text:
    Terence Buckley, Respondent, et al., Plaintiff, v City of New York, Appellant, et al., Defendant, et al., Respondent. Anthony Lawrence, Respondent, v City of New York, Appellant.
    Argued May 13, 1982;
    decided June 15, 1982

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Ronald E. Sternberg and Leonard Koerner of counsel), for appellant in the first and second above-entitled actions.
    Trial Term erred in dismissing the city’s affirmative defense that the action is barred by operation of the fellow-servant rule. (Jakes v City of New York, 88 Misc 2d 355; Loughlin v State of New York, 105 NY 159; Stringham v Hilton, 111 NY 188; Glennie v Falls Equip. Co., 238 App Div 7; Capasso v Woolfolk, 163 NY 472; Cullen v Norton, 126 NY 1; Riley v Carlton, 265 App Div 1032, 290 NY 913; Fay v De Camp, 257 NY 407; Dair v New York & Porto Rico S. S. Co., 204 NY 341; Neagle v Syracuse, Binghamton & N.Y.R.R. Co., 185 NY 270.)

      Richard T. Farrell and Marvin N. Suss for Terence Buckley, respondent in the first above-entitled action.
    The fellow-servant rule is a dead letter in New York. (Poniatowski v City of New York, 14 NY2d 76; Jakes v City of New York, 88 Misc 2d 355; Hefele v City of New York, 25 AD2d 142; Woods v Lancet, 303 NY 349; Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433.)

      John J. Maguire for Sydney Bloom, respondent in the first above-entitled action.
    I. Defendant-respondent, Sydney Bloom, was acting in the furtherance of the business of his employer, the City of New York, and within the scope of his authority at the time his weapon discharged. II. The defense of the fellow servant must be dismissed if the city was negligent.

      Emilio Nunez, Michael N. Block and Pamela Anagnos Liapakis for respondent in the second above-entitled action.
    The fellow-servant rule is obsolete and no longer viable as a bar to plaintiff’s action. (Fay v De Camp, 257 NY 407; Jakes v City of New York, 88 Misc 2d 355; Poniatowski v City of New York, 14 NY2d 76; Hefele v City of New York, 25 AD2d 142; Bernardine v City of New York, 294 NY 361; Healy v Rennert, 9 NY2d 202; Lehr v City of New York, 16 AD2d 702.)
   OPINION OF THE COURT

Gabrielli, J.

Each of the cases involved in these appeals presents the question of whether the fellow-servant rule continues to apply in New York. In each case an employee of the City of New York, who was injured through the negligence of a coemployee, brought an action against the municipality. In Buckley v City of New York, a police officer was accidentally shot in the leg when a gun being loaded by a fellow officer discharged in the station house locker room; and in Lawrence v City of New York, a fire fighter was seriously injured when a fellow fire fighter threw a smouldering couch from the second story window of a fire-damaged building and struck the plaintiff while he was standing in the yard. In each case the plaintiff secured a jury verdict of liability against the city on a theory of vicarious liability and the city’s motion to dismiss the complaint on the basis of the fellow-servant rule was denied. The Appellate Division has affirmed the judgments in both instances and leave has been granted to appeal to this court. We now affirm the orders below.

Under the rule of respondeat superior, an employer will be liable to third parties for torts of an employee committed within the scope of his employment (Sims v Bergamo, 3 NY2d 531). By virtue of the fellow-servant rule, however, if an employee is injured by a fellow employee in the workplace he will have no recourse against the employer in respondeat superior. Succinctly stated, the rule provides that “where a servant is injured through the negligence or fault of a fellow servant, engaged in a common business and employment, * * * and the master is himself free from fault, the master is not responsible for the injury” (36 NY Jur, Master and Servant, § 130).

The fellow-servant rule had its origin in England in 1837 (Priestly v Fowler, 3 M & W [Meeson & Welsby’s Exch Rep] 1,150 Eng Rep 1030) and was adopted in the United States shortly afterward (Murray v South Carolina R. R. Co., 1 McMul [L Rep] 385; Prosser, Torts [4th ed], § 80, p 528). The rationales attributed to the rule are varied; the most convincing is that the rule promotes the safety of the public and of the workers by encouraging each employee to be watchful of the conduct of others for his own protection. It has also been suggested that the rule was based upon the notion that an employee assumes the risk of negligence on the part of his fellow servants or, more fundamentally, that the rule simply reflected a 19th century bias by the courts in favor of business (see Prosser, Torts [4th ed], § 80, pp 528-529). The theoretical underpinnings of this rule have, to a large extent, been discredited in recent years (see Poniatowski v City of New York, 14 NY2d 76,81; Crenshaw Bros. Produce Co. v Harper, 142 Fla 27, 47). Logically, there appears to be little reason for denying an employee the right which a third party possesses to recover from the employer in respondeat superior, since for one thing, in both instances the employer might have avoided the injury by selection of more careful employees. Moreover, the class of persons most frequently endangered by the negligence of an employee — his fellow workers — should not, without compelling reason, be denied a remedy accorded to the general public.

The over-all effect of the fellow-servant rule was drastically curtailed by the advent of workers’ compensation legislation, for the rule, involving injuries sustained in the course of one’s employment, provides no defense to a demand for this remedy (Prosser, Torts [4th ed], § 80, p 531; see Workers’ Compensation Law, § 11). Nevertheless, the rule has not yet been completely obliterated since there are some areas of employment, such as those involved in the present appeal (see Matter of Ryan v City of New York, 228 NY 16; Matter of Krug v City of New York, 196 App Div 226), where the Workers’ Compensation Law does not apply.

In Poniatowski v City of New York (supra) our court signaled the beginning of the end of the fellow-servant rule in New York. There, a police officer was injured in a motor vehicle accident through the negligence of a fellow officer. Although the plaintiff’s cause was sustained in our court on the basis of a statute which obviated the necessity of directly confronting the fellow-servant rule, we referred to this rule in passing by stating that “[t]he inherent injustice of a rule which denies a person, free of fault, the right to recover for injuries sustained through the negligence of another over whose conduct he has no control merely because of the fortuitous circumstance that the other is a fellow officer is manifest. * * * This may well suggest the desirability of abolishing the rule but we leave decision of that question to the future. It is sufficient at this time to decide only that we should not extend it into an area in which it has not previously been applied” (Poniatowski v City of New York, supra, at p 81, n omitted). Today we are squarely presented with the question left open in Poniatowski — whether the fellow-servant rule is to survive in New York. The rule had its birth in the 19th century, was severely crippled with the advent of workers’ compensation, and was dealt an almost fatal blow in this State in Poniatowski. Today, in rejecting this rule entirely, we inter its remains.

In constructing its argument for retention of the fellow-servant rule, the defendant city has largely abandoned the rationales originally underpinning the rule and, instead, the city asserts that the rule should be retained primarily because it has enjoyed a lengthy tenure in our jurisprudence. While the longevity of a rule of law requires that its re-examination be given careful scrutiny, it does not demand that its effect be given permanence. The continued vitality of a rule of law should depend heavily upon its continuing practicality and the demands of justice, rather than upon its mere tradition. Although the policy of stare decisis is not to be lightly cast aside, this court has previously noted that “[i]t was intended, not to effect a ‘petrifying rigidity,’ but to assure the justice that flows from certainty and stability. If, instead, adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it” (Bing v Thunig, 2 NY2d 656, 667).

Furthermore, we make it abundantly clear that we do not subscribe to the view that the abolition of the fellow-servant rule is strictly a matter for legislative attention. The fellow-servant rule originated as a matter of decisional law, and it remains subject to judicial re-examination. As this court observed in Woods v Lancet (303 NY 349, 355), “[w]e act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice”.

The fellow-servant rule serves no continuing valid purpose in New York, but instead merely works an unjustifiable hardship upon individuals injured in the workplace, and we must thus conclude that the fellow-servant rule is no longer to be followed in New York.

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

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

In Buckley v City of New York: Order affirmed, with costs.

In Lawrence v City of New York: Order affirmed, with costs. Question certified answered in the affirmative.

       The determination centered upon the application of section 50-a of the General Municipal Law, providing that every municipality shall be liable for the negligence of a person duly appointed by the governing board or body of the municipality to operate a municipally owned vehicle in the discharge of a statutory duty imposed upon the municipality.


source: Caselaw Access Project

author: Wachtler, J. Fuchsbbrg, J. Meyer, J.

license: Public Domain

text:
    In the Matter of John Esler et al., Appellants, v Carl J. Walters, as Supervisor of the Town of Guilderland, et al., Respondents.
    Argued May 13, 1982;
    decided June 15, 1982

      POINTS OF COUNSEL

      Jeffrey E. Stockholm for appellants.
    I. Subdivision 7 of section 206 of the Town Law violates New York and Federal due process and equal protection guarantees. (Reynolds v Sims, 377 US 533; Kramer v Union School Dist., 395 US 621; Matter of Wright v Town Bd. of Town of Carlton, 41 AD2d 290, 33 NY2d 977; Landes v Town of North Hempstead, 20 NY2d 417; Matter of Becraft v Strobel, 274 NY 577; Matter of Light v MacKenzie, 78 Misc 2d 315; Matter of Cohalan, 71 Misc 2d 196, affd sub nom. Matter of Cohalan v Olmo, 41 AD2d 840; Matter of Romano v Redman, 60 Misc 2d 859; Matter of Vitelli v Allsopp, 59 Misc 2d 246; Lippe v Jones, 59 Misc 2d 843.) II. Subdivision 7 of section 206 of the Town Law violates the New York State Constitution. (Matter of Palla v Suffolk County Bd. of Elections, 31 NY2d 36; Matter of Atkin v Onondaga County Bd. of Elections, 30 NY2d 401; Matter of Dart v Howell, 45 AD2d 47, 35 NY2d 847; Phelan v City of Buffalo, 54 AD2d 262; Matter of Curle v Ward, 46 NY2d 1049; Goetcheus v Matthewson, 61 NY 420; Green v Shumway, 39 NY 418; Matter of Hopper v Britt, 203 NY 144; People ex rel. Hotchkiss v Smith, 206 NY 231; Landes v Town of North Hempstead, 20 NY2d 417.)

