author: Chief Judge Breitel

text:
    In the Matter of Daniel Mena, Jr., et al., Respondents-Appellants, v Alphonse E. D’Ambrose et al., Constituting the Civil Service Commission of the City of New York, et al., Appellants-Respondents.
    Argued March 30,1978;
    decided May 11,1978

      POINTS OF COUNSEL

      W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan of counsel), for Alphonse E. D’Ambrose and others, appellants-respondents.
    Despite the seemingly absolute bar of section 56 of the Civil Service Law against a court’s granting relief of the type here sought in appropriate cases, where such relief is sought prior to the expiration of an eligible list, the grant of such relief may be lawful, however on the facts of this case, the granting of such relief was so uncalled for as to constitute an abuse of discretion as a matter of law. (Matter of Cash v Bates, 301 NY 258; Matter of Singer v Schechter, 17 AD2d 204; Matter of Abrams v Bronstein, 33 NY2d 488; Matter of Amendola v Bronstein, 66 Misc 2d 50; Matter of Acosta v Lang, 13 NY2d 1079.)

      John A. Murray, Alphonse E. D’Ambrose and Helen R. Cassidy for David Yunich, appellant-respondent.
    I. The court below abused its discretion as a matter of law in granting prohibition and in effect enjoining the expiration, by operation of law, of eligible list PE 1507. (Hurley v Board of Educ., 270 NY 275; Matter of Schuyler v State Univ. of N. Y., 31 AD2d 273; Matter of Lefkowitz v Justices of Supreme Ct., Albany County, 27 AD2d 757; Dun & Bradstreet, Inc. v City of New York, 276 NY 198; Matter of Wolff v Hodson, 285 NY 197; Tonkin v Leary, 234 App Div 448, 259 NY 510; Matter of Bacon v Huie, 287 NY 813; Matter of Goldstein v Lang, 23 AD2d 483; Brown v Craig, 209 App Div 11; People ex rel. Hammond v Leonard, 74 NY 443.) II. The order below, which directed appellants to comply with the terms and conditions of an unsigned stipulation decreeing petitioners’ endless eligibility for certification, was not consistent with appellant authority’s right of selection under one-out-of-three (Civil Service Law, § 61). (City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Matter of Berger v Walsh, 291 NY 220; Matter

      of Turel v Delaney, 287 NY 15; People ex rel. Balcom v Mosher, 163 NY 32; Matter of Holt v Jansen, 26 Misc 2d 247, 283 App Div 796, 307 NY 939.)

      Ronald H. Shechtman and Murray A. Gordon for respondents-appellants.
    I. The relief herein granted is not precluded by the expiration of the eligibles list from PE 1507 and is otherwise lawful and appropriate in the circumstances of the proceeding at bar. (Abarno v City of New York, 3 Misc 2d 1053, 6 AD2d 1040, 7 AD2d 837; Matter of Simon v Kennedy, 5 Misc 2d 17; Matter of Singer v Schechter, 17 AD2d 204; Matter of Cash v Bates, 301 NY 258; Matter of Acosta v Lang, 13 NY2d 1079; Matter of Amendola v Bronstein, 66 Misc 2d 50; Matter of Mulkeen v Bronstein, 33 NY2d 520; Matter of Lamm v Clauson, 275 App Div 673, 299 NY 632; Brown v Craig, 209 App Div 11.) II. The court below properly ruled that the Supreme Court erred in denying petitioners’ motion to renew and/or reargue. (Mindy’s Wine Cellar v American & Foreign Ins. Co., 51 AD2d 650; Thornlow v Long Is. R. R. Co., 33 AD2d 1027; Soffair v Koffler, 29 AD2d 659, 23 NY2d 897.)
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division is modified in accordance with the following memorandum. In this article 78 proceeding petitioners sought an order directing respondents to certify them for appointment and also to direct their appointment to the position of captain in the New York City Transit Police Department. In the alternative an order enjoining the termination of the eligible list was sought. On the basis of their performance on a competitive examination, petitioners were placed on an eligible list promulgated on December 23, 1971. At the time of promulgation, petitioners were placed second, third and fourth, respectively, below one Mickulas on the list. As it ultimately turned out, Mickulas was the last person to receive a promotion from the list.

In September, 1973 the eligible list was adjusted pursuant to court order to reflect corrections for improperly graded answers (Russo v Bronstein, Supreme Ct, New York County, Kapelman, J.) but it was corrected only for the specific petitioners in that case. On October 26, 1974 Mickulas was promoted to captain. If at this time, the list had been corrected for all persons on it, Mickulas would have been placed below the three petitioners, and one of them would have received the promotion. On May 23, 1975, the same examination, which had also been used for promulgation of an eligible list in the New York City Police Department, was again ordered corrected to allow alternate answers (Lydon v Bronstein, Supreme Ct, New York County, Greenfield, J.). Finally, in October, 1975 the commission adjusted the eligible list to reflect the corrected status of the petitioners but shortly thereafter petitioners were informed that their revised eligibility would not extend beyond the expiration of the list, which occurred in December, 1975.

The petitioners commenced this proceeding in November, 1975 seeking certification for appointment. After commencement of this litigation all the parties, including the Civil Service Commission, agreed to a proposed stipulation of settlement except the chairman of the Transit Authority who contended that the expiration of the eligible list would preclude relief. The proposed stipulation (common in the circumstances here presented) provided in part, that "[t]he right of the individuals specified above to be certified for appointment shall not be abridged by any act of the respondents and shall not expire or otherwise be terminated prior to the time each such person is certified and either declines appointment, is appointed, or is 'passed over’, or prior to the period provided therefore by Section 56 of the Civil Service Law, whichever shall later occur.” Since the Transit Authority refused to agree to the stipulation, the action proceeded with respondents contending that section 56 of the Civil Service Law prescribed the permissible duration of an eligible list, leaving them powerless to extend the list beyond December, 1975.

Special Term dismissed the petition holding that respondents had no authority to extend the list beyond its expiration date. The Appellate Division modified by ordering the relief specified in the stipulation but denying immediate appointment on the grounds that certification does not ensure promotion. The Appellate Division reasoned that petitioners had suffered an injury from the delayed recomputation of their scores and "it should not go unrectified by wielding an expiration date to defeat rights timely asserted but belatedly recognized” (58 AD2d 514, 515).

This action was commenced during the active life of the eligible list (compare Matter of Cash v Bates, 301 NY 258, with Matter of Singer v Schechter, 17 AD2d 204) and the fact that the list expired during the course of the litigation ought not and does not preclude relief. Although section 56 of the Civil Service Law provides that an eligible list shall last no longer than four years, that statute was not intended to exonerate known and continued wrongs of the offending testing agency by the mere passage of time. It is true that the statute calls for the termination of any lawful list after the specified time but where it is demonstrated that errors have rendered the list in derogation of the merit and fitness standards (NY Const, art V, § 6), and candidates have demonstrated that they were aggrieved by those errors, the statutory durational period does not begin to run until the list is corrected, which occurred on October 7, 1975.

It is undisputed that petitioners’ scores were improperly computed resulting in an inaccurate eligible list as to them and that they were aggrieved thereby. Thus they are entitled to the continuation of a special eligible list, consisting of the names of the three petitioners, for a period consistent with section 56 commencing at the time when the list was corrected. The list, as continued, will be subject to the applicable Civil Service Law provisions, such as section 61 which provides for the selection of one-out-of-three certified persons. Thus the list shall continue until such time as one of the petitioners is appointed pursuant to the Civil Service Law or until it expires by operation of section 56, whichever occurs first. To apply the statute in the strict and inflexible manner suggested by the dissent would in effect allow the respondents to circumvent the provisions of the Civil Service Law which require appointment in accord with specified standards. These standards were adopted pursuant to the constitutional direction that all appointments be made on the basis of merit and fitness. Although there does exist a strong policy that appointments be made from contemporary lists, this policy must be secondary to the constitutional mandate governing appointment which is implemented by the Civil Service Law standards.

In Ciaccia v Board of Educ. (271 NY 336) and Hurley v Board of Educ. (270 NY 275) this court was concerned with preserving the integrity of the entire civil service system when the Legislature had attempted to revive and to extend, retroactively, an eligible list that had previously expired. Legislative circumvention of the legal expiration of the list, after it had already terminated, was viewed as an attempt to avoid the constitutional merit and fitness requirements and permit appointment by favor rather than appointment on the basis of qualification (Hurley v Board of Educ., supra, p 280). In the present case we are again asked to maintain the integrity of the civil service system but here the violation of merit and fitness stems not from legislative enactment affecting the entire system but from the wrongful acts of the respondents affecting a few individuals and it is suggested that the durational limitation can be used to shelter these violations. As in Ciaccia and Hurley the paramount concern is the integrity of the system. The merit and fitness requirements may not be circumvented by reviving and extending an eligible list, after its expiration, but likewise, neither may the timely assertion of violations of the merit and fitness requirements be cavalierly set aside. In this case, as in Ciaccia and Hurley, it is the constituional mandates that must prevail.

Our holding today is not inconsistent with either Ciaccia or Hurley. In those cases the legislative action was taken after the expiration of the lists and in derogation of the constitutional mandates. In neither case was any formal corrective action being sought to remedy errors which diluted merit and fitness determinations. In contrast the plaintiffs here promptly commenced this proceeding immediately upon the promulgation and certification of the "final” list and prior to the expiration of the list, seeking corrective measures necessary to sustain the constitutional standards. Indeed Ciaccia and Hurley support the principle that constitutional concerns are paramount, a principle which is sustained by our decision today.

The cross appeal of petitioners is dismissed since they were not aggrieved by the Appellate Division modification, nor were they favored by a dissent (CPLR 5601).

Chief Judge Breitel

(dissenting in part). I cannot agree with the novel proposition, supported neither by statute, case law, nor sound policy, that the period during which errors in an eligible list remain uncorrected extends the duration of the list. Section 56 of the Civil Service Law imposes a four-year maximum on eligible lists, and, once that period has expired, a court may not order appointment from the list. Nor can the court approve a proposed stipulation of settlement to appoint from an expired list when the very party to make the appointment never agreed to the aborted stipulation. I therefore vote to reverse the order of the Appellate Division and dismiss the petition. I concur, however, that the cross appeal by petitioner should be dismissed.

