author: Hancock, Jr., J.

text:
    New York State Bankers Association, Inc., et al., Respondents, v James W. Wetzler, as Commissioner of the Department of Taxation and Finance of the State of New York, Appellant.
    Argued February 18, 1993;
    decided April 1, 1993

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General, Albany (Peter G. Crary, Jerry Boone and Peter H. Schiff of counsel), for appellant.
    I. The courts below have improperly intruded into the consensual budget-making process of the Governor and Legislature in a manner which does not further, but rather frustrates, the purpose of article VII of the State Constitution. (Matter of

      New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233; Saxton v Carey, 44 NY2d 545; Hidley v Rockefeller, 28 NY2d 439; People v Tremaine, 252 NY 27, 281 NY 1; Winner v Cuomo, 176 AD2d 60, 79 NY2d 1045; Matter of Korn v Gulotta, 72 NY2d 363.) II. In any event, inclusion of the Audit Fee Provision in the appropriation bill substantially complies with the letter and spirit of article VII. (Anderson v Regan, 53 NY2d 356; People v Tremaine, 252 NY 27; Matter of Schneider v Rockefeller, 31 NY2d 420; Schuyler v South Mall Constructors, 32 AD2d 454.)

      Sullivan & Cromwell, New York City (Michael A. Cooper, Eulalia M. Mack and David L. Glass of counsel), for respondents.
    The grant of partial summary judgment to plaintiffs should be affirmed. (Marbury v Madison, 1 Cranch [5 US] 137; Boryszewski v Brydges, 37 NY2d 361; Matter of Korn v Gulotta, 72 NY2d 363; People v Tremaine, 257 NY 27, 281 NY 1; Winner v Cuomo, 176 AD2d 60, 79 NY2d 1045; Matter of Schultz v State of New York, 152 Misc 2d 589; People v Ohrenstein, 153 AD2d 342, 77 NY2d 38; Saxton v Carey, 44 NY2d 545; Hidley v Rockefeller, 28 NY2d 439.)
   OPINION OF THE COURT

Hancock, Jr., J.

This appeal concerns the validity of the Legislature’s enactment of the Audit Fee Provision as part of the 1990-1991 State Operations Budget Bill. The Audit Fee Provision — which authorizes defendant Commissioner to assess fees against banking corporations audited for taxes due under article 32 of the Tax Law for the cost of conducting such audits — was added as a legislative amendment to the Budget Bill after its submission to the Legislature by the Governor.

In this action, the Supreme Court and the Appellate Division have declared the Audit Fee Provision null and void as an alteration of an appropriations bill which violates article VII, § 4 of the New York State Constitution because— contrary to the specific mandate of that section — it neither strikes out nor reduces an appropriated item, nor adds a separately stated item of appropriation. We have granted leave to appeal to the Commissioner to address his contentions that plaintiffs’ declaratory judgment action should be dismissed as involving a claim which is not justiciable or, failing that, that the Audit Fee Provision should be declared valid notwithstanding its contravention of article VII, § 4. For reasons to be explained, we are not persuaded by either contention. There should, therefore, be an affirmance.

I

On June 6, 1990 the Legislature enacted the 702-page 1990-1991 State Operations Budget Bill, which contained a $2,997,800 account for expenses incurred in conducting tax audits of banking corporations and bank holding companies subject to tax under article 32 of the Tax Law. Added to this appropriation item on page 441 of the Budget Bill is the Audit Fee Provision which authorizes the assessment of fees against article 32 taxpayers for the cost of their own tax audits. The Audit Fee Provision was enacted in its entirety by the Legislature; it was not a part of the Budget Bill originally submitted by the Governor. The Governor, nevertheless, signed the Budget Bill into law without deleting it (L 1990, ch 50).

In July 1990, acting pursuant to the Audit Fee Provision, the Commissioner began to issue invoices to bank taxpayers, including plaintiff Cayuga Lake National Bank. Cayuga National, joined by the New York State Bankers Association representing the commercial banking industry, commenced this action seeking declaratory and injunctive relief. Supreme Court granted summary judgment to plaintiffs declaring the Audit Fee Provision as well as its implementing regulations null and void as violative of article VII, § 4 of the State Constitution and also enjoined their enforcement. The Appellate Division affirmed, finding no merit to defendant’s additional contention that plaintiffs’ challenge to the Audit Fee Provision did not present a justiciable controversy.

