author: Jasen, J.

text:
    In the Matter of the Adoption of Male Infant L. Christina L., Respondent; James H. et al., Appellants.
    Argued February 20, 1984;
    decided March 29, 1984

      POINTS OF COUNSEL

      Vivian Berger, Eric A. Seiff and Carolyn Henneman for appellants.
    I. Where respondent biological mother gave her baby to appellants for adoption, the child’s whole life — over three years — has been spent with appellants, and removal of the child from his secure home to the unpredictable care of respondent would place him at substantial risk of severe and lasting psychological damage, his custody should remain with appellants. (Eschbach v Eschbach, 56 NY2d 167; Matter of Irene O., 38 NY2d 776; Matter of Dickson v Lascaris, 53 NY2d 204; Matter of Bennett v Jeffreys, 40 NY2d 543; Matott v Ward, 48 NY2d 455; Matter of Ernest v Boggs Lake Estates, 12 NY2d 414; Planned Parenthood of Mo. v Danforth, 428 US 52; Smith v Organization of Foster Families, 431 US 816.) II. The Family Court erred in excluding extrinsic evidence of respondent’s “adoption intention” on the issue whether the documents she signed amounted to a consent to adoption. Such evidence, if considered, shows that respondent signed a valid consent to adoption, which she should not be allowed to revoke. (Steckler v Steckler, 78 AD2d 818; 67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245; Laba v Carey, 29 NY2d 302; Nichols v Nichols, 306 NY 490.)

      Jack G. Goldberg and Arlen S. Yalkut for respondent.
    I. The Family Court’s determination that respondent Christina L. did not execute a valid consent to adoption is amply supported by the evidence at trial. The Family Court and the court below’s finding that there was no ambiguity in the documents with respect to the withholding of consent should be sustained. (Matter of Malpica-Orsini, 36 NY2d 568, app dsmd sub nom. Orsini v Blasi, 423 US 1042; Matter of Eaton, 305 NY 162; Matter of Jessica XX., 77 AD2d 381; Matter of Male M., 76 AD2d 839.) II. As correctly determined by the Family Court and the majority in the court below, a court may not terminate parental rights by offering a child for adoption when there has been no parental consent, abandonment, neglect or proven unfitness, even though some might find adoption to be in the child’s best interest. (Matter of Corey L v Martin L, 45 NY2d 383; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Dickson v Lascaris, 53 NY2d 204; Matter of Tyrrell v Tyrrell, 67 AD2d 247; Matter of Merritt v Way, 58 NY2d 850; Laufer v Ostrow, 55 NY2d 305; Bennett v Marrow, 59 AD2d 492.)
   OPINION OF THE COURT

Jasen, J.

This appeal involves a natural mother’s attempt to gain custody of her child who has lived with the foster parents since his birth in July, 1980. The precise issue before us is whether the foster parents may retain custody of the child whom they have raised since his birth almost four years ago, where the natural mother has neither surrendered, abandoned nor neglected the child nor been found to be unfit, but, nevertheless, did originally plan with the foster parents before the child’s birth to give them the child for adoption, did consent to provisional custody at the child’s birth, and, furthermore, is poor, unwed and an illegal alien who speaks little English and has no settled plans for the child’s and her own future. This case involves the very fundamental rights and responsibilities at the heart of the parent-child relationship and, as with other similar cases, has been a source of the deepest emotions and pain for the parties. Resolution of a dispute like the one presented, involving such paramount and basic concerns, demands faithful attention and adherence to the strong public policies and overriding principles which have governed our past decisions. The specific facts in this case, as with most complicated disputes, are somewhat unique. Nonetheless, they present a broad outline not wholly unfamiliar to this court.

Beginning sometime in January, 1980, respondents Susan and James H., a childless couple residing in New York City, sought to arrange for the custody and ultimate adoption of the expected child of petitioner Christina L., a young, unwed, resident alien, working as a domestic in San Francisco. Through a mutual acquaintance in California, the parties exchanged their intentions: petitioner wishing to relinquish and the respondents wishing to adopt the baby at birth. The respondents’ New York attorney, Michael Mossberg, began the preparations for what would be necessary to bring the baby to New York for adoption, and their California attorney, Kiernan Manjarrez, met with petitioner to discuss her wishes and those of the respondents. In April of 1980, Manjarrez arranged for another attorney, Richard Bryant, to represent petitioner on a pro bono basis, and both lawyers explained to her the adoption procedures and the necessary forms to be signed. After being advised by both attorneys that the completion of certain papers required under the Interstate Compact on the Placement of Children (Social Services Law, § 374-a) would neither finalize the adoption nor divest her of parental rights, she signed a document declaring that “[i]t is my wish and I hereby consent that my child or children be placed for adoption with the aforementioned Mr. and Mrs. James [H.].”

In May, petitioner began to meet with a social worker at Manjarrez’s suggestion and, when she expressed some reservations to the latter, he also suggested that she consult a priest who apparently put her fears to rest for the time being. In June, Manjarrez secured the written consent of the child’s father to the proposed adoption and around the same time he informed petitioner that the respondents planned to take the baby to New York to initiate adoption proceedings there. He also reassured her, however, that the adoption would not be final at that time, but would be so only after she gave her approval before a California Judge and a New York court gave its approval as well.

On July 16, 1980, petitioner gave birth and the respondents immediately flew to California. After petitioner signed the necessary hospital release and an adoption placement form, the respondents returned to New York with the baby. The adoption placement form which petitioner executed provided that “I understand that this declaration is not a consent to adoption and that in signing this document I retain my legal rights to the custody, control, earnings and support of said child.” It was consistent with the assurances she had uniformly received from both parties’ lawyers and her social worker.

In August of 1980, between two and three weeks after the birth of her son, petitioner apprised Manjarrez of her desire to regain her child. She was referred to her own attorney and in turn referred to Ramiro Castro, who replaced him. Manjarrez, who was arranging for a court date in California to obtain petitioner’s final approval for the adoption, received a letter from Castro in October, notifying Manjarrez that petitioner was withholding her consent to the adoption and was considering instituting proceedings to regain custody of her child. A copy of the letter was forwarded to Mossberg, the respondents’ New York attorney, and he informed them of petitioner’s change of heart. Additionally, around the same time, the respondents heard from the parties’ mutual acquaintance who had made the initial introductions. Likewise, she informed the respondents that petitioner wanted her baby back. The respondents were apparently and understandably devastated, but they were determined to keep the child. Indeed, they followed their New York attorney’s advice not to return to California where they might more readily be served with process.

Petitioner instituted a habeas corpus proceeding in California to secure her child’s return, but it was unsuccessful. Castro advised her that she would have to go to New York, but petitioner had neither the funds to make the trip nor a place to stay. After saving her wages and making arrangements through Castro for maintenance and legal services in New York City, she arrived in May, 1981. Shortly thereafter, on June 10, 1981, petitioner filed a petition in Family Court to regain custody of her son. A few days later, the respondents petitioned for adoption and retention of custody, and these matters were consolidated.