      John W. Tabner and Edward M. Scher for respondents.
    I. Subdivision 7 of section 206 of the Town Law of the State of New York does not violate the Constitution of the United States. (Salyer Land Co. v Tulare Water Dist., 410 US 719; Associated Enterprises v Toltec Dist., 410 US 743; Ball v James, 451 US 355; Kramer v Union School Dist., 395 US 621; Reynolds v Sims, 377 US 533; Phoenix v Kolodziejski,
      399 US 204; Cipriano v City of Houma, 395 US 701; Avery v Midland County, 390 US 474; Hadley v Junior Coll. Dist., 397 US 50; McGowan v Maryland, 366 US 420.) II. Subdivision 7 of section 206 of the Town Law of the State of New York does not violate the Constitution of the State of New York. (Spitzer v Village of Fulton, 172 NY 285; Johnson v City of New York, 274 NY 411; Matter of Carrick, 183 App Div 916; Matter of Blaikie v Power, 13 NY2d 134; Matter of Palla v Suffolk County Bd. of Elections, 31 NY2d 36; Matter of Atkin v Onondaga County Bd. of Elections, 30 NY2d 401; Matter of Dart v Howell, 45 AD2d 47, 35 NY2d 847; Phelan v City of Buffalo, 54 AD2d 262; Matter of Curle v Ward, 46 NY2d 1049; Goetcheus v Matthewson, 61 NY 420.) III. The consolidation of water districts in the instant case deals only with an administrative change between two similar districts within the same political entity and does not involve the creation of a new governmental unit such as existed within the facts set forth in Matter of Wright v Town Bd. of Town of Carlton (41 AD2d 290, 33 NY2d 977), thereby distinguishing the instant case from the Wright case.

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and William J. Kogan of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. The limitation of the franchise to owners of real property is constitutional because the water district’s purpose is sufficiently specialized and its activities bear disproportionately on landowners. (Ball v James, 451 US 355; Kramer v Union School Dist., 395 US 621; Phoenix v Kolodziejski, 399 US 204; Cipriano v City of Houma, 395 US 701; Reynolds v Sims, 377 US 533; Avery v Midland County, 390 US 474; Salyer Land Co. v Tulare Water Dist., 410 US 719.) II. The applicability of New York State Constitution (art I, § 1; art II, § 1) was not presented nor considered at Special Term and thus may not properly be raised here; subdivision 7 of section 206 is not in violation thereof in any event. (Tumolillo v Tumolillo, 51 NY2d 790; City of New York v State of New York, 39 NY2d 951; Johnson v City of New York, 274 NY 411; Matter of Blaikie v Power, 19 AD2d 779, 13 NY2d 134.)
   OPINION OF THE COURT

Wachtler, J.

On this appeal we are asked to consider the constitutionality of a statute (Town Law, § 206, subd 7) which provides that in special elections on propositions to consolidate water districts, no person shall be entitled to vote unless he or she is an elector of the town and also “is the owner of taxable property situate within one of the districts”. The trial court found the statute unconstitutional, but the Appellate Division reversed. The petitioners appeal claiming that the real property ownership requirement violates the equal protection guarantees of the State and Federal Constitutions as well as certain sections of the State Constitution specifically relating to the right to vote (NY Const, art I, § 1; art II, § 1).

In July of 1980 the Town Board of the Town of Guilderland adopted, after a hearing, a resolution consolidating two water districts, known as the McKownville and Westmere Water Districts. The resolution provides that the consolidated water districts shall be financed “on an ad Valorum basis” as well as by the imposition of water rents. The resolution also states that it is subject to a permissive referendum.

A valid petition for a referendum was submitted to the town clerk and accordingly an election was scheduled for August 27, 1980. The public notice of the election states: “No person is entitled to vote at said election unless he or she: (a) Is an elector of said Town of Guilderland, and (b) Is the owner of property assessed upon the last preceding Town Assessment Roll and situated within the said McKownville Water District and/or said Westmere Water District”. This statement concerning voter qualifications for this type of special election is based upon and accords with subdivision 7 of section 206 of the Town Law. At the special election a majority of those voting approved the proposed consolidation.

In September this proceeding was commenced by three town residents who do not own real property in the township and thus were not entitled to vote in the special election. Two of the petitioners, Esler and Smith, were turned away at the polls; the other petitioner, Gaffney, made no attempt to vote because he was “aware of the public notice concerning [voter] qualifications”. They claimed that as a result of the land ownership requirement the election was “performed in an unconstitutional manner, in violation of the petitioners’ equal protection guarantees and effected the disenfranchisement of the petitioners in violation of the Constitution of this State and of the United States”. They asked that the election be annulled and that an order be issued declaring subdivision 7 of section 206 of the Town Law unconstitutional.

The trial court agreed with the petitioners, relying primarily on Matter of Wright v Town Bd. of Town of Carlton (41 AD2d 290, affd 33 NY2d 977), in which a comparable section of the Town Law was held to be unconstitutional when measured against the guidelines enunciated in certain United States Supreme Court decisions.

The Appellate Division reversed and dismissed the petition. The court found that the Supreme Court’s recent decision in Ball v James (451 US 355), upholding a land ownership requirement for voters in a water district election, was dispositive with respect to the petitioners’ right to vote under the Federal Constitution. It did not address, and thus presumably found no merit to, the petitioners’ State constitutional contentions.

The equal protection guarantee of the Fourteenth Amendment applies to the right to vote and generally places a heavy burden on the State to justify any departure from the “one-man, one-vote” principle (e.g., Reynolds v Sims, 377 US 533). However, in Salyer Land Co. v Tulare Water Dist. (410 US 719) the Supreme Court recognized a narrow exception to that requirement when the election relates to a governmental body which performs a special limited function having a disproportionate effect on a definable segment of the community. In such a case, the court held that a statute limiting the right to vote to a specified group would be sustained unless the basis for the limitation was “ ‘wholly irrelevant to achievement of the regulation’s objectives’ ” (Salyer Land Co. v Tulare Water Dist., supra, at p 730), the minimal equal protection requirement.

Applying those principles in the Salyer case the court found no constitutional impediment in legislation permitting only landowners to vote in elections for directors of a particular water district, and also providing that the votes be weighted according to the assessed valuation of the voter’s land. The court emphasized (at pp 728-729) that the district had “relatively limited” governmental powers, its primary purpose being “to provide for the acquisition, storage, and distribution of water for farming in the Tulare Lake Basin. It provides no other general public services”. The court also noted (at p 729) that the water district’s actions “disproportionately affect landowners” who alone bear the costs of district projects and services assessed in proportion to the benefits received, which would become a lien against the land in the case of delinquency.

Subsequently in Matter of Wright v Town Bd. of Town of Carlton (41 AD2d 290, supra) the Appellate Division held the Salyer exception inapplicable to a statute imposing a land ownership requirement for voters in a special election to create a town water district (Town Law, § 209-e, subd 3). The court noted that in Salyer (at p 294) “The Supreme Court concluded that the storage district’s primary purpose was to provide for farming and not for general public services ordinarily financed by a municipal body.” Thus applying the more demanding standards applicable to elections generally the Appellate Division found the statute unconstitutional because the State had failed to demonstrate that residents who do not own land were substantially less interested in the outcome of the election and that the statutory restriction on the right to vote served a compelling State interest. When that case was appealed to this court we affirmed on the opinion at the Appellate Division (33 NY2d 977, supra).

The Supreme Court’s latest decision in this area now indicates that the exception recognized in Salyer is broader than it was perceived to be when the Wright case was decided. In Ball v James (451 US 355, supra), involving the Salt River District in Arizona, the court again found no equal protection violation in a statutory scheme which limited voting eligibility in a directors’ election to landowners and apportioned voting power according to the amount of land a voter owns. Although the district was a major generator of hydroelectric power supplying virtually half of the State and delivered approximately 40% of its water to urban areas for nonagricultural purposes, the court held (at pp 367-368) that the “constitutionally relevant fact is that all water delivered by the Salt River District, like the water delivered by the Tulare Lake Basin District, is distributed according to land ownership, and the District does not and cannot control the use to which the landowners who are entitled to the water choose to put it.” Thus, noting that the district’s primary and originating function was simply to store and deliver water to landowners who were the only residents subject to liens, taxes and other costs of the district, the court held (at p 357) that “the peculiarly narrow function of this local governmental body and the special relationship of one class of citizens [landowners] to that body releases it from the strict demands of the one-person, one-vote principle of the * * * Fourteenth Amendment”.

' The role of the consolidated water district in the case now before us is similarly limited to the storage and delivery of water to landowners throughout the district. It does not exercise general governmental authority or provide general public services such as housing, transportation, schools or fire and police protection (see, e.g., Salyer Land Co. v Tulare Water Dist., supra, at pp 728-729). In short the water district is a supplier of water owned and operated by the town, and thus possessing some of the attributes of a governmental entity, but having no greater governmental powers than those possessed by the water districts involved in the- Salyer and Ball cases.

With respect to the effect of the water district’s activities, the petitioners note that both landowners and tenants share a common interest in the availability of public water facilities and that the costs of the district, directly imposed on landowners will also be passed along to tenants through increased rents. These factors were found persuasive in the Wright case but it is now clear from the Supreme Court’s decision in the Ball case that the question is not whether those entitled to vote are the only ones affected by the operations of this type of special public entity, but whether the effect on them is disproportionately greater than on those claiming an equal right to vote (Ball v James, supra, at p 371).

In the case now before us it is conceded that the costs of the consolidation and the district’s subsequent operation are not assessed against all residents, but only against landowners whose property alone is subject to assessments and charges for the benefits conferred, and is also subject to liens for delinquencies. This special burden was found to demonstrate a disproportionate effect on resident landowners, as opposed to other residents, in the Salyer and Ball cases and must be given the same weight in the present case.

Thus in an election to consolidate two water districts within a town, the Legislature could limit the franchise to a select group of voters because of the limited purpose of the district and the disporportionate effect of its activities on one segment of the population. In addition, it cannot be said that the Legislature acted irrationally or inequitably by providing, as it did in subdivision 7 of section 206 of the Town Law, that only those residents who own real property within the districts are eligible to vote on the consolidation since only their property would be permanently subject to the resulting costs.