Without question, prior to expiration of an eligible list, the life of the list may be extended up to the statutory four-year period (Matter of Roske v Keyes, 46 AD2d 366, 368; Uniformed Fireman’s Benevolent Assn. v Herten, 23 AD2d 788, 789). Extension beyond the four-year maximum is also permissible, but then express statutory authority is essential (see Ciaccia v Board of Educ., 271 NY 336, 339; Brown v Craig, 209 App Div 11, 13-14; Matter of Woods v Finegan, 246 App Div 271, 273). Once a list has expired, however, even the Legislature is, under the Constitution, powerless to revive it (Ciaccia v Board of Educ., 271 NY 336, 339, supra; Hurley v Board of Educ., 270 NY 275, 279-280; see NY Const, art V, § 6).

Thus, appointment from an expired eligible list has been forbidden. In Matter of Cash v Bates (301 NY 258, 261), despite expiration of the applicable list, would-be appointees demanded both removal of incumbents and their own appointment. Although expiration of the list did not preclude removal of the previous appointments for illegality, appointment of the petitioners would be, it was held, a "legal impossibility” (id.; but see Matter of Simon v Kennedy, 5 Misc 2d 17, 18, and unreported cases cited).

In Matter of Singer v Schechter (17 AD2d 204, 205-206), relied upon by petitioners, the proceeding, unlike that in Cash v Bates, was brought before the list had expired. Nevertheless, in remanding for a hearing, the Appellate Division did not pass on the type of relief to which the petitioners there would be entitled. In fact, the court cited Cash v Bates (supra) and expressed doubt about the legal possibility of ordering appointments after expiration of the list (17 AD2d, pp 205-206).

The eligible list for promotions to transit police captain from which petitioners seek certification was established in December, 1971. By statutory mandate, it was due to and did expire, after four years, in December, 1975. It has already been held, as noted, that the Legislature may not revive an expired list. So, too, there is no power in the court to direct certification of petitioners from a list expired, at least without statutory or limited judicial extension of the list before its expiration.

No support is offered, and none is perceived, for the view taken by the majority that the four-year period does not begin to run until errors on the list are corrected. Indeed, such reasoning ignores the constitutional underpinnings for safeguarding the durational limitations imposed on eligible lists. Lists become stale, and, with the passage of time, their value for implementing the constitutional mandate, that they promote selection on merit and fitness, diminishes (see, e.g., Hurley v Board of Educ., 270 NY 275, 280, supra). In the Hurley case, it was said by Judge Lehman (p 280): "A competitive examination may demonstrate merit and fitness, at the time of the examination. As time passes, its value as a test of merit and fitness diminishes. Others may, then, be better prepared and more fit to fill a position than those who are upon the list”. An uncorrected eligible list becomes stale as quickly as a list deriving from a perfectly graded examination.

Of course in the Ciaccia and Hurley cases the paramount concern was integrity of the civil service system. The fact that efforts by the Legislature to extend expired lists have been held unconstitutional makes all the stronger the precedents for over a generation which forbid appointments from an expired list whether by judicial or administrative fiat. Moreover, there is a time-honored remedy for maintaining the integrity of the constitutionally mandated merit system. The remedy is not appointment from stale lists, but removal of persons illegally appointed (Matter of Cash v Bates, 301 NY 258, 261-262, supra; Matter of Singer v Schechter, 17 AD2d 204, 205-206, supra). Beyond that, despite assertions to the contrary, errors in grading an examination and in the resultant rankings on an eligible list do not involve the "integrity” of the system. If they were thought to, then all errors and irregularities, inevitable in the conduct of human affairs, would permit appointment from expired lists, a thesis consistently rejected until today.

Nor does delay in correcting petitioners’ placement on the eligible list amount, as is suggested, to a continuing wrong. That concept, frequently raised to answer a Statute of Limitations defense, relates, in the area of civil service appointments, to persisting refusal or failure to comply with the merit and fitness requirements of section 6 of article V of the Constitution (see, e.g., Matter of Grossman v Rankin, 43 NY2d 493, 506; Matter of Cash v Bates, 301 NY 258, 261, supra). The illegality involved must be related not only to past events, but must continue into the present, and if uncorrected, persist into the future. Were failure to rectify discrete grading errors a continuing wrong warranting extension of the expiration date of the list, the statute-mandated four-year maximum would have little, if any, meaning.

It has been said that parties, during the life of an eligible list, should be free to stipulate to extended eligibility. It is argued that such a practice is prevalent and far more efficient than enjoining promulgation of a list, or enjoining certification or permanent appointment from a list, pending resolution of a challenge. Even were such a stipulation proper, as it may well be, in this case no stipulation was reached. That a proposed stipulation was circulated by counsel does not alter the fact that the Transit Authority, the agency to make the appointment, never agreed to extend the list for petitioners.

The 1971 eligible list, established so many years ago, and ' before the city’s and the Transit Authority’s fiscal crises with the consequent severe retrenchments which still continue, is stale indeed. The authority and the public are entitled to an eligible list which is contemporary in selection on merit and fitness for the few and important positions of transit police captain, if improvement in this important branch of the civil service is to remain the goal.

Accordingly, I vote to reverse the order of the Appellate Division and dismiss the petition.

Judges Gabrielli, Wachtler, Fuchsberg and Cooke concur in memorandum; Chief Judge Breitel dissents in part and on respondents’ appeal votes to reverse and dismiss the petition in a separate opinion in which Judges Jasen and Jones concur.

On respondents’ appeal: Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.

On petitioners’ cross appeal: Cross appeal dismissed, without costs.

       It should be noted that in the context of this case we are here dealing only with the effect of section 56 of the Civil Service Law and not with Statute of Limitations questions.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Raymond W., Appellant.
    Argued May 4, 1978;
    decided May 31, 1978

      POINTS OF COUNSEL

      Wendy Sue Lauring, William E. Hellerstein and Charles Schinitsky for appellant.
    The admission of this 13-year-old appellant’s confession obtained (a) through intentionally false and misleading legal advice and (b) intensive and coercive early morning interrogation, deprived appellant of his right to due process under the New York State and Federal Constitutions. (Miranda v Arizona, 384 US 436; People v Noble, 9 NY2d 571; Von Moltke v Gillies, 332 US 708; United States ex rel. Vanderhorst v La Vallee, 285 F Supp 233, 417 F2d 411, cert den sub nom. McMann v Vanderhorst, 397 US 925; Garner v United States, 424 US 648; People v Huntley, 15 NY2d 72; Bram v United States, 168 US 532; United States v Mailings, 364 F2d 173.)

      Allen G. Schwartz, Corporation Counsel (James P. Griffin and Francis F. Caputo of counsel), for respondent.
    Appellant’s confession was voluntary. (Clewis v Texas, 386 US 707; People v Oakley, 9 NY2d 656; People v Foley, 8 NY2d 153; Miranda v Arizona, 384 US 436; Michigan v Mosley, 423 US 96; People v Chapple, 38 NY2d 112; People v Tanner, 30 NY2d 102; People v Stephen J. B., 23 NY2d 611.)
   OPINION OF THE COURT

Per Curiam.

Confronted as we are with an affirmed factual determination that appellant’s confession was given voluntarily, we cannot conclude on this record that it was involuntary as a matter of law.

We do take occasion, nonetheless, to make a further observation. However extensive may be a parent’s right and a minor child’s entitlement to the exercise of the responsibilities of parental guidance and influence (an issue which we identify but do not now address or determine), if it be established that such guidance or influence is not exercised by the parent independently but at the behest or on behalf of the prosecutor, such circumstance should weigh heavily to indicate the involuntariness of the child’s confession. Notwithstanding available inferences, no such impermissible connection was demonstrated as a matter of law in this instance. We suggest, however, because of the quality of the parent-child relationship and its potential for improper displacement of free choice on the part of the child, that courts should be alert to the risks of deprivation of the rights of either child or parent in such situations.

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

Order affirmed.


author: Jones, J. Cooke, J. Fuchsberg, J.

text:
    Eleanor Simcuski, Appellant, v Anthony J. Saeli, Respondent.
    Argued March 27, 1978;
    decided May 4, 1978

      POINTS OF COUNSEL

      Irwin Birnbaum and Robert D. Romeo for appellant.
    I. The cause of action in plaintiffs complaint sounds in fraud, and is governed by the six-year fraud Statute of Limitations, not by the shorter limitation period applicable to actions in malpractice. (Reno v Bull, 226 NY 546; Spallholz v Sheldon, 216 NY 205; Buttles v Smith, 281 NY 226; Hearn 45 St. Corp. v Jano, 283 NY 139; Lanzi v Brooks, 54 AD2d 1057; De Vito v New York Cent. System, 22 AD2d 600; Golding v Golding, 4 AD2d 65; Alexander v Anderson, 267 App Div 984; Low v State of New York, 202 Misc 455, 281 App Div 309, 305 NY 913; Brick v Cohn-Hall-Marx Co., 276 NY 259.) II. The doctrine of equitable estoppel is well established in New York and in the United States and should be applied to the facts presented in the instant case. (Safrin v Friedman, 27 Misc 2d 687, 277 App Div 1138; Erbe v Lincoln Rochester Trust Co., 13 AD2d 211, 11 NY2d 754; Matter of Rank Organization v Pathe Labs., 33 Misc 2d 748; Matter of Nationwide Mut. Ins. Co., 39 Misc 2d 782, 19 AD2d 683; Croop v Odette, 29 Misc 2d 606, 14 AD2d 724; Saylor v Lindsley, 302 F Supp 1174; General Stencils v Chiappa, 18 NY2d 125; Glus v Brooklyn Eastern Term., 359 US 231; Greenfield v Denner, 6 AD2d 263, 6 NY2d 867.) III. Assuming, arguendo, that the doctrine of equitable estoppel has application to the instant case, plaintiffs action was commenced in a timely manner. (509 Sixth Ave. Corp. v New York City Tr. Auth., 24 AD2d 975; Prince Hall Grand Lodge F. & A. M. of N. Y. v Supreme Council, 32 Misc 2d 390; Seligson v Weiss, 222 App Div 634; Nardone v Reynolds, 538 F2d 1131; Jordan v United States, 503 F2d 620; Caron v United States, 548 F2d 366.) IV. The order of the lower court recognizing a cause of action in favor of plaintiff for fraud and permitting plaintiff to serve an amended complaint to specifically include a cause of action in medical malpractice was properly granted. (De Vito v New York Cent. System, 22 AD2d 600; Low v State of New York, 202 Misc 455; Tischler Roofing & Sheet Metal Works Co. v Sicolo Garage, 64 Misc 2d 825; Steiner v Wenning, 53 AD2d 437; Conklin v Draper, 229 App Div 227; Robins v Finestone, 308 NY 543; Budoff v Kessler, 2 AD2d 760; Robinson v City of New York, 24 AD2d 260; Glus v Brooklyn Eastern Term., 359 US 291; General Stencils v Chiappa, 18 NY2d 125.)