II

The essence of defendant’s nonjusticiability argument is that plaintiffs’ challenge to the enactment of the Audit Fee Provision amounts to a judicial invasion of the budgetary process, the exclusive domain of the executive and legislative branches of government. Defendant relies on Saxton v Carey (44 NY2d 545) in which the plaintiffs sought to nullify the entire 1978-1979 State budget because it was insufficiently itemized to meet constitutional requirements (see, NY Const, art VII, §§ 1-7; People v Tremaine, 281 NY 1). In Saxton, we agreed with defendant that the degree of budget itemization was a matter calling for the exercise of judgment and discretion by the Governor and Legislature in implementing the budgetary process and that, as such, it was beyond the courts’ power of review. Although we concluded that the complaint was properly dismissed as nonjusticiable, we cautioned that the budgetary process is not always beyond the realm of judicial consideration and that the "courts will always be available to resolve disputes concerning the scope of that authority which is granted by the Constitution to the other two branches of the government” (Saxton, supra, at 551 [emphasis added]).

It is basic that an "act of the legislature is the voice of the People speaking through their representatives. The authority of the representatives in the legislature is a delegated authority and it is wholly derived from and dependent upon the Constitution” (Matter of Sherrill v O’Brien, 188 NY 185, 199). The sole ground of plaintiffs’ challenge to the Audit Fee Provision is that in adopting the measure as an amendment to the Budget Bill, the Legislature acted beyond its delegated authority by altering the bill in a way that is expressly prohibited by article VII, § 4. Plaintiffs do not ask the courts to pass on the merit of the measure or to review the discretion of the executive or legislative branches in including it as part of the approved budget. The question concerns not what was enacted or its effect on the budgetary process, but whether there was authority to enact the provision at all. Our precedents clearly compel the conclusion that the controversy is justiciable (see, e.g., Matter of Korn v Gulotta, 72 NY2d 363, 369-370; Saxton, supra, at 548-551).

Nevertheless, as a further ground for seeking a dismissal for nonjusticiability, defendant argues that the courts’ invocation of article VII, § 4 is an unwarranted judicial interference in the budgetary process because it amounts to a "purely technical judicial roadblock into the consensual budget process” and because where "the Governor and Legislature are in agreement on the necessity of a change in a budget bill, it makes absolutely no sense to apply section 4 to forbid the change simply because it may technically have been added by the Legislature”. In short, the argument goes, the requirements of the Constitution, as applied here, are of no moment and a claim that there has been noncompliance should be summarily rejected for nonjusticiability as calling for purposeless judicial meddling in the executive and legislative process. But the very point of plaintiffs’ argument on the merits (see, Part III, infra) is that the constitutional violation is a matter of substance which cannot be ignored as trivial. We have found no authority for forestalling a determination on the merits of a constitutional question by dismissing it as nonjusticiable for reasons of alleged triviality. Defendant cites no support for this novel proposition.

Ill

We turn to the merits. Defendant contends first that the Audit Fee Provision should be upheld because its enactment as part of the Budget Bill substantially complies with the dictates of article VII, § 4. As authority, defendant cites Matter of Schneider v Rockefeller (31 NY2d 420) in which legislation was challenged because of an alleged violation of the constitutional requirement that a bill lie on the desks of the Legislature for three calendar legislative days prior to its passage (NY Const, art III, § 14). Although the bill had been placed on the legislative desks three days prior to its passage, it was removed for a few hours on the first day and replaced later the same day for the purpose of making corrections. We held that in these circumstances there had been "substantial compliance with the letter and spirit of the constitutional requirement” (id., at 434), noting that the purpose of the constitutional provision — preventing hasty legislation, prohibiting last-minute amendments and insuring adequate publicity and consideration — had been achieved.