The trial commenced and continued intermittently, being drawn out over the following nine months. The testimony showed that the respondents were exemplary parents and that the child was healthy, happy and developing properly under their care. The evidence also showed that petitioner was an illegal alien from El Salvador; that she had worked there for many years at a school caring for children, has likewise cared for children for several years in this country, employed as a domestic in both California and New York, and is well regarded in that capacity; and that she is presently poor and does not speak English fluently. There was confusion whether petitioner planned to return to El Salvador with the child, marry the father — now infeasible because of his subsequent marriage — or return to San Francisco to live with a friend. Finally, there was expert testimony that the child would probably suffer some “negative short term consequences” if he were removed from his foster parents, but that petitioner has been visiting him regularly since she arrived in New York City and the child might be susceptible to no such harm at this point.

Family Court rendered three separate opinions dated March 31, 1982, May 28, 1982, and August 20, 1982, respectively, each adhering to the same conclusion that the law requires that the child be returned to the natural mother. The court believed that it would be better for the child to remain with the foster parents, but finding that petitioner was fit and that she neither formally consented to the adoption nor abandoned the child, granted her custody “under the constraint of appellate precedents” (115 Misc 2d 248). A divided Appellate Division affirmed, finding petitioner to be both fit and devoted, and holding that absent extraordinary circumstances, not present here, the court may not intervene between the natural parent and child to determine if the latter’s best interests would be better served under someone else’s care. We now agree and affirm.

It has long been the law in this State that a parent has “a right to the care and custody of a child, superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood.” (People ex rel. Kropp v Shepsky, 305 NY 465, 468; see Matter of Dickson v Lascaris, 53 NY2d 204, 208; People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, 192.) In the absence of “surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances”, a parent may not be denied custody. (Matter of Bennett v Jeffreys, 40 NY2d 543, 544; see Matter of Dickson v Lascaris, supra, at p 208.) The State may not deprive a natural parent of her child’s custody merely because a court or social agency believes it can decide more wisely than the parent or believes it has found someone to better raise the child. So long as the parental rights have not been forfeited by gross misconduct (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204; see Matter of Gustow, 220 NY 373, 377) or other behavior evincing utter indifference and irresponsibility (see, e.g., Matter of Cleaves, 6 AD2d 138), the natural parent may not be supplanted (see Stanley v Illinois, 405 US 645, 651). Indeed, even where such “forfeiture” or “extraordinary circumstances” are found to exist, the best interests of the child must still thereafter be determined before the natural parent may be displaced. (Matter of Bennett v Jeffreys, supra, at p 548.) Otherwise, the question of best interests itself is not even reached. (Matter of Merritt v Way, 58 NY2d 850.) For once it is found that the parent is fit, and has neither abandoned, surrendered, nor otherwise forfeited parental rights, the inquiry ends and the natural parent may not be deprived the custody of his or her child.

Here, both lower courts found no surrender, abandonment, persistent neglect or unfitness of petitioner. Indeed, the record is clear that she never gave her final formal consent to the respondents’ permanent custody of her child but, instead, she relied upon the assurances of both parties’ lawyers and her social worker that nothing would be irrevocable until she declared her intentions to surrender her baby to the respondents before a California court, which, of course, she never did. The record also shows, in the words of the majority at the Appellate Division, that she “has ever been very devoted, dedicated to the struggle to regain her child — overcoming her lack of language and her paucity of funds, by her trek across America, by her persistent visits to the child, as well as by her legal efforts.” (95 AD2d, at p 30.) The affirmed findings of the lower courts, being supported by evidence in the record, will not be disturbed by this court. (People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d, at p 189.) Consequently, the “best interests” test is never reached and petitioner may not be deprived of custody of her child.

In Matter of Bennett v Jeffreys (supra, at p 548), this court held that a “disruption of custody over an extended period of time” could amount to an extraordinary circumstance sufficient to justify inquiry into whether custody with a nonparent would best serve the child’s interests. While it is true in the instant case that the child has not been in his mother’s custody since birth almost four years ago, and has remained with the respondents for that entire period, it is nonetheless also true that petitioner requested her infant’s return within three weeks of his birth and has persisted since that time in seeking to regain custody, as well as visiting the child regularly since she arrived in New York City. Indeed, to the extent that there exists a “disruption of custody over an extended period of time”, it is in large measure, if not almost entirely, for reasons outside petitioner’s control. Her early demand for the child’s return was ignored by the respondents, the habeas corpus proceeding in California was unsuccessful — not the least because the respondents deliberately stayed away — she needed time to save money for her trip to New York and to arrange for accommodations and legal services, and, not insignificantly, though she commenced her petition in Family Court almost as soon as she arrived in this State, the proceedings were somehow prolonged in that court for nine months before the first of its three separate rulings were issued.

While “the child may be so long in the custody of the nonparent” that separation from the natural parent amounts to an extraordinary circumstance, especially when “the psychological trauma of removal is grave enough to threaten destruction of the child” (Matter of Bennett v Jeffreys, supra, at p 550), nevertheless, as earlier noted, this court has always adhered to the view that natural parents are generally best qualified to care for their own children unless disqualified by “gross misconduct” (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d, at p 204) and indeed the “courts and the law * * * under existing constitutional principles, [are] powerless to supplant parents except for grievous cause or necessity.” (Matter of Bennett v Jeffreys, supra, at p 548; Stanley v Illinois, supra, at p 651.) When, in a case such as this, the separation between the natural parent and child is not in any way attributable to a lack of interest or concern for the parental role, that separation does not amount to an extraordinary circumstance and, indeed, deserves little significance. (Matter of Dickson v Lascaris, 53 NY2d, at p 210; Matter of Sanjivini K., 47 NY2d 374, 381.) Nor is it of much consequence that provisional custody was gained by the respondents with the natural parent’s consent. “Instead, [a] change of mind is to be accorded great sympathy, and, in a proper case, encouragement and favorable action.” (People ex rel. Anonymous v New York Foundling Hosp., 17 AD2d 122, 125, affd 12 NY2d 863.) Indeed, this is especially so where the natural parent has sought return within a very short time and has taken whatever actions were available without delay. (People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d, at p 194.)

Here, where virtually all the separation between parent and child occurred during the natural mother’s attempts to regain custody, the separation does not amount to an extraordinary circumstance on a level with unfitness, abandonment, persistent neglect or other “gross misconduct” or “grievous cause”. Indeed, the courts may not “ ‘deny [the natural parent’s] persistent demands for custody simply because it took so long’ ”. (Matter of Dickson v Lascaris, 53 NY2d, at p 210, quoting Matter of Sanjivini K., supra, at p 382.) Consequently, the question of best interests does not arise and the natural parent must be awarded custody.