      John Ganotis and George F. Mould for respondent.
    I. The cause of action in plaintiffs complaint sounds in medical malpractice, and is therefore subject to the three-year malpractice Statute of Limitations (former CPLR 214), rather than the longer limitation period applicable to actions for fraud. (Tulloch v Haselo, 218 App Div 313; Calabrese v Bick

      ley, 208 Misc 407, 1 AD2d 874; Kleinman v Lack, 6 AD2d 1046; Ranalli v Breed, 251 App Div 750, 277 NY 630; Golia v Health Ins. Plan of Greater N. Y., 6 AD2d 884, 7 NY2d 931; Guatieri v New Rochelle Hosp. Assn., 4 AD2d 874, 5 NY2d 952; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Baum v Turel, 206 F Supp 490.) II. The doctrine of equitable estoppel does not have application to an action in New York sounding in medical malpractice. (Tulloch v Haselo, 218 App Div 313; Troll v Glantz, 57 Misc 2d 572; Augstein v Levey, 3 AD2d 595.) III. Assuming, arguendo, that the doctrine of equitable estoppel has application to the instant case, plaintiffs action is nonetheless time-barred. (509 Sixth Ave. Corp. v New York City Tr. Auth., 24 AD2d 975; Ball v Utica Mut. Ins. Co., 60 Misc 2d 459; Glennan v Lincoln Inv. Corp., 110 F2d 130; Howard Univ. v Cassell, 126 F2d 6, 316 US 675; La Porte v United States Radium Corp., 13 F Supp 263; Ortiz v City of New York, 28 AD2d 1098.) IV. The order of the lower court permitting plaintiff to serve an amended complaint to specifically include a cause of action in medical malpractice was improperly granted. (Calabrese v Bickley, 208 Misc 407, 1 AD2d 874; Tulloch v Haselo, 218 App Div 313; Ranalli v Breed, 251 App Div 750, 277 NY 630; Baum v Turel, 206 F Supp 490; Kleinman v Lack, 6 AD2d 1046.)
   OPINION OF THE COURT

Jones, J.

We hold that this complaint by a patient against her treating physician sets forth a cause of action based on intentional fraud as well as a cause of action in negligence for medical malpractice. We further conclude that, because of the physician’s alleged subsequent intentional concealment of the malpractice and misrepresentation as to its cure, the time within which the action in negligence could be brought was not limited to the then applicable three-year statutory period of limitations and that on the present motion to dismiss the complaint it cannot be said that the action was not thereafter commenced within a reasonable time after discovery of the malpractice. Finally we hold that the Statute of Limitations applicable to the claim for damages based on the intentional fraud is the six-year statute. We note that different measures of damages will be applicable to the two causes of action.

On defendant’s present motion to dismiss the complaint under CPLR 3211 (subd [a], par 5) on the ground that the plaintiffs claims are barred by the Statute of Limitations, we accept the allegations of the complaint and the admissible portions of plaintiffs supporting affidavits (CPLR 3211, subd [c]). On October 19, 1970 Dr. Saeli performed a surgical excision of a node from plaintiffs neck. Plaintiff alleges that during the operation on her neck the surgeon negligently injured a spinal-accessory nerve in her neck and also injured branches of her cervical plexus. Following the operation plaintiff told her surgeon that she was experiencing numbness in the right side of her face and neck and that it was difficult and painful for her to raise her right arm. It is alleged that the physician was aware of the negligent manner in which he had performed the surgery and aware, too, that as a result of his negligence plaintiff had suffered a potentially permanent injury. It is further alleged that the physician willfully, falsely and fraudulently told plaintiff that her postoperative problems, pain and difficulties were transient and that they would disappear if she would continue a regimen of physiotherapy which he had prescribed and which was then being given by Dr. Lane. Plaintiff continued with the physiotherapy prescribed by Dr. Saeli until October, 1974. In the meantime she had moved to Syracuse, New York, where she sought further medical advice. In January, 1974 she was first apprised by the Syracuse physician of the true nature of her injury and that it probably had been caused at the time of her surgery. This doctor’s diagnosis was substantially confirmed in October, 1974 by a professor of medicine, specializing in neurology, at Upstate Medical Center in Syracuse, who also advised that reanastomosis of the sectioned nerve four years after the surgery would not be a physiologically successful procedure. It is further alleged that Dr. Saeli had intentionally withheld information from plaintiff as to the true nature and source of her injury, in consequence of which she was deprived of the opportunity for cure of her condition.

The present action against Dr. Saeli was commenced in April, 1976. Prior to service of an answer, Dr. Saeli moved to dismiss the complaint under CPLR 3211 (subd [a], par 5) on the ground that the cause or causes of action alleged were barred by the Statute of Limitations. Plaintiff cross-moved for leave to amend her complaint specifically to include a cause of action for malpractice. Supreme Court denied defendant’s motion to dismiss and granted plaintiff leave to amend her complaint as requested. On appeal, the Appellate Division reversed, granted defendant’s motion and dismissed the complaint. Plaintiff thereupon appealed as of right to our court.

In our view the complaint sufficiently sets forth two causes of action although not explicitly or separately denominated— one in negligence for medical malpractice on the part of Dr. Saeli in connection with the surgical excision of the node on October 19, 1970, the other for an intentional tort in knowingly and fraudulently misinforming plaintiff as to her physical condition and misrepresenting that physiotherapy would produce a cure. Our analysis begins with the consideration of the cause of action in negligence.

The complaint sufficiently sets forth a cause of action for medical malpractice; the critical issue is whether this cause of action was barred by the then applicable three-year Statute of Limitations (CPLR 214, subd 6). Normally the statute would have precluded institution in April, 1976 of a claim for damages for malpractice alleged to have occurred in October, 1970. This complaint, however, further alleges that defendant intentionally concealed the alleged malpractice from plaintiff and falsely assured her of effective treatment, as a result of which plaintiff did not discover the injury to the nerve until October, 1974. In this circumstance principles of equitable estoppel are applicable to relieve plaintiff from the proscriptions of the statute. As noted by Mr. Justice Earle C. Bastow in Erbe v Lincoln Rochester Trust Co. (13 AD2d 211, 213, mot for rearg and mot for lv to app den 14 AD2d 509, app dsmd 11 NY2d 754): "Fraudulent representations may play a dual role. They may be the basis for an independent action for fraud. They may also, .in equity, be a basis for an equitable estoppel barring the defendants from invoking the Statute of Limitations as against a cause of action for breach of fiduciary relations.”

It is the rule that a defendant may be estopped to plead the Statute of Limitations where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action. (General Stencils v Chiappa, 18 NY2d 125; Erbe v Lincoln Rochester Trust Co., 13 AD2d 211, mot for rearg and mot for lv to app den 14 AD2d 509, app dsmd 11 NY2d 754, supra; see Fraud, Misrepresentation, or Deception as Estopping Reliance on Statute of Limitations, Ann., 43 ALR3d 429.) The allegations of her complaint bring this plaintiff within the shelter of this rule. The elements of reliance by plaintiff on the alleged misrepresentations as the cause of her failure sooner to institute the action for malpractice and of justification for such reliance, both necessarily to be established by her, are sufficiently pleaded within the fair intendment of the allegations of this complaint.

From an examination of prior cases in our court, including the records and briefs, it appears that in one case, without written exposition, the court rejected recognition and application of the doctrine of equitable estoppel to extend the period of limitations in medical malpractice cases — Ranalli v Breed (277 NY 630). (Cf. Rokita v Bushwick Hosp. [Germaine], 7 NY2d 710.) Both of those cases were decided prior to our court’s decision in General Stencils v Chiappa (18 NY2d 125, supra), however, and the unarticulated determination in Ranalli must be deemed to have been overruled by that later decision. The doctrine has been applied in other States in circumstances which are legally indistinguishable from the present. (Bowman v McPheeters, 77 Cal App 2d 795; Stafford v Shulz, 42 Cal 2d 767; Guy v Schuldt, 236 Ind 101; Adams v Ison, 249 SW2d 791 [Ky]; cf. Schaffer v Larzelere, 410 Pa 402.) The quality of the relationship between physician and patient, with confidence normally reposed by the patient in the physician and the unquestioning reliance which such relationship may be expected to engender in the patient, make application of the doctrine peculiarly appropriate in such cases.

It is as important to determine the effect of the doctrine of equitable estoppel as it is to determine that it applies. If the conduct relied on (fraud, misrepresentation or other deception) has ceased to be operational within the otherwise applicable period of limitations (or perhaps within a reasonable time prior to the expiration of such period), many courts have denied application of the doctrine on the ground that the period during which the plaintiff was justifiably lulled into inactivity had expired prior to the termination of the statutory period, and that the plaintiff had thereafter had sufficient time to commence his action prior to the expiration of the period of limitations. (E.g., 509 Sixth Ave. Corp. v New York City Tr. Auth., 24 AD2d 975; see Plaintiff’s Diligence as Affecting His Right to Have Defendant Estopped From Pleading the Statute of Limitations, Ann., 44 ALR3d 760, §§ 5, 6, pp 768-774; Fraud, Misrepresentation, or Deception as Estopping Reliance on Statute of Limitations, Ann., 43 ALR3d 429, § 6, pp 453-454.) That is not the present situation. Plaintiff has alleged that her discovery of the malpractice in this case (the point at which the conduct here relied on ceased to be operational) did not occur until October, 1974 (or possibly in January of that year if inference be drawn from the letter of her Syracuse doctor dated January 9, 1974 submitted in opposition to the motion). Whichever the month of discovery in 1974, the three-year Statute of Limitations had already expired in October, 1973.