Here, in evident contrast to Schneider, there is a conceded violation of the constitutional provision and no basis for a claim of partial compliance (see, People v Tremaine, 252 NY 27, 47-49 [dealing with former art IV-A, § 3, the predecessor of art VII, § 4]). Without even a semblance of conformity, the Legislature simply proceeded to alter the Budget Bill submitted by the Governor in outright disregard of the dictates of the Constitution. It is self-evident that total noncompliance cannot amount to substantial compliance (see, Matter of Sherrill, supra, at 198).

Defendant maintains, alternatively, that if we do not agree that there was substantial compliance, we should, nevertheless, declare the Audit Fee Provision valid by ignoring the constitutional violation. The argument is that the purpose of article VII, § 4 — harmony between the legislative and executive branches in implementing the budgetary process — was achieved inasmuch as the Governor and the Legislature both acted to show their approval of the Audit Fee Provision. In view of this accord between the two branches, defendant says, the identical measure could have been enacted constitutionally if the Governor had exercised his right to include the provision in the Budget Bill by amendment after its submission (see, NY Const, art VII, §§ 3, 6) and the Legislature thereafter adopted it. Thus, according to defendant, the desired result has been achieved, albeit not in accordance with article VII, § 4, and there is no cause for complaint. The violation, therefore, is of no moment.

The argument is patently flawed. That something which is done illegally could have been done legally, of course, does not excuse the illegality. Beyond that, article VII, § 4 is not, as defendant suggests, a mere procedural requirement in a constitutional process aimed at facilitating agreement in adopting the budget, a requirement which may be waived if the executive and legislative branches agree on it. To the contrary, article VII, § 4 is part of a constitutional scheme for adoption of the budget under which, in general, the Governor is required to initiate and propose the budget legislation.

Article VII, § 4 is an exception. It constitutes a limited grant of authority from the People to the Legislature to alter the budget proposed by the Governor, but only in specific instances. The constitutional command is unambiguous. The Legislature "may not alter an appropriation bill * * * except to strike out or reduce items therein, but it may add thereto items of appropriation” (NY Const, art VII, §4 [emphasis added]). The Audit Fee Provision was adopted in violation of this command. To approve it would be to disparage the very foundation of the People’s protection against abuse of power by the State — the tripartite form of government established in the Constitution. As this Court emphasized almost a century ago:

"The object of a written Constitution is to regulate, define and limit the powers of government by assigning to the executive, legislative and judicial branches distinct and independent powers. The safety of free government rests upon the independence of each branch and the even balance of power between the three. * * * It is not merely for convenience in the transaction of business that they are kept separate by the Constitution, but for the preservation of liberty itself’ (People ex rel. Burby v Howland, 155 NY 270, 282).

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa and Smith concur.

Order affirmed, with costs.

      . NY Constitution, article VII, §4 provides in pertinent part: "[t]he Legislature may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose. None of the restrictions of this section, however, shall apply to appropriations for the legislature or judiciary.”

      . The Audit Fee Provision states: "[notwithstanding any other provision of law, the commissioner of taxation and finance is hereby authorized and directed to establish and implement fees to assess such taxpayers for cost [sic] associated with conducting such audits. Such assessments shall include all direct, indirect, fringe benefit and other costs resulting from conducting such audits, including costs incurred in other programs, with the exception of expenses incurred pursuant to administrative hearings and civil judicial proceedings. Notwithstanding any other provision of law, all income derived from fees levied by the commissioner of taxation and finance for such audit expenses shall be deposited to this account.”


source: Caselaw Access Project

author: Hancock, Jr., J. Simons and Bellacosa, JJ.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Robert Diaz, Also Known as Robert Holmes, Appellant.
    Argued February 17, 1993;
    decided April 8, 1993
    POINTS OF COUNSEL

      Kenneth Finkelman, New York City, and Philip L. Wein

      stein for appellant.
    In a Terry stop situation, it is impermissible for an officer to rely upon a "plain touch” exception to the warrant requirement to justify a search of a citizen where the officer has already determined that the individual is not armed, but the officer believes that during the course of the frisk he may have felt an object which is contraband. (Terry v Ohio, 392 US 1; People v Roth, 66 NY2d 688; People v Sanchez, 38 NY2d 72; People v Cantor, 36 NY2d 106; Dunaway v New York, 442 US 200; Sibron v New York, 392 US 40; People v Brockington, 176 AD2d 743, 80 NY2d 855; People v Montero, 149 AD2d 628; People v McGriff, 99 AD2d 818.)

