kevin F. Cook and Matthew J. Corrigan for respondent.
    I. Congress exercised its article I powers under the Constitution by enacting the immunities act which comprehensively regulates the amenability of foreign States to suit in the courts of this country. (Verlinden B. V. v Central Bank of Nigeria, 461 US 480; Ruggiero v Compania Peruana de Vapores "Inca Capac Yupanqui”, 639 F2d 872; Arango v Guzman Travel Advisors, 761 F2d 1527; Frolova v Union of Soviet Socialist Republics, 761 F2d 370.) II. The court should sustain the holding of the court below that Singapore preserved its defense of sovereign immunity. (Frolova v Union of Soviet Socialist Republics, 761 F2d 370; Texas Trading & Milling Corp. v Federal Republic of Nigeria, 647 F2d 300, 454 US 1148; Canadian Overseas Ores v Compania de Acero del Pacifico, 528 F Supp 1337, 727 F2d 274; Pugatch v David’s Jewelers, 53 Misc 2d 327; Animalfeeds Intl. v Banco Espirito Santo e Comercial de Lisboa, 101 Misc 2d 379; Fahey v County of Ontario, 44 NY2d 934; Pegno Constr. Corp. v City of New York, 95 AD2d 655; Giacomazzo v Moreno, 94 AD2d 369; Calloway v National Servs. Indus., 93 AD2d 734, 60 NY2d 906.) III. The court should sustain the holding of the court below that these actions are not "based upon a commercial activity carried on in the United States” by Singapore. (Alvez v American Export Lines, 46 NY2d 634; Texas Trading & Milling Corp. v Federal Republic of Nigeria, 647 F2d 300, 454 US 1148; Harris v Vao Intourist, Moscow, 481 F Supp 1056; Margoles v Johns, 483 F2d 1212; Winston & Co. v Town Hgts. Dev., 376 F Supp 1214; Aiken v Lustine Chevrolet, 392 F Supp 883; Paterson, Zochonis v Compania United Arrow, 493 F Supp 621; Ministry of Supply, Cairo v Universe Tankships, 708 F2d 80; Gemini Shipping v Foreign Trade Org., 647 F2d 317; Sugarman v Aeromexico, Inc., 626 F2d 270.) IV. The court should sustain the holding of the court below that these actions are not based upon an act outside the territory of the United States that caused a "direct effect in the United States”. (Matter of Rederi

      [Dow Chem. Co.], 25 NY2d 576, 398 US 939; Texas Trading & Milling Corp. v Federal Republic of Nigeria, 647 F2d 300, 454 US 1148; Maritime Intl. Nominees Establishment v Republic of Guinea, 693 F2d 1094, 464 US 815; Harris v Vao Intourist, Moscow, 481 F Supp 1056; Carey v National Oil Corp., 453 F Supp 1097, 592 F2d 673; Ohntrup v Firearms Center, 516 F Supp 1281, 760 F2d 259; Australian Government Aircraft Factories v Lynne, 743 F2d 672; Keller v Transportes Aereos Militares Ecuadorianos, 601 F Supp 787; Close v American Airlines, 587 F Supp 1062.)
   OPINION OF THE COURT

Meyer, J.

An entity otherwise entitled to sovereign immunity under the Foreign Sovereign Immunities Act (28 USC § 1602 ff; hereafter FSIA) which serves an answer asserting not only a number of affirmative defenses other than sovereign immunity but also a counterclaim against plaintiffs and their counsel, and in furtherance of its position utilizes a number of procedural devices before attempting some four and a half years after commencement of the litigation to amend its answer to assert the immunity defense, waives immunity and the grant of permission to serve an amended answer including such a defense does not preclude a finding on the merits that the defense has been waived. The order of the Appellate Division should, therefore, be affirmed.

I

These appeals involve actions brought to recover from Singapore Airlines and Gulf Aviation for injuries resulting from the 1976 hijacking of an Air France plane en route to Paris from Tel Aviv. Plaintiffs allege that the failure of defendant airlines to search the hijackers at the points of origin of their connecting flights made it possible for them to board the Air France plane without detection. It is undisputed that defendant airlines are foreign government instrumentalities and as such entitled to sovereign immunity unless within the exceptions to immunity from jurisdiction stated in 28 USC § 1605 (a) (1) or (a) (2).

The summons and complaint in the Aboujdid action were served on or about June 23, 1978. On July 27, 1978, Gulf served its answer, which contained affirmative defenses of failure to state a cause of action, lack of capacity of plaintiffs, forum non conveniens and improper venue, but made no reference to sovereign immunity. It also stated a counterclaim for prima facie tort not only against the plaintiffs but also against their attorneys of record, alleging that commencement of the action was wrongful and seeking compensatory damages of $1,000,000 and punitive damages of $5,000,000. On August 9, 1978, however, Gulf discontinued the counterclaim against the attorneys of record and on August 14, 1978 filed an amended counterclaim against plaintiffs only.

On application of plaintiffs, further proceedings in the action were stayed on November 6, 1978 pending determination of a related Illinois action. The Illinois action was dismissed on forum non conveniens grounds in December 1978 (People ex rel. Compagnie Nationale Air France v Giliberto, 74 Ill 2d 90, 383 NE2d 977) and certiorari was denied by the Supreme Court on April 4, 1979 (441 US 932). Singapore Airlines then moved prior to service of its answer to dismiss on grounds of forum non conveniens and Gulf joined in that motion. The motion was denied on December 31, 1980 (108 Misc 2d 175). Defendants moved for reargument, defendant Singapore’s papers noting that it had not yet filed an answer and if required to answer that it may have a defense of sovereign immunity. On May 13, 1981, reargument was granted but the original decision adhered to, the memorandum characterizing the suggestion of sovereign immunity as without merit. Singapore’s answer, verified June 5, 1981, was then filed. On January 26, 1982, the order denying the original motion was affirmed (86 AD2d 564).

On July 14, 1982, Gulf removed the actions to the United States District Court and at an unspecified time in 1983 moved in that court to amend its answer to assert the defense of sovereign immunity and to dismiss the action for lack of jurisdiction. Singapore moved to dismiss on the same ground. On plaintiffs’ motion for remand, however, removal was held untimely and the actions were, by order dated March 21, 1983, remanded to Supreme Court, New York County, the District Court Judge declining to consider defendants’ motions in view of the remand. By motions returnable July 22, 1983, Gulf moved in Supreme Court for leave to amend its answer and to dismiss on the ground of sovereign immunity and Singapore moved to dismiss on the same ground.

Gulfs motion for leave to amend was granted, the court noting that plaintiffs’ argument in opposition that Gulf may have waived its sovereign immunity was well taken, that the "defendants have clearly waived their claims of immunity by litigating over these many years” but that plaintiffs’ assertion of prejudice with respect to Gulfs motion to amend was unjustified in view of the fact that Singapore’s answer already contained a defense of sovereign immunity. It also held both defendants within the commercial activity and direct effects exceptions of 28 USC § 1605 (a) (2) and, therefore, denied both motions to dismiss. On appeal to the Appellate Division, that court held "that Gulf Aviation must be deemed to have waived the defense of sovereign immunity by not having raised it in its first responsive pleading” (108 AD2d, at p 332), but that neither of the 28 USC § 1605 (a) (2) exceptions was applicable to either defendant, and that Singapore had properly preserved the defense by raising it in its answer. It, therefore, modified, on the law, to dismiss the complaint as to Singapore and otherwise affirmed.

The matter is before us on appeal by plaintiffs on modification grounds under CPLR former 5601 (a) and on appeal by Gulf pursuant to leave granted by the Appellate Division. We agree that, for the reasons stated in the opinion of Justice J. Robert Lynch (108 AD2d 330), the commercial activity and direct effect . exceptions of 28 USC § 1605 (a) (2) are not applicable to either airline, that neither airline had explicitly waived immunity within the meaning of section 1605 (a) (1), and that Singapore Airlines, having set forth in its answer an affirmative defense that the action was barred by the FSIA, did not implicitly waive immunity. We also agree, although on somewhat different reasoning, that Gulf did implicitly waive its immunity. We, therefore, affirm and answer the question certified by the Appellate Division on Gulfs appeal in the affirmative.

II

Our disagreement with the Appellate Division’s reasoning as to Gulf lies in its single-minded reliance on Gulfs first responsive pleading as the basis for its finding of waiver. The act provides in section 1602 that "[c]laims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter,” in section 1604 that "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter”, and in section 1605 (a) that "[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case —(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver.” Notwithstanding the reference in the House Report to the filing of "a responsive pleading in an action without raising the defense of sovereign immunity”, we do not find it necessary to pass upon whether under all circumstances the omission of the defense from the first responsive pleading constitutes an irrevocable waiver. Under the circumstances of this case and the interpretation of the act as it has developed in the Federal courts, we conclude, rather, that, notwithstanding its grant of permission to serve an amended answer, Special Term acted within its discretion in concluding that Gulf by its prior actions in the litigation had waived immunity.

That "courts have discretion to determine that the conduct of a party in litigation does constitute a waiver of foreign sovereign immunity in light of the circumstances of a particular case” is the holding of Canadian Overseas Ores v Compania de Acero del Pacifico (727 F2d 274, 278). And in Frolova v Union of Soviet Socialist Republics (761 F2d 370, 378), the court, noting that "Congress anticipated, at a minimum, that waiver would not be found absent a conscious decision to take part in the litigation,” recognized "a reticence [in the case law] to find a waiver from the nature of a foreign state’s participation in litigation” even when a substantial period of time has passed.