Where, as here, the conduct relied on ceases to be operational after the expiration of the period of limitations, two approaches may be discerned in the cases. By one, further delay on the part of the plaintiff in commencing his action may be held to be subject to the counterdefense of laches to be pleaded and proved by the defendant (see Plaintiff’s Diligence as Affecting His Right to Have Defendant Estopped From Pleading the Statute of Limitations, Ann., 44 ALR3d 760, § 4, p 767). The preferable analysis, however, holds that due diligence on the part of the plaintiff in bringing his action is an essential element for the applicability of the doctrine of equitable estoppel, to be demonstrated by the plaintiff when he seeks the shelter of the doctrine (see Plaintiff’s Diligence as Affecting His Right to Have Defendant Estopped From Pleading the Statute of Limitations, Ann., 44 ALR3d 760, § 7, pp 774-779). Under this approach, which we endorse, the burden is on the plaintiff to establish that the action was brought within a reasonable time after the facts giving rise to the estoppel have ceased to be operational. Whether in any particular instance the plaintiff will have discharged his responsibility of due diligence in this regard must necessarily depend on all the relevant circumstances. The length of the legislatively prescribed period of limitations is sometimes said to be relevant, and courts have held that in no event will the plaintiff be found to have exercised the required diligence if his action is deferred beyond the date which would be marked by the reapplication of the statutory period, i.e., that the length of the statutory period itself sets an outside limit on what will be regarded as due diligence. (See Plaintiffs Diligence as Affecting His Right to Have Defendant Estopped From Pleading the Statute of Limitations, Ann., 44 ALR3d 760, § 8, pp 775-776). In the present case such an outside limit was not exceeded; the action was brought less than three years after discovery in 1974. It is not possible or appropriate, however, on the present motion addressed to the pleading, presenting us as it must with only a skeletal record, to determine whether this plaintiff met her obligation of due diligence when she instituted the present action in April, 1976. It suffices for disposition of the present appeal to note our conclusion that it cannot now be determined as a matter of law that the reasonable time for bringing the present action had expired prior to its institution in April, 1976.

In passing we observe that if it is established that plaintiff is not precluded from prosecuting the cause of action in negligence and she proves that cause on the merits, the measure of damages which she will be entitled to recover will be that normally associated with medical malpractice actions in situations such as the present.

We turn then to consideration of the other cause of action, noting that it asserts a claim in fraud as an intentional tort. The essential elements, here alleged or within the reasonable intendment of the complaint, are knowledge on the part of the physician of the fact of his malpractice and of his patient’s injury in consequence thereof, coupled with a subsequent intentional, material misrepresentation by him to his patient known by him to be false at the time it was made, and on which the patient relied to his damage — in this case, defendant’s intentionally concealing from his patient the fact of the malpractice and thereafter fraudulently misstating that the therapy prescribed would effect a cure. This is more than another aspect of the malpractice or even another act of alleged negligent malpractice on the part of the treating physician; the complaint alleges an intentional fraud — that Dr. Saeli, knowing it to be untrue yet expecting his patient to rely on his advice, advised her that physiotherapy would produce a cure, in consequence of which fraudulent misrepresentation the patient was deprived of the opportunity for cure of the condition initially caused by the doctor’s alleged malpractice. If these allegations are proved they will establish an intentional tort, separate from and subsequent to the malpractice claim. (Calabrese v Bickley, 1 AD2d 874.) Recovery of damages in such case is governed by the six-year Statute of Limitations under CPLR 213 (subd 8). The application of the three-year Statute of Limitations is not mandated by the circumstance that the fraud alleged arises as a sequel to an alleged malpractice.

In reaching this determination, we recognize and approve, but distinguish, cases which hold that, without more, concealment by a physician or failure to disclose his own malpractice does not give rise to a cause of action in fraud or deceit separate and different from the customary malpractice action, thereby entitling the plaintiff to bring his action within the longer period limited for such claims. (E.g., Golia v Health Ins. Plan of Greater N. Y., 6 AD2d 884, affd 7 NY2d 931; Ranalli v Breed, 277 NY 630, supra; Conklin v Draper, 229 App Div 227, affd 254 NY 620; Tulloch v Haselo, 218 App Div 313.) Such nondisclosure or concealment may affect the damages recoverable, or, conceivably in a proper case in conjunction with other factors, provide a foundation for seeking to invoke the doctrine of equitable estoppel to extend the applicable period of limitations. Standing alone such nondisclosure or concealment will not, however, serve as the basis for a distinct cause of action in fraud.

We observe that, as in the instance of fraud claims generally, this plaintiff, too, will be required to prove her claim by clear and convincing evidence (Rudman v Cowles Communications, 30 NY2d 1, 10; see 24 NY Jur, Fraud and Deceit, § 284, p 371). If she succeeds in this respect, the available measure of her damages will be that applicable in fraud actions, i.e., damages caused by the fraud, as distinguished in this case from damages occasioned by the alleged malpractice.

In 1975 our Legislature determined as a matter of policy to limit the extent of liability in medical malpractice claims when it adopted a more stringent Statute of Limitations (CPLR 214-a; L 1975, ch 109, § 6). Lest the implications of our present decision be misapprehended as subjecting physicians to a greater exposure to liability in consequence of errors of professional judgment at a time when there is legitimate concern both from the standpoint of the profession and the public as to the economic import of recently ballooning malpractice recoveries and thus to run counter to or to flout the general policy direction articulated by the Legislature, it is appropriate to stress certain aspects of the present case and the theories of liability on which we sustain this complaint.

At the outset we observe that the exposure to liability we here discuss is not based on errors of professional judgment; it is predicated on proof of the commission of an intentional tort, in this instance, fraud. As to that cause of action:

First, it must be established that the physician knew (or demonstrably had reason to know) of the fact of his malpractice and of the injury suffered by his patient in consequence thereof.

Second, it must be established that, knowing it to be false at the time, the physician thereafter made material, factual misrepresentation to the patient with respect to the subject matter of the malpractice and the therapy appropriate to its cure, on which the patient justifiably relied.

Third, all elements of the intentional tort of fraud must be established by clear and convincing evidence. Recognizing, too, the hazards of proliferating litigation of baseless claims, attention is drawn to the requirements of CPLR 3016 (subd [b]). While, of course, motions to dismiss under CPLR 3211 are properly addressed to the allegations set forth in the complaint, on motions for summary judgment under CPLR 3212 evidentiary proof in admissible form must be tendered in support of all the elements of the alleged cause of action.

Fourth, if there is not an available, efficacious remedy or cure which the plaintiff is diverted from undertaking in consequence of the intentional, fraudulent misrepresentation —as in many instances of medical malpractice there may not be — there will normally be only minimal damages, if any. It will be necessary to demonstrate that the condition caused by the malpractice could have been corrected or alleviated. Thus, in the present case, if it can be shown that at the time of Dr. Saeli’s alleged fraudulent misrepresentations it was already too late to undertake a reanastomosis of the severed nerve, this plaintiff will have sustained little or no damages in consequence of the alleged fraud. If only a partial cure were then possible, damages would be assessable on that basis. Recovery would be greatest, of course, if plaintiff were diverted from what could otherwise have been a complete cure.

Accordingly, it will be seen that the present decision is not to be expected to open the proverbial floodgates. On the other hand, in human terms it would be unthinkable today not to hold a professional person liable for knowingly and intentionally misleading his patient in consequence of which, to the physician’s foreknowledge, the patient was deprived of an opportunity for escape from a medical predicament which the physician by his own negligence had initially inflicted on his patient. With respect to the application of the doctrine of equitable estoppel to a defense of Statute of Limitations pleaded in a malpractice action, again we are concerned with an intentional, not merely negligent, wrong — the purposeful concealment and misrepresentation of the fact and consequences of the malpractice. It would not be tolerable to permit a physician by whose fraud, misrepresentation or deception his patient has been induced to delay filing legal proceedings until after the time limited by statute to reap the benefits of his own misconduct.

For the reasons stated the order of the Appellate Division should be reversed, with costs to abide the event, and the order of Supreme Court denying defendant’s motion to dismiss reinstated.

Cooke, J.

(concurring). I concur in the underlying reasoning and result arrived at in the majority opinion but do not find it necessary to subscribe to all of the implications which may affect this or other cases when the merits may be reached by motion or trial.

Fuchsberg, J.

(concurring). Though I wholeheartedly join in the disposition of this case and of the questions necessary to its determination, I find aspects of the majority opinion sufficiently disturbing to compel me to comment.

For one, the court’s indorsement of cases which are said to have held that mere (p 452) "concealment by a physician or failure to diclose his own malpractice” does not toll the Statute of Limitations is both peripheral and unnecessary to today’s decision. Moreover, it suffers from more than the ordinary weakness of dictum. It gratuitously renews the blessing, given at an earlier time and in a different clime, to a proposition whose soundness has, in the intervening years, been the object of widespread and increasing criticism, much of which characterizes willful nondisclosure as "constructive fraud” (Morrison v Acton, 68 Ariz 27; Prosser, Torts [4th ed], § 30, pp 144-145; Sacks, Statutes of Limitations and Undiscovered Malpractice, 16 Clev Marsh L Rev 65, 72; 2 Louisell and Williams, Medical Malpractice, pars 13.06-13.09; 32 ATLA LJ 260-265; cf. Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, disapproving Conklin v Draper, 229 App Div 227, affd 254 NY 620).

Most especially in this situation — where, as we all recognize, a balance must be struck between according a reasonable measure of justice to patients and giving adequate protection to physicians subjected to delayed suits — appraisal or reappraisal should await direct confrontation in a case on point. In such circumstances, simple logic and long experience teach that, absent immediacy of a need to decide, the rush to present judgment, however well-intentioned, impermissibly enhances the ever-present risk that, by the time the question does arise directly, further study and later events will have turned the premature pronouncement of yesterday into a jurisprudential obstacle of tomorrow (Cooke v New Riv. Co., 38 Ch Div 56, 70-71 [1888] [Bowen, L. J.]; cf. Smith v Hedges, 223 NY 176, 184 [Cardozo, J., dissenting]).

I also refuse to join in what I regard as the equally unnecessary and, so far as the record reveals, unfounded factual and qualitative assumptions implicit in phrases such as opening the (p 454) "floodgates” (p 453) "ballooning malpractice recoveries” and "legitimate concern both from the standpoint of the profession and the public as to the economic import” of malpractice recoveries. Such expressions, which omit the concerns of those injured by medical negligence, are, I respectfully suggest, best avoided. All the more is that so in a situation where, as has been widely reported and openly admitted, large sums have been expended by interested parties to influence public opinion (see Aitken, Medical Malpractice: The Alleged "Crisis” in Perspective, 1976 Ins LJ 90; Charbouneau, Medical Malpractice Crisis: Fact or Fiction?, 3 Orange County BJ 139).

Indeed, the factors alluded to by the comments I find objectionable are probably more suitable for exploration and consideration in a legislative rather than a judicial forum (see, for example, US Department of Health, Education and Welfare, Report of the Secretary’s Commission on Medical Malpractice, No. [OS] 73-88 [1973]; see, also, Elliot L. Sagall, M.D., Medical Malpractice: Are the Doctors Right?, Trial, Vol» 10, No. 4, p 59; Miller, Malpractice and You, 1975 Ins LJ 722).