      Robert M. Morgenthau, District Attorney, New York County, New York City (Ilisa T. Fleischer and Norman Barclay of counsel), for respondent.
    Officer Healey’s frisk of defendant implicates a mixed question of fact and law and is beyond the scope of this Court’s review, since the record supports the Court below’s finding that the officer’s suspicion of criminal activity warranted his touching of defendant’s pocket, which established probable cause for defendant’s arrest and the search incident to that arrest in which the crack was seized. (People v Hollman, 79 NY2d 181; People v De Bour, 40 NY2d 210; People v Davis, 64 NY2d 1143; People v Stone, 86 AD2d 347, 57 NY2d 762, 459 US 1212; People v McRay, 51 NY2d 594; People v Brockington, 80 NY2d 855; People v Ashton, 79 NY2d 897; People v Seegars, 78 NY2d 1070; People v Robinson, 69 NY2d 1014; People v Basilicato, 64 NY2d 103.)
   OPINION OF THE COURT

Hancock, Jr., J.

The question is whether the warrantless search of defendant’s pocket was justified by information allegedly obtained by the police in conducting an authorized protective pat-down (see, Terry v Ohio, 392 US 1) which demonstrated that defendant was unarmed. The People urge that the warrantless search of the pocket was permissible under an extension of the plain view exception to the warrant requirement, sometimes referred to as the "plain touch” exception. For reasons to be explained, we reject the People’s proposed extension of the plain view exception and conclude that justifying the warrantless search on the basis of the items felt during the protective pat-down would he contrary to both the State and Federal Constitutions (see, US Const 4th Amend; NY Const, art I, § 12). Accordingly, there should be a reversal.

I.

There was evidence at the suppression hearing that on June 29, 1989, Officers John Healey and Clark Gordon were patrolling the lower east side of Manhattan at about 4:30 a.m. when they observed several groups congregating on the sidewalks, apparently passing objects from hand to hand. During a 20-minute period, Healey and Gordon, in the course of patrolling the area, observed defendant at various times at the center of several of these groups. In their final pass through the area, the officers saw defendant standing next to a stopped automobile. When their squad car approached, defendant walked away down the sidewalk.

The police drove alongside defendant and called him over to the car. In walking toward the car, defendant repeatedly placed his hand in his pocket despite Officer Healey’s warnings against doing so. As defendant reached the car, Healey noticed a bulge in defendant’s pocket and again told defendant to remove his hand. Fearing a weapon, Healey grabbed defendant’s pocket. He felt no weapon but did detect what "appeared to be a bunch of vials”. Defendant attempted to flee, but, according to Healey, he was able to grab hold of defendant through the car window and pull him partially into the car. While doing so, Healey reached into defendant’s pocket and removed 18 vials of crack cocaine. Defendant was then placed under arrest.

The trial court granted the motion to suppress the drugs seized from defendant’s pocket, holding that the initial stop and pat-down were not supported by reasonable suspicion. The Appellate Division reversed and denied the motion. Contrary to the trial court, it found that there was reasonable suspicion to justify the stop and pat-down. The Appellate Division held, in addition, that the subsequent search and seizure of the drugs were permissible based on what Officer Healey felt during the pat-down. We disagree.

II.

Preliminarily, we note that the Appellate Division’s determination that Officer Healey had reasonable suspicion to stop defendant and conduct a protective pat-down is supported by evidence in the record and is thus beyond this Court’s further review. The only legal issue before us is whether, as the Appellate Division held, the information allegedly obtained by Officer Healey through his sense of touch in conducting the pat-down justified the subsequent search of defendant’s pocket. This law issue was the ultimate predicate for the Appellate Division’s reversal and, thus, this case is appealable under CPL 450.90 (2) (a).