There is language in some of the cases to the effect that failure to assert the defense in an answer or other responsive pleading is an implied waiver (e.g., Canadian Overseas Ores v Compania de Acero del Pacifico, 727 F2d, at p 277, supra; Sea Lift v Refinadora Costarricense de Petroleo, 601 F Supp 457, 466). The holding in Canadian Overseas was, however, that the making of motions for a stay and for dismissal on forum non conveniens grounds and the participation in court-ordered discovery, all of which stretched over a period of several years, was not an implied waiver by a foreign entity which had filed no responsive pleading and had expressly noted in opposing a motion for remand to the State court that it did not intend to waive its right to raise the defense. And although a responsive pleading without such a defense had been served in the Sea Lift case (supra), the court also relied on the fact that defendant, an agency of the government of Costa Rica, had made several motions to dismiss without mentioning an intention to assert sovereign immunity and had argued that the courts of Costa Rica had jurisdiction of the parties and the subject matter.

Also of interest in this connection are Matter of Rio Grande Transp. (516 F Supp 1155, 1158) and Wolf v Banco Nacional (739 F2d 1458, 1460, cert denied — US —, 105 S Ct 784). Rio Grande held that the assertion of a counterclaim did not constitute an implied waiver when the counterclaim was made conditional upon the finding of subject matter jurisdiction. Wolf, on the other hand, recognized that an implied waiver could be found from counsel’s failure to suggest sovereign immunity as a basis for summary judgment in favor of the bank, which had been nationalized two days before the summary judgment motion was argued.

Viewed in the context of those decisions there can be little question that Gulf consciously decided to take part in the litigation. Not only did its answer set forth the four affirmative defenses noted above, without attempting in any way to reserve the right to plead sovereign immunity, but also it asserted the counterclaim described above against both plaintiffs and their attorneys, who were not parties to the lawsuit. Not until almost five years had passed did Gulf move in Federal court for leave to amend its answer, and, although it made the same motion in State court after remand, it came forward with no reason why it had not earlier sought to raise the defense, although challenged by plaintiffs’ attorney to disclose why it had not previously done so. As for the argument advanced to us in Gulfs reply brief that assertion of the counterclaim was defensive "to be pursued only in the event that the foreign state [Gulf] is not entitled to sovereign immunity,” it is sufficient to note that the counterclaim was not pleaded conditionally; indeed, there was no mention whatsoever in the original answer of sovereign immunity.

We conclude that Gulf waived its defense of sovereign immunity by participating in and seeking affirmative benefit from the litigation, without reservation, and that the courts below correctly held that the defense as asserted in its amended answer is without merit.

III

Pointing to the Appellate Division’s conclusion that the action is not based upon a commercial activity carried on in the United States or an act performed outside the United States which causes a direct effect in the United States, Gulf argues that Congress could not have intended that a foreign sovereign be subject to the jurisdiction of United States courts on the basis of implied waiver regardless of its contacts with the United States and that international law prohibits assertion of prescriptive jurisdiction unsupported by reasonable links between the forum and the controversy. The latter part of the argument confuses jurisdiction to prescribe and jurisdiction to adjudicate (see, Restatement of Foreign Relations Law of United States [Revised], Tent Draft No. 2, Introductory Note, at 87-95, and § 401). As to the former, the legislative history makes clear that the statute embodies the minimum jurisdictional contacts and adequate notice required by due process (cf. International Shoe Co. v Washington, 326 US 310, 316) and that "each of the immunity provisions in the bill * * * requires some connection between the lawsuit and the United States, or an express or implied waiver by the foreign state of its immunity from jurisdiction” (emphasis supplied; HR Rep No. 1487, op. cit., at 13 [in 1976 US Code Cong & Ad News, at 6612]; see also, Hearings before the Subcommittee on Administrative Law and Governmental Relations of House Comm on Judiciary on HR 11315, 94th Cong, 2d Sess, at 28, 31). Both case law and secondary authorities agree that no more than minimum contact is required (Carey v National Oil Corp., 592 F2d 673; cf. Proyecfin de Venezuela v Banco Indus., 760 F2d 390, 394; see, Restatement of Foreign Relations Law of United States [Revised], op. cit. § 441 [2] [h]; Kahale & Vega, Immunity and Jurisdiction: Toward a Uniform Body of Law in Actions Against Foreign States, 18 Colum J Transnational L 211, 233). Neither the reasonableness requirement of international law nor the due process requirements of our constitutional law foreclose an action, though brought upon activities wholly unrelated to the United States, against a foreign State agency doing business in the United States and which has waived its immunity and submitted to the jurisdiction of the court. Thereafter dismissal may be obtained only on forum non conveniens grounds (see, Verlinden B. V. v Central Bank of Nigeria, 461 US 480, 490, n 15) or on the merits.

Plaintiffs’ affidavit on Gulfs motion to amend and dismiss alleged that Gulf is engaged in substantial activity in the United States with offices and personnel in New York, Los Angeles and four other cities and annexed timetables and advertisements as proof. Gulfs affidavit in support of the motion to renew and reargue conceded that it employed approximately 25 persons in the United States and did not dispute that it was regularly carrying on business in New York. There are, therefore, sufficient contacts to meet both the requirements of international law and of due process (see, Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65; Nemetsky v Banque De Developpement, 48 NY2d 962; Restatement of Foreign Relations Law of United States [Revised], op. cit. § 441 [2] [h]). That being so, and the forum non conveniens questions not being an issue before us, the order of the Appellate Division should be affirmed and the certified question answered in the affirmative.

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

Order affirmed, with costs to defendant Singapore Airlines, Ltd. against plaintiffs and with costs to plaintiffs against defendant Gulf Aviation, Ltd. Question certified answered in the affirmative.

      . The parties have stipulated that the determination in the Aboujdid action will govern the similar El-Mani action as well. Therefore, only facts germane to the Aboujdid action are set forth.

      . Such was the disposition stated in the opening sentence of the memorandum, but its concluding sentence was, "The motion for reargument is denied in all respects.”

      . The effect of 28 USC §§ 1604 and 1605 (a) (1) is, by creating subject matter jurisdiction through waiver, to make "the defense of sovereign immunity * * * most akin to that of lack of jurisdiction over the person” (4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3211.10, at 32-56). The concept, though unusual, is not wholly foreign to New York jurisprudence (Matter of Rougeron, 17 NY2d 264, 271, cert denied 385 US 899).

      . HR Rep No. 1487, at 18 (reprinted in 1976 US Code Cong & Ad News, at 6604; Sen Rep No. 1310 is identical). The quoted language appears at page 18 of the report, which also states at page 17 that "sovereign immunity is an affirmative defense which must be specially pleaded”. As the Supreme Court noted in Verlinden B. V. v Central Bank of Nigeria (461 US 480, 493-494, n 20), the latter statement is not entirely correct because "subject-matter jurisdiction turns on the existence of an exception to foreign sovereign immunity, 28 U.S.C. § 1330(a). Accordingly, even if the foreign state does not enter an appearance to assert an immunity defense, a * * * court still must determine that immunity is unavailable under the Act.”

      . The House Report, supra, notes at page 12 that the act "is intended to preempt any other State or Federal law * * * for according immunity to foreign sovereigns * * * their agencies, and their instrumentalities.”

      . Leave to amend is to be "freely given” (CPLR 3025 [b]) and generally does not involve the merits of the amended pleading (Herrick v Second Cuthouse, 64 NY2d 692; Edenwald Contr. Co. v City of New York, 60 NY2d 957; see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3025:6, p 477; C3025:ll, p 481).

      . See also, Simmons, The Foreign Sovereign Immunities Act of 1976: Giving the Plaintiff His Day in Court, 46 Fordham L Rev 543, 553; Restatement of Foreign Relations Law of United States [Revised], Tent Draft No. 2 § 456 [1] [a] and [2] [c]; but see, Kane, Suing Foreign Sovereigns: A Procedural Compass, 34 Stan L Rev 385, 417).

      . As we put it in an arbitration context, "[W]here the defendant’s participation in the lawsuit manifests an affirmative acceptance of the judicial forum, with whatever advantages it may offer in the particular case, his actions are then inconsistent with a later claim that only the arbitral forum is satisfactory” (De Sapio v Kohlmeyer, 35 NY2d 402, 405). Nor is section 1607 of the act protective of the counterclaim, as Gulf argues. That section deals only with the effect of a counterclaim against a foreign sovereign plaintiff or a foreign sovereign intervenor, not with a counterclaim such as Gulfs which, by seeking affirmative relief, asserts the jurisdiction of the court (see, Siegel, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, C3211:60, p 63).

      . The conclusion thus reached makes it unnecessary for us to consider the effect as a waiver of Gulfs joining in Singapore’s forum non conveniens motion. But in light of plaintiffs’ argument on the cross appeal that Singapore, by failing to appeal from Special Term’s decision on reargument of its forum non conveniens motion, waived immunity, we note that the Appellate Division’s contrary conclusion was within the discretion vested in it to determine what constitutes an implied waiver (Canadian Overseas Ores v Compania de Acero del Pacifico, 727 F2d 284), that Singapore’s reference to immunity was under the Federal cases discussed above a permissible method of protecting its right to raise the defense in its answer, and that Special Term’s determination of the motion for reargument was equivocal (see, n 1, supra).


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Donald Calvin Mattison, Appellant.
    Argued April 29, 1986;
    decided June 5, 1986

      POINTS OF COUNSEL

      Cynthia S. Hutchinson for appellant.
    I. Mattison’s defense was fraught with conflicts of interest or the significant possibility thereof. (People v Gomberg, 38 NY2d 307; People v Lloyd, 70 AD2d 625, 51 NY2d 107; People v Macerola, 47 NY2d 257; People v Dell, 60 AD2d 18; People v Ortiz, 61 AD2d 891, 49 NY2d 718; People v Hall, 91 AD2d 874, 61 NY2d 654; People v Close, 103 AD2d 970; People v Green, 101 AD2d 1009; People v Baffi, 49 NY2d 820; Glosser v United States, 315 US 60.) II. The charge to the jury on the issue of Mattison’s intent to commit robbery, first degree, was fatally defective. (Connecticut v Johnson, 460 US 73; Sandstorm v Montana, 442 US 520; People v Cunningham, 104 Misc 2d 298; People v Patterson, 39 NY2d 288; People v Williams, 104 AD2d 714.) III. The District Attorney denied Mattison’s counsel materials crucial to his defense. (Giglio v United States, 405 US 150; People v Perez, 65 NY2d 154.)