In that context, the passage of the single bill to which the majority refers (L 1975, ch 109) hardly supports the so-called legislative (p 453) "general policy direction” on which it rationalizes the restrictive nature of its writing. In 1976, the year after that bill was enacted, after extensive hearings the officially designated "McGill Commission”, on which the medical profession was prominently represented, reported to the Legislature (and the Governor) that, because "any further reductions of the statute of limitations in medical malpractice actions would restrict patients’ rights without any correlative improvement in premium rates and insurance availability, the Panel makes no formal recommendations for changes in the statute of limitations” (Report of the Special Advisory Panel on Medical Malpractice of the State of New York, p 37 [1976]). Thereafter efforts at constriction have consistently failed to win legislative favor (see, e.g., Sen Intro No. S-9, Assem Intro No. A-3290 [1977 Session]; Sen Intro No. S-3672, Assem Intro No. A-5127 [1977 Session]; Sen Intro No. S-7858 [1976 Session]; Sen Intro No. S-4786-A [1976 Session]; Sen Intro No. S-8700 [1976 Session]; Sen Intro No. S-8751 [1976 Session]; Sen Intro No. S-8752 [1976 Session]; Sen Intro No. S-8753 [1976 Session]; Sen Intro No. S-8754 [1976 Session]; Sen Intro No. S-8755 [1976 Session]; Sen Intro No. S-8756 [1976 Session]; Assem Intro No. A-8779 [1976 Session]; Assem Intro No. A-11344 [1976 Session]).

When thus rejected, such efforts — whether fueled by legislative lobbying, or entrancing editorializing, or just plain propagandizing — form no foundation for public policy. Moreover, as to the overemphasis on "spectres of assertedly prohibitive cost”, fanciful or real, we ought here to apply our own recently stated injunction that, while "[a] court cannot responsibly be wholly indifferent to the economic impact likely to attend its decisions * * *, neither can the prospect of financial impact dictate the judicial outcome” (Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 90). A fortiori, in this case, where essentially we focus on a liability, not a damage, question, the quantum of the latter in any event would be subject, as in all cases, to judicial safeguards against excessiveness — or inadequacy (CPLR 5522; see O’Connor v Papertsian, 309 NY 465; 7 Weinstein-Korn-Miller, NY Civ Prac, pars 5522.03, 5522.04).

Accordingly, I merely join in the result.

Chief Judge Breitel and Judges Jasen, Gabrielli, and Wachtler concur with Judge Jones; Judge Cooke concurs in a separate memorandum; Judge Fuchsberg concurs in result in a separate opinion.

Order reversed, etc.

      . Dr. Lane, the physiotherapist, had died prior to the commencement of this action. Lincoln First Bank as executor of his estate was named a codefendant and service was effected on the executor in May, 1976. The codefendant did not participate in the present motion to dismiss and is not otherwise directly involved in the present appeal.

      . Because we think that the complaint as it stands sufficiently pleads these two causes of action and that no further amendment of the complaint is necessary to include a cause of action for malpractice, we treat as presently academic the dispostions below with respect to denial of plaintiffs cross motion for leave to serve an amended complaint. (Cf. CPLR 3025, subd [a].)

      . No cause of action is set forth in the complaint in this case postulated on the theory that plaintiff was fraudulently prevented from bringing her action for alleged malpractice until barred by the Statute of Limitations and that she is entitled to recover the damages caused her by such fraud (see Fraud and Deceit: Liability in Damages for Preventing Bringing of Action Before Its Being Barred by Statute of Limitations, Ann., 33 ALR3d 1077).

      . We observe that the alleged tortious conduct in this instance occurred prior to the adoption of CPLR 214-a (L 1975, ch 109, § 6, eff July 1, 1975). There is thus no basis here for any assertion that by the enactment of that statute the Legislature intended to prescribe a statutory period of limitations with respect to all claims arising out of the physician-patient relationship no matter on what legal theory predicated.

      . (But cf. Rovello v Orofino Realty Co., 40 NY2d 633.)


author: Wachtler, J.

text:
    The People of the State of New York, Appellant, v Cruz Pinzon, Jr., Also Known as Cruz Pinzon Barbosa, Jr., Respondent.
    Argued February 17, 1978;
    decided May 9, 1978

      POINTS OF COUNSEL

      Henry F. O’Brien, District Attorney (Steven Hovani and Kevin J. Crowley of counsel), for appellant.
    Respondent’s attorney did not enter the proceeding before the confession in that he failed to notify a responsible police official of his existence. (People v Arthur, 22 NY2d 325; People v Vella, 21 NY2d 249; People v Hobson, 39 NY2d 479; People v Gunner, 15 NY2d 226; People v Clark, 41 NY2d 612.)

      Anna M. Perry and John F. Middlemiss, Jr., for respondent.
    The trial court erred in admitting defendant’s statements which were made during the course of interrogation while defendant was in custody and after an attorney had appeared in the proceedings on his behalf. (People v Arthur, 22 NY2d 325; People v Gunner, 15 NY2d 226; People v Townsend, 33 NY2d 37; People v McLaurin, 38 NY2d 123; People v Ramos, 40 NY2d 610; People v Villeroel, 56 AD2d 807; People v Clark, 41 NY2d 612.)
   OPINION OF THE COURT

Wachtler, J.

A Suffolk County jury found the defendant guilty of criminally negligent homicide. The Appellate Division reversed and dismissed the indictment holding that the defendant’s confession should be suppressed because the police questioned him in custody, in the absence of counsel, after an attorney retained to represent him had repeatedly called the police department central switchboard, identified himself, asked to speak with the defendant and requested that the defendant not be questioned until he arrived. Concededly these calls were not put through to the defendant, the interrogating officers or their supervisors. Instead the attorney was erroneously informed that the police did not "have” the defendant. On this appeal by the People the only question raised is whether, under the circumstances, the attorney’s repeated calls to the police department central switchboard were sufficient to put the police on notice that an attorney had entered the proceedings to represent the defendant on the criminal charges under investigation.

At the .pretrial suppression hearing Detective Franco, from the Suffolk County Police Department’s Third Precinct located at Bay Shore, testified that he was summoned to Southside Hospital in Bay Shore on the evening of July 17, 1973. At the hospital he was informed by doctors in the emergency room that defendant’s stepson had been admitted with serious, and possibly fatal, injuries to the abdomen which could have been inflicted by blows to the stomach. The officer then returned to the waiting room and questioned the defendant and his wife. Neither however was able to explain how the boy received the injuries although the defendant, after being advised of his rights, admitted that on occasion he had hit the boy to discipline him. The officer later returned to the police station and filed a report to that effect.

The following morning at approximately 10:30 another officer from the third precinct, Detective Wyckoff, was sent to the hospital to question the boy. At the hospital however he was informed that the boy had undergone surgery, was still unconscious and was not expected to live. Detective Wyckoff then called his superior who directed him to bring the defendant down to the third precinct for questioning.

At the station house Wyckoff advised the defendant of his rights and questioned him, but the defendant continued to deny any knowledge as to how the boy had been injured. At approximately 12:20 that afternoon the boy died at the hospital. When Wyckoff was informed of this he stopped questioning the defendant because, as he stated, the matter was now within the jurisdiction of the homicide squad. The defendant remained at the third precinct until he was picked up by members of the homicide squad sometime after 1 o’clock that afternoon.

Shortly before 1 o’clock Leo Otis, an attorney retained by the defendant’s family to represent him in the investigation, made three phone calls to the Suffolk County Police Headquarters which is located at Hauppauge. During these conversations Otis identified himself as defendant’s attorney, asked to speak with him and requested that the defendant not be questioned until his attorney arrived. The calls were made to the central number for the police department where all incoming calls, except emergencies, are received at a central switchboard operated by three civilian employees who are responsible for directing the calls to the proper party. If the operators are in doubt as to where a call should go they can— and apparently have been instructed to — refer the call to their supervisor who is the duty officer in charge of the communications center. However none of the calls made by the defendant’s attorney were put through to the defendant, the interrogating officers or their superiors — nor apparently were they referred to the duty officer. Instead the defendant’s attorney was repeatedly misinformed that the police department did not "have” the defendant.

Within a half hour of Mr. Otis’ third call to police headquarters, detectives from the homicide squad transported the defendant from Bay Shore to Hauppauge where the homicide squad offices are located. Once again the defendant was advised of his rights and, after some questioning, finally admitted that he struck his stepson several times with his fists on the evening of July 17, 1973. However when the police began to reduce the statement to writing, the defendant stated that he would not sign anything and would not answer any further questions. Thus the questioning ceased sometime prior to 2:30 p.m. By 3 o’clock the police informed the defendant that he would be charged with homicide.

Approximately an hour later one of the detectives who had obtained the confession from the defendant received a phone call from the defendant’s attorney. The officer assured Mr. Otis that the defendant had not signed anything; that he had not given any statements and that there would be no further questioning.

At the conclusion of the hearing the court denied the defendant’s motion to suppress. The court held that "assertion” of the right to counsel "must be made to a responsible member of the police department either by the defendant or his attorney.” And here, it was noted, the "evidence fails to establish that the attorney spoke with anyone other than the civilian switchboard operators” (82 Misc 2d 436, 440-441; emphasis in original).

The Appellate Division reversed on the law. The majority attached no significance to the fact that the attorney had spoken only to civilian switchboard operators. They simply noted that he had "made three calls to the Suffolk County Police Department” and that he "identified himself, requested to speak with defendant and asked that defendant not speak with anyone there until he arrived. He was repeatedly informed that defendant was not there”. Relying on People v Donovan (13 NY2d 148) and People v Arthur (22 NY2d 325) the Appellate Division held the confession must be suppressed (52 AD2d 638).

Subsequent to the Appellate Division determination, the rule announced in Donovan and Arthur was reaffirmed and restated as follows: "Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer” (People v Hobson, 39 NY2d 479, 481). The People recognize that this rule applies on this appeal (see, e.g., People v Macedonio, 42 NY2d 944; People v Singer, 44 NY2d 241), but urge that we hold, as the hearing court did, that the right does not apply until the defendant’s attorney has located and informed a "responsible police official.”