It is fundamental that warrantless searches and seizures are per se unreasonable unless they fall within one of the acknowledged exceptions to the Fourth Amendment’s warrant requirement (see, United States v Place, 462 US 696, 701; Katz v United States, 389 US 347, 357). Here, the question concerns the justification for a search extending beyond the degree of intrusion authorized by the exception to the warrant requirement for protective pat-downs under Terry.

There can be no question that reaching into defendant’s pocket and seizing the drugs were not within the scope of the Terry pat-down. Under both the State and Federal Constitutions, the protective pat-down exception to the warrant requirement authorizes a limited search of lawfully detained suspects to determine whether a weapon is present (see, Terry v Ohio, 392 US 1, supra; People v Cantor, 36 NY2d 106, 110-111; People v Rivera, 14 NY2d 441). The narrow scope of the intrusion authorized during a protective pat-down may not exceed what is necessary to ascertaining the presence of weapons (Terry, supra, at 25-26; People v Torres, 74 NY2d 224, 229-231). Once an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion (see, Ybarra v Illinois, 444 US 85, 92-94; Sibron v New York, 392 US 40, 65-66; People v Roth, 66 NY2d 688, 690; 3 LaFave, Search and Seizure § 9.4 [c], at 524 [2d ed]). Therefore, in this case, because Officer Healey knew that defendant’s pocket did not contain a weapon, he was not authorized to search the pocket or seize its contents absent application of some other exception to the warrant requirement.

It is clear that the search did not come within the exception to the warrant requirement for searches incident to an arrest; defendant was arrested after the search. Nor is it claimed that exigent circumstances justified the warrantless search. Rather, the People ask us to hold that the subsequent search of defendant’s pocket was justified by an extension of the recognized plain view exception to the warrant requirement (see, Horton v California, 496 US 128; Arizona v Hicks, 480 US 321; People v Basilicato, 64 NY2d 103; People v Spinelli, 35 NY2d 77). In sum, the People urge that there should be a so-called "plain touch” exception to the warrant requirement— analogous to that for plain view — for concealed articles incidentally felt through clothes or other covering during a lawful touching. We conclude that the claimed analogy to the plain view exception does not withstand analysis.

Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object’s incriminating nature is immediately apparent (see, Horton, supra, at 136-137; Hicks, supra, at 326-327). The plain view doctrine, it must be emphasized, establishes an exception to the requirement of a warrant not to search for an item, but to seize it. Because the item is already in the open where it may be seen, the owner can have no expectation of privacy in its concealment and, thus, its viewing cannot be a search under article I, § 12 or the Fourth Amendment. As stated by the Supreme Court in Horton:

"If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. Arizona v. Hicks, 480 U.S. 321, 325 (1987); Illinois v. Andreas, 463 U.S. 765, 771 (1983). A seizure of the article, however, would obviously invade the owner’s possessory interest. Maryland v. Macon, 472 U.S. 463, 469 (1985); Jacobsen, 466 U.S., at 113. If 'plain view’ justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches” (id., at 133-134 [footnotes omitted]).

Thus, the fundamental justification for the plain view doctrine is that when the police are already lawfully in a position to make the observation, the discovery and seizure of contraband in plain view involve no intrusion on the individual’s constitutional rights beyond that already authorized by the warrant or some exception to the warrant requirement (see, Horton, supra, at 134-137; Coolidge v New Hampshire, 403 US 443, 465).

The theory underlying the justification for the plain view exception cannot logically be extended to concealed items which are discoverable only through touch. Here, the concern is not with an exception to the warrant requirement to seize items which are already in plain view, but with an exception to the warrant requirement to search for items not in plain view. Unlike the item in plain view in which the owner has no privacy expectation, the owner of an item concealed by clothing or other covering retains a legitimate expectation that the item’s existence and characteristics will remain private. The physical characteristics of the concealed objects are immediately apparent to no one and are discernible through touch, if at all, only to the person who touches. Because the identity and nature of the concealed item cannot be confirmed until seen, what must be justified by the People’s proposed exception is a further search. This, of course, is not true for an item in plain view where no justification for a search is required and the additional intrusion, if there is one, is to the owner’s possessory interest, not to a privacy expectation (see, Coolidge, supra, at 465-466; Horton, supra, at 136-137).

The fundamental premise of the plain view exception — i.e., that items in plain view may be seized without an intrusion greater than that already authorized — is an invalid assumption if the plain touch exception is applied. For, even if the intrusion inherent in the initial act of touching is entirely authorized, the discovery and seizure of the items will entail a further intrusion. Indeed, it is for this further intrusion that justification is sought.

Thus, the essential conditions which justify an exception to the requirement of a warrant to seize an object in the plain view of the police, simply cannot exist to justify an exception to the warrant requirement for a search for a concealed object which is not in plain view. Indeed, the very concept of "plain touch” is a contradiction in terms: the idea of plainness cannot logically be associated with information concerning a concealed item which is available only through the sensory perceptions of someone who touches it.

Our determination to reject the People’s proposed extension of the plain view exception is compelled by practical considerations as well as logic. The identity and criminal nature of a concealed object are not likely to be discernible upon a mere touch or pat within the scope of the intrusion authorized by Terry. While in most instances seeing an object will instantly reveal its identity and nature, touching is inherently less reliable and cannot conclusively establish an object’s identity or criminal nature (see, State v Dickerson, 481 NW2d 840 [Minn 1992], cert granted — US —, 121 L Ed 2d 22; State v Broadnax, 98 Wash 2d 289, 654 P2d 96 [1982]). Moreover, knowledge concerning an object merely from feeling it through an exterior covering is necessarily based on the police officer’s expert opinion — a type of knowledge which cannot be equated with information obtained by seeing it.

Finally, an opinion of a police officer that the object touched is evidence of criminality will predictably, at least in some circumstances, require a degree of pinching, squeezing or probing beyond the limited intrusion allowed under Terry. The proposed "plain touch” exception could thus invite a blurring of the limits to Terry searches and the sanctioning of warrant-less searches on information obtained from an initial intrusion which, itself, amounts to an unauthorized warrantless search (see, State v Collins, 139 Ariz 434, 438, 679 P2d 80, 84 [1983] [a "plain touch” exception would "invite the use of weapons’ searches as a pretext for unwarranted searches, and thus to severely erode the protection of the Fourth Amendment”]). We do not believe that such a "bootstrapping” justification for warrantless searches can be countenanced under the State or Federal Constitution.

Our decision today is consistent with decisions from other State jurisdictions rejecting the purported "plain touch” exception (see, e.g., State v Collins, supra; Dunn v State, 382 So 2d 727 [Fla 1980]; State v Dickerson, supra; State v Rhodes, 788 P2d 1380 [Okla 1990]; Commonwealth v Marconi, 408 Pa Super 601, 597 A2d 616 [1991]; State v Broadnax, supra).

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress physical evidence granted, and the indictment dismissed.

Simons and Bellacosa, JJ.

(dissenting). We conclude that the seizure of drugs from defendant’s pocket was a search incident to arrest and therefore it was valid even in the absence of a warrant. Accordingly, we dissent.

As the majority concludes, defendant was lawfully subjected to a Terry frisk by the police. During that frisk, the officer felt what he believed to be drug vials. The officer then proceeded to search defendant’s pocket, discover the drugs and arrest defendant. The sole question presented is whether the intrusion into defendant’s pocket in the circumstances of this case falls within any of the established exceptions to the warrant requirement.

No warrant is required when a search is conducted incident to a lawful arrest (Sibron v New York, Peters v New York, 392 US 40). Whether the arrest comes before or after the search is not dispositive, provided that it is contemporaneous with the search and that no evidence from the search is used to justify the arrest (Rawlings v Kentucky, 448 US 98, 111; see also, Sibron v New York, Peters v New York, supra, at 76-77 [Harlan, J., concurring]; see generally, 2 LaFave, Search and Seizure § 5.4 [a] [2d ed]). Applying those principles to the present facts, if the police had probable cause to arrest defendant before the search