Additionally, as we have emphasized on previous occasions, the resolution of custody disputes such as this one ought not to provide an incentive for those who have attempted to take the law into their own hands. (Matter of Bennett v Jeffreys, supra, at p 550.) Here, the respondents disregarded the natural mother’s entreaties for her child’s return and assiduously avoided contact with her, her attorney and the jurisdiction of the California courts which might have demanded that they relinquish the child. The mere passage of time cannot undo the wrong thus visited upon the natural mother and ultimately upon the child as well, and ought not now to redound to the respondents’ benefit.

Finally, petitioner’s poverty and alienage must not be held against her. Such socioeconomic factors, unless sufficient to establish neglect or unfitness of the parent under the specific circumstances of a particular case, are irrelevant and impermissible considerations. (Cf. People ex rel. Scarpetta v Spence-Chapin Adoption Serv., supra, at p 194.) The comparative material advantages offered by the nonparents are emphatically not an extraordinary circumstance disqualifying the natural parent, nor can they outweigh parental rights under the guise of determining the best interests of the child. “In no case * * * may a contest between a parent and nonparent resolve itself into a simple factual issue as to which affords the better surroundings, or as to which party is better equipped to raise the child.” (People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d, at p 194; see Matter of Bennett v Jeffreys, supra, at p 550; People ex rel. Portnoy v Strasser, 303 NY 539.)

Here, there has been shown no “extraordinary circumstances, narrowly categorized” and consequently “it is not within the power of a court” to determine the best interests of the child. (Matter of Bennett v Jeffreys, 40 NY2d, at p 545.) Petitioner, having neither abandoned her parental rights, neglected her parental responsibilities, nor been shown to be unfit to assume the duties of parenthood, has the right to the care and custody of her child and, therefore, her petition must be granted.

For the reasons stated, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer and Simons concur with Judge Jasen; Judge Kaye taking no part.

Order affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Appellant, v Jaime Escobar, Respondent.
    Argued February 15, 1984;
    decided March 30, 1984

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Seth L. Marvin and Steven R. Kartagener of counsel), for appellant.
    I. The burden of proof of a fair preponderance of the credible evidence is applicable in a first retention hearing to determine whether an insanity acquittee is presently suffering from a dangerous mental disorder where all criminal charges concerning his violent actions have terminated due to the successful use of the insanity defense by him and where the retention hearing is indisputably a civil proceeding. (Matter of Torsney [State Comr. of Mental Hygiene — Gold], 47 NY2d 667; Matter of Pannell v Jones, 36 NY2d 339; Matter of Lublin v Central Islip Psychiatric Center, 43 NY2d 341; People v Lally, 19 NY2d 27; People ex rel. Peabody v Chanler, 133 App Div 159, 196 NY 525; People ex rel. Woodbury v Hendrick, 168 App Div 553, 215 NY 339; Matter of Richard E.R., 52 AD2d 927, 40 NY2d 808; Jackson v Indiana, 406 US 715; Baxstrom v Herold, 383 US 107; People v Kahan, 115 Misc 2d 725; Matter of Buthy, 90 AD2d 689, 58 NY2d 605.) II. Since the incorrect standard of proof was utilized in assessing whether the People had satisfied their burden of proving that respondent currently suffers from a dangerous mental disorder, the case should be remitted to the hearing court for a determination regarding whether the People established by a fair preponderance of the credible evidence that respondent suffers from such a disorder. However, since over one year has expired since the hearing court’s decision, additional evidence should be submitted to the court so that an informed and comprehensive evaluation of respondent’s present mental condition, employing the correct standard of proof, can be made. (People v Escobar, 90 AD2d 322; Matter of Torsney [State Comr. of Mental Hygiene — Gold], 47 NY2d 667; Addington v Texas, 441 US 418.)

      Bennett M. Lincoff, Caesar D. Cirigliano, Michele Maxian and Ivar Goldart for respondent.
    I. The People’s burden at commitment and retention hearings following a verdict of not responsible by reason of mental disease or defect, is proof by clear and convincing evidence. (Addington v Texas, 441 US 418; Matter of Torsney [State Comr. of Mental Hygiene — Gold], 47 NY2d 667; People v Berck, 32 NY2d 567; Grayned v City of Rockford, 408 US 104; People v Silver, 33 NY2d 475; Woodby v Immigration Serv., 385 US 276; Matter of Scopes, 59 AD2d 203.) II. If this court holds that the People’s burden at hearings held pursuant to GPL 330.20 (subd 8) is proof by a mere preponderance of the evidence, and therefore reverses the decision below, this court should remand for a de novo factual determination limited to recommitment only.
   OPINION OF THE COURT

Jasen, J.

This appeal involves review of the Insanity Defense Reform Act of 1980 (L 1980, ch 548, as amd) to determine the applicable burden of proof to be applied to justify continued confinement of a defendant acquitted of a crime by virtue of a defense of insanity. More specifically, w'e are asked to decide whether the People’s statutorily placed burden of proof — “to the satisfaction of the court” — is fulfilled when the People establish by a fair preponderance of the credible evidence, rather than by clear and convincing evidence, that the defendant continues to suffer from a dangerous mental disorder or is mentally ill. (CPL 330.20, subds 6, 8.) We hold that it is, and accordingly reverse the order of the Appellate Division and remit the matter for a new retention hearing at which additional evidence may be presented in order that an accurate and comprehensive evaluation of defendant’s present mental condition can be made.

Defendant entered th,8 apartment of George Rodriguez on May 22,1980 and stabbed Miguel Carrasquillo. He was arrested and charged with two counts of burglary in the first degree, two counts of assault in the second degree and criminal possession of a weapon in the fourth degree. After being evaluated as incompetent to stand trial, defendant was committed to the care and custody of the Department of Mental Hygiene for a maximum term of one year. Thereafter, defendant was admitted to the Mid-Hudson Psychiatric Center.

Approximately three months later, defendant was certified as competent to stand trial and was returned to Bronx County Supreme Court. On June 1, 1981, after a nonjury trial, defendant was found not responsible for the crimes charged by reason of mental disease or defect pursuant to section 30.05 of the Penal Law. At this time, the court signed an examination order, pursuant to CPL 330.20 (subd 2), requiring that defendant submit to a psychiatric examination to determine whether he had either a dangerous mental disorder (CPL 330.20, subd 1, par [c]) or was mentally ill (CPL 330.20, subd 1, par [d]). After defendant was examined by three psychiatrists, an initial commitment hearing was held pursuant to CPL 330.20 (subd 6). While all of the doctors diagnosed defendant as mentally ill, only the two court-appointed psychiatrists, Drs. Vandenbergh and Chellappa, testified that defendant was dangerous. Defendant’s retained psychiatrist, Dr. Goldstein, stated that defendant was not dangerous.

After reviewing the doctors’ reports, the court held that the District Attorney could satisfy his burden at the hearing only by establishing defendant’s mental disorder by clear and convincing evidence. The court then found that the burden had been satisfied and adjudged defendant to be suffering from a dangerous mental disorder. Accordingly, on October 16,1981, defendant was committed for confinement in a secure facility for a period of six months. After unsuccessfully petitioning for habeas corpus relief, defendant was readmitted to the Mid-Hudson Psychiatric Center.