The only remaining question then is whether the statute violates the State Constitution. In certain areas, of course, the State Constitution affords the individual greater rights than those provided by its Federal counterpart. We have noted, however, that the wording of the State constitutional equal protection clause (NY Const, art I, § ll) “is no more broad in coverage than its Federal prototype” and that the history of this provision shows that it was adopted to make it clear that this State, like the Federal Government, is affirmatively committed to equal protection, and was not prompted by any perceived inadequacy in the Supreme Court’s delineation of the right (Dorsey v Stuyves - ant Town Corp., 299 NY 512, 530-531). In election matters we have simply observed that the State guarantee of equal protection “is as broad in its coverage as that of the Fourteenth Amendment” (Seaman v Fedourich, 16 NY2d 94, 102).

Limiting voter eligibility in water district elections to landowning residents does not violate those sections of the State Constitution specifically dealing with voter rights. The guarantee that “[n]o member of this state shall be disfranchised * * * unless by the law of the land, or the judgment of his peers” (NY Const, art I, § 1) does not by its terms create an independent right to vote but simply insures that whatever voting rights an individual possesses may not be taken away or diminished except under certain extraordinary circumstances. The section of the Constitution setting forth qualifications for voters in this State (NY Const, art II, § 1) makes no reference to land ownership, but that does not preclude the Legislature from imposing such a requirement in water district elections because it has long been “the established policy of this state * * * to limit the right of suffrage” in such elections to resident landowners (Spitzer v Village of Fulton, 172 NY 285, 290; cf. Johnson v City of New York, 274 NY 411, 419; Matter of Blaikie v Power, 13 NY2d 134, 140).

In conclusion it should be emphasized that this court, like the Federal courts, has consistently held that the equal protection guarantee forbids the State from imposing land ownership as a prerequisite to vote in general elections or to hold public office (Landes v Town of North Hempstead, 20 NY2d 417). But limiting voter eligibility to landowning residents in certain types of special elections, including those dealing with the creation of water districts, does not violate the public policy of this State embodied in the State Constitution. In this respect the demands of the State and Federal Constitutions are consistent which, in our view, is a desirable result in an area involving such a fundamental right as the right to vote.

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

Fuchsbbrg, J.

(dissenting). I would have thought that a cornerstone of democracy is universal suffrage. Antithetical to this belief is a pecuniary or propertied qualification for voting, for it seems obvious that one’s influence in government should bear no relation to such a consideration.

It was in deference to this credo that this court some 10 years ago, in Matter of Wright v Town Bd. of Town of Carlton (33 NY2d 977, affg 41 AD2d 290), a case foursquare with the one before us now, declared a section of the Town Law which, for present purposes, cannot be differentiated from the one whose constitutionality we now weigh, violative of the one person-one vote principle. We then subscribed to the declaration that “insofar as it limits the franchise at the referendum to the ‘owners of taxable real property situate in the proposed district’ is unconstitutional” (41 AD2d, at p 294).

So saying, we but reiterated the policy pictured 15 years earlier when, in unmistakable terms, we held that, “the ownership of land, however, as a prerequisite, a condition precedent, to holding elective town office constitutes an ‘invidious discrimination’ against nonlandowners, a sort of economic gerrymandering which runs afoul of the equal protection and due process clauses of both Federal and State Constitutions * * * ‘Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race * * *, are traditionally disfavored’ ” (Landes v Town of North Hempstead, 20 NY2d 417, 420).

Yet today, a time when antidiscrimination legislation heightens concern for equality as never before, the court reverses its position. This it rationalizes, impermissibly I suggest, on the theory that two decisions of the United States Supreme Court, Salyer Land Co. v Tulare Water Dist. (410 US 719) and Ball u James (451 US 355), found no Federal constitutional impediment to such legislation. But ignored is the fact that, as for instance in Ball, in both cases the “water districts”, when stripped of pretense, consisted of select groups which had formed private enterprises which were allowed “to become nominal public entities in order to obtain inexpensive bond financing” while they “remain[ed] essentially business enterprises, created by and chiefly benefiting a specific group of landowners” (Ball v James, at p 368 [emphasis added]).

In contrast, in Matter of Wright, as in today’s case, all registered voters, property owners and nonproperty owners alike, shared the same vital concern for the “availability of good drinking water, sufficient water to run their homes and businesses and to protect their property from fire. * * * [The payment of] real property taxes does not necessarily effect a reduction in the interest of those who do not own property because they pay increased taxes through increases in rent and the prices of goods and services * * * Thus, * * * voters who do not own real property are equally, and not less, interested in the outcome of the referendum as those authorized to vote by the property ownership qualification” (Matter of Wright v Town Bd. of Town of Carlton, supra, at p 293). Not surprisingly, then, Wright, after expressly considering the Salyer case (Ball not yet having been decided), rejected it as “not controlling”.

Now, however, the majority in today’s decision suddenly decides 10 years later “that the exception recognized in Salyer is broader than it was perceived to be when the Wright case was decided”. But, even if such a metamorphosis of Salyer were possible, there would be no need to blindly march to the Supreme Court’s drumbeat. For, as a sovereign State, New York has a Constitution of its own and section 1 of article II thereof expressly provides that “[E]very citizen shall be entitled to vote at every election * * * upon all questions submitted to the vote of the people” with the only limitation that the citizen be 21 years of age and have been a resident for at least three months next preceding the election. And this guarantee of the right to vote is available to New York citizens, all the more so when the Federal Constitution is read in a less protective vein. Nor has New York hesitated to avail itself of this fundamental principle of federalism (e.g., Bellanca v State Liq. Auth., 54 NY2d 228; People v Elwell, 50 NY2d 231; Cooper v Morin, 49 NY2d 69, cert den sub nom. Lombard v Cooper, 446 US 984; Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-161; People v Isaacson, 44 NY2d 511; People v Hobson, 39 NY2d 479). No less was to be expected, for the United States Constitution, from its beginning, inevitably was bound to reflect a broad consensus of the political and social conditions and aspirations of a union of many States, among which at least some were sure to adhere to higher than average standards. (See, generally, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv L Rev 489.)

Nevertheless, in apparent anticipation of this dissertation, the majority, correctly noting that the verbiage employed by the State Constitution’s equal protection clause (NY Const, art I, § 11) is comparable to that found in the United States Constitution (14th Arndt), contends, at least by inference, that the one Constitution, therefore, grants no greater voting rights than does the other. The simple answer, though, is that, even where the language of the two Constitutions is precisely the same, there need be no uniformity of interpretation (see People v Elwell, 50 NY2d 231, supra; Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-161, supra; People v Isaacson, 44 NY2d 511, 519-520, supra; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; see Mosk, State Courts in American Law: The Third Century [Schwartz ed], at pp 216-220).

Resort to the State Constitution, if here necessary, is obviously of especial urgency in an age when the growth of government has absorbed many functions which at one time were the province of the private sector. Moreover, many such activities are now carried out as a matter of governmental convenience, in agency form, as, for example, via the ever present school district, fire district, sanitary district, water district, etc. Were it permissible, therefore, to deprive citizens of their right to vote in elections in any of these “districts” on the theory that no one of them performed a generalized governmental function, it would not be too long before, segment by segment, the right to vote would well-nigh disappear entirely. So, our courts, one by one, have struck down statutory attempts at the perpetuation of voting property qualifications (e.g., Kramer v Union School Dist., 395 US 621; Matter of Light v MacKenzie, 78 Misc 2d 315 [fire district]; Matter of Romano v Redman, 60 Misc 2d 859 [sanitary district]; Lippe v Jones, 59 Misc 2d 843 [improvement district]). Concordantly, in 1976, the Law Revision Commission warned that any statute which might still carry a property voting qualification would be “out of step with current constitutional thinking” (McKinney’s Session Laws of NY, 1976, pp 2177, 2178).

Finally, to keep the depth of our commitment to freedom of the ballot in the broad perspective in which such a “fundamental matter” belongs (Reynolds v Sims, 377 US 533, 561-562 [Warren, Ch. J.]), I note the unanimity of the sentiments of political and legal philosophies as disparate in time and place as Jeremy Bentham’s eighteenth century observation that, “The right to elect * * * is the highest law of sovereignty” and William 0. Douglas’ opinion that “all * * * are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be * * *. This is required by the Equal Protection Clause”.

From all this, it follows that subdivision 7 of section 206 of the Town Law of New York should be declared unconstitutional and the special election declared null and void.

Meyer, J.

(dissenting). The pervasiveness of special districts in modern living is clear, the Metropolitan Regional Planning Council having documented some years ago the existence of no less than 1,500 such districts in the metropolitan area for such diverse purposes as the operation of schools and fire departments on the one hand and the operation of an escalator in a railroad station on the other. While there may properly be a basis for distinction as to the latter type district, I cannot agree that the community interest in the quality of a factor of life as important as water is less than its interest in public education (cf. Kramer v Union School Dist., 395 US 621, 630), and would, therefore, reverse.

Chief Judge Cooke and Judges Jasen, Gabrielli and Jones concur with Judge Wachtler; Judges Fuchsberg and Meyer dissent and vote to reverse in separate dissenting opinions.

Order affirmed, with costs.

      . The relevant portion of the statute provides: “No person shall be entitled to vote upon any such proposition unless he or she has the following qualifications: (a) is an elector of the town, and (b) is the owner of taxable property situate within one of the districts assessed upon the last preceding town assessment roll”.

      . In a companion case {Associated Enterprises v Toltec Dist., 410 US 743), the court also upheld a statute imposing a land ownership requirement in a referendum concerning the creation of a water district.

      . (Art I, § 11 states: “No person shall be denied the equal protection of the laws of this state or any subdivision thereof”.)

      . Hardly supportive of a contrary position are the three cases cited by the majority. One of these, Spitzer u Village of Fulton (172 NY 285), a waterworks case in which no equal protection challenge was made, antedates Wright by just 70 years. Neither of the other two, Johnson v City of New York (274 NY 411 [proportional representation]) and Matter of Blaikie v Power (13 NY2d 134 [councilman-at-large]), involved property qualification.