      James T. Hayden, District Attorney (Weeden A. Wetmore of counsel), for respondent.
    I. Defendant received effective assistance of counsel. (People v Valo, 92 AD2d 1004; People v Olshen, 30 Misc 2d 1078, 17 AD2d 971, 374 US 846; People v Alicea, 61 NY2d 23; People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307; Olshen v McMann, 378 F2d 993, 389 US 874, 964; People v Frisbie, 70 AD2d 1053.) II. The trial court’s jury instructions were proper; moreover, appellant failed to address such issue on direct appeal. (Sandstrom v Montana, 442 US 510; Stokes v People, 53 NY 164; People v Albino, 74 AD2d 831; People v Gray, 71 AD2d 295; People v

      Cunningham, 104 Misc 2d 298; People v O’Neill, 59 AD2d 540; People v Colon, 54 NY2d 913.) III. Appellant was not unconstitutionally denied materials crucial to his defense. (People v Yarter, 50 AD2d 1019; People v Leonti, 18 NY2d 384; People v Salemi, 309 NY 208, 350 US 950; People v Powell, 96 AD2d 610; People v Wood, 94 AD2d 849; People v Wagner, 51 AD2d 186.)
   OPINION OF THE COURT

Kaye, J.

Absent inquiry by the court and consent by the defendant, an attorney may not represent a criminal defendant in a trial at which a star prosecution witness is a codefendant whose plea bargain — including the promise to testify against defendant — was negotiated by a partner in the same firm. In these circumstances defendant is denied his right to effective assistance of counsel.

The following factual recital is derived from the undisturbed findings made after a hearing held pursuant to CPL 440.10, as well as the hearing and trial records.

Defendant, Donald Mattison, was indicted on November 10, 1977, together with Dennis Maggese, on charges of robbery in the first degree. Maggese was already under indictment on unrelated burglary and drug charges, and was represented by Joseph Balok, in his capacity as an Assistant Public Defender. Balok was also a partner in the firm of Miller & Balok. Mattison was represented on the robbery charge by Raymond Urbanski, who was associated with the firm of Miller & Balok, and was recently admitted to the Bar.

After Maggese’s arraignment, the court assigned James Carmody to represent Maggese in place of the Public Defender’s office on the robbery charge. Thereafter, Balok and Carmody coordinated plea negotiations on Maggese’s behalf to dispose of all pending charges, with Balok as the spokesman in court appearances. On January 4, 1978, Maggese, facing up to 42 years imprisonment, pleaded guilty to some charges under each indictment as part of a plea bargain pursuant to which he agreed to testify against his codefendants in exchange for a prison sentence of zero to five years. During the plea hearing, Balok asked that the record reflect that in his presence Maggese had discussed with the Assistant District Attorney "his involvement and the involvement of [Mattison] on the robbery charge.” Maggese was then placed under oath and testified about the robbery, claiming that Mattison had obtained the gun and planned, organized and participated in the crime.

As the hearing court found, Urbanski conducted his defense of Mattison without any help from Balok. During or after Maggese’s plea negotiations Balok informed Urbanski that he represented Maggese and that Maggese had agreed to testify against Mattison. Urbanski told Mattison about Balok’s representation of Maggese at least as early as during his trial. During trial before the same Chemung County Court Judge who some months earlier had taken Maggese’s plea, Mattison became upset when he saw Balok, whom he knew to be a member of Urbanski’s firm, talking in the courtroom to a police investigator. Urbanski told Mattison that Balok had represented Maggese on unrelated charges, which apparently assuaged Mattison. No objection was made to Urbanski’s continued representation, and the Trial Judge, unaware of the underlying facts, did not inform Mattison of any possible conflict of interest. Maggese, on direct, testified that he was serving a five-year sentence; in his brief cross-examination of Maggese, Urbanski made no reference whatever to the plea, or the negotiated sentence, but simply asked that the court take judicial notice of the maximum sentences for the crimes Maggese had committed. In summation Urbanski "speculated]” that Maggese’s reduced sentence possibly influenced his testimony.

At trial Maggese testified that Mattison obtained the gun, planned the robbery, created an alibi, and persuaded him to go along. Mattison, in his own defense, testified that Maggese was the instigator, that he (Mattison) had previously served as a police informant, that he was watching Maggese at the request of the State Police, that he could not alert authorities before the robbery, that he had accompanied Maggese intending to turn him in, and that he lacked intent to commit a robbery. Mattison was found guilty of robbery in the first degree and sentenced to 7 to 21 years in prison.

On November 14, 1978, the Appellate Division assigned Urbanski to represent Mattison on appeal. Ineffective assistance of counsel was not raised on appeal, and the conviction was affirmed.

In early 1983, Mattison made the present motion to vacate his conviction and for a new trial pursuant to CPL 440.10, in which he claimed that Balok, Miller and Urbanski, a firm of three lawyers, had a conflict of interest, and that he was denied effective assistance of counsel. Concluding that it was unable to resolve the questions raised on the papers, the court held a hearing at which several witnesses including Balok, Urbanski and Mattison testified. The court ultimately denied the motion, finding that no conflict existed, that Urbanski conducted a competent, effective and independent defense, and that by retaining Urbanski as counsel on appeal Mattison waived any ineffective assistance claim. The Appellate Division unanimously affirmed, without opinion, and a Judge of this court granted Mattison leave to appeal.

At the outset, we reject the People’s contention that Mattison waived his ineffective assistance claim because Urbanski represented him on appeal. The People rely upon People v Gomberg (38 NY2d 307, 316), in which we stated that the defendant must be deemed to have waived any claims arising out of his trial counsel’s representation because he retained the same attorney on appeal. Here, however, Urban-ski was assigned, not retained, as Mattison’s appellate counsel. Moreover, in Gomberg the court had inquired prior to trial whether the joint representation would result in a conflict and advised that any defendant who felt there was a conflict could have other counsel. Thus, it was plain that defendants were aware of a potential conflict and of their right to new counsel. Here, Mattison knew that Balok, a partner at Urbanski’s firm, had represented Maggese on unrelated charges. There is no evidence that he was aware that Balok’s involvement included related charges, that joint representation in these circumstances might constitute a breach of professional ethics, or that it could furnish grounds for a new attorney or a new trial.

Joint representation of defendants is not in and of itself a conflict of interest or a denial of effective assistance of counsel (People v Gomberg, 38 NY2d 307, 312, supra). When jointly represented defendants proceed to trial together, a "conflict exists only when the individual defenses 'run afoul of each other’ ” (id., quoting People v Gonzalez, 30 NY2d 28, 34, cert denied 409 US 859). Actual conflict between defendants "may be shown, for example, through the existence of 'pronounced variations in the type and quantum of evidence against each defendant [which suggests] different theories and tactics of defense for each’ ” (People v Cruz, 63 NY2d 848, 850, quoting People v Baffi, 49 NY2d 820, 822). Once a conflict between codefendants at trial is established, prejudice is presumed, for "courts will not enter into 'nice calculations’ as to the amount of prejudice resulting from the conflict” (People v Gomberg, 38 NY2d 307, 312, supra).

In the interest of avoiding such conflicts, and because defendants may not always sense when a conflict exists or perceive how it might undermine effective representation, the Trial Judge "has a duty to protect the right of an accused to effective assistance of counsel” (People v Gomberg, 38 NY2d 307, 313, supra; People v Macerola, 47 NY2d 257, 263). Before the trial begins, "it is the responsibility of the Trial Judge, independent of the attorney’s obligation to inform his clients of any conflicting interests which may hinder his representation, to 'ascertain, on the record, whether each defendant [represented by the same attorney] has an awareness of the potential risks involved in that course and has knowingly chosen it’ ” (People v Macerola, 47 NY2d 257, 263, supra, quoting People v Gomberg, 38 NY2d 307, 313-314, supra). A Judge’s failure to make the appropriate inquiry, when circumstances require it, may result in reversal of a conviction and a new trial. In People v Macerola (47 NY2d 257, supra), for example, a new trial was necessary where the Judge had failed to make the appropriate inquiry, and each defendant’s defense implicitly incriminated the other, placing their common counsel "in a very awkward position at trial” (47 NY2d, at p 264).

Macerola and Gomberg are of course distinguishable in that counsel there simultaneously represented at trial codefendants with competing interests, whereas here Maggese had struck his plea bargain during the period of common representation but before the commencement of Mattison’s trial. But the principles articulated in those cases govern this situation as well: to assure his right to effective assistance of counsel, defendant should have been independently informed of a conflicting interest on the part of Miller & Balok and the potential risks involved, so that he could intelligently choose whether to proceed with his attorney. Mattison was entitled to know of Balok’s involvement with Maggese in this matter as he proceeded to trial in which, in furtherance of the plea bargain advocated by Balok, Maggese was a principal antagonist whose credibility and testimony had to be undermined.

A similar issue was presented in People v Lombardo (61 NY2d 97), where defendant’s attorney had previously represented the People’s chief witness on unrelated charges. We concluded that the trial court’s failure to conduct a Gomberg inquiry was error, but that reversal was not required because "defendant has not demonstrated 'that a conflict of interest, or at least the significant possibility thereof, did exist’ ” (People v Lombardo, 61 NY2d 97, 103, supra, quoting People v Macerola, 47 NY2d 257, 264, supra). We conclude, as in Lombardo, that error occurred when Mattison was permitted to proceed to trial uninformed about the association of his retained counsel with Maggese. The clash between Maggese and Mattison, even if not previously apparent, was evident from the outset of the trial, as the defense was laid bare in opening statements and Maggese, the People’s first witness, took the stand. Although the Trial Judge might not — as the lower courts found — have been aware of the underlying facts, the People knew that Maggese would be a principal witness against Mattison and that he had been represented by Balok. These facts should have been brought to the attention of the Trial Judge and appropriate inquiry made (see, People v Lombardo, 61 NY2d, at p 102, supra).