Thereafter, defendant moved for a rehearing and review of the commitment order. That proceeding was consolidated with a first retention hearing which was required to be held upon the expiration of the original order of commitment. Following the testimony of Drs. Vandenbergh and Chellappa and defendant’s new retained psychiatrist, Dr. Eshkenazi, the court agreed that respondent had a dangerous mental disorder at the time he was originally committed, but went on to hold that the District Attorney failed to prove by clear and convincing evidence either that defendant continued to suffer from a dangerous mental disorder or that he was presently mentally ill. Defendant was then granted a conditional release.

On appeal, the Appellate Division held that the clear and convincing standard was the proper burden to impose on the District Attorney at both the initial commitment and first retention hearings, but modified the order of Supreme Court holding that in light of defendant’s dangerous propensities that part of the order of conditions allowing for defendant and the director of his treatment program to mutually agree to defendant’s release should be deleted and replaced by a provision stating that defendant could be released only after a court hearing is held at which the Commissioner of Mental Health would be made a party. We granted the People’s motion to appeal to this court.

Preliminarily, we note that defendant has abandoned his argument raised below that hearings held pursuant to CPL 330.20 are not civil proceedings and that no appeal lies in favor of the District Attorney from the order of Supreme Court absent specific statutory authority. Defendant now states, and correctly so, that such hearings were intended to conform to the requirements for civil commitments. (See Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 330.20, p 24.) Thus, the appeals taken to both the Appellate Division and this court being civil in nature properly lie. (See CPL 330.20, subd 21, par [c] [eff Aug. 8, 1983].)

The central issue raised on this appeal concerns the appropriate burden of proof which the District Attorney must satisfy before an insanity acquittee such as the defendant here can be determined to be either mentally ill or suffering from a dangerous mental disorder so that continued confinement in the custody of the commissioner is justified. Defendant argues that the courts below correctly applied the clear and convincing standard while the People contend that only proof by a preponderance of the evidence is required.

Our starting point in resolving this dispute is the language of the statute itself. Both subdivisions 6 and 8 of CPL 330.20 require that defendant’s mental disorder be established “to the satisfaction of the court”. While the People argue that this term on its face bespeaks a lenient burden akin to the preponderance standard, we do not believe that this can be conclusively said without resort to an examination of the history of the statute and the reports urging its adoption. Unfortunately, those reports do not contain a clear indication of what burden the Legislature intended the District Attorney to carry. As best as we can glean from the available materials, the Legislature intended only that the burden comply with Federal constitutional requirements.

In the 21-page report of the Law Revision Commission, the sole reference to the District Attorney’s burden of proof is in a footnote stating, inter alia, that the- District Attorney bears the burden of proving defendant’s mental disorder and that “he must establish to the satisfaction of the court that the defendant is either mentally ill or has a dangerous mental disorder.” (1981 Report of NY Law Rev Comm, McKinney’s Session Laws of NY, 1981, p 2266, n 36.) The citation to Addington v Texas (441 US 418) which follows this statement is unexplained. Although the Supreme Court in Addington held that proof of mental incapacity by clear and convincing evidence is required before an individual who has not been acquitted of a crime by virtue of having a mental disorder can be involuntarily committed to a State mental hospital, our legislators declined to incorporate the “clear and convincing” standard into CPL 330.20. By declining to do so, the Legislature intended that the courts should apply whatever standard was found to satisfy Federal constitutional requirements.

The Federal constitutional due process standard has recently been defined. (Jones v United States, 463 US_, 103 S Ct 3043.) In Jones, the Supreme Court upheld the validity of a District of Columbia statute that requires a defendant, who has been acquitted of a crime by reason of insanity, to establish that he has regained his sanity in order to be released. The burden imposed upon the defendant by that statute is a preponderance of the credible evidence. Thus, the New York statute, which places the burden of proof upon the District Attorney, rather than the defendant, to show that an insanity acquittee is either mentally ill or has a dangerous mental disorder, provides greater due process protection to the defendant than is required under the Federal Constitution. It necessarily follows that in view of the placement of the burden of proof upon the District Attorney, it is constitutionally permissible to only require the District Attorney to prove defendant’s mental defect by a preponderance of the evidence rather than by the more demanding clear and convincing standard.

The preponderance standard not only satisfies due process and equal protection requirements, but also best fulfills the Legislature’s purpose in enacting the subject statutory scheme — “to ensure the safety of the public and to safeguard the rights of defendants found not responsible”. (1981 Report of NY Law Rev Comm, McKinney’s Session Laws of NY, 1981, at p 2251.) To require the District Attorney to prove defendant’s mental disorder by clear and convincing evidence would impose far too heavy a burden upon the prosecutor, who a short time earlier was required to demonstrate (but was unsuccessful in his attempt at trial) by proof beyond a reasonable doubt that the defendant was criminally responsible when he committed the subject crimes. Imposing the heavier burden would unnecessarily increase the risk that a person suffering from a mental disorder who had previously engaged in criminal behavior will be released from custody prematurely. The dangers to the public and the defendant himself from such a result are self-evident and it is precisely that situation which we believe the Legislature sought to avoid. We hold, therefore, that the preponderance of the evidence standard, and not that requiring clear and convincing evidence, should have been applied at both the initial commitment and first retention hearings. (See Warren v Harvey, 632 F2d 925, cert den 449 US 902.) Since the incorrect standard of proof was applied in assessing whether the People had satisfied their burden of proving that the defendant still suffers from a dangerous mental disorder, a new hearing must be held. At that hearing, both parties should be permitted to offer additional evidence to assist the court in evaluating defendant’s present mental condition.

Finally, we note that although the question was not at issue in Matter of Torsney (State Comr. of Mental Hygiene — Gold) (47 NY2d 667, 676), we indicated in dicta that the same procedural and substantive standards should be applied in both civil commitment proceedings and proceedings to continue insanity acquittees in the custody of the commissioner. In view of the subsequent decisions of the Supreme Court holding that before a civil committee can be confined, the State must prove by clear and convincing evidence that he is insane (Addington v Texas, 441 US 418, supra) while upholding a statute which imposed the burden of proving sanity on an insanity acquittee who seeks to be released from custody (Jones v United States, supra), our statement in Torsney that the same standard should be applied in both proceedings is no longer viable.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court for a new hearing.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur.

Order reversed, without costs, and case remitted to Supreme Court, Bronx County, for a new hearing.