      . (Bentham, Introduction to a Project for a Constitutional Code, reprinted in Engelmann, Political Philosophy, p 370.)

      . (Gray v Sanders, 372 US 368, 379.)


author: Fuchsberg, J. Wachtler, J.

text:
    The People of the State of New York, Respondent, v Anthony Ricco, Appellant.
    Argued April 2, 1982;
    decided June 15, 1982

      POINTS OF COUNSEL

      Henry Winestine and William E. Hellerstein for appellant.
    I. Statements of appellant made to a detective after arraignment and appearance of counsel, with no statutory notice of the prosecution’s intention of offering them in evidence, were improperly admitted for use in rebutting appellant’s insanity defense in violation of appellant’s privilege against self incrimination and right to counsel and the statutory requirement of notice (US Const, 5th, 6th, 14th Arndts; NY Const, art I, § 6). (People v Skinner, 52 NY2d 24; People v Samuels, 49 NY2d 218; People v Settles, 46 NY2d 154; People v Hobson, 39 NY2d 479; People v Ermo, 47 NY2d 863; People v Dean, 47 NY2d 967; People v Carmine A., 53 NY2d 816; People v Harris, 25 NY2d 175, 401 US 222; People v Freeman, 9 NY2d 600; People v Ferraro, 293 NY 51.) II. The trial court erred in excluding, as hearsay, testimony of appellant’s mother concerning statements made by appellant as a child which would have established that appellant experienced delusions from an early age, directly contradicting the factual basis of the prosecution theory.

      Robert M. Morgenthau, District Attorney (Russell A. Bikoff and Mark Dwyer of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt and is not contested on appeal. (People v Brengard, 265 NY 100.) II. Defendant’s postarrest statements to a detective were properly introduced to impeach defendant; his contention that his Fifth and Sixth Amendment rights were violated by the additional use of the statements in a hypothetical question to the psychiatrist called by the People has not been preserved for appellate review, and in any event, that use of the statements was also proper and did not prejudice defendant in any way. (People v Rahming, 26 NY2d 411; People v Wise, 46 NY2d 321; People v Johnson, 27 NY2d 119, 401 US 966; People v Rivera, 53 NY2d 1005; People v Panarella, 66 AD2d 968, 48 NY2d 783, 444 US 1079; People v Washington, 68 AD2d 90, 51 NY2d 214; Matter of Lee v County Ct. of Erie County, 27 NY2d 432; People v Di Piazza, 24 NY2d 342; People v Stone, 35 NY2d 69.) III. The trial court’s ruling excluding an answer in the testimony of defendant’s mother was within that court’s discretion, and in any event, the ruling did not prejudice defendant.
   OPINION OF THE COURT

Fuchsberg, J.

We have heretofore held that prior inconsistent statements, though secured in disregard of constitutional safeguards, nevertheless may be admitted to impeach the credibility of a defendant who chooses to take the stand to testify in contradiction of the contents of the flawed statements (People v Washington, 51 NY2d 214, 220; People v Wise, 46 NY2d 321, 329; People v Kulis, 18 NY2d 318 [denial of arrestee’s request to see a lawyer]; see Harris v New York, 401 US 222; see US Const, 5th, 6th, 14th Arndts; NY Const, art 1, § 6). We now hold that, without more, such statements may not be used, directly or indirectly, to establish the People’s case. Because this standard was not followed, there must be a new trial.

The issue confronts us in the context of defendant Anthony Ricco’s appeal from an order of the Appellate Division, which affirmed a judgment entered on a jury verdict pronouncing him guilty of two counts of murder and four counts of robbery, all stemming from a string of “stickups” in which the then 21-year-old defendant engaged during an eventful week in February, 1975. The statements in question were made in the course of two interrogations conducted by a New York City detective, Eugene Grogan. On each occasion, the questioning proceeded in the absence of counsel despite the fact that Ricco already had been arrested and then identified at a lineup at which a lawyer had appeared on his behalf. Of particular interest on this appeal is the fact that Grogan later was to testify that, in these conversations, the defendant implicated a friend, Ralph C err ato, in the commission of the crimes. According to the detective, this Ricco did, while interspersing his conversation with a statement that he was “hearing voices”, by volunteering, among other things, that it was this friend who had provided him with a gun and had engineered the at-gunpoint seizure of a Chevrolet Corvette used in their marauding adventures, by furnishing Cerrato’s description and by offering to help the officer find him.

The defense essentially was one of insanity (Penal Law, § 30.05). In its support, at the trial Ricco and his mother took the stand to help describe a life which from early childhood had been beset, among other things, by early paternal loss, serious physical and mental malaise, the loss of an eye, clashes with the law, imprisonment, psychiatric hospital treatment, learning difficulties, constant dependence on medication and, most pointedly, delusions. The most bizarre of the latter was defendant’s alleged persistent belief that microwaves emitted from orbiting space vehicles which bore the monogram of Howard Hughes, the eccentric billionaire businessman, exercised so direful a control over behavior of those on earth that, for instance, Ricco had urgently tried to protect his young daughter from this force by attempting to have a plutonium plate implanted in her head.

As applied to one of the killings of which he stands convicted, that of a hotel clerk, Ricco’s testimonial description of the delusional experience to which he ascribes it is graphic. In his words, shortly after experiencing a headache, pains in his eyes, blurred vision and dizziness, he and the clerk “got into an argument”, at which time Ricco heard a ringing in his ears, saw the clerk’s “aura” and “noticed the flicks in his eyes” and then “[t]old him, I says, I want to know if the people that come here are under the influence of the machine. He looked at me. He got mad. He says, get out of here. I’m going to kill you. He was shaking a pencil at me. * * * Alonzo [one of Ricco’s cohorts] was talking to Ralphie. * * * He had a gun in his left hand”. Ricco then goes on to relate how he grabbed the gun by the cylinder and the clerk told him to leave, whereupon Ricco responded, “Leave what? I said: Why should I leave? * * * I wanted to know if the people that were there had any information about the machine”. To this he adds that there was an ensuing scuffle, during which the gun went off twice, whereupon “[the clerk] stopped. His whole body just disappeared. * * * I don’t know what happened. I was, you know, concerned with what was going on between me and the robot. * * * The ringing in my ears got louder, his aura started changing. I was watching his aura. It started getting redder. * * * I wasn’t paying attention. I was watching the body change its color. The aura stopped. The ringing in my ears stopped”.

It was against all this background that six of seven qualified psychiatrists called by the defense expressed the opinion that Ricco was not criminally responsible for his actions. For its part, the prosecution apparently was intent on establishing that defendant’s claim that he was obsessed with the delusions on which his psychiatric experts relied was feigned. Its theory was that the acts with whose commission the defendant was charged, if compelled by genuine aberrations of the kind with which his mind was allegedly preoccupied, would be expected to be accompanied by a sense of righteousness and self-justification completely at odds with the defendant’s attempt to heap blame on another.

However, because, as we only recently reaffirmed, “ ‘[o]nce an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel’” (People v White, 56 NY2d 110, 117, quoting People v Arthur, 22 NY2d 325, 329; see People v Hobson, 39 NY2d 479), the exclusionary rule precluded the People from offering Ricco’s statements regarding the Cerrato connection as evidence-in-chief on the People’s own case.

But this did not mean that the statement could not serve other evidentiary purposes. As indicated at the outset of this opinion, once the defendant elected to testify, the People could, and indeed here did, resort to it on cross-examination in an effort to impeach his credibility. To paraphrase Oregon v Hass (420 US 714, 722), “[a] shield provided by [failure to respect the right to counsel] is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances”. As it turned out, the confrontational questions put for this purpose, framed as they were in terms of whether the defendant “remembered” the conversation, drew no more than the noncommittal answer, “I do not believe so”.

On the same rationale, it also was proper for the prosecution to then call Detective Grogan on rebuttal. Needless to say, as with all evidence introduced restrictively, the jury should have been so advised. Here no limiting instructions were requested and none were deliv3red, the only objection voiced being that it went beyond the material delivered to the defendant pursuant to People v Rosario (9 NY2d 286, 289). Nevertheless, though this abjection did not focus on the deprivation of the right to counsel, the effect of the trial court’s ruling was to foreclose further protest, including any request for limiting instructions. Accordingly, the People’s contention that the issue was not preserved is unavailing (cf. People v Carmine A., 53 NY2d 816; People v Samuels, 49 NY2d 218; People v Ermo, 47 NY2d 863).

Finally, on rebuttal, the People’s psychiatric expert, in response to the prosecutor’s hypothetical question, in which was incorporated the uncounseled statements from Ricco to Grogan anent Cerrato’s participation, opined that, with “reasonable medical certainty, these are not the statements that would have been consistent with the alleged delusions that Mr. Ricco later presented * * * about the space-ship, Howard Hughes, etc., etc., that this is the information he would have been eager to communicate to the detective; that on the contrary, what I’m told happened here was information in which he tried to place the responsibility elsewhere, rather than proudly taking it upon himself for having tried to save this country and the world from this tremendous nemesis”. On this basis, he stated a firm conclusion that the defendant was “consciously and intentionally simulating mental illness”.

Surely, this testimony went far beyond impeachment. As proof of malingering, it was employed to overcome the defendant’s claim of insanity, an issue on which the People bore the burden of proof beyond a reasonable doubt (Penal Law, § 25.00, subd 1; § 30.05, subd 2). Thus, it was no less a part of the People’s case than was the charged criminal conduct per se.

Yet, the Cerrato component, whose essentiality in providing the foundation for this vital expert testimony is so expressly acknowledged, only came in through the detective and then properly for impeachment alone. For the psychiatrist had no independent knowledge of the utterance of the statements. His opinion, therefore, was inad-, missible.

Nor does the People’s fallback position alter this result. Noting that a defendant who raises a defense of insanity waives the privilege against self incrimination for statements to an examining psychiatrist which enable the latter to arrive at a medical opinion on the question of sanity (Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 441; see CPL 60.55), the District Attorney argues for extension of this waiver to the statements made to the detective since they too were used solely on the issue of sanity. We are not persuaded. Rather, our view on this subject is consonant with that of the United States Court of Appeals for the District of Columbia Circuit that “[w]ere we to curtail the exclusionary rule in the drastic manner the government urges, we would provide little or no deterrence of constitutional violations against defendants whose sanity is the principal issue in the case. The government would be able, under the guise of rebuttal, to use any illegally obtained evidence relevant to the principal issue in the case — insanity” (United States v Hinckley, 672 F2d 115, 134).

Lastly, since there is to be a new trial, we indicate our disagreement with the trial court’s refusal to allow defendant’s mother to testify to statements defendant would make to her during his childhood after viewing airplanes and birds with a telescope from the roof of a tenement house in which they resided. The testimony as to his activities was allowed, but his statements were excluded as hearsay. The excluded matter was proffered both to counter any prosecution position that defendant had never described his delusions to anyone prior to his arrest and to establish that his delusional tendencies were of long standing.

The question to which objection was sustained was simply, “[D]id he have — make any statements or remarks in reference to what he saw with the telescope?” The answer to this query would not have been hearsay since it was not offered for the truth of the matter asserted in defendant’s statements (6 Wigmore, Evidence [Chadbourn rev], § 1766). On the contrary, as correctly noted by defendant, not without some degree of understatement, “[i]t was obviously not the contention of the defense that space ships were controlling behavior on earth with mysterious rays. The purpose was to show that as a young boy [defendant] was already suffering from delusional thinking.”

Moreover, whether it is not catalogued as hearsay at all or termed an “apparent exception” to the hearsay rule (see Richardson, Evidence [10th ed], § 205), a relevant extrajudicial statement introduced for the fact that it was made rather than for its contents, as here for the purpose of a proving its maker’s state of mind, is not interdicted by the hearsay rule (see, e.g., Matter of Bergstein v Board of Educ., 34 NY2d 318).

Accordingly, the order should be reversed and a new trial ordered.

Wachtler, J.

(dissenting). This defendant was found guilty of two counts of murder and four counts of robbery. He was unable to persuade the jury that his early childhood difficulties, both physical and mental, his delusions as well as his adult dependence on medication justified or excused, by reason of insanity, his criminal acts.

The People sought to undermine the defendant’s claim of insanity by showing that the defendant had given coherent and, in fact largely exculpatory accounts of his activities, to the arresting officer. The majority of this court, in reversing the conviction holds that because these statements were made by the defendant in the absence of counsel after an attorney had entered the case, they could not be used to overcome the defendant’s claim of insanity.

The majority concedes that the statements taken from defendant in violation of his constitutional right to counsel could be referred to upon cross-examination of defendant and proved on rebuttal as a prior inconsistent statement in an effort to impeach his credibility. However, the majority contends that because the challenged testimony was used to rebut defendant’s insanity defense, and since the People have the burden of proof on the issue of sanity, the testimony was in effect used as direct evidence against defendant. Of course, this argument could be raised in every case where the defendant’s credibility is the sole issue and the prosecution is permitted to prove statements taken from the defendant in violation of his constitutional rights for impeachment purposes. I cannot understand why that use is, in effect, any less direct than the use of the testimony at issue here.

The majority’s contention that the defendant’s statements were used as direct evidence against him was essentially rejected by this court in Matter of Lee v County Ct. of Erie County (27 NY2d 432), where we held that a defendant who raises a defense of insanity waives the privilege against self incrimination for statements made to an examining psychiatrist which enable the psychiatrist to formulate an opinion as to the defendant’s sanity. We took the precaution of pointing out that for the purpose of constitutional analysis there exists a critical distinction between the determination of guilt, i.e., whether the criminal acts were in fact committed, and the question of sanity. We stated in reference to our holding: “This is not to say, however, that any admission as to the crime in question can be considered by the jury in their determination of whether the defendant committed the acts which constitute the crime charged. Nor shall the District Attorney be permitted to use the psychiatric examination as a source of evidence which would be relevant on the issue of guilt” (Matter of Lee v County Ct. of Erie County, supra, at pp 441-442).

The statements taken by Detective Grogan and relied upon by the People’s psychiatrist were, like the statements made to the psychiatrist in Lee, used only as proof on the issue of defendant’s sanity. Under the distinction enunciated in Lee between evidence of guilt and proof of sanity, then, these statements were not used as direct evidence against defendant. Accordingly, I see no basis for refusing to apply the Lee waiver principle to the facts at bar and would hold that by asserting an insanity defense defendant waives his right to the presence of counsel during questioning, insofar as the statements obtained in violation of that right are used to rebut the insanity defense.

An insanity defense can be concocted with relative ease. The rule announced by the majority today would assist in this pursuit, in my view, improperly. The well-established impeachment exception to the exclusionary rule prevents a defendant from affirmatively exploiting the government’s failure to provide proper Miranda warnings or respect his right to counsel (Harris v New York, 401 US 222; People v Washington, 51 NY2d 214). Similarly, applying this rule to the facts of this case would discourage a defendant from presenting a fraudulent insanity defense by making him aware that he does so only at the risk of confrontation with any prior statements inconsistent with that defense.

The decision of the United States Court of Appeals for the District of Columbia Circuit in United States v Hinckley (672 F2d 115) is not binding on our court; nevertheless it is clearly distinguishable from the instant appeal and the majority’s reliance on that decision is misplaced. There the court refused to adopt a broad insanity exception to the exclusionary rule and allow statements taken from the accused in violation of his Miranda rights to be used for the limited purpose of rebutting his defense of insanity. However, the court made clear that its holding was limited by the crucial fact that the special agents who guarded the President and investigated the assassination attempt knew from experience that assassins often raise an insanity defense, and that those agents could be expected to tailor their questioning to that defense. This extraordinary circumstance, which implies a need to minimize the opportunity for bad faith abuse of a defendant’s constitutional rights by government officials, may well have provided a valid ground for refusing to apply an insanity exception to the exclusionary rule. No similar ground for doing so, however, exists in this case.

The majority’s holding represents an unwarranted and unnecessary extension of the exclusionary rule, which not only affects the validity of the fact-finding process, but also permits a defendant to manipulate the facts affirmatively by presenting a less than complete and critically distorted picture of his mental state.

Chief Judge Cooke and Judges Jones and Meyer concur with Judge Fuchsberg; Judge Wachtler dissents and votes to affirm in a separate opinion in which Judges Jasen and Gabrielli concur.

Order reversed, etc.

      . It is undisputed that on the first of these occasions the defendant, though in custody, also did not receive the warnings mandated by Miranda v Arizona (384 US 436). However, since we reverse on the right to counsel issue, we do not dwell on the analogous Miranda point in this opinion.

      . The dissenting opinion’s suggestion to the contrary notwithstanding, the Hinckley court did not “limit” the application of this flat statement. Fairly read, its text merely

        noted that the sophistication of the police in its case emphasized the need for the rule we and the Hinckley court both bespeak.


author: Fuchsberg, J.

text:
    Richard Sharapata, an Infant, by His Mother and Natural Guardian, Arlene Sharapata, et al., Appellants, v Town of Islip, Respondent.
    Argued May 4, 1982;
    decided June 17, 1982

      POINTS OF COUNSEL

      Frank Mitchell Corso, Richard A. Engelberg, Marti Green and Mitchel Sommer for appellants.
    Legislative statute and public policy dictate that municipal corporations be subject to punitive damages. (Walker v Sheldon, 10 NY2d 401; Gertz v Robert Welch, Inc., 418 US 323; Le Mistral, Inc. v Columbia Broadcasting System, 61 AD2d 491; Williams v City of New York, 508 F2d 356; Costich v City of Rochester, 68 App Div 623; Hartford Acc. & Ind. Co. v Village of Hempstead, 48 NY2d 218; Lochhaas v State of New York, 64 AD2d 816; Raplee v City of Corning, 6 AD2d 230; Snyder v State of New York, 20 AD2d 827; Cornell v State of New York, 46 AD2d 702.)

      John J. McLoone, Jr., for respondent.
    As a matter of public policy, the State and its subdivisions should not be subject to punitive damages. (Smith v State of New York, 227 NY 405; Locke v State of New York, 140 NY 480; Sipple v State of New York, 99 NY 284; Lewis v State of New York, 96 NY 71; Murtha v New York Homeopathic Med. Col. & Flower Hosp., 228 NY 183; Wilcox v City of Rochester, 190. NY 137; Hughes v County of Monroe, 147 NY 49; Maxmilian v Mayor of City of N. Y., 62 NY 160; People ex rel. Swift v Luce, 204 NY 478; Bernardine v City of New York, 294 NY 361.)

      Louis N. Kash, Corporation Counsel (Michael J. Looby of counsel), for City of Rochester, amicus curiae.

    I. Both financial reality and social policy considerations, militate strongly against allowance of punitive damage demands against municipalities. (Newport v Fact Concerts, 453 US 247; Hartford Acc. & Ind. Co. v Village of Hempstead, 48 NY2d 218.) II. Considerations of judicial economy warrant prohibition of punitive damage claims against municipalities. (Hines v City of Buffalo, 79 AD2d 218.) III. Punitive damages are not within the purview of the waiver of sovereign immunity under section 8 of the Court of Claims Act. (Maloney v State of New York, 3 NY2d 356.)
   OPINION OF THE COURT

Fuchsberg, J.

In a matter of first impression in this court, we hold today that the waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State or its political subdivisions.

The issue is presented in the context of a negligence action brought to recover the damages which flowed from injuries sustained by the infant plaintiff, Richard Sharapata, when, as it is alleged, defective slide equipment, on which the child had been invited to play in a public park maintained by the defendant, Town of Islip, turned out to be dangerously defective. Presumably on the basis of such information as was available to the child and his mother at the time their suit was started, the original complaint sought compensatory damages alone.

However, while the case was pending, plaintiffs apparently obtained access to communications between the town’s safety officer and its liability insurance carrier, the substance of which, for present purposes, may be assumed, if it were proved, to have been sufficient to support a finding that the town had acted with reckless indifference to a known danger. Be that as it may, it was on this premise that they moved for leave to amend their complaint to add a prayer for punitive damages.

Notwithstanding the town’s contention that it was never the intention of the State, in enacting section 8, to consent to the bringing of punitive damage claims against it or, as in this case, against one of its local governments, Special Term granted the motion. However, the Appellate Division, Second Department, in an opinion in which Justice Titone made a comprehensive review of case law on the subject, reversed. In doing so, it noted that, during the more than half a century which had elapsed since section 8 (originally section 12-a) of the Court of Claims Act was enacted (L 1929, ch 467, § l), the question, though raised from time to time, had evaded definite resolution (82 AD2d 350). The Appellate Division then granted the plaintiffs leave to appeal to this court from the order entered on its determination. In so doing, it certified a question which, in its usual generalized form, asked us to decide whether the order was “properly made” (CPLR 5602, subd [b], par 1), thus posing the question of law it had decided.

To answer the question we begin our analysis by noting important distinctions between compensatory and punitive damages. The former, including those recoverable for negligent conduct, are based on the fundamental purpose of damages, which is to have the wrongdoer make the victim whole. Put another way, these measure “fair and just compensation, commensurate with the loss or injury sustained from the wrongful act” (13 NY Jur, Damages, § 9; see McCormick, Damages, §§ 20, 137; James, Damages in Accident Cases, 41 Cornell LQ 582).

Punitive or “exemplary” damages, sometimes known as “smart money”, and thus seemingly attuned to the criminal rather than the civil side of the law, are not intended to compensate the injured party but to punish the tort-feasor for his conduct and to deter him and others like him from similar action in the future (Restatement, Torts 2d, § 908; Prosser, Torts [4th ed], pp 9-10). Not only do these differ in purpose and nature from compensatory damages, but they may only be awarded for exceptional misconduct which transgresses mere negligence, as when the wrongdoer has acted “maliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness” (9 Encyclopedia New York Law, Damages, § 63) or has engaged in “outrageous or oppressive intentional misconduct” or with “reckless or wanton disregard of safety or rights” (Morris, Punitive Damages in Personal Injury Cases, 21 Ohio St LJ 216).

For a long time these distinctions were of no concern to the State as a potential defendant. For, at common law, as sovereign, it was not liable for injuries arising from the misconduct of an officer and employee, whatever its degree, and thus was not subject to the imposition of either compensatory or punitive damages, unless and to the extent that such liability expressly was assumed by constitutional or legislative enactment (Smith v State of New York,, 227 NY 405; 18 McQuillin, Municipal Corporations [3d ed rev], § 53.24). This general immunity came to an end with the adoption of section 8, which provides: “The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations”.

Now, the formal history which accompanied this seemingly straightforward statute at the time of its adoption is sparse. Nevertheless, like all statutes, the legal and historical setting in which it came into existence need not be ignored (see Llewellyn, Common Law Tradition, pp 371-377, esp p 372). Thus, not the least of the legal propositions of which we here cannot lose sight is the axiom that a statute in derogation of the sovereignity of a State must be strictly construed, waiver of immunity by inference being disfavored (Goldstein v State of New York, 281 NY 396; Smith v State of New York, supra; 81A CJS, States, § 299). Section 8 is silent on punitive damages.

All the more is this pertinent because, long before section 8 came on the horizon, though statutes which made cities suable for their torts did not expressly exclude punitive damages, our courts were of the view that “[t]here are weighty reasons, whether we seek to designate them by that very general term, ‘public policy’, or otherwise, which oppose the application of the doctrine of punitive damages to municipal corporations, even in those cases where they might be justifiable against private corporations. The latter are largely created and administered for purposes of profit or for some other personal object. Those who become members of them do so voluntarily, and in the majority of instances in the hope of gain * * * The municipal corporation is different. It is not organized for any purpose of gain or profit, but it is a legal creation engaged in carrying on government and administering its details for the general good and as a matter of public necessity” (Costich v City of Rochester, 68 App Div 623, 631 [Hiscock, J.]).

Moreover, though it, therefore, is hard to believe that any attempt to include punitive damages would not have induced lively legislative debate, contemporary State history preceding the formulation of section 8 gives no indication that the matter ever evoked any legislative interest. Instead, the “evil” the statute was designed to “cure” (see Llewellyn, Common Law Tradition, p 374) appears to have been the one pointed up by Governor Alfred E. Smith in vetoing a large number of “private bills” presented to him at the conclusion of the 1928 legislative session. Such bills sought entry to the Court of Claims for individuals possessing claims which presumably had enough “moral” justification to have commended themselves to their legislative sponsors. Said the Governor, however: “I have been studying claim bills of this kind for years * * * The total amount involved in these claims is enormous * * * Almost all of them are obviously introduced by legislators who have no idea of the validity of the claims * * * There is no reason why access to the Court of Claims should be afforded only to a selected few people who have friends to draw special bills for them and who are able to obtain support in the Legislature to pass them. By disapproving these bills my chief purpose is to call attention to the need of the adoption of a new policy in the hope that the next Legislature will * * * pass the necessary amendments to the General Laws so that this subject may be handled in the future in a logical, fair and orderly way, in place of the haphazard, careless and discriminating procedure which has obtained up to this time” (Public Papers of Governor Alfred E. Smith, pp 200-202 [1928]).

In what has all the earmarks of a true post hoc, propter hoc sequence, the very next session saw the passage of the “necessary amendments” (see 1936 Report of NY Law Rev Comm, pp 962, 963; Herzog, Liability of the State of New York for “Purely Governmental” Functions, 10 Syracuse L Rev 30, 41-42; McNamara, The Court of Claims: Its Development and Present Role in the Unified Court System, 40 St John’s L Rev 1).

Indeed, the Legislature’s enactments to this day continue to reaffirm the policy that public funds not be available, directly or indirectly, for the payment of damages beyond those actually suffered, an approach consistent with the spirit of our State Constitution’s cautions against unwarranted invasion of the public purse (see, e.g., NY Const, art VII, § 8; art VIII, § 9; Wein v State of New York, 39 NY2d 136,142-143; Farrington v State of New York, 248 NY 112, 115). So, while it does not bear directly on section 8 of the Court of Claims Act, it is significant that when, in 1981, the Legislature unified a patchwork of provisions for public indemnification of governmental employees sued in tort for acts or omissions within the scope of their employment, it was careful to exclude indemnification for “exemplary damages, fines or penalties” which the employees might incur (Public Officers Law, § 17, subd 3, pars [a], [c]; § 18, subd 4, pars [b], [c]; see General Municipal Law, § 50-k). In refusing to shelter these employees from ultimate personal responsibility for punitive damages, the statutory draftsmen could hardly have contemplated that, in any event, the State or its subdivisions could be exposed to such damages directly.

Finally, aside from these telltale signs of legislative intent, the twin justifications for punitive damages — punishment and deterrence — are hardly advanced when applied to a governmental unit. As Justice Titone realistically put it in his opinion below, it would be anomalous to have “the persons who bear the burden of punishment, i.e., the taxpayers and citizens”, constitute “the self-same group who are expected to benefit from the public example which the granting of such damages supposedly makes of the wrongdoer” (82 AD2d, at pp 363-364).

The incongruity in this hypothesis is highlighted when we remember that, as with the imposition of a fine in a criminal case, the punitive power of exemplary damages is largely proportionate to the financial sacrifice it means for the malefactor. Were sovereign entities open to punitive damage, would this then mean that the monetary worth of the taxing power of the State or locality against whom such a claim might be directed would be a societally acceptable factor, no matter how relevant to the calculation of a just reward? To ask the question is to answer it.

Furthermore, as to deterrence, the kind of legislative scheme to which we have already alluded — one stressing the employees’ nondelegable obligation to bear the brunt of punitive damage claims while exempting government itself from this risk — may advance that goal.

For all these reasons, as Justice Blackmun recently declared in a somewhat related frame of reference, “Damages awarded for punitive purposes * * * are not sensibly assessed against the governmental entity itself” (City of Newport v Fact Concerts, 453 US 247, 267).

It follows that the question certified by the Appellate Division should be answered in the affirmative and the order from which this appeal is taken should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

Order affirmed, with costs, and question certified answered in the affirmative.

      . The correspondence between the town and its carrier revealed that there had been at least three prior accidents in connection with the equipment and that, as described by the carrier, it was a “distinct hazard” because, among other things, handrails were missing, numerous sharp edges of fencing were turned inward towards slide users and a slide plate was buckled and had raised edges, so that the insurer recommended that it be “removed in the interests of accident prevention”.

      . Since nothing in this opinion turns on the changes effected when section 12-a was revised, whenever we hereinafter refer to section 8 we intend both the present statute and its previous form.

      . (Sebastian v Wood, 246 Iowa 94, 100; Prosser, Torts [4th ed], p 9.)

      . The waiver of the State’s immunity applies to the same extent to its political subdivisions, such as defendant town, which as an instrument of the State, carries sovereignty with it (Bernardine v City of New York, 294 NY 361).

      . To say that express legislative authorization is a precondition to governmental assumption of liability for exemplary damages is to do no more than to state the rule recognized by a majority of jurisdictions in the United States (Ann., 19 ALR2d 903, 905-911; 18 McQuillin, Municipal Corporations [3d ed rev], § 53.18a, p 161; 63 CJS, Municipal Corporations, p 495; Hines, Municipal Liability for Exemplary Damages, 15 Clev-Mar L Rev 304).


author: Wachtler, J.

text:
    Barbara H. Eaton, Appellant, v New York City Conciliation and Appeals Board et al., Respondents. Tenants’ Association of St. John’s Colony, Intervenor-Appellant. Eleanor Nesbitt, Appellant, v New York City Conciliation and Appeals Board et al., Respondents. Tenants’ Association of St. John’s Colony, Intervenor-Appellant.
    Argued May 4, 1982;
    decided June 17, 1982

      POINTS OF COUNSEL

      Sidney H. Stein and David Wright for appellants and intervenor-appellant.
    I. Section 5 (subd a, par [6]) of the Emergency Tenant Protection Act of 1974 does not exempt religious organizations from rent regulation. (La Guardia v Cavanaugh, 53 NY2d 67; Matter of Association of Bar of

      City of N. Y. v Lewisohn, 34 NY2d 143; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Matter of Watson, 171 NY 256; People v Illardo, 48 NY2d 408; People v Shapiro, 50 NY2d 747; Matter of Bowen v Allen, 17 AD2d 12,13 NY2d 663; Matter of Mlodozeniec v Worthington Corp., 9 AD2d 21, 8 NY2d 918, 364 US 628; Tcherepnin v Knight, 389 US 332; Henderson v Defense Contract Admin. Servs. Region, N. Y., 370 F Supp 180.) II. If these housing accommodations are subject to rent regulation, the statute is constitutional; if they are exempt, the statute is unconstitutional. (Allied Stores of Ohio v Bowers, 358 US 522; Craig v Boren, 429 US 190; Everson v Board of Educ., 330 US 1; Board of Educ. v Allen, 392 US 236; Walz v Tax Comm., 397 US 664; Committee for Public Educ. v Nyquist, 413 US 756.) III. Appellants are entitled to recover attorneys’ fees subject to section 234 of the Real Property Law. (Dolman v United States Trust Co. of N. Y., 2 NY2d 110; People ex rel. City of N. Y. v Nixon, 229 NY 356; Skandia Amer. Reinsurance Corp. v Schenck, 441 F Supp 715; Concord Vil. Mgt. Co. v Rubin, 101 Misc 2d 625; 111 East 88th Partners v Simon, 106 Misc 2d 693; Century Apts. v Yalkowsky, 106 Misc 2d 762.)

      Cullen S. McVoy and Ellis S. Franke for New York City Conciliation and Appeals Board, respondent.
    I. The court below properly upheld the board’s order which found, pursuant to the express provisions of the rent stabilization law, as amended by chapter 576 of the Laws of 1974, that the premises in question are exempt from rent stabilization by virtue of the fact that the owner is a religious institution operated exclusively for charitable purposes on a nonprofit basis. (Matter of Cornerstone Baptist Church v Rent Stabilization Assn., 55 AD2d 952; Cornell Univ. v New York City Conciliation & Appeals Bd., 87 Misc 2d 1060, 55 AD2d 587, 42 NY2d 804; Minton v Domb, 63 AD2d 36; People ex rel. Doctors Hosp. v Sexton, 267 App Div 736, 295 NY 553; Matter of Huntington, 168 NY 399; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350.) II. The court below correctly held that the board’s construction of the statute, which afforded equal exemption treatment to religious institutions as a class, was entirely consistent with the establishment clause of the Constitution, whereas the construction adopted by Special Term (and now advocated by appellant) would likely run afoul of constitutional protections. (Walz v Tax Comm., 397 US 664; Committee for Public Educ. v Nyquist, 413 US 756.)

      Gary M. Rosenberg and Jay Zinns for St. John’s in the Village, respondent.
    I. The court below properly held that a rational basis supports the board’s determination that the vacancy decontrolled apartments in question located in buildings owned and operated by St. John’s in the Village are exempt from the rent stabilization law by virtue of section 5 (subd a, par [6]) of the Emergency Tenant Protection Act of 1974. (Matter of Cornerstone Baptist Church v Rent Stabilization Assn., 55 AD2d 952; Cornell Univ. v New York City Conciliation & Appeals Bd., 87 Misc 2d 1060, 55 AD2d 587,42 NY2d 804; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350; Matter of Huntington, 168 NY 399.) II. The statutory provision exempting vacancy decontrolled apartments owned by St. John’s Church is constitutional. (Walz v Tax Comm., 397 US 664; Board of Educ. v Allen, 392 US 236; Committee for Public Educ. v Nyquist, 413 US 756.) III. Section 234 of the Real Property Law does not entitle appellant to attorneys’ fees in an article 78 proceeding. (Concord Vil. Mgt. Co. v Rubin, 101 Misc 2d 625.)
   OPINION OF THE COURT

Wachtler, J.

The question presented on these appeals is whether residential apartments owned and operated by a religious institution and rented to the general public are exempt from the rent stabilization laws. The New York City Conciliation and Appeals Board has determined that the apartments are exempt. In separate article 78 proceedings brought by tenants of the subject apartments, the Supreme Court vacated the determinations but the Appellate Division reversed and confirmed the determinations. The tenants now appeal to this court.

Respondent, St. John’s in the Village, is a religious institution responsible for the operation of the St. John’s Episcopal Church in New York City. It also owns and operates as landlord approximately 60 residential apartments in Greenwich Village. These apartments were originally subject to the Rent Stabilization Law of 1969 but were decontrolled pursuant to the vacancy decontrol law (L 1971, ch 371).

Petitioners Eleanor Nesbitt and Barbara Eaton assumed occupancy of their apartments in August, 1972 and August, 1974 respectively. Thereafter, each entered into subsequent renewal leases at rents permitted under the rent stabilization guidelines authorized by the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, § 4). The act provided, with certain exceptions, that apartments previously vacancy decontrolled were to be restored to rent stabilization. In 1979, respondent informed its tenants that the apartments were not subject to rent stabilization. It was respondents’ position that as a religious institution operated exclusively for charitable purposes on a nonprofit basis, its rental units were exempted from rent stabilization as authorized by section 5 (subd a, par [6]) of the Emergency Tenant Protection Act. This section specifically exempts from rent stabilization: “housing accommodations owned or operated by a hospital, convent, monastery, asylum, public institution or college or school dormitory or any institution operated exclusively for charitable or educational purposes on a non-profit basis”.

When respondent insisted that its tenants enter into new leases at rents higher than those permitted by rent stabilization, petitioners filed separate complaints with the New York City Conciliation and Appeals Board (CAB). CAB dismissed petitioners’ complaints holding that the dwelling units were exempt from rent regulation and control in that respondent operated the subject premises exclusively for charitable purposes on a nonprofit basis in accordance with section 5 (subd a, par [6]) of the act.

The petitioners then commenced separate article 78 proceedings seeking an annulment of CAB’s determinations and an award of attorneys’ fees pursuant to section 234 of the Real Property Law. Special Term reversed on the ground that the section in question specifies “monastery” or “convent” and not religious institutions generally.

The Appellate Division modified on the law by reversing the judgments insofar as they annulled CAB’s determination. The court found that binding precedents recognize a degree of interchangeability between the terms “religious” and “charitable” and that the statute as interpreted suffered from no constitutional infirmity. The court also held that petitioners’ claims for attorneys’ fees were properly denied. We now reverse the Appellate Division.

The petitioner tenants argue on this appeal that section 5 (subd a, par [6]) does not specifically exempt religious institutions from rent stabilization and that such an exemption would violate the establishment clause of the Constitution. They further contend that respondent’s failure to offer renewal leases at rent-stabilized terms constitutes a failure to perform a covenant or agreement under the lease entitling them to recover attorneys’ fees in accordance with section 234 of the Real Property Law.

It is a fundamental principle of statutory interpretation that a court should attempt to effectuate the intent of the Legislature (McKinney’s Cons Laws of NY, Book 1, Statutes, § 76; Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38; see Matter of Carr v New York State Bd. of Elections, 40 NY2d 556) and where the statutory language is clear and unambiguous, the court should construe the statute to give effect to the plain meaning of the words used (Bender v Jamaica Hosp., 40 NY2d 560; Matter of De Peyster, 210 NY 216). In this case the language of the statute exempts from rent stabilization housing accommodations owned or operated by any institution operated exclusively for charitable or educational purposes on a nonprofit basis. There is no language in the statute which would permit an interpretation providing a similar exemption for institutions operated for religious purposes nor is there statutory language which would suggest this legislative intent. Where as here, the statute describes the particular situations to which it is to apply “an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Statutes, § 240; see Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205, 209). Nor does the statutory reference to monastery or convent serve to define religious institutions generally. Indeed the opposite conclusion could be inferred by virtue of the specific language of the statute which singles out convent or monastery from the application of its provision.

Had the Legislature intended to extend the exemption to religious institutions, it could have chosen to do so through appropriately worded legislation (Bright Homes v Wright, 8 NY2d 157). In view of the Legislature’s failure to include religious institutions generally within the exemption provisions of the statute an “irrefutable inference” arises that housing accommodations owned or operated by religious institutions are outside the scope of this statute.

Although respondent may have functions and attributes which may be characterized as charitable there is no demonstration that they are anything but incidental to its religious purposes. The record before us fails to disclose that the subject apartments are owned or operated by an institution operated exclusively for charitable purposes or that the income derived from the rental property is devoted exclusively to charitable purposes.

Moreover, we find no constitutional infirmity in the statute. A statute is presumptively constitutional and should be construed in such a manner as to uphold its constitutionality (McKinney’s Statutes, § 150). We believe that the interpretation adopted by Special Term is consistent with this objective.

Finally, the issue involving petitioners’ claim for attorneys’ fees should be remitted to Special Term for further consideration as to whether the landlord’s refusal to offer renewal leases in rent-stabilized terms constituted a failure to perform a covenant or agreement as is requisite to the application of section 234 of the Real Property Law.

Accordingly, in each case, the order of the Appellate Division should be reversed and the matter remitted to Special Term for consideration of the issue as to whether petitioner is entitled to attorneys’ fees and for reinstatement of the provisions of the judgment of Special Term vacating the determination of the board and remanding to the board for consideration of petitioners’ claim for refund of prior rent increases.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur.

In each case: Order reversed, with costs, and matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.


author: Gabrielli, J.

text:
    In the Matter of an Application to Quash a Subpoena Duces Tecum in Grand Jury Proceedings. John Doe (Anonymous Name for Petitioners), Appellants; The People of the State of New York, Respondent. (And Another Proceeding.)
    Argued May 12, 1982;
    decided June 17, 1982

      POINTS OF COUNSEL

      Charles G. Moerdler, Bruce H. Schneider and Amy S. Klein for appellants.
    I. The court below erred in failing to quash the July 17 Maria M. subpoena that would require the production of material prepared for litigation. (Upjohn Co. v United States, 449 US 383; United States v Nobles, 422 US 225; Matter of Grand Jury Investigation, 599 F2d 1224; Matter of Grand Jury Subpoena, 599 F2d 504; Matter of Grand Jury Proceedings, 473 F2d 840; Matter of Grand Jury Subpoena Dated Nov. 9, 1979, 484 F Supp 1099; Matter of Grand Jury Investigation, 412 F Supp 943; Matter of Rosenbaum, 401 F Supp 807; Matter of Terkeltoub, 256 F Supp 683; Matter of Doe, 662 F2d 1073.) II. The court below erred in failing to give effect to the physician-patient privilege and patients’ rights of privacy, and in directing compliance with the subpoenas for the Maria M. and Daisy S. medical records. (Steinberg v New York Life Ins. Co., 263 NY 45; Matter of Coddington, 307 NY 181; Grattan v Metropolitan Life Ins. Co. of N. Y., 92 NY 276; Matter of City Council of City of N. Y. v Goldwater, 284 NY 296; Boddy v Parker, 45 AD2d 1000; People v Eckert, 2 NY2d 126; Matter of Investigation of Criminal Abortions in County of Kings [Magelaner], 286 App Div 270, 309 NY 1031; Tinney v Neilson’s Flowers, 61 Misc 2d 717; Eder v Cashin, 281 App Div 456; Sheiner v Metropolitan Life Ins. Co., 236 App Div 24.) III. The court below erred in holding that a patients’ constitutional rights of privacy must yield in a Grand Jury proceeding. (Pharmaceutical Mfrs. Assn. v Whalen, 54 NY2d 486; United States v Westinghouse Elec. Corp., 638 F2d 570; Hawaii Psychiatric Soc., Dist. Branch of Amer. Psychiatric Assn. v Ariyoshi, 481 F Supp 1028; Schachter v Whalen, 581 F2d 35; Matter of Storar, 52 NY2d 363; People v Al-Kanani, 33 NY2d 260, 417 US 916; Bursey v United States, 466 F2d 1059.) IV. The court below erred in Daisy S. in overruling the social worker-client privilege. (Community Serv. Soc. v Welfare Inspector Gen. of State of N. Y., 91 Misc 2d 383, 65 AD2d 734; People v Eckert, 2 NY2d 126; Matter of Kinoy, 326 F Supp 400.)

      Edward J. Kuriansky, Deputy Attorney-General (Arthur G. Weinstein and Jon M. Bevilacqua of counsel), for respondent.
    I. The subpoenaed medical records have not been shown to be privileged, nor are appellants in a position to assert privilege. (Matter of Keenan v Gigante, 47 NY2d 160; People v Stern, 3 NY2d 658; Edington v Mutual Life Ins. Co. of N. Y., 67 NY 185; People v Fuller, 24 NY2d 292; Scolavino v State of New York, 187 Misc 253, 271 App Div 618, 297 NY 460; Milano v State of New York, 44 Misc 2d 290; People v Capra, 17 NY2d 670; Polsky v Union Mut. Stock Life Ins. Co. of N. Y., 80 AD2d 777; Koump v Smith, 25 NY2d 287; People v Austin, 199 NY 446.) II. The Grand Jury is entitled to the reports of Maria M.’s death. (Baratta v Pallotta, 81 AD2d 1040; Yannick v Tube City Iron & Metal Co., 77 AD2d 623; Chemical Bank v National Union Fire Ins. Co. of Pittsburg, Pa., 70 AD2d 837; Weisgold v

      Kiamesha Concord, 51 Misc 2d 456; Carlo v Queens Tr. Corp., 76 AD2d 824; Hunt v Joseph, 67 AD2d 697; Kandel v Tocher, 22 AD2d 513; Pataki v Kiseda, 80 AD2d 100; Matter of Weaver v Waterville Mills, 78 AD2d 574.)
   OPINION OF THE COURT

Gabrielli, J.

We hold today that a hospital being investigated by a Grand Jury in connection with possible crimes committed against its patients by the hospital staff may not successfully assert the physician-patient (CPLR 4504) or social worker-client (CPLR 4508) privileges, or the patient’s right to privacy, in opposition to a Grand Jury subpoena calling for the hospital’s records. Additionally, the conditional bar to discovery of material prepared for litigation provided by CPLR 3101 (subd [d]) does not apply in the face of a valid Grand Jury subpoena duces tecum.

In July, 1981, the Deputy Attorney-General for Medicaid Fraud Control issued two Grand Jury subpoenas, one to appellant hospital and the other to its executive vice-president, calling for the production of hospital records relating to a patient, Maria M., who had died in the hospital. The hospital moved to quash the subpoenas based on the assertions that the physician-patient privilege applied, that the subpoenas violated the patient’s right to privacy, and that portions of the requested matter were material prepared for litigation. In response to the motion to quash, the Deputy Attorney-General demonstrated that the subpoenas were issued as part of an investigation into possible “no coding” at the hospital, a procedure under which various lifesaving and support measures are selectively denied to certain seriously ill patients.

Special Term denied the motion to quash and the Appellate Division affirmed. Following the Appellate Division determination in the Maria M. case, the Grand Jury issued a subpoena to the hospital calling for the production of hospital records relating to a second deceased patient, Daisy S. Again, a motion was made to quash the subpoena. In addition to asserting the physician-patient privilege and the patient’s constitutional right to privacy, the hospital maintained that the social worker privilege of CPLR 4508 barred production of the files requested by this third subpoena. In support of this latter argument, the hospital contended that the social worker assigned to Daisy S. had made several notations in her medical record. This subpoena was upheld in the courts below and the appeal has been consolidated in our court with the appeal relating to the Maria M. subpoenas. We now affirm in both cases.

Initially, we note that our courts have traditionally given the Grand Jury the widest possible latitude in the exercise of its powers to inquire into possible criminal activity (People v Stern, 3 NY2d 658, 661). Nevertheless, the evidentiary privileges have by and large been held to apply to Grand Jury proceedings (People v Eckert, 2 NY2d 126). Each of the privileges is designed to encourage a particular form of behavior or to serve a certain desirable purpose. These privileges exact a heavy toll, however, because they tend to keep otherwise competent evidence from the reach of the Grand Jury and the courts (see 8 Wigmore, Evidence [McNaughton rev], § 2380a). Accordingly, where the application of a privilege will not serve to further the legitimate purposes for which it was created, there is little reason to permit its invocation.

The physician-patient privilege, which guarantees the confidentiality of a communication between patient and doctor, is designed in large measure to encourage full disclosure by the patient so that he can secure appropriate treatment from the physician (see Richardson, Evidence [10th ed — Prince], § 428; 5 Weinstein-Korn-Miller, NY Civ Prac, par 4504.02). The privilege, of course, belongs to the patient, but may be asserted by the physician for the. patient’s protection where the patient has not waived his privilege. A pragmatic limitation upon this rule, which has been given effect in our State, is that a person or entity subject to proceedings for having committed crimes against an individual should not be permitted to assert the victim’s physician-patient privilege as a bar to production of relevant medical records or testimony. Thus, in People v Lay (254 App Div 372, affd 279 NY 737), the defendant, charged with shooting his victim with a loaded pistol with intent to kill, was not permitted to use the victim’s physician-patient privilege to bar her physician from testifying to having extracted the bullet. The principle underlying this holding is that the purpose of the privilege is to protect the patient, not to shield the criminal. Although the Lay decision involved the assertion of the physician-patient privilege at trial, we now hold that the principle behind the Lay decision also applies where the privilege is invoked in response to a Grand Jury subpoena duces tecum.

In this case, the purpose of the Grand Jury subpoena was to investigate possible criminal activity in connection with the deaths of two elderly patients at the appellant hospital. Since the hospital was a central figure in this investigation, it should not be permitted to successfully assert the physician-patient privilege of its patients in this instance.

Similarly, the social worker-client privilege may not be asserted by the hospital in connection with the Daisy S. subpoena. The manifest purpose of this privilege, like the physician-patient privilege, is to encourage uninhibited disclosure by the individual for the purpose of securing necessary assistance. This purpose is not served by permitting a hospital which may have been involved in crimes committed upon its patients to assert their privileges. We reject the suggestion of appellant that the compelled disclosure of the files in this instance will undermine the salutary goal of uninhibited communications between patients and their physicians or social workers. The Grand Jury operates in secret, and the prospect that it might examine the files of a hospital in connection with allegations of crimes committed against the hospital’s patients is unlikely to inhibit these patients from making candid disclosures to their physicians or social workers for the purpose of securing beneficial and necessary treatment.

In addition, to the extent that the deceased patients are the beneficiaries of some constitutional right to privacy in their medical records, this purported right may not now be asserted by the appellant hospital. In the context of these cases, the hospital lacks standing to assert the constitutional rights, if any, of its patients. As the Appellate Division noted, “in view of the overriding public interest in having the Grand Jury investigate all avenues which might help detect criminal conduct, and the built-in security provisions in the Grand Jury system which militate against subsequent unauthorized disclosure,” (86 AD2d, p 673) the argument that the patients’ rights to privacy will be violated by disclosure in this instance must be rejected.

Finally, we believe that the Appellate Division was correct in concluding that appellants may not rely upon the conditional privilege for material prepared for litigation in the face of a Grand Jury subpoena duces tecum. CPLR 3101 (subd [d]) provides that material prepared for litigation “shall not be obtainable unless the court finds that the material can no longer be duplicated because of a change in condition and that withholding it will result in injustice or undue hardship”. Appellants now maintain that the hospital files contain material falling within the scope of this privilege and that the Deputy Attorney-General has made no showing that the information sought in the subpoenas is otherwise unobtainable. These assertions are unavailing. It has been postulated that one of the purposes behind this conditional privilege is to prevent attorneys from freely using the preparatory efforts for litigation of their opposing attorneys, except where absolutely necessary. Whatever the underpinnings of this provision, it is evident that the Legislature did not consider material prepared for litigation to be so sacrosanct as to be totally immune from disclosure. Nothing in the language or history of the provision suggests that the conditions imposed upon the discovery of this material were meant to apply to a subpoena issued by the Grand Jury or that this section was meant to otherwise impede a legitimate Grand Jury investigation. Since the subpoenaed documents are obviously relevant to the legitimate object of investigation by the Grand Jury, the motion to quash based on the conditional privilege of CPLR 3101 (subd [d]) was properly rejected.

Inasmuch as there is no merit to the contentions of appellants that the subpoenaed material is privileged or otherwise protected from disclosure, the motions to quash were properly denied. Accordingly, the orders of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Orders affirmed, with costs.