Unlike Lombardo, however, reversal is required here. First, a plea by one defendant in exchange for testimony against the other in the same matter is virtually certain to place lawyers involved in representing both in an untenable position (see, People v Dell, 60 AD2d 18 [Hancock, Jr., J.]; see also, Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 Tex L Rev 211, 273-274 [1982]; Tague, Multiple Representation of Targets and Witnesses During a Grand Jury Investigation, 17 Am Crim L Rev 301, 312 [1980]; Girgenti, Problems of Joint Representation of Defendants in a Criminal Case, 54 St John’s L Rev 55, 64-65 [1979]; Note, Criminal Codefendants and the Sixth Amendment: The Case for Separate Counsel, 58 Geo LJ 369, 379 [1969]). Moreover, this case presents an actual rather than potential conflict. The stories of Maggese and Mattison are in direct collision — indeed, as Urbanski testified, they were inconsistent in every respect — each pointing to the other as the major culprit while exonerating himself. Finally, notwithstanding Carmody’s representation of Maggese on the robbery charge, Balok cannot be cast in the limited role of having formerly represented a prosecution witness on unrelated charges (see, e.g., People v Lombardo, 61 NY2d 97, supra). It is apparent that Balok negotiated for Maggese on related as well as unrelated charges, at the same time his associate represented Mattison. All sides viewed Maggese’s plea to the three indictments as a package. Thus, while advancing the plea bargain for Maggese, which Balok characterized as a "good plea” and "more than fair”, Balok had an obvious interest that Maggese appear less culpable, which necessarily meant that Mattison had to appear more culpable. Indeed, at the time the plea was taken Balok — lending personal force to the bargain he had negotiated — insisted the record reflect that Maggese in his presence had discussed his involvement and that of the codefendants both in the burglary and in the robbery. The success of Mattison’s defense, however, turned on convincing the jury that that very testimony was false, and concocted in Maggese’s self-interest simply to reduce his sentence. Such a situation necessarily placed trial counsel in a very awkward position, where prejudice to Mattison need not be precisely delineated but must be presumed (see, People v Gomberg, 38 NY2d 307, 312, supra).

People v Alicea (61 NY2d 23), on which the People rely, is not a case where any actual conflict was shown. At his trial Alicea testified that Torres had shot the victim. Torres, represented by the same attorney, had pleaded guilty three years earlier — indeed the plea was taken even before defendant’s arrest — and absconded, and his whereabouts were unknown. We proceeded on the assumption that a potential conflict of interest existed but concluded that in these circumstances a showing of a possible or potential conflict, without more, was "insufficient to entitle defendant to a new trial; he must demonstrate that the conduct of his defense was in fact affected by the operation of the conflict” (61 NY2d, at p 31). Significantly, in Alicea the plea was not taken during the period of common representation and Torres did not testify against Alicea as a condition of his bargain.

Finally, the People emphasize that Urbanski handled Mattison’s defense without help from Balok, who acted as Assistant Public Defender, and that Urbanski as a personal matter had no divided loyalties. However, if Balok by virtue of his involvement with Maggese was precluded from representing Mattison in this matter, so was Urbanski. We have made clear that, "for the purpose of disqualification of counsel, knowledge of one member of a law firm will be imputed by inference to all members of that law firm” (see, People v Wilkins, 28 NY2d 53, 56; see also, Cardinale v Golinello, 43 NY2d 288). Given the clear conflict here, we are not called upon to decide whether a Public Defender’s office, or the law firm of a part-time Assistant Public Defender, must be disqualified from representing codefendants (see, People v Wilkins, 28 NY2d 53, 56, supra).

In view of our decision, it is unnecessary to pass on Mattison’s other arguments in support of reversal.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to vacate the judgment of conviction granted, and the case remitted to Chemung County Court for a new trial.

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

Order reversed, etc.

      . The court in its findings after the CPL 440.10 hearing did not refer to the testimony of Mattison, his mother, father and sister, to the effect that their initial discussions regarding representation, and payment of a retainer, were with Balok, and also with Miller. Balok himself testified that the firm file "reflects that [Mattison] retained the firm in November 1977”, and that while he was without specific recollection, he "might have met with [Mattison] in connection with the indictment that was pending against him or other matters”, and "took no notes whatsoever during any interviews [he] may have had with [Mattison] or members of his family either in connection with this particular indictment or any other matters.” Miller did not testify.

      . The court by this finding implicitly rejected Mattison’s testimony that he first learned of Balok’s representation of Maggese in July 1980, nearly two years after his conviction, in the course of a conversation with Urbanski in which Urbanski allegedly expressed distaste for the fact that no plea bargain had ever been offered to Mattison whereas Balok had been "able to work out a very successful and comfortable deal for Maggese.” On this appeal Mattison urges that by negotiating a plea for Maggese, Balok effectively precluded any similar arrangements for him.

      . Mattison was an acknowledged confidential police informant, and had in the past been paid for his services. At the CPL 440.10 hearing Mattison testified that he had in fact furnished the police with information regarding several specific crimes, including crimes involving Maggese.

      . [4] We are not barred from reaching this conclusion, despite the trial court’s undisturbed finding that there was no conflict, because it is a conclusion of law, not a finding of fact (see, Cuyler v Sullivan, 446 US 335, 341).


author: Per Curiam.

text:
    In the Matter of New York News, Inc., et al., Respondents. Mary Ventura et al., Appellants; National Broadcasting Company, Inc., Intervenor-Respondent.
    Argued April 28, 1986;
    decided June 10, 1986

      POINTS OF COUNSEL

      Michele Maxian and Caesar D. Cirigliano for Mary Ventura, appellant.
    I. The transcript of appellant’s sealed psychiatric proceeding is confidential and its release to the press for unlimited public dissemination is barred by statute and by the New York and United States Constitutions. (Danziger v Hearst Corp., 304 NY 244; Taylor v United States, 222 F2d 398; United States ex rel. Edney v Smith, 425 F Supp 1038; Matter of Richard S. v City of New York, 32 NY2d 592; Matter of Walker, 64 NY2d 354; Matter of Johnson Newspaper Corp. v Stainkamp, 61 NY2d 958; Matter of Civil Serv. Employees Assn. [Soper], 84 AD2d 927, 56 NY2d 639; Matter of State Bd. for Professional Med. Conduct v New York State Commr. of Mental Hygiene, 64 AD2d 224; Kossar v State of New York, 13 Misc 2d 941; Matter of Clayton, 9 Misc 2d 63.) II. The transcript at issue here may not be released because such release would present a reasonable likelihood that appellant’s Federal and State constitutional right to a fair trial will be jeopardized. (Sheppard v Maxwell, 384 US 333; Matter of Gannett Co. v De Pasquale, 43 NY2d 370; Matter of Poughkeepsie Newspapers v Rosenblatt, 92 AD2d 232, 61 NY2d 1005.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Francis F. Caputo and Leonard Koerner of counsel), for New York City Health and Hospitals Corporation, appellant.
    The public has a vital interest in preserving confidentiality in civil proceedings related to involuntary confinement of mentally disturbed persons. It protects them against invasions of their privacy and against professional judgments which tend to lengthen their confinement. Since the statutory scheme assuring confidentiality protects all patient records and information and does not permit public disclosure under any circumstances, it was error to direct disclosure of the transcript in this case, solely on the basis of the public’s interest in what occurred. (Woe v Cuomo, 729 F2d 96; People v Mobil Oil Corp., 48 NY2d 192; People ex rel. Doscher v Sisson, 222 NY 387; Kossar v State of New York, 13 Misc 2d 941; Matter of Civil Serv. Employees Assn. [Soper], 84 AD2d 927, 56 NY2d 639; Matter of State Bd. of Professional Med. Conduct v New York State Commr. of Mental Hygiene, 64 AD2d 224; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430; Taig v State of New York, 19 AD2d 182; Centeno v City of New York, 48 AD2d 812, 40 NY2d 932; Houchins v KQED, Inc., 438 US 1.)

      Michael B. Mukasey, Emily R. Remes, Laura V. Jones, Neal M. Goldman, Richard N. Winfield, Kevin A. Fisher, Dean Ringel and Ellen Rosen for respondents.
    I. The confidentiality of retention hearings is not absolute and the news media may have access to those hearings subject to guidelines preserving confidentiality and privacy. II. No legitimate and existing privacy interest of Mary Ventura would be compromised by disclosure of the redacted transcript. (Cynthia B. v New Rochelle Hosp. Med. Center, 60 NY2d 452; Campbell v Seabury Press, 614 F2d 395; Matter of New York News [Cohn] 113 AD2d 92.) III. The constitutional arguments raised by appellants are illusory. (Schneider v Smith, 390 US 17; United States v Rumely, 345 US 41; Blodgett v Holden, 275 US 142; Matter of Poughkeepsie Newspapers v Rosenblatt, 92 AD2d 232, 61 NY2d 1005; Richmond Newspapers v Virginia, 448 US 555; Gannett Co. v De Pasquale, 443 US 368.)
   OPINION OF THE COURT

Per Curiam.

During the evening rush hour on October 22, 1985, at the Times Square subway station in Manhattan, appellant Mary Ventura, in what the police termed "an unprovoked assault”, pushed a young woman into the path of an oncoming train, causing serious injury. Held by bystanders, Ventura was arrested and charged with attempted murder and assault in the first degree and remanded to Bellevue Hospital Center for psychiatric observation. These events were immediately reported in the press.

In the ensuing days, the newspapers reported that in July 1985 Ventura had been a psychiatric patient in Kings County Hospital, and that she had been released on September 27, 1985 — only weeks before the assault — following a judicial proceeding under the Mental Hygiene Law. Her name and photograph, the details of the incident, her hospitalization and her background were widely publicized. Ventura’s mother and her neighbors made public statements about her hospitalization, her release and her past erratic, even violent behavior. Within two days of the incident, a spokesman for appellant Health and Hospitals Corporation (HHC) announced that the Judge who had presided at Ventura’s retention hearing ordered release over the objection of psychiatrists, and the Judge and his law clerk responded that the psychiatric recommendation had been followed. Controversy immediately erupted over whether procedures for the release of mental patients, designed for the protection of both the patients and the public, were being properly applied — and if not where the fault lay.