      . CPL 330.20 (subds 6, 8) as they existed on March 15,1982, the date of application for a first retention hearing, provided as follows:
      “6. Initial hearing; commitment order. After the examination reports are submitted, the court must, within ten days of the receipt of such reports, conduct an initial hearing to determine the defendant’s present mental condition. If the defendant is in the custody of the commissioner pursuant to an examination order, the court must direct the sheriff to obtain custody of the defendant from the commissioner and to confine the defendant pending further order of the court, except that the court may direct the sheriff to confine the defendant in an institution located near the place where the court sits if that institution has been designated by the commissioner as suitable for the temporary and secure detention of mentally disabled persons. At such initial hearing, the district attorney must establish to the satisfaction of the court that the defendant has a dangerous mental disorder or is mentally ill. If the court finds that the defendant has a dangerous mental disorder, it must issue a commitment order. If the court finds that the defendant does not have a dangerous mental disorder but is mentally ill, the provisions of subdivision seven of this section shall apply.”
      “8. First retention order. When a defendant is in the custody of the commissioner pursuant to a commitment order, the commissioner must, at least thirty days prior to the expiration of the period prescribed in the order, apply to the court that issued the order, or to a superior court in the county where the secure facility is located, for a first retention order or a release order. The commissioner must give written notice of the application to the district attorney, the defendant, counsel for the defendant, and the mental health information service. Upon receipt of such application, the court may, on its own motion, conduct a hearing to determine whether the defendant has a dangerous mental disorder and it must conduct such hearing if a demand therefor is made by the district attorney, the defendant, counsel for the defendant or the mental health information service within ten days from the date that notice of the application was given to them. At such hearing, the district attorney must establish to the satisfaction of the court that the defendant has a dangerous mental disorder or is mentally ill. If the court finds that the defendant has a dangerous mental disorder it must issue a first retention order. If the court finds that the defendant is mentally ill but does not have a dangerous mental disorder, it must issue a first retention order and, pursuant to subdivision eleven of this section, a transfer order and order of conditions. If the court finds that the defendant does not have a dangerous mental disorder and is not mentally ill, it must issue a release order and an order of conditions pursuant to subdivision twelve of this section.”
      A 1982 amendment to CPL 330.20 transfers the burden of proof at retention hearings to the Commissioner of Mental Health while giving the District Attorney the option to appear and present evidence at the hearing. (CPL 330.20, subds 8, 9; see Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 330.20, p 25.) The amending legislation provided that the amendment “shall take effect on the sixtieth day after it shall have become a law [July 13, 1982] and shall apply only to hearings commenced by applications filed on or after such date.” (McKinney’s Cons Laws of NY, Book 11 A, Historical Note to CPL 330.20, p 22.) Since the application for a first retention hearing in this case was made on March 15, 1982, the predecessor statute placing the burden of proof on the District Attorney is applicable. (See CPL 330.20, former subd 8.)

      . “ ‘Dangerous mental disorder’ means: (i) that a defendant currently suffers from a ‘mental illness’ as that term is defined in subdivision twenty of section 1.03 of the mental hygiene law, and (ii) that because of such condition he currently constitutes a physical danger to himself or others.” (CPL 330.20, subd 1, par [c].)

      . “ ‘Mentally ill’ means that a defendant currently suffers from a mental illness for which care and treatment as a patient, in the in-patient services of psychiatric center under the jurisdiction of the state office of mental health, is essential to such defendant’s welfare and that his judgment is so impaired that he is unable to understand the need for such care and treatment; and, where a defendant is mentally retarded, the term ‘mentally ill’ shall also mean, for purposes of this section, that the defendant is in need of care and treatment as a resident in the in-patient services of a developmental center or other residential facility for the mentally retarded and developmentally disabled under the jurisdiction of the state office of mental retardation and developmental disabilities.” (CPL 330.20, subd 1, par [d].)

      . Although not vigorously disputed by defendant, we note that our decision today fully comports with equal protection guarantees as well as due process even though we impose a less demanding burden of proof in this case than we would in a case such as Addington v Texas (441 US 418) where the State seeks to commit an individual who has not engaged in criminal conduct. As the Supreme Court recognized in Jones v United States (463 US_,_, 103 S Ct 3043,3051), there are important “differences between the class of potential civil-commitment candidates and the class of insanity acquittees that justify differing standards of proof.” (See, also, Warren v Harvey, 632 F2d 925, 930, cert den 449 US 902.)


author: Simons, J.

text:
    Jefpaul Garage Corp., Respondent, v Presbyterian Hospital in City of New York, Appellant.
    Argued February 22, 1984;
    decided April 3, 1984

      POINTS OF COUNSEL

      John M. O’Connor and Joyce A. Leahy for appellant.
    I. The court below’s reliance on Atkin’s Waste Materials v May (34 NY2d 422) is erroneous and the decision below should be reversed. (Matter of Nowakowski, 2 NY2d 618.) II. Waiver is a question of fact inappropriate for summary judgment and accordingly the decision of the court below finding waiver as a matter of law and granting summary-judgment was incorrect and should be reversed. (Hadden v Consolidated Edison Co., 45 NY2d 466; Sessions, Inc. v Morton, 491 F2d 854; Matter of Wil-Low Cafeterias v 650 Madison Ave. Corp., 95 F2d 306, 304 US 567; Mariash v Bastianich, 88 AD2d 829; Mobil Oil Corp. v Burdo, 69 Misc 2d 153; Westdale Realty Corp. v Labella, 188 Misc 738; Squadron Blvd. Realty Co. v Emrite, Inc., 99 Misc 2d 975; B. J. M. Realty Corp. v Ruggieri, 326 F2d 281; Boynton v Bassford, 188 Misc 188.)

      Robert L. Beerman and Barry A. Wadler for respondent.
    I. The holding of Atkin’s was properly followed and cannot be distinguished. (Atkin’s Waste Materials v May, 34 NY2d 422; Malloy v Club Marakesh, 71 AD2d 614.) II. Atkin’s is logical and represents the great weight of authority in this country and should not be overruled. (Dermott v Wallach, 1 Wall [68 US] 61; Insurance Co. v Norton, 6 Otto [96 US] 234; Montant v Moore, 135 App Div 334; Armstrong v Shapiro, 119 Misc 522, 207 App Div 304; Perry v Waddelow, 145 F Supp 349.) III. Acceptance of rent with knowledge of the default constitutes waiver as a matter of law. (Malloy v Club Marakesh, 71 AD2d 614; Texaco, Inc. v Greenwich-Kinney, Inc., 68 Misc 2d 817, 39 AD2d 877, 32 NY2d 910; Armstrong v Shapiro, 119 Misc 522, 207 App Div 304; Condit v Manischewitz, 220 App Div 366; Paul Pleating & Stitching Co. v Levine, 137 Misc 82; Sagson Co. v Weiss, 83 Misc 2d 806; McCutcheon Realty Corp. v Kilb, 129 Misc 637; Beatty v Guggenheim Exploration Co., 225 NY 380.) IV. Even before rejecting tenant’s lease renewal landlord had already waived its right to claim late rent payment was a default under the lease. (Mariash v Bastianich, 88 AD2d 829; Palmer & Singer Mfg. Co. v Barney Estate Co., 149 App Div 136; Montant v Moore, 135 App Div 334; Small v De Bruyn, 187 Misc 1045; Paul Pleating & Stitching Co. v Levine, 137 Misc 82; McCutcheon Realty Corp. v Kilb, 129 Misc 637.)
   OPINION OF THE COURT

Simons, J.