In People v Arthur (22 NY2d 325, 329, supra) we held that the right attaches "once the police know or have been apprised of the fact that the defendant is represented by counsel or that an attorney has communicated with the police for the purpose of representing the defendant”. This does not mean, of course, that the attorney must personally appear at the station house (see, e.g., People v Gunner, 15 NY2d 226, 230), or even that he must communicate with the officers who are actually interrogating the defendant. For instance, we have considered the police to be apprised of the attorney’s entry into the proceeding when he communicated with the officer who seemed to be in charge of the investigation (see, e.g., People v Arthur, supra, at p 327), or with the chief of police (see, e.g., People v Gunner, supra). The People concede as much but urge that the cases stand for the proposition that notice of the attorney’s entry into the proceeding must, at least, be made to a police officer responsible for the investigation. Actually the guiding principle in these, and other cases involving the right to counsel is that the defendant’s right should not be "dependent upon 'mechanical’ and 'arbitrary’ requirements” (People v Arthur, supra, at p 329; People v Gunner, supra, at p 232; see, also, People v Ramos, 40 NY2d 610; People v Hobson, supra, at p 483; People v Singer, supra). What is required must always be considered in light of what is practical under the circumstances (see, e.g., People v Gunner, supra, at p 232).

As this case illustrates, the right to counsel is of little value if the attorney cannot communicate with the defendant or with the officials holding him in custody or can only reach them after extended delay when the investigation is, in effect, completed. The police, of course, must recognize this and must also realize that even though the defendant may not have retained counsel prior to being taken into custody, an attorney, later retained by friends or family or otherwise representing him (see, e.g., People v Arthur, supra, at pp 328-329), may wish to consult with him while he is being questioned by the police. And when an attorney does not know where the defendant is being held, there is little doubt that the police are better equipped than he is for locating the defendant or the officers immediately or ultimately responsible for the investigation. Indeed if the police have a person in custody they should be charged with knowledge of his whereabouts.

In sum, once a person has been taken into custody, the burden is on the police to keep track of him and to establish and maintain procedures which will insure that an attorney representing him may communicate with him and with the officials responsible for the investigation, without unreasonable delay. Thus, in this case, when the defendant’s attorney called the general information number at police department headquarters, identified himself and asked to speak with the defendant and further requested that there be no questioning, the police should have been on notice that an attorney had appeared on behalf of the defendant then in custody. If the particular department intends this type of information to be forwarded to other officers, it must direct the call to the proper party. It would indeed be impractical, arbitrary and unfair to hold defense counsel responsible because police department employees unintentionally misinformed him (see, e.g., People v Hobson, 39 NY2d 479, supra, overruling People v Robles, 27 NY2d 155), or failed to follow procedures established by the department. In related contexts it has been held that confusion or lack of communication within the law enforcement agencies cannot impair the defendant’s rights (People v McLaurin, 38 NY2d 123; Santobello v New York, 404 US 257, 259, 269). That principle should equally apply to the critical right to counsel.

The order of the Appellate Division should be affirmed.

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

Order affirmed.

      . At the hearing the duty officer testified that he could not recall receiving any calls from an attorney on that date, nor could he find any record of such a call in his log. The civilian operators were not called at the hearing. And, although the police department tape-records incoming calls, the tapes for 1973 had been routinely destroyed sometime prior to the hearing. The defendant’s attorney, however, produced telephone company records which showed that he did in fact make three calls from his office to the central number for the Suffolk County Police Department prior to 1 o’clock on July 18, 1973. These records show that the first call was made at 12:47 p.m. and lasted five minutes. The other two calls were made at 12:53 p.m. and 12:54 p.m.

      . It is not entirely clear how Mr. Otis finally located the defendant. It appears however that members of the defendant’s family who had followed the defendant from the third precinct to Hauppauge were able to inform Mr. Otis that the defendant was being held for questioning by the homicide squad.

      . The order originally stated that the reversal was on "the law and the facts”. But on application of the People the order was later amended to indicate that the reversal was on the law alone (see CPL 450.90, subd 2).


author: Fuchsberg, J. Gabrielli, J.

text:
    The People of the State of New York by Robert P. Whalen, as Commissioner of the Department of Health, et al., Appellants, v Woman’s Christian Association of Jamestown, Inc., et al., Respondents.
    Argued March 21, 1978;
    decided May 9, 1978

      POINTS OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (W. Alexander Melbardis and Ruth Kessler Toch of counsel), for appellants.
    I. When it enacted the Hospital Cost Control Act of 1969, the Legislature intended to limit hospital cost increases by controlling Blue Cross and Medicaid reimbursement rates. II. A hospital may not exempt itself from the Hospital Cost Control Act by terminating its operating contract with Blue Cross. (Matter of Presbyterian Hosp. in City of N. Y. v Ingraham, 39 NY2d 867;

      Matter of Sigety v Ingraham, 29 NY2d 110; Rankin v Shanker, 23 NY2d 111.) III. The hospital cost control program enacted by the State is constitutional. (Matter of Levine v Whalen, 39 NY2d 510; Seagram & Sons v Hostetter, 384 US 35.)

      Franklin S. Bonem, Robert M. Kaufman, Stephen E. Tisman and Bruce E. Fader for Woman’s Christian Association, respondent.
    I. The Public Health Law does not require a hospital to accept the Blue Cross reimbursement rate after that hospital has terminated its Blue Cross operating contract. (Matter of Procaccino v Stewart, 25 NY2d 301; Matter of Presbyterian Hosp. in City of N. Y. v Ingraham, 39 NY2d 867; Matter of Sigety v Ingraham, 29 NY2d 110; Rankin v Shanker, 23 NY2d 111; Flushing Hosp. & Med. Center v Woytisek, 41 NY2d 1081; Matter of Edsall v Whelan, 82 Misc 2d 952; Bayview Gen. Hosp. v Associated Hosp. Serv. of N. Y., 45 Misc 2d 218; Guest v Fitzpatrick, 409 F Supp 818, 429 US 1084; Bender v Jamaica Hosp., 40 NY2d 560.) II. Appellants’ construction of the Public Health Law would render it unconstitutional. (Fornaris v Ridge Tool Co., 423 F2d 563, 400 US 41; Superior Motors v Winnebago Inds., 359 F Supp 773; Louisville Bank v Radford, 295 US 555; Addiss v Selig, 264 NY 274; Matter of Kania, 208 Misc 733; Railroad Co-op. Bldg. & Loan Assn. v Boston Bldg. Estates, 149 Misc 349; New York & Oswego Midland R. R. Co. v Van Horn, 57 NY 473; Matter of Bell v Waterfront Comm. of N. Y. Harbor, 20 NY2d 54.)

      Stephen M. Cleary, J. Vanderbilt Straub, Joseph Boochever and Kenneth D. Runion for Chautauqua Region Hospital Service Corporation, respondent.
    I. Faced with an accelerating spiral of hospital costs, the State enacted legislation to limit hospital cost increases by restricting Blue Cross and Medicaid payments. (Matter of Presbyterian Hosp. in City of N. Y. v Ingraham, 39 NY2d 867; Matter of Procaccino v Stewart, 25 NY2d 301; Rankin v Shanker, 23 NY2d 111.) II. The Third Department declined to consider the statutory scheme establishing the hospital cost control program. (Matter of Presbyterian Hosp. in City of N. Y. v Ingraham, 39 NY2d 867; Matter of Levine v Whalen, 39 NY2d 510; Rankin v Shanker, 23 NY2d 111; Smith v People, 47 NY 330; Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774;
      Board of Educ. v Areman, 41 NY2d 527; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266.) III. Article 28 of the Public Health Law is not unconstitutional. (Matter of Levine v Whalen, 39 NY2d 510; Nettleton Co. v Diamond, 27 NY2d 182; People ex rel. Durham Realty Corp. v La Fetra, 230 NY 429; People ex rel. Brixton Operating Corp. v La Fetra, 257 US 665; Bucho Holding Co. v Temporary State Housing Rent Comm., 11 NY2d 469; Bowles v Willingham, 321 US 503; Texas Amer. Asphalt Corp. v Walker, 177 F Supp 315; Minden Beef Co. v Cost of Living Council, 362 F Supp 298; Matter of Presbyterian Hosp. in City of N. Y. v Ingraham, 39 NY2d 867; Matter of Sigety v Ingraham, 29 NY2d 110.)
   OPINION OF THE COURT

Fuchsberg, J.

We are here called upon to decide whether a hospital which is no longer party to a Blue Cross operating contract may charge patients who are Blue Cross subscribers rates in excess of those allowed by the State as the maximum reimbursable by Blue Cross. The answer to this question is dependent on the construction of the applicable statutes.

Respondent Woman’s Christian Association of Jamestown, Inc. (hereinafter WCA Hospital), operates a nonprofit, nonsectarian, 306-bed hospital in the City of Jamestown in Chautauqua County. It is one of five general hospitals in that area. Respondent Chautauqua Region Hospital Services Corporation (hereinafter Blue Cross), to which over 65,000 subscribers in that part of the State belong, is a nonprofit hospital service corporation organized under article 9-C of the Insurance Law. Following the pattern of agreements between such corporations and their subscribers, the subscription contracts made no provision for care at any particular facility; a "member hospital” is simply referred to generically as "any hospital with which a particular [Blue Cross] plan shall have an operating agreement in effect”.

For years prior to 1976, such an operating agreement between WCA Hospital and Blue Cross had been in force. Like contracts between other hospitals and Blue Cross corporations throughout the State, it provided that WCA Hospital would furnish care to subscribers and that Blue Cross, in turn, would compensate the hospital in accordance with "reimbursement formulas” established by the Commissioner of Health and the Superintendent of Insurance (Public Health Law, art 28, as amd by Hospital Cost Control Law of 1969, L 1969, ch 957).

As the courts below found, early in 1976 WCA learned that the Blue Cross rate for that year would be frozen at the level that prevailed in 1975. This advice followed immediately on the heels of several years during which the hospital had suffered severe operating losses; the hospital’s figures showed that, though Blue Cross subscribers constituted only a minority of its patients, the cost of caring for them exceeded the Blue Cross reimbursements by an amount approximating the total deficit it incurred during the preceding year. Pursuant to a mutual cancellation clause contained in the contract, the hospital thereupon decided to terminate its affiliation with Blue Cross and, on January 8, 1976, it gave Blue Cross the required nine months’ notice that it was electing to do so.

The intended effect of the termination of the relationship was that a Blue Cross subscriber who thereafter chose to be treated at WCA Hospital would have to pay the difference between the Blue Cross reimbursement rate and any higher prevailing rate established by the hospital for its patients generally.