In this factual context, the Special Term Judge, affirmed by the Appellate Division, granted the application of respondent New York News, Inc. (now joined by other media respondents) for release of the court file, to the extent of ordering disclosure of the transcript of Ventura’s retention hearing, redacted so as to reveal solely counsels’ arguments (including the history of Ventura’s hospitalization), the testifying doctor’s recommendation (including some reference to Ventura’s condition), and the court’s determination. This redacted transcript is the focus of the present appeal. Appellants, Ventura and HHC, emphasize the importance of maintaining strict secrecy, while respondents urge that the public interest in proper procedures for release of confined mental patients demands disclosure.

The Legislature, sensitive to the strong public interest in maintaining confidentiality of psychiatric information, has enacted a comprehensive scheme to shield records of mental patients from public view. As Governor Cuomo noted in approving legislation clarifying and strengthening that scheme: "At the very heart of the client-professional relationship in mental health care is its confidentiality. The bills strengthen existing protection against the inappropriate disclosure of mental health records and thereby strengthen the integrity of mental health care” (Memorandum of Governor Cuomo, 1984 McKinney’s Session Laws of NY, at 3654). The confidentiality provisions of the Mental Hygiene Law operate to protect the patient’s interests by preventing private or embarrassing disclosures and also by encouraging unconstrained diagnoses and treatment appropriate to the patient’s condition; they extend not only to patient records on care and treatment but also to clinical information, including information concerning the patient’s admission and legal status and the documents pertinent to those matters (Mental Hygiene Law § 33.13), and to hospitalization and discharge proceedings (Mental Hygiene Law § 9.31). The limited instances when information about a patient or a patient’s proceeding may be disclosed, and to whom it may be disclosed, are strictly prescribed by statute.

In the extraordinary circumstances presented, Ventura’s retention hearing has — in a single narrow respect — become a matter of public concern, calling into question for the first time whether the press can ever be "someone properly interested” in the release of papers sealed under the Mental Hygiene Law (see, § 9.31 [f]). Here, Ventura attracted public interest not merely because of statements of an HHC official or hearing Judge. Rather, her assault, together with the statements of her mother and neighbors, immediately focused attention on her identity and condition, including her hospitalization and discharge only weeks before the incident. Widespread concern naturally centered on the procedure that resulted in her discharge from confinement. To say that, even where a patient’s identity is known and there is a legitimate public concern in disclosure of information, secrecy must be blindly maintained — that the press can never be "someone properly interested” (contrast, Mental Hygiene Law § 9.31 [f], with § 33.13 [d]) — safeguards no interest sought to be protected by the Legislature and sacrifices a legitimate public interest in information regarding procedures for the release of mental patients. We therefore agree with both lower courts that some disclosure of information to respondents is appropriate here.

The first inquiry must of course be whether the public interest in disclosure can be fully satisfied without risk to the public interest in nondisclosure. Here we agree with respondents, in their argument before us, that disclosure can be accomplished in a manner that "will help the public determine whether current procedures for release of confined mental patients worked properly, without offending the confidentiality provisions of the statute.” But the transcript of the retention hearing, even as carefully redacted below, reveals certain information concerning Ventura’s hospitalization and condition in a situation where the dual public interest can be otherwise fully served. Public concern centers not on details of Ventura’s personal history, condition or treatment but on retention procedures, and particularly the question whether the court ordered her release contrary to or in accordance with the doctor’s medical recommendation. As stated by respondents in their brief to this court: "The only issue to be determined by releasing the transcript is who, if anyone, has been telling the truth, and who has not. That, in turn, would disclose whether statutory procedures were followed, if not why not, and, if so, whether they should be changed.” Making public that, at the retention hearing (held Sept. 12, 1985) the doctor recommended hospitalization for two weeks, and that the court followed this recommendation and ordered her release after two weeks, thus satisfies the need for information regarding statutory procedures, without revealing information about the patient. The testimony of the doctor and transcript of the retention hearing, in relevant part, read as follows:

"Q. When do you think the patient could be discharged?

"A. Two weeks.

"MR. FARMER: I have no further questions.

"THE COURT: The doctor’s recommendation of two week hospitalization.

[Off-the-record discussion.]

"THE COURT: Writ sustained. Release in two weeks.”

At all events, disclosure of papers sealed under the Mental Hygiene Law cannot be premised on rule 694.7 (c) of the Appellate Division, Second Department (22 NYCRR 694.7 [c]), which was a basis of the decision below. That rule simply limits media access to hearings relating to the mental condition of a person under the Mental Hygiene Law. It in no way sanctions release of papers, as to which there are specific statutory prohibitions. Whether the rule itself comports with the confidentiality requirements of the Mental Hygiene Law is an issue we do not reach on this appeal.

Accordingly, the order of the Appellate Division should be modified, without costs, by limiting unsealing of the transcript to the above-quoted material, and as so modified, affirmed.

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

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.


text:
    Frederick A. Collins, Individually and as a Member of and in the Right of the S & H Foundation, Inc., et al., Appellants, v William S. Beinecke et al., Individually and as Members and Directors of the S & H Foundation, Inc., et al., Respondents.
    Argued May 1, 1986;
    decided June 5, 1986

      POINTS OF COUNSEL

      Harold R. Tyler, Jr., Robert P. LoBue and Stephen P. Younger for appellants.
    I. The Supreme Court’s error in refusing to recognize the special nature and function of company foundations permeates and distorts its entire decision. (Trustees of Hamilton Coll, v Roberts, 223 NY 56; Simon v Etgen, 213 NY 589; Aetna Cas. & Sur. Co. v Jackowe, 96 AD2d 37; Sargent v Halsey, 75 Misc 2d 624, 42 AD2d 375; Zeiser v Cohn, 207 NY 407; Evans Prods. Co. v Decker, 52 AD2d 991; McHugh v Paley, 63 Misc 2d 1092; Campbell v Brown, 268 App Div 324, 294 NY 702; Santos v Chappell, 65 Misc 2d 559; Matter of Carter v Muscat, 21 AD2d 543.) II. Defendants’ fiduciary duties are not defined solely by the permissive language of the foundation’s bylaws and certificate of incorporation. (Pepper v Litton, 308 US 295; Diamond v Oreamuno, 24 NY2d 494; Foley v D’Agostino, 21 AD2d 60; Matter of Vogel [Lewis], 25 AD2d 212, 19 NY2d 589; Redmont Thinlite Corp. v Redmont, 475 F2d 85; Jacobus v Diamond Soda Water Mfg. Co., 94 App Div 366; Fender v Prescott, 64 NY2d 1077; Byrne v Barrett, 268 NY 199; Matter of James, 22 Misc 2d 1062, 284 App Div 936, 309 NY 659; Associate Alumni of Gen. Theol. Seminary v General Theol. Seminary, 163 NY 417.) III. Continuation of the foundation’s activities and of its relationship to its sponsoring company was part of the goodwill that defendants were obligated to transfer to plaintiffs. (Mohawk Main

      tenance Co. v Kessler, 52 NY2d 276; Levitt Corp. v Levitt, 593 F2d 463; Balluffi v Montross, 199 Misc 220.) IV. The foundation’s purpose and character as a charitable arm of the company should be preserved, and the Supreme Court erred in permitting defendants to divert the foundation from its clearly understood purpose. (Matter of Sousa v New York State Council Knights of Columbus Found., 10 NY2d 68; St. Joseph’s Hosp. v Bennett, 281 NY 115; Matter of Scott, 8 NY2d 419; Matter of Rieger, 60 AD2d 299; Matter of Jolson, 202 Misc 907; Elliott v Teachers Coll., 177 Misc 746, 264 App Div 839, 290 NY 747; Balluffi v Montross, 199 Misc 220.)

      Daniel A. Pollack for respondents.
    I. The bylaws govern this controversy and defendants are admittedly in compliance with the bylaws. (Matter of Haebler v New York Produce Exch., 149 NY 414; Procopio v Fisher, 83 AD2d 757; Associated Gen. Contrs. v Lapardo Bros. Excavating Contrs., 43 Misc 2d 825; Fairchild v Tillotson, 118 Misc 639; Leon v Chrysler Motors Corp., 358 F Supp 877, 474 F2d 1340.) II. This court should not interfere in the internal affairs of the foundation. (Matter of Grace v Grace Inst., 19 NY2d 307; Matter of Gilheany v Civil Serv. Employees Assn., 59 AD2d 834; New York State Soccer Football Assn. v United States Soccer Football Assn., 18 Misc 2d 112; McKane v Adams, 123 NY 609; Simons v Berry, 210 App Div 90; People ex rel. Sluiter v Holstein-Friesian Assn., 41 Hun 439.) III. Appellants’ arguments are meritless. (Meech v Allen, 17 NY 300; Matter of Halls v Van Buren, 46 Misc 2d 703, 24 AD2d 693; Brause v Goldman, 10 AD2d 328, 9 NY2d 620; Trimmer v Van Bomel, 107 Misc 2d 201; Claude Neon Lights v Federal Elec. Co., 135 Misc 113, 227 App Div 696; Mizrahi v Cohen, 1 Misc 2d 174; Bayview Gen. Hosp. v Associated Hosp. Serv., 45 Misc 2d 218; Seif v City of Long Beach, 286 NY 382; Matter of Wells v Board of Assessors, 67 Misc 2d 804; People v Sansanese, 17 NY2d 302.)
   OPINION OF THE COURT

Per Curiam.

This is an action for declaratory judgment and injunctive relief seeking a judicial determination of questions concerning the control and management of defendant S & H Foundation, Inc. Plaintiffs represent the interests of Baldwin-United Corporation which now indirectly owns all the stock of the former Sperry & Hutchinson Company, Inc. The individual defendants are former officers and stockholders of Sperry & Hutchinson Company, Inc. and are members and directors of the foundation. Plaintiffs seek to remove them and install representatives of Baldwin-United Corporation in their place.