Defendant, Presbyterian Hospital in the City of New York, is the owner of property located at 507 West 166th Street, New York City. In 1971, it leased the premises to plaintiff’s assignor for use as a public garage and a gasoline station. The lease was subsequently amended to extend the term to December 31, 1982, and to permit the tenant to renew for two additional five-year terms. A dispute arose in April, 1981, when plaintiff attempted to exercise its first renewal option. Defendant refused to agree to the renewal, notifying plaintiff that it was in default on the lease for failure to pay the April and May rent in 1981 and for repeatedly neglecting to pay rent and New York City taxes when due in the past. In accordance with the lease, it advised plaintiff that it had 15 days to cure these objections. The parties dispute whether it did so within the specified time, but concede that plaintiff did tender the April and May rent checks tardily and that defendant accepted them. On July 15, defendant served another notice to cure by July 31, 1981, alleging that plaintiff had violated the lease not only because of late payments of rent and taxes but that it had also sublet the premises without consent. On July 30,1981 plaintiff instituted this action and obtained a “Yellowstone” injunction tolling the cure period (see First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630; Podolsky v Hoffman, 82 AD2d 763). Thereafter defendant continued to accept plaintiff’s rent payments until December 31, 1982. Plaintiff tried again to exercise the options for the renewal terms in October, 1981 but its notifications were rejected by defendant and the underlying term expired at the end of 1982, during the pendency of this action. All that is at stake now is plaintiff’s right to renew. Plaintiff remains in possession contending that it validly exercised its option.

The issue is whether defendant’s acceptance of rent during the term with knowledge of plaintiff’s violations and without terminating the lease, assuming plaintiff had violated its terms, constituted a waiver of the violations as a matter of law and thus enabled plaintiff not only to remain in possession during the lease term but also to exercise the option to renew. Plaintiff contends that it did and that its actions were legally effective to “prolong” the lease for the renewal terms (see Atkin’s Waste Materials v May, 34 NY2d 422, 426; see, also, Gulf Oil Corp. v Buram Realty Co., 11 NY2d 223; 1 Rasch, NY Landlord & Tenant [2d ed], § 334). It instituted this action seeking a declaration of its rights and moved for summary judgment. Special Term denied the motion but the Appellate Division, relying on Atkin’s Waste Materials v May (supra), reversed the order and granted plaintiff judgment.

There should be a reversal. On the record before us whether or not plaintiff violated the terms of the lease and, if so, whether it cured the violations in accordance with the 15-day requirement of the lease thereby enabling it to exercise its renewal option, are questions of fact. Defendant has not waived the violations, if such they were, and the Appellate Division erred in holding as a matter of law that it did.

A waiver is the voluntary abandonment or relinquishment of a known right. It is essentially a matter of intent which must be proved (Alsens Amer. Portland Cement Works v Degnon Contr. Co., 222 NY 34, 37; Beacon Term. Corp. v Chemprene, Inc., 75 AD2d 350; 22 NY Jur 2d, Contracts, § 330, p 212). While waiver may be inferred from the acceptance of rent in some circumstances, it may not be inferred, and certainly not as a matter of law, to frustrate the reasonable expectations of the parties embodied in a lease when they have expressly agreed otherwise. This lease contained a nonwaiver and merger clause which provided: “The receipt by Landlord of rent with knowledge of the breach of any covenant of this lease shall not be deemed a waiver of such breach and no provision of this lease shall be deemed to have been waived by Landlord unless such waiver be in writing signed by the Landlord.”

Its language is clear and unambiguous. The parties having mutually assented to its terms, the clause should be enforced to preclude a finding of waiver of the conditions precedent to renewal (see Matter of Wil-Low Cafeterias v 650 Madison Ave. Corp., 95 F2d 306, cert den 304 US 567; Brainerd Mfg. Co. v Dewey Garden Lanes, 78 AD2d 365, app dsmd 53 NY2d 701).

Nor should the intent to waive be inferred from acceptance of rent during the period of the “Yellowstone” injunction. The broad restraint of that order foreclosed defendant after July 30, 1981 from taking any steps to terminate the lease and tolled the notice to cure. The order applied only during part of the period under consideration but plaintiff attempted to exercise the option for both renewal terms during that time and it would be patently inequitable to hold that defendant had waived its objections to them by accepting rent during the period when it was stayed indefinitely from terminating the lease and evicting plaintiff (see Boynton v Bassford, 188 Misc 188).

Our decision in Atkin’s Waste Materials v May (34 NY2d 422, supra) does not require a contrary holding. In that case the tenant leased land from the City of Rochester for use as a scrap processing yard and later executed a written lease which provided for options to renew conditioned upon faithful performance of the lease. The 1967 renewal of the lease was to expire on November 30, 1971, and the tenant attempted a further renewal by letter dated December 30, 1970. After failing to act for four months, the city rejected the renewal notice because of the tenant’s failure to faithfully and fully perform the covenants in the lease. During the period of the alleged default and until November, 1971, however, the city accepted rental payments. The tenant brought a declaratory judgment action, claiming that it was entitled to exercise the option to renew the lease. We held that the city had failed to give the tenant adequate notice of the complaints, thus denying it a reasonable opportunity to cure the default. Inasmuch as it had accepted rental payments with knowledge of the default and without attempting to terminate the lease in the method provided for by its terms, we held that the city had waived the default and that the tenant had properly exercised its option to renew. We further noted that the city not only had failed to demand that the tenant correct the violations, it apparently was responsible for them to some degree by delivering scrap and trash to plaintiff for burning in violation of local law.

Our decision applied the settled principle that acceptance of rent by a landlord from a tenant with knowledge of the tenant’s violation of the terms of the lease normally results in a waiver of the violation (see Woollard v Schaffer Stores Co., 272 NY 304, 312; Murray v Harway, 56 NY 337). The logic underlying this rule is plain enough: the option rests with the landlord to recognize the violation and terminate the tenancy. If he chooses to ignore it and accepts rent with knowledge of the tenant’s violation then the acceptance evidences his waiver and an election to continue the relationship. Although the intent to waive is usually a question of fact, knowing acceptance of rent without any effort to terminate justifies an inference that the landlord has elected to hold the tenant to the lease. The primary reason for the rule is the inconsistency of the landlord’s positions. As one old English case put it, the landlord should not be permitted “to treat a man as a tenant, and then treat him as a trespasser” (Finch v Underwood, 2 Ch Div [1876] 310, 316). Undoubtedly, however, the courts have applied the rule also to prevent a forfeiture of the tenant’s estate.