The State asserted that, notwithstanding the contract’s cancellation, the Public Health Law prohibits the hospital from billing a patient more than the amount for which it would have been reimbursed by Blue Cross if the contract were still in effect; acting through the commissioner and superintendent, it then commenced this action to enjoin permanently the implementation of WCA Hospital’s plan. The hospital counterclaimed for a judgment declaring that there is no such statutory prohibition. Both parties having moved for summary judgment, the Supreme Court, Albany County, denied Blue Cross’ motion and granted the declaratory relief requested by the hospital. The judgment directed to be entered thereon has been affirmed by the Appellate Division. The appeal from its order is now here by leave of this court.

The position of the State and of Blue Cross essentially are (1) that the legislative scheme before us was designed to put a lid on soaring hospital expenses by imposing cost controls, (2) that, as to hospital services rendered to Blue Cross subscribers, the statutes sought to accomplish this purpose not merely by instituting controls on the amounts which an article 9-C corporation such as Blue Cross may pay hospitals on behalf of its subscribers, but by imposing a more widespread limitation on the amounts hospitals, whether or not they are Blue Cross "member hospitals”, may charge patients who subscribe to Blue Cross and (3) that it was a constitutionally permissible exercise of police power to enact the broader regulation which they argue was intended.

Two of these contentions need not detain us.

That the legislative purpose was to control costs is incontrovertible. It is universal and experiential knowledge that for at least three decades the residents of this State have been sorely pressed by the escalating cost of health care. Its rise has been at a rate exceeding almost every other component of the cost of living index. According to the estimate of the Commissioner of Health himself, between 1948 and 1963 the average cost of a stay in a general hospital in New York State nearly quadrupled, going up from $13.09 to $43.98 per day; by something akin to geometrical progression, it has since multiplied to approximately 20 times the original base. After many earlier pronouncements of alarm, by the time the Hospital Control Law was enacted in 1969, the Legislature took pains to declare it "essential that an effective cost control program be established which will both enable and motivate hospitals to control their spiraling costs” (L 1969, ch 957, § 2).

There is also no question that the economic regulation of hospital costs contemplated by article 28 of the Public Health Law, as amended by the Hospital Cost Control Law, advanced the legitimate legislative purposes of promoting public health, welfare and safety (Nettleton Co. v Diamond, 27 NY2d 182, 189), all consonant with section 3 of article XVII of our State Constitution.

However, because the Legislature desired to stop or slow the mushrooming of hospital charges, and because arguably it could do so by imposing direct controls on hospital prices per se, does not mean that that is the course it chose. To the contrary, for the reasons which follow, we have concluded that the method it selected to meet the problem was a less direct one under which a hospital, unless constrained by an ongoing Blue Cross affiliation, is free to apply its own schedule of fees to patients who happen to be Blue Cross subscribers.

Initially, we note that there is nothing in the language of section 2807 of the Public Health Law bespeaking regulation of anything beyond reimbursement payments by Blue Cross, government agencies and health maintenance organizations created under article 44 of the Public Health Law. It contains no provision for putting a ceiling on the charges which hospitals may make to individual patients. Specifically, there is no exception for those individual patients of nonaffiliated hospitals, whether such patients carry Blue Cross or not. Nor does subdivision 2 of section 2803 of the Public Health Law, on which the State places much reliance, enlarge the scope of section 2807; the "rates, payments, reimbursements” to which subdivision 2 of section 2803 refers are, by its own terms, confined to those "provided in” section 2807. Furthermore, if the controls being instituted were not related to Blue Cross coverage alone, it would hardly have been necessary to require approval by the Superintendent of Insurance of the rates certified in the first instance by the Commissioner of Health (Public Health Law, § 2807, subds 2, 3). These statutes were therefore, at the very least, consistent with an intention to achieve the legislative purpose to contain hospital costs by resort to less direct means than the control of hospital prices per se.

An indirect method of control would have been rational. It would have made sense for the Legislature to have anticipated that most Blue Cross subscribers would prefer to patronize a "member hospital”, the strictures of whose own Blue Cross contract would have prevented it from charging subscribers more than the reimbursement rate. Blue Cross reimbursements (along with payments by government agencies) have become the mainstay of hospital income in this State; as the State concedes, in the aggregate it accounts for 90% of the patients. Such reimbursements, coming as they do from an institutional disburser, characteristically involve a "volume of payments, promptness in paying [and] assurance of payment” (Flushing Hosp. & Med. Center v Woytisek, 41 NY2d 1081, 1082). Given these advantages for Blue Cross subscribers and hospital affiliates respectively, it was reasonable for the Legislature to expect that the effect of the free play of competition on a subscriber’s choice between a Blue Cross and non-Blue Cross hospital would be to cause the controlled reimbursement rate to become the voluntary norm for hospital charges generally and to deter hospitals from canceling their Blue Cross affiliations. Indeed, on argument of this appeal, we were advised that, inclusive of WCA Hospital, only about 10 of the approximately 300 hospitals in New York State are not so affiliated at the present time.

Significantly, during one of the intense phases of the upward price trend, the measure then employed to establish reimbursement rates in accordance with chapter 795 of the Laws of 1965, i.e., "the costs of providing such service”, was supplanted by a carefully conceived standard based on "costs of efficient production of such service” (Public Health Law, § 2807, subd 3; Governor’s Memorandum, NY Legis Ann, 1969, p 564). Notedly, in effecting that change, the Legislature, for all its concern, did not articulate an intention to impose cost controls directly on hospitals themselves. Such action — dramatically shifting the policy that has guided the fixing of charges for medical care away from economic laissez-faire and in the direction of direct government control — would have been one of far-reaching consequences (see Matter of Presbyterian Hosp. in City of N. Y. v Ingraham (39 NY2d 867, 869). It would hardly have been one left to implication (cf. Matter of Beary v City of Rye, 44 NY2d 398; Commonwealth v Mercy Hosp., 364 Mass 515, 518).

It is more than interesting therefore to observe that those of our sister States which have decided to impose direct price controls on hospital charges have done so in statutes abundantly "clear and free from ambiguity” (see Guest v Fitzpatrick, 409 F Supp 818, vacated as moot 429 US 1084; see, also, Code of Maryland, art 43, § 568U [1971]; Conn General Statutes, § 19-73i [1973]; Revised Code of Wash, § 70.39.140 [1973]). Parenthetically, despite such statutes, burgeoning hospital costs, as indicated in footnote 2 (supra), have not disappeared from the non-New York scene.

In any event, however alarming the constant increases in health care costs are and however unsuccessful the statutory devices adopted to deal with them may in fact have turned out to be, on the statutes as they presently stand the holding of Special Term and the Appellate Division should be upheld.

Accordingly, the order appealed from should be affirmed.

Gabrielli, J.

(concurring). The unfortunate result in this case is mandated by the indirect method of hospital cost control permitted by the legislation before us in this case. As an unsettling consequence of this statutory scheme, New York hospitals may avoid rate control by merely canceling their Blue Cross contracts. This avoidance, although permissible under the statute, is clearly contrary to its intent as evidenced by the legislative statement of findings and purpose in the Hospital Cost Control Law (L 1969, ch 957, § 2). The Legislature recognized that ”[r]ising hospital costs are a matter of vital concern to the people of this state * * * The Legislature therefore finds and declares that it is essential that an effective cost control program be established which will both enable and motivate hospitals to control their spiraling costs. It is the intent of this chapter to provide for uniform measures on a state-wide basis to control hospital costs without the sacrifice of quality of service. A system of hospital cost accounting and cost finding is necessary if the inhabitants of the state are to continue to receive the advantages of the highest level of health services attainable without the imposition of charges at levels which few can afford. It is the intent of this chapter to provide for improved hospital management and availability and quality of health services at a reasonable cost.”

We can all agree that spiraling hospital costs may portend serious consequences and some effective control program is essential. However, the legislation does not really attain that result and it is for the Legislature to restudy this important problem and to recognize that the regulation program could crumble by widespread utilization of the device adopted by the hospital in the case before us.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur with Judge Fuchsberg; Judge Gabrielli concurs in a separate opinion in which Chief Judge Breitel also concurs.

Order affirmed, with costs.

      . Leave to appeal was granted only to the State. Blue Cross, which, despite the affirmance at the Appellate Division, will continue to pay reimbursement only at the rate approved by the State, is here only in the capacity of respondent.

      . New York City public hospitals now charge a flat rate of $300 per day, inclusive of various services except blood transfusions. The room rate alone for semiprivate accommodations at Mount Sinai Hospital (like WCA Hospital, a voluntary, nonprofit institution) is now $230 per day; for a private room, it is $295. While the statistics are not identical, the upward surge of medical costs has been a national phenomenon (see the 1948 Hospital Rate Survey, Table 3, p 2 and the Survey of Charges in Community Hospitals as of Jan. 1, 1975, Table A2, p 5, both published by Amer Hosp Assn, Chicago, 111).

      . (See, for example, Matter of Procaccino v Stewart, 25 NY2d 301.)


author: Jones, J. Fuchsberg, J.

text:
    In the Matter of E. Ezra Sofair, Respondent, v State University of New York Upstate Medical Center College of Medicine, Appellant.
    Argued April 24, 1978;
    decided May 31,1978