The S & H Foundation was formed in 1962 as a type-B not-for-profit corporation and has, since its creation, received its sole financial support from the Sperry & Hutchinson Company, a company well known for its S & H green stamps. The foundation is and always has been a separate legal entity with its own bylaws and certificate of incorporation. Throughout the years, however, a substantial portion of the foundation’s grants benefited company employees directly or indirectly and many of its charitable programs were continuations of programs established and conducted by the company prior to 1962. Neither the certificate of incorporation nor the bylaws of the S & H Foundation contain any qualifications for membership or holding office. From its inception in 1962, however, a practice developed that only officers, directors or agents of the company served as members and directors of the foundation.

In 1981 Baldwin-United Corporation purchased all of the outstanding stock of the company, including all of the stock of the Beinecke defendants. Although the Beineckes’ connection with the company terminated with this stock sale, they have refused to resign as members of the foundation or to second the nomination for membership of three individuals associated with Baldwin-United. Accordingly, plaintiffs instituted this action seeking to compel them to do so, claiming that this is a "company” foundation and that individual defendants therefore have a fiduciary duty not to act contrary to the established practices and purposes of Sperry & Hutchinson Company, Inc. but that they are in fact doing so by blocking the personnel changes proposed by Baldwin-United.

As plaintiffs point out, the creation of company foundations is a recognized business practice. Such foundations provide a company with an opportunity to integrate and institutionalize its long-range charitable giving to further corporate goals and objects, and permit the company to create goodwill while doing so. Moreover, there are definite tax advantages to a company in using a foundation because it may use its gifts to smooth out its earnings picture by making large gifts in profitable years and smaller gifts in lean years (see generally, Hirschfield, Corporate-Community Foundations: The Tie That’s Binding, 25 Foundation News, No. 6 [Nov./Dec. 1984]; Weithorn, Tax Techniques for Foundations and Other Exempt Organizations § 12.02 [1]). Except for special tax treatment, however, the law does not accord any special status to company foundations, as plaintiffs concede.

The S & H Foundation exhibits many of the indicia common to "company” foundations: it bears the name of the company that created it; its charitable programs, involving as they frequently do the company’s employees and clientele, publicize the company’s generosity and contribute to the company’s goodwill; its organization and administration are intimately intertwined with that of the company; and the company is the sole source of its funds.

However, the foundation’s certificate of incorporation and bylaws and the annual gift instruments from the company contain no specific limitations requiring the foundation to expend its resources as the company directs or limiting membership in the foundation to persons affiliated with the company. Nor did the sale documents contain any provisions to ensure Baldwin-U nited’s future control over the foundation.

Plaintiffs assert, however, that due to the past practices and relations between the corporations and the substantial assets that the company has contributed to the foundation, which now total over six million dollars, equity must intervene to remove the individual defendants and thus prevent them from diverting these funds to their own purposes. We agree with plaintiffs that the sale of a business imposes a duty upon the seller not to impair the goodwill of that business (Mohawk Maintenance Co. v Kessler, 52 NY2d 276, 286), and that defendants may not act in a manner that is inimical to the charitable purposes of the foundation (cf. Not-For-Profit Corporation Law § 513 [b]). The customs and practices of the past are not enough, however, to impose a fiduciary duty on them to resign or to install plaintiffs’ representatives in their places (see, Matter of Rye Psychiatric Hosp. Center, 66 NY2d 333). Absent evidence that defendants have misused the foundation’s assets or a showing that their acts are " 'unfair, oppressive or manifestly detrimental to the [foundation’s] interests’ ” (Matter of Sousa v New York State Council Knights of Columbus Found., 10 NY2d 68, 75), we find no basis for the invocation of equitable power to annul defendants’ acts and interfere in the legal relationship that the parties have structured for themselves.

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

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

Order affirmed, with costs.


author: Alexander, J.

text:
    Mark Rivers et al., Appellants, v Stephen Katz, as Commissioner of the New York State Office of Mental Health, et al., Respondents. In the Matter of Florence Grassi, Appellant, v Wendy Acrish, as Executive Director of the Harlem Valley Psychiatric Center, et al., Respondents.
    Argued May 1, 1986;
    decided June 10, 1986

      POINTS OF COUNSEL

      William M. Brooks, Francis M. Savastano and Robert A. Feenick for appellants in the first above-entitled action and appellant in the second above-entitled proceeding.
    I. The forcible administration of antipsychotic and psychotropic medication violates appellants’ right to control their own course of treatment. (Matter of Harry M., 96 AD2d 201; Matter of Storar, 52 NY2d 363; Green v State of New York, 251 App Div 108; Bowles v Habermann, 95 NY 246; Matter of Eichner [Dillon], 73 AD2d 431; Rogers v Okin, 478 F Supp 1342; Paine v Aldrich, 133 NY 544; Cole v Arkansas, 333 US 196; Dale v Hahn, 486 F2d 76; Chaloner v Sherman, 242 US 455.) II. Appellants have a constitutional right to refuse antipsychotic and psychotropic medication except in emergency situations when no less restrictive alternatives to such medication exist. (Rennie v Klein, 653 F2d 836, 458 US 1119, 720 F2d 266; Rogers v Okin, 634 F2d 650, vacated and remanded sub nom. Mills v Rogers, 457 US 291, 738 F2d 1; Davis v Hubbard, 506 F Supp 915; Whalen v Roe, 429 US 589; Union Pac. Ry. Co. v Botsford, 141 US 250; Roe v Wade, 410 US 113; Youngberg v Romeo, 457 US 307; Matter of Storar, 52 NY2d 363; Matter of Harry M., 96 AD2d 201; United States ex rel. Lawrence v Woods, 432 F2d 1072, 402 US 983.) III. The failure to explain the potentially harmful side effects of antipsychotic and psychotropic medication as well as the potential benefits of such medications violated appellants’ right to make their own treatment decision that is based upon informed consent and denied appellants the opportunity to validly waive their right to refuse treatment. (Lipsius v White, 91 AD2d 271; Zeleznik v Jewish Chronic Disease Hosp., 47 AD2d 199; Brady v United States, 397 US 742.) IV. Special Term erroneously denied class action status to appellants. (Brandon v Chefetz, 106 AD2d 162; Evans v City of Johnstown, 97 AD2d 1; Matter of Eisenstark v Anker, 64 AD2d 924; Vickers v Home Fed. Sav. & Loan Assn., 62 AD2d 1171; Matter of Cummings v Regan, 45 AD2d 222; American Pipe & Constr. Co. v Utah, 414 US 538, 415 US 952; Sosna v Iowa, 419 US 393; Gerstein v Pugh, 420 US 103; Franks v Bowman Transp. Co., 424 US 747.) V. This court should grant summary judgment in favor of plaintiffs-appellants. (Headwell v Sandler, 46 AD2d 584; Matter of Bank of N. Y., 43 AD2d 105, 35 NY2d 512; Matter of Kovarsky v Housing & Dev. Admin., 31 NY2d 184; Matter of Napolitano [MVAICJ, 21 NY2d 281.)

      Robert Abrams, Attorney-General (Thomas P. Dorsey, Robert Hermann and Robert L. Schonfeld of counsel), for respondents in the first above-entitled action and in the second above-entitled proceeding.
    I. A judicial finding based upon clear and convincing evidence that a patient is incapable of understanding the need for essential care and treatment constitutes a clear adjudication of incapacity to make treatment decisions. (Addington v Texas, 441 US 418; Savastano v Saribeyoglu, 126 Misc 2d 52; Project Release v Prevost, 722 F2d 960; Parham v J. R., 442 US 584.) II. New York’s administrative procedure for reviewing objections to the administration of medication does not violate either substantive or procedural due process rights guaranteed by the Fourteenth Amendment to the United States Constitution. (Parham v J. R., 442 US 584; Project Release v Prevost, 722 F2d 960; Mills v Rogers, 457 US 291; Youngberg v Romeo, 457 US 307.) III. There is no support in the record below for a claim that any patient’s rights were violated by a failure to explain the effects of medication. IV. Class certification would serve no useful purpose herein. (Matter of Martin v Lavine, 39 NY2d 72; Gonzalez v Blum, 96 AD2d 1091.)

      Bruce J. Ennis, Jr., Donald N. Bersoff and David W. Ogden for American Psychological Association, amicus curiae.

    I. The decisions below are so factually and legally flawed that a remand for further consideration is appropriate. II. Hospitalized patients have a Federal constitutional right to refuse antipsychotic drugs unless they have been found incompetent or are imminently dangerous to self or others. (Davis v Hubbard, 506 F Supp 915; Mills v Rogers, 457 US 291; Youngberg v Romeo, 457 US 307; Rogers v Okin, 478 F Supp 1342.) III. The final decision whether to authorize long-term administration of antipsychotic drugs over a patient’s objection should be made by a court. (Winters v Miller, 446 F2d 65.)
   OPINION OF THE COURT

Alexander, J.

We are presented on this appeal with the issue of whether and under what circumstances the State may forcibly administer antipsychotic drugs to a mentally ill patient who has been involuntarily confined to a State facility.

I

When this litigation commenced, appellants Mark Rivers, Florence Zatz and Florence Grassi were patients at the Harlem Valley Psychiatric Center. Each was being retained pursuant to orders of the Dutchess County Court which had found them to be persons "in need of involuntary care and treatment” in that they have a "mental illness for which care and treatment as a patient in a hospital is essential to [their] welfare and [their] judgment is so impaired that [they are] unable to understand the need for such care and treatment” (Mental Hygiene Law § 9.01).

Mark Rivers was involuntarily committed pursuant to Mental Hygiene Law § 9.27 on or about March 20, 1984 and was retained by court order entered on June 13, 1984. Prior to the entry of this order, Rivers refused to be medicated with antipsychotic drugs, and the administrative review procedures prescribed by the regulations of the Commissioner of Mental Health (14 NYCRR 27.8) were implemented. His objections were overruled and he was thereafter medicated with various antipsychotic drugs, including Prolixin Hydrochloride, Prolixin Decanoate and Mellaril. Florence Zatz was also involuntarily committed pursuant to Mental Hygiene Law § 9.27 and was retained by court order entered on June 25, 1984. On April 20, 1984, shortly after her involuntary admission but prior to the retention order, she refused to be medicated with antipsychotic drugs but her refusal was similarly overruled following administrative review. She was medicated with Navene and Lithium.

Rivers and Zatz thereafter commenced this declaratory judgment action against the Commissioner and officials of the Harlem Valley Psychiatric Center to enjoin the nonconsensual administration of antipsychotic drugs and to obtain a declaration of their common-law and constitutional right to refuse medication. Special Term denied a request for class certification because plaintiffs had failed to show "the benefit of class action status to outweigh the distinct differences that must be addressed in each instance as well as the benefit of stare decisis for guidance in future cases.” Upon defendant’s motion for summary judgment, the complaint was dismissed. Special Term reasoned that the involuntary retention orders necessarily determined that these patients were so impaired by their mental illness that they were unable to competently make a choice in respect to their treatment.

Florence Grassi was involuntarily committed to Harlem Valley on August 2, 1984 and subsequently retained pursuant to a court order entered on September 24, 1984. She refused treatment with antipsychotic drugs, but was thereafter forcibly medicated with Prolixin Hydrochloride following completion of the administrative review process in which her protest was overruled. She commenced an article 78 proceeding, alleging that the forcible use of antipsychotic medication violated her common-law and constitutional right to determine her own course of treatment. Her application for preliminary injunctive relief was denied after a hearing, and the proceeding was dismissed upon respondents’ cross motion for the same reasons expressed by the court in dismissing the Rivers/ Zatz complaint.

The Appellate Division consolidated appeals by Rivers, Zatz and Grassi from the respective Special Term order and judgments, and affirmed for reasons stated at Special Term (112 AD2d 926). We now reverse and hold that the due process clause of the New York State Constitution (art I, § 6) affords involuntarily committed mental patients a fundamental right to refuse antipsychotic medication.

II-A

It is a firmly established principle of the common law of New York that every individual "of adult years and sound mind has a right to determine what shall be done with his own body” (Schloendorff v Society of N Y. Hosp., 211 NY 125, 129 [Cardozo, J.]) and to control the course of his medical treatment (see, Matter of Storar, 52 NY2d 363; Schloendorff v Society of N. Y. Hosp., 211 NY 125, supra). This tenet has been faithfully adhered to by our courts (see, Matter of Storar, 52 NY2d 363, supra; Matter of Harry M., 96 AD2d 201, 207; see generally, People v Eulo, 63 NY2d 341, 357; Hanes v Ambrose, 80 AD2d 963; Matter of Saunders v State of New York, 129 Misc 2d 45, 50; Matter of Winthrop Univ. Hosp. v Hess, 128 Misc 2d 804; Matter of Erickson v Dilgard, 44 Misc 2d 27 [Meyer, J.]), and recognized by our Legislature (Public Health Law §§ 2504, 2805-d; CPLR 4401-a; 10 NYCRR 405.25 [a] [7]).

In Storar, we recognized that a patient’s right to determine the course of his medical treatment was paramount to what might otherwise be the doctor’s obligation to provide medical care, and that the right of a competent adult to refuse medical treatment must be honored, even though the recommended treatment may be beneficial or even necessary to preserve the patient’s life (52 NY2d, at p 377, supra). This fundamental common-law right is coextensive with the patient’s liberty interest protected by the due process clause of our State Constitution (cf. Cooper v Morin, 49 NY2d 69, 80).

In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own desires (see, Matter of Erickson v Dilgard, 44 Misc 2d 27, 28, supra; see generally, Olmstead v United States, 277 US 438, 478 [Brandeis, J., dissenting]; Union Pac. Ry. Co. v Botsford, 141 US 250, 251; Davis v Hubbard, 506 F Supp 915, 930-933; Pratt v Davis, 118 Ill App 161, 166, affd 224 Ill 300, 79 NE 562). This right extends equally to mentally ill persons who are not to be treated as persons of lesser status or dignity because of their illness (Superintendent of Belchertown State School v Saikewicz, 373 Mass 728, 370 NE2d 417). As noted by the Supreme Court of Oklahoma, "[i]f the law recognizes the right of an individual to make decisions about * * * life out of respect for the dignity and autonomy of the individual, that interest is no less significant when the individual is mentally or physically ill” (Matter of K. K. B., 609 P2d 747, 752).

In delineating their interest in medicating certain patients over their objections, respondents do not dispute the right of competent adults to control the course of their treatment and to refuse antipsychotic medication, but argue that an involuntarily committed mental patient is presumptively incompetent to exercise this right since in ordering involuntary retention, the court has implicitly determined that the patient’s illness has so impaired his judgment as to render him incapable of making decisions regarding treatment and care. We conclude however, that neither the fact that appellants are mentally ill nor that they have been involuntarily committed, without more, constitutes a sufficient basis to conclude that they lack the mental capacity to comprehend the consequences of their decision to refuse medication that poses a significant risk to their physical well-being. Indeed, it is well accepted that mental illness often strikes only limited areas of functioning, leaving other areas unimpaired, and consequently, that many mentally ill persons retain the capacity to function in a competent manner (see, Brooks, Constitutional Right to Refuse Antipsychotic Medications, 8 Bull of Am Academy of Psychiatry & L 179, 191 [hereafter cited as Constitutional Right]; Rogers v Okin, 478 F Supp 1342, 1361). Nor does the fact of mental illness result in the forfeiture of a person’s civil rights (see, Mental Hygiene Law § 33.01), including the fundamental right to make decisions concerning one’s own body (see, Du Bose, Of the Parens Patriae Commitment Power and Drug Treatment of Schizophrenia: Do the Benefits to the Patient Justify Involuntary Treatment, 60 Minn L Rev 1149, 1160).

Although the historic view of many courts and psychiatrists was that a commitment decision necessarily includes a determination of incompetency (see, Plotkin, Limiting the Therapeutic Orgy: Mental Patients’ Right to Refuse Treatment, 72 NW U L Rev 461, 474-479 [hereafter cited as Therapeutic Orgy]), the nearly unanimous modern trend in the courts, and among psychiatric and legal commentators is to recognize that there is no significant relationship between the need for hospitalization of mentally ill patients and their ability to make treatment decisions. Indeed, there is considerable authority within the psychiatric community that from a medical point of view no relationship necessarily exists between the need for commitment and the capacity to make treatment decisions (see, Therapeutic Orgy, op. cit., at 489, citing Davidson, Forensic Psychiatry, at 196) since the presence of mental illness does not ipso facto warrant a finding of incompetency. Professor Brooks points out that "there is ample evidence that many patients, despite their mental illness are capable of making rational and knowledgeable decisions about medications. The fact that a mental patient may disagree with the psychiatrist’s judgment about the benefit of medication outweighing the cost does not make the patient’s decision incompetent” (Constitutional Right, op. cit., 8 Bull of Am Academy of Psychiatry & L, at 191).

II-B

We reject any argument that the mere fact that appellants are mentally ill reduces in any manner their fundamental liberty interest to reject antipsychotic medication. We likewise reject any argument that involuntarily committed patients lose their liberty interest in avoiding the unwanted administration of antipsychotic medication. We recognize, however, that the right to reject treatment with antipsychotic medication is not absolute and under certain circumstances may have to yield to compelling State interests (Matter of Storar, 52 NY2d 363, 377, supra; see, Matter of Eichner, 73 AD2d 431, mod 52 NY2d 363; see, e.g., People v Onofre, 51 NY2d 476). Where the patient presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution, the State may be warranted, in the exercise of its police power, in administering antipsychotic medication over the patient’s objections (Addington v Texas, 441 US 418, 426; see, Davis v Hubbard, 506 F Supp 915, 934-935, supra; People v Medina, 705 P2d 961, 971 [Col]; Matter of K. K. B., 609 P2d 747, 751 [Okla], supra; Gundy v Pauley, 619 SW2d 730, 731 [Ky] [electroshock therapy]; Note, Common Law Remedy, op. cit., 82 Colum L Rev, at 1738-1743). The most obvious example of this is an emergency situation, such as when there is imminent danger to a patient or others in the immediate vicinity (see, 14 NYCRR 27.8 [b]). Under these circumstances, the State’s police power would justify forced medication, albeit temporarily — continuing only as long as the emergency persists. In all cases, however, in order to override the patient’s right to control his care and treatment, the State’s interest must be compelling.

Here, no claim is made that antipsychotic drugs are administered to appellants because of circumstances that implicate the State’s police power interest. Rather, with respect to appellant Grassi, it appears that these drugs are administered "in order to bring about a re-integration of her current psychotic disorder”, and to "improve” her condition and thus facilitate her return to the community. Similarly, with respect to Rivers and Zatz, the medication is administered because they "are seriously mentally ill” and their condition "would deteriorate if such medication were discontinued or provided in a different manner”.

Thus, respondents appear to rely on the State’s parens patriae interest as justification for overriding appellants’ protests to the administration of these mind-altering drugs. There is no doubt that the State may have a compelling interest, under its parens patriae power, in providing care to its citizens who are unable to care for themselves because of mental illness (Addington v Texas, 441 US 418, 426, supra). For the State to invoke this interest, "the individual himself must be incapable of making a competent decision concerning treatment on his own. Otherwise, the very justification for the state’s purported exercise of its parens patriae power — its citizen’s inability to care for himself * * * would be missing. Therefore, the sine qua non for the state’s use of its parens patriae power as justification for the forceful administration of mind-affecting drugs is a determination that the individual to whom the drugs are to be administered lacks the capacity to decide for himself whether he should take the drugs” (Rogers v Okin, 634 F2d 650, 657, supra; see also, Matter of K. K. B., 609 P2d 747, 750 [Okla], supra). Such a determination is uniquely a judicial, not a medical function (see, Rogers v Commissioner of Dept. of Mental Health, 390 Mass 489, 458 NE2d 308, supra; Matter of Roe, 383 Mass 415, 421 NE2d 40).

We hold, therefore, that in situations where the State’s police power is not implicated, and the patient refuses to consent to the administration of antipsychotic drugs, there must be a judicial determination of whether the patient has the capacity to make a reasoned decision with respect to proposed treatment before the drugs may be administered pursuant to the State’s parens patriae power. The determination should be made at a hearing following exhaustion of the administrative review procedures provided for in 14 NYCRR 27.8. The hearing should be de nova, and the patient should be afforded representation by counsel (Judiciary Law § 35 [1] [a]). The State would bear the burden of demonstrating by clear and convincing evidence the patient’s incapacity to make a treatment decision. If, after duly considering the State’s proof, the evidence offered by the patient, and any independent psychiatric, psychological or medical evidence that the court may choose to procure (see, Judiciary Law § 35 [4]), the court determines that the patient has the capability to make his own treatment decisions, the State shall be precluded from administering antipsychotic drugs. If, however, the court concludes that the patient lacks the capacity to determine the course of his own treatment, the court must determine whether the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments. The State would bear the burden to establish by clear and convincing evidence that the proposed treatment meets these criteria.

Based on the foregoing, it is clear that neither mental illness nor institutionalization per se can stand as a justification for overriding an individual’s fundamental right to refuse antipsychotic medication on either police power or parens patriae grounds. Rather, due process requires that a court balance the individual’s liberty interest against the State’s asserted compelling need on the facts of each case to determine whether such medication may be forcibly administered.

The administrative review procedures of 14 NYCRR 27.8 do not sufficiently protect the due process rights of involuntarily committed patients guaranteed by article I, §6 of the New York State Constitution. For instance, the regulations do not articulate the standards to be followed or criteria to be considered at each stage of the administrative process, i.e., what the need is for the particular drug, whether a particular drug is the least intrusive, whether it is capable of producing the least serious side effects, and the proper length of its use. The absence of any standard for determining the permissible duration of forced medication is particularly disturbing. Manifestly, when the medication is necessitated by the patient’s dangerousness, a circumstance that would implicate the State’s police power interest, it may well be that the need would continue only for so long as the dangerous condition exists. The determination would not necessarily imply incapacity and thus would not provide a justifiable basis for the exercise of the State’s parens patriae authority to override the patient’s objection or to continue the medication for a protracted period. When the medication is determined to be necessary in order to care for a patient who is unable to care for himself because of mental illness, the State’s parens patriae power would be implicated, which, as we have said, may only be employed when it has been determined that the patient is unable to make a treatment decision.

Additionally, Mental Hygiene Law § 33.03 (b) (3) requires that "in order to assure protection of patients in their care and treatment [there must be an] order of a staff member operating within the scope of professional license for any treatment or therapy based on appropriate examination”. We deem this requirement applicable to the administrative review process and hold that medical determinations as to the need to administer antipsychotic drugs must honor the patient’s due process rights and be made in accordance with accepted professional judgment, practice and standards.

Finally, we conclude that Special Term did not abuse its discretion in denying the motion for class action certification (CPLR art 9) since application of the principles of stare decisis will adequately protect subsequent litigants (Matter of Martin v Lavine, 39 NY2d 72, 75; see, Siegel, NY Prac § 141, at 180).

Therefore, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, Dutchess County, for further proceedings in accordance with this opinion.

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

Order reversed, etc.

      . Antipsychotic drugs, also known as "major tranquilizers” and "neuroleptics”, are psychotropic drugs widely used in the treatment of mental illness, especially schizophrenia. Although they do not cure psychotic illness, their medical usefulness stems from their ability to influence thought patterns so as to eliminate psychotic symptoms (see, Eisenberg, Psychiatric Intervention, 229 Scientific Am 116, cited in Davis v Hubbard, 506 F Supp 915, 927; Gaughan and LaRue, The Right of a Mental Patient to Refuse Antipsychotic Drugs in an Institution, 4 Law & Psych Rev 43, 46). Numerous side effects are associated with their usage, including extrapyramidal symptoms, akathesia, Parkisonisms, dystonie reactions, akinesia and dyskinesia. The most potentially devastating side effect is tardive dyskinesia, an irreversible neurological disorder characterized by involuntary, rhythmic and grotesque movements of the face, mouth, tongue, jaw and extremities. Although this condition is fairly widespread, it is impossible to predict who will be a victim (see, Plotkin, Limiting the Therapeutic Orgy: Mental Patients’ Right to Refuse Treatment, 72 NW U L Rev 461, 474-479; see generally, Rennie v Klein, 653 F2d 836, 843, vacated 458 US 1119; Rogers v Okin, 478 F Supp 1342, 1360, revd in part 634 F2d 650, 653, n 1, vacated sub nom. Mills v Rogers, 457 US 291, 293, n 1). For a detailed discussion of the adverse side effects of antipsychotic medication, see, Davis v Hubbard (506 F Supp 915, 928-929, supra).

      . 14 NYCRR 27.8 provides, in part:
      "(c) Review of objection. Prior to initiating a treatment procedure over the objection of a patient, such objection must be reviewed by the head of the service. The decision of the head of the service shall be communicated to the patient and his or her representative, if any, and to the Mental Health Information Service, and treatment may be initiated unless the patient or her or his representative chooses to appeal this decision to the director. The appeal procedure shall be in accordance with subdivision (e) of this section.
      "(d) Patient’s right to representative. Patients have the right to request that legal counsel or other concerned person represent them in the formal appeal procedures authorized in this section.
      "(e) Appeal. (1) If the patient or a representative of the patient has appealed to the facility director from a decision of the head of the service with respect to an objection to treatment, the director shall consider the appeal and make a decision. The decision of the director shall be communicated to the patient and the patient’s representative, if any, and to the Mental Health Information Service.
      "(2) A patient shall also have the right to appeal to the director any decision to which he objects relating to his care and treatment at the facility.
      "(3) In cases of facilities in the Department of Mental Hygiene, the patient may appeal from any such decision of the director to the regional director in the department. Such request for review must be filed with the director within five days, excluding Saturdays, Sundays, and holidays, after notification of the director’s decision. The director of the department facility shall forthwith transmit the request to the regional director. When the regional director decides the issue, he shall notify the patient, the patient’s representative, and the director of the Mental Hygiene Information Service of the decision.”

      . It is of no consequence that the essence of Grassi’s petition is a challenge to the constitutionality of 14 NYCRR 27.8 and that an article 78 proceeding is "not the proper vehicle” for such a challenge since we can, and do, in reliance on CPLR 103 (c), convert the proceeding to a declaratory judgment action (see, Press v County of Monroe, 50 NY2d 695, 702; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400).

      . See, Rennie v Klein, 653 F2d 836, 846, vacated and remanded 458 US 1199, on remand 720 F2d 266; Rogers v Okin, 634 F2d 650, 658-659; Scott v Plante, 532 F2d 939; Winters v Miller, 446 F2d 65; Davis v Hubbard, 506 F Supp 915, 935; Matter of Anderson v State of Arizona, 135 Ariz 578, 663 P2d 570; In re Boyd, 403 A2d 744, 747, n 5 [DC Ct App]; Gundy v Pauley, 619 SW2d 730, 731 [Ky]; Rogers v Commissioner of Dept. of Mental Health, 390 Mass 489, 458 NE2d 308, 314; Matter of K. K. B., 609 P2d 747, 749 [Okla]; see also, Sengstack v Sengstack, 4 NY2d 502; Finch v Goldstein, 245 NY 300. But see, Stensvad v Reivitz, 601 F Supp 128.

      . See, Therapeutic Orgy, op. cit., 72 NW U L Rev, at 488, and authorities cited therein; Note, A Common Law Remedy For Forcible Medication of the Institutionalized Mentally Ill, 82 Colum L Rev 1720, 1722, n 20 [hereafter cited as Common Law Remedy]; Constitutional Right, op. cit., 8 Bull of Am Academy of Psychiatry & L, at 194-195; Bonnie, The Psychiatric Patient’s Right to Refuse Medication: A Survey of the Legal Issues, at 19, 22, printed in Refusing Treatment in Mental Health Institutions — Values in Conflict [Doudera, Swazey ed; hereafter cited as Refusing Treatment]; Cole, Patients’ Rights v. Doctors’ Rights: Which Should Take Precedence, at 56, 68, printed in Refusing Treatment.

      . Any implication that State interests unrelated to the patient’s well-being or those around him can outweigh his fundamental autonomy interest is rejected. Thus, the State’s interest in providing a therapeutic environment, in preserving the time and resources of the hospital staff, in increasing the process of deinstitutionalization and in maintaining the ethical integrity of the medical profession, while important, cannot outweigh the fundamental individual rights here asserted. It is the needs and desires of the individual, not the requirements of the institution, that are paramount.

      . One commentator has suggested that the following factors be considered in evaluating capability to consent or to refuse treatment: (1) the person’s knowledge that he has a choice to make; (2) the patient’s ability to understand the available options, their advantages and disadvantages; (3) the patient’s cognitive capacity to consider the relevant factors; (4) the absence of any interfering pathologic perception or belief, such as a delusion concerning the decision; (5) the absence of any interfering emotional state, such as severe manic depression, euphoria or emotional disability; (6) the absence of any interfering pathologic motivational pressure; (7) the absence of any interfering pathologic relationship, such as the conviction of helpless dependency on another person; (8) an awareness of how others view the decision, the general social attitude toward the choices and an understanding of his reason for deviating from that attitude if he does (Michels, Competence to Refuse Treatment, 115, 117-118, printed in Refusing Treatment, op. cit., n 5; see also, Note, The Right to Refuse Antipsychotic Drug Treatment: Substantive Rights and Procedural Guidelines in Massachusetts, 7 W New Eng L Rev 125).