Plaintiff contends that application of this principle entitled it not only to remain in possession but to renew the lease. The general rule is that if a tenant’s right to renew is conditional, as it is in this case, it cannot be exercised validly unless the tenant is in full compliance with the conditions (see McIntosh v Rector of St. Phillip’s Church, 120 NY 7; People’s Bank v Mitchell, 73 NY 406; cf. Vanguard Diversified v Review Co., 35 AD2d 102). Whether the landlord has waived performance of the condition is a question of fact (as was waiver of a violation permitting reentry, had the term not expired) but there is no necessary inconsistency in treating a party as a tenant by accepting the rent with knowledge of a violation of the lease, but in also refusing to extend the lease for a further term. The landlord may desire that the tenant complete the term but not wish to extend it for a variety of reasons. The refusal to extend results not in a forfeiture for the tenant but only in the loss of the privilege because the conditions precedent to enjoyment of the privilege have not been met. In the absence of some prejudice to the tenant, therefore, a waiver of the right to terminate the tenancy will not automatically result in a waiver of the conditions precedent to renewal.

In Atkin’s Waste Materials v May (supra), the city had knowledge of the tenant’s violations but had not promptly rejected the notice to renew or demanded correction of them. Thus we found that the city had waived performance of the conditions upon which the option rested. This case is significantly different because defendant promptly rejected plaintiff’s attempt to renew and served it with a notice to cure defaults as the lease provided it should. If the plaintiff was in fact in default and if it failed to cure within the 15-day period allowed, then its notice was ineffective to exercise its option to renew because it had failed to faithfully perform necessary conditions precedent. Defendant’s acceptance of rent thereafter without re-entry was not necessarily inconsistent with its rejection of the renewal and did not waive plaintiff’s default (see Borden Min. Co. v Hitchins Coal Co., 163 Md 250; see, also, Hindquarter Corp. v Property Dev. Corp., 95 Wn 2d 809; Reno Realty & Inv. Co. v Hornstein, 72 Nev 219; Gadsden Bowling Center v Frank, 249 Ala 435; cf. Perry v Waddelow, 145 F Supp 349 [an unconditional option]). The rent was due whether plaintiff met the conditions precedent to renewal or not.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, New York County, denying plaintiff’s motion for summary judgment reinstated.

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

Order reversed, etc.


author: Jones, J.

text:
    In the Matter of Victor Licitra, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
    Argued February 23, 1984;
    decided March 29, 1984

      POINTS OF COUNSEL

      Lois Goland and David Leven for appellant.
    I. The court below incorrectly held that the interruption of petitioner’s sentence was specifically authorized by law. (People v Cavelli, 50 NY2d 919; People ex rel. Rainone v Murphy, 1 NY2d 367; People ex rel. Petite v Follette, 24 NY2d 60; People v Rios, 37 AD2d 734; Matter of Green v Hammock, 70 AD2d 226; Matter of Biondo v Regan, 69 AD2d 880; People ex rel. Hoffman v Vincent, 51 AD2d 980; Matter of Holland v La Vallee, 63 AD2d 989; People ex rel. Bilotti v Warden, 42 AD2d 115; Matter of Hooray v Cummings, 89 AD2d 790.) II. The failure to implement existing legal means of detention pending the State’s appeal should not deprive petitioner of the right to an uninterrupted sentence.

      Robert Abrams, Attorney-General {.Peter G. Crary and Peter H. Schiff of counsel), for respondent.
    Petitioner’s unconditional release from prison following reversal of his conviction and dismissal of his indictment constituted a lawful interruption of his prison sentence. (Matter of Green v Hammock, 70 AD2d 226; People ex rel. Hoffman v Vincent, 51 AD2d 980; Matter of Greene v Smith, 52 AD2d 292; People ex rel. Sabatino v Jennings, 246 NY 258.)
   OPINION OF THE COURT

Jones, J.

For the purposes of computing sentence credit the sentence of a criminal defendant is interrupted during the period of his freedom from detention between the date of the reversal of his conviction by an intermediate appellate court and the subsequent reinstatement of his conviction by our court.

Appellant’s conviction of manslaughter in the second degree was reversed and his indictment dismissed by the Appellate Division on May 1, 1978 (63 AD2d 654) in consequence of which he was released from custody on May 4, 1978. On July 9, 1979 we reversed and reinstated his conviction (47 NY2d 554). He asserts that the provisions of CPL 430.10 precluded treating his release following the reversal of his conviction by the Appellate Division as an interruption of his sentence and that accordingly he should be given sentence credit for the 14-month period between the decision of the Appellate Division and that in the Court of Appeals. CPL 430.10 provides: “Except as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced.” Appellant stresses the words “specifically authorized” in the introductory phrase, “Except as otherwise specifically authorized by law”, and argues that his case does not fall within that exception. We reject this contention.

In reversing appellant’s conviction and dismissing the indictment on the ground of the legal insufficiency of the trial evidence the intermediate appellate court was exercising powers specifically conferred by statute. CPL 470.15 (subds 2, 3) expressly authorize reversal of a criminal judgment of conviction, and CPL 470.20 (subd 2) in turn provides that on reversal of a conviction “for legal insufficiency of trial evidence, the court must dismiss the accusatory instrument.” Finally, CPL 470.45 provides: “Upon reversing or modifying a judgment and directing corrective action, an appellate court must remit the case to the criminal court in which the judgment was entered. Such criminal court must execute the direction of the appellate court and must, depending upon the nature of such direction, either discharge the defendant from custody, exonerate his bail or issue a securing order.” Thus, once a defendant’s conviction has been reversed and the indictment dismissed the appropriate remedy is discharge from custody; there is then no basis for further detention.

Appellant does not contest the sequence of this rationale or argue that his discharge from custody on reversal by the Appellate Division was not in accordance with statutory authorization. Rather he invites us to draw a determinative distinction between discharge from custody, which he agrees was authorized, and interruption of his sentence, which he claims was not. It is his submission that because other statutes make explicit provision for the interruption of sentence (e.g., Penal Law, § 70.40, subd 3, pars [a], [b]; § 65.15, subd 2; § 70.30, subds 6, 7) anything less than a verbatim repetition of the words “interrupt the sentence” falls short of establishing the exception prescribed in CPL 430.10. To accept such an argument would be to extol the graphic form of the words and to ignore their signification. Moreover, the statutory provisions on which appellant relies have no reference to authorized discharge from custody in accordance with judicial order. They provide that a defendant’s sentence shall be interrupted (i.e., that he shall be given no credit for serving a sentence) when he violates the terms of his parole or conditional release, violates the conditions of his probation or conditional discharge, or escapes or absconds from temporary release — all acts of voluntary misconduct on the part of the defendant from which he should derive no benefit.

In the case before us, we recognize that the discharge from custody was the lawful consequence of defendant’s exercise of his right to appellate review and the result prescribed by statute on his success at the intermediate appellate level. Our court, however, subsequently determined that it was error to have reversed defendant’s conviction. In effect defendant was accorded a period of freedom to which we ultimately determined he was not entitled. Although he was not wholly free from the grasp of the law during that period, there is no sufficient reason why the running of his sentence should not be tolled during the period he enjoyed what proved to be an undeserved benefit. An assertion that he should be deemed to be serving a sentence while he was free pursuant to statutory entitlement flies in the face of reality.

For the reasons stated, the sentence of appellant was interrupted during the period between the determination of the Appellate Division and that of our court, and he is not entitled to sentence credit for the period between May 4, 1978 and July 9, 1979.

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

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, without costs.


author: Per Curiam.

text:
    Blanche Etra et al., as Executors of Harry Etra, Deceased, Plaintiffs, v Raymond Matta et al., Defendants. Raymond Matta, Third-Party Plaintiff-Appellant, v Bernard Lown, Third-Party Defendant-Respondent.
    Argued February 13, 1984;
    decided March 29, 1984

      POINTS OF COUNSEL

      Frederick N. Gaffney and Ann R. Goodwin for third-party plaintiff-appellant.
    Dr. Down’s providing to Mr. Etra a drug whose properties were known exclusively to him, and which knowledge was not otherwise available to medical practitioners, made Mr. Etra Dr. Down’s patient, and his continued interstate practice of medicine could not, by definition, cease. (International Shoe Co. v Washington, 326 US 310; McGee v International Life Ins. Co., 355 US 220; Hanson v Denckla, 357 US 235; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; Wright v Yackley, 459 F2d 287; McGee v Riekhof, 442 F Supp 1276.)

      Steven J. Ahmuty, Jr., for third-party defendant-respondent.
    D The court below correctly concluded that as a matter of law Dr. Lown had not engaged in purposeful activity in the State as to the matter in suit. (Longines-Wittnauer Co. v Barnes & Reinecke, 15 NY2d 443; McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; Hanson v Denckla, 357 US 235; McGowan v Smith, 52 NY2d 268; Ferrante Equip. Co. v Lasker-Goldman Corp., 26 NY2d 280; Glassman v Hyder, 23 NY2d 354; Kramer v Vogl, 17 NY2d 27; Rothschild, Unterberg, Towbin v McTamney, 89 AD2d 540, 59 NY2d 651; Aero-Bocker Knitting Mills v Allied Fabrics Corp., 54 AD2d 647; Wright v Yackley, 459 F2d 287.) II. While Dr. Matta has not raised the issue on this appeal, and thereby waived it, the court below nevertheless correctly concluded that as a matter of law Dr. Lown neither derived substantial revenue from interstate commerce nor should reasonably have expected that his conduct could have consequences in the State. (Markham v Anderson, 531 F2d 634; World-Wide Volkswagen Corp. v Woodson, 444 US 286; Fantis Foods v Standard Importing Co., 49 NY2d 317.) III. Subjecting Dr. Lown to personal jurisdiction under New York’s long-arm statute would violate due process. (International Shoe Co. v Washington, 326 US 310; Milliken v Meyer, 311 US 457; World-Wide Volkswagen Corp. v Woodson, 444 US 286; Wright v Yackley, 459 F2d 287; Mayes v Leipziger, 674 F2d 178.)
   OPINION OF THE COURT

Per Curiam.

Plaintiffs have attempted, in this action, to acquire jurisdiction over a Massachusetts physician whose care of decedent was the alleged cause of death.

Plaintiffs’ decedent suffered from a heart condition for which he sought treatment from a Massachusetts physician, Dr. Bernard Lown. During the course of the patient’s care, which included a period of hospitalization in a Boston hospital, Dr. Lown prescribed Aprindine, an experimental drug manufactured by defendant Eli Lilly & Co. Following decedent’s discharge, he returned to New York, where he came under the care and treatment of a New York physician, Dr. Raymond Matta, to whom Dr. Lown had referred him. Because decedent’s treatment program involved the continued use of Aprindine, available only from a clinical investigator such as Dr. Lown, decedent was provided with a supply of the drug to take back to New York.

After decedent came under Dr. Matta’s care, Dr. Lown continued to act as a consultant with respect to the drug regimen. He communicated with Dr. Matta several times by telephone and letter and spoke to decedent’s wife on the telephone. It is also alleged that he sent an additional supply of Aprindine to decedent in New York. During this period, decedent returned to Boston once for further consultation with Dr. Lown. Thereafter, decedent was admitted to a New York hospital with a condition known as agranulocytosis (depressed white cell count). The treatment with Aprindine was discontinued, and decedent died within a short time.

Asserting that decedent’s death was caused by a side effect of the experimental drug, plaintiffs brought this action against both the drug manufacturer and Dr. Matta. Dr. Matta then sought to implead Dr. Lown, the theory of liability resting upon Dr. Down’s failure to inform Dr. Matta of the precise side effects of the drug. Dr. Lown moved to dismiss the third-party complaint on the ground that his contacts with New York were insufficient to require him to defend a medical malpractice action here. We agree with the Appellate Division that there is no basis for the exercise of personal jurisdiction over Dr. Lown.

It is urged that jurisdiction might properly be found under either prong of CPLR 302 (subd [a], par 1), which provides for the exercise of personal jurisdiction over any nondomiciliary who “transacts any business within the state or contracts anywhere to supply goods or services in the state”, where the cause of action arises from those acts. It is contended that because information about Aprindine and decedent’s treatment were unavailable to Dr. Matta except through Dr. Lown, Dr. Down’s treatment of his patient continued even after the patient returned to New York. The record does not, however, support the conclusion that Dr. Lown continued to act in the capacity of a treating physician. Rather, Dr. Lown referred decedent to a different doctor and continued his connection with the case only as a consultant. Viewing the totality of Dr. Down’s contacts with this State, in the form of written and telephonic communications and the additional provision of the experimental drug, we believe them to be too insubstantial to amount to such a “transaction of business” as to warrant subjecting Dr. Lown to suit in this forum (see McGowan v Smith, 52 NY2d 268; Rothschild, Unterberg, Towbin v McTamney, 89 AD2d 540, affd 59 NY2d 651).

It is also urged that Dr. Down’s provision of Aprindine forms the basis for jurisdiction under the recent amendment to CPLR 302 (subd [a], par 1), which provides for personal jurisdiction when a nondomiciliary “contracts anywhere to supply goods or services in the state” where the cause of action arises out of the contractual relationship. Even if we were to assume that a legal obligation existed for Dr. Lown to continue to supply Aprindine to plaintiffs’ decedent, the statute was not meant, in our view, to cover a transaction of this nature. The Legislature, in enacting this additional jurisdictional basis, was not concerned with limited provision of supplies incident to medical treatment as occurred in this case (see McLaughlin, 1979 Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1983-1984 Pocket Part, CPLR C302:13). The incidental provision of a drug, as part of a course of treatment rendered in another State, cannot be said to fall within the contemplation of the statute so as to confer personal jurisdiction over the physician.

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

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and KaYe concur in Per Curiam opinion; Judge Meyer taking no part.

Order affirmed, with costs.