      POINTS OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (Sidney L. Grossman, Ruth Kessler Toch and Anne S. Meadvin of counsel), for appellant.
    I. The order of the court below, remitting the proceeding to respondent for a hearing, with a detailed written statement of the evidence relied upon by appellant to be submitted to respondent Sofair beforehand, is a final determination which is appealable as of right to this court, and therefore justifies this court’s retention of subject-matter jurisdiction. (Matter of Wilaka Constr. Corp. [New York City Housing Auth.], 17 NY2d 195; Matter of Board of Educ. [Auburn Teachers Assn.], 38 NY2d 740; Merrill Lynch, Pierce, Fenner & Smith v Griesenbeck, 21 NY2d 688.) II. The action taken by appellant in dismissing respondent from medical college was not arbitrary, capricious or in bad faith. Therefore, judicial review of appellant’s actions is improper. (Stringer v Gould, 64 Misc 2d 89; Matter of Carr v St. John’s Univ., N. Y, 17 AD2d 632, 12 NY2d 802; People ex rel. Goldenkoff v Albany Law School, 198 App Div 460; People ex

      rel. O’Sullivan v New York Law School, 68 Hun 118; People ex rel. Cecil v Bellevue Hosp. Med. Coll. of City of N. Y., 60 Hun 107, 128 NY 621; Greenhill v Bailey, 519 F2d 5; Connelly v University of Vt. & State Agric. Coll., 244 F Supp 156; Brookins v Bonnell, 362 F Supp 379; Matter of Lesser v Board of Educ., 18 AD2d 388; Matter of Blank v Board of Higher Educ., 51 Misc 2d 724.) III. The determination of appellant to dismiss respondent Sofair for academic deficiencies, in the absence of acting in an arbitrary or capricious manner or in bad faith does not, as the court below erroneously held, call for the application of due process standards to the sufficiency of the administrative procedures followed. (Steier v New York State Educ. Comr., 271 F2d 13; Matter of Edde v Columbia Univ. in City of N. Y., 8 Misc 2d 795, 6 AD2d 780, 5 NY2d 881, 359 US 956; Matter of Lesser v Board of Educ., 18 AD2d 388; Mahavongsanan v Hall, 529 F2d 448; Wright v Texas So. Univ., 392 F2d 728; Gaspar v Bruton, 513 F2d 843; Dixon v Alabama State Bd. of Educ., 294 F2d 150; Goss v Lopez, 419 US 565.) IV. Based on the Supreme Court’s decision in Horowitz, respondent Sofair has been awarded "as much due process as the Fourteenth Amendment requires”. V. Based on the Supreme Court’s decision in Horowitz, the court below acted erroneously in holding that respondent Sofair was entitled pursuant to due process to detailed written notice of charges and a hearing prior to dismissal from the medical college for deficiency in academic performance. (Greenhill v Bailey, 519 F2d 5; Goss v Lopez, 419 US 565; Snyder v Massachusetts, 291 US 97; Powell v Alabama, 287 US 45; Jackman v Rosenbaum Co., 260 US 22.) VI. The action taken by appellant in dismissing respondent from medical college was not arbitrary, capricious or in bad faith. Therefore, based on the Supreme Court’s decision in Horowitz, judicial review of appellant’s action is improper.

      Richard W. Cook for respondent.
    I. The decision of the court below ordering a new hearing on the issue of petitioner’s dismissal is nonfinal and no appeal as of right lies therefrom to this court. (Matter of Rochester Gas & Elec. Corp. v Maltbie, 298 NY 103; Matter of Colonial Liq. Distrs. v O’Connell, 295 NY 129; Matter of New York State Elec. Corp. v Public Serv. Comm. of State of N. Y, 260 NY 32; Matter of Grade Crossings [New York Cent. R. R. Co.], 255 NY 320; Matter of Brooklyn Union Gas Co. v Joseph, 297 NY 469; Matter of Begenet v Noyes, 284 NY 229; Matter of North Amer. Holding

      Corp. v Murdock, 6 AD2d 596.) II. The action taken by respondent in dismissing petitioner during his fourth and final year of medical school, upon grounds for which there was no authority, and while petitioner was in good standing, was arbitrary and capricious, and judicial review thereof is proper. (Matter of Ryan v Hofstra Univ., 67 Misc 2d 651; Matter of Blank v Board of Educ., 51 Misc 2d 724; Matter of Healy v Larsson, 67 Misc 2d 374, 42 AD2d 1051, 35 NY2d 653; Matter of Carr v St. John’s Univ., N. Y., 17 AD2d 632, 12 NY2d 802; Greenhill v Bailey, 519 F2d 5; Balogun v Cornell Univ., 70 Misc 2d 474; Matter of Bonwitt v Albany Med. Center School of Nursing, 77 Misc 2d 269.) III. The dismissal of petitioner during his final year of medical school on the basis of a "hearing” held on less than a day’s notice to petitioner and in which he was given no opportunity to present arguments against his dismissal is contrary to due process standards. (Goss v Lopez, 419 US 565; Perry v Sindermann, 408 US 593; Board of Regents v Roth, 408 US 564; Morrissey v Brewer, 408 US 471; Horowitz v Board of Curators of Univ. of Mo., 538 F2d 1317; Greenhill v Bailey, 519 F2d 5; Wisconsin v Constantineau, 400 US 433; Wieman v Updegraff, 344 US 183; Anti-Fascist Committee v McGrath, 341 US 123; Dixon v Alabama State Bd. of Educ., 294 F2d 150.)
   OPINION OF THE COURT

Jones, J.

We conclude that the procedures followed by Upstate Medical Center College of Medicine when petitioner was dropped as a medical student for academic cause were not such as to deny him due process of law in violation of the provisions of our Federal and State Constitutions.

In this article 78 proceeding, instituted for an order directing the College of Medicine to reinstate petitioner in the medical school and to award him the degree of Doctor of Medicine, Special Term dismissed the petition. The Appellate Division, while agreeing on the merits that the college’s determination was neither arbitrary and capricious nor in violation of any contractual right of the student, by a divided vote, reversed the dismissal of his petition on the ground that the student had been denied procedural due process because the hearing which was offered him was held within a matter of hours, or even "minutes”, after the first notification to him of his dismissal. For that reason the court granted the petition to the extent of directing the College of Medicine to accord petitioner an appropriate hearing. The relevant facts and contentions of the parties are detailed in the opinion of Mr. Justice Harry D. Goldman (54 AD2d 287).

On the appeal to us taken by the College of Medicine as of right we first reject the application of petitioner made in his brief and on oral argument to dismiss the appeal on the ground that the order sought to be appealed is nonfinal inasmuch as the Appellate Division "remitted” the case to the College of Medicine for further proceedings. The so-called "remittal”, however, was not within the judicial system or to an administrative agency of the State. (Cf. Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 12, pp 49-55.) Any judicial review of the new determination to be made by the College of Medicine following the mandated hearing could only be had in a new, second article 78 proceeding; the present proceeding could not be revived as a procedural vehicle for such review. Accordingly, the disposition at the Appellate Division finally determined the present proceeding within the meaning of the Constitution. (NY Const, art VI, § 3; CPLR 5601, subd [a], par [ii].)

On the merits of the appeal we hold that there is no substance to petitioner’s claim that he was denied procedural due process (Board of Curators, Univ. of Mo. v Horowitz, 435 US 78). In this instance, as in Horowitz, the student had previously been informed of the school’s dissatisfaction with his progress, and the dismissal was for academic (as opposed to disciplinary) cause — failure "to demonstrate sufficient clinical aptitude for the practice of medicine”. In this circumstance the differences between the parties did not present factual issues to be resolved by evidentiary proof. The dismissal was predicated on an academic evaluation, bearing "little resemblance to the judicial and administrative fact-finding proceedings to which we have traditionally attached a full hearing requirement. * * * [T]he determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.” (435 US, at pp 89-90). We would only add that no contention is advanced on behalf of this student that the dismissal was made in bad faith or that the assignment of academic cause was a calculated pretext — arguments which if substantiated might present factual issues appropriately to be resolved in a judicial evidentiary hearing.

The dissenter would hold that a medical school’s having afforded its student an opportunity to demonstrate improvement operated somehow to create an adversarial right later to question the school’s evaluation of this academic performance. So to hold might invite indeliberate, and therefore perhaps unwarranted, early dismissal, and thus discourage extension of opportunity by further effort and performance to improve the quality of what had theretofor been inadequate academic achievement. The position of the school should not be prejudiced because it alerted this student to his predicament, and he thereafter elected to continue his course of study.

For the reasons stated, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

Fuchsberg, J.

(dissenting). The offering of a hearing on notice so short that it may have consisted of no more than some "minutes” made it a mockery. No exigency is claimed in justification for this brevity. On a matter as vital to the petitioner as dismissal from the medical college and the accompanying frustration of his planned professional career, the shock of the instantaneousness of this procedure was likely to have rendered the petitioner even less capable of meaningful participation in a hearing than if none had been offered him at all. Thus, there was not even minimal due process.

Yet, ingredients of the "supposed 'personality conflicts’ which petitioner experienced in clinical settings” (to quote the descriptive language employed in the opinion written [p 295] for the Appellate Division majority by Mr. Justice Harry D. Goldman) are just the kind of characteristics so frequently instinct with an admixture of the subjective and objective as to warrant the limited procedural due process ordered by that court. In such a case, a rigid dichotomy between the levels of due process to be accorded students threatened with dismissal for academic reasons and those put in similar jeopardy for nonacademic reasons seems particularly inappropriate (cf. Board of Curators, Univ. of Mo. v Horowitz, 435 US 78, 96 [Marshall, J., concurring]).

Even more urgent need for some level of due process is to be found in the fact that the medical college had deemed the petitioner’s performance sufficiently acceptable to have advanced him from year to year and to have invited him to take a fifth one as a prelude to graduation. As footnote 2 of the majority opinion demonstrates, petitioner’s deficiencies, such as they were, were known to the college authorities during all this period. He nevertheless was encouraged to continue to expend the years, the efforts and the moneys that his long course of study entailed. When the college took its belated action on the very eve of the completion of his medical schooling, the level of his achievement was not then substantially different from what it had been earlier. To what extent this remarkable delay, if delay is all it was, was due to what the record also reveals to have been a largely standardless grading system is not at all clear. But it most certainly invites exploration at a hearing.

Under these circumstances, neither academic freedom nor independence of educational management was in any way undermined by the Appellate Division’s conclusion that fairness would best be served by requiring the college to grant petitioner an informal hearing noticed for a time that would permit opportunity to prepare to meet whatever hard evidence was relied on for the proposed action. Accordingly, the order should not be disturbed.

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

Order reversed, etc.

      . Petitioner’s motion for leave to cross appeal was denied (41 NY2d 803).

      . In addition to this conclusion, reached by both the Fourth Year Medical Grades Committee and the Committee on Academic Promotions, the record disclosed that the medical student had failed Pathology in his second year, both Medicine and Surgery in his third, and Nephrology in his fourth. The Dean of Admissions had written him more than six months before he was dropped from the medical school:
      "Your request for an elective with the Department of Obstetrics and Gynecology was not approved by the Committee on Academic Promotions. This committee of the faculty has decided that you do not meet standards for graduation; and that, in their opinion, you are not ready for the practice of medicine. This decision is based upon your cumulative academic record, comprised of grades and narratives, over the past four years. Your record indicates that you have failed at least one major course every year, and still carry a failing grade in Nephrology, a fourth-year elective. The significance of having failed courses, such as pathology, surgery and medicine, raised serious questions about your level of competency at this time; particularly, your abilities to apply essential medical knowledge to patient-care activities.

        "It is the decision of this committee that you be required to complete an additional academic year of clinical electives during 1975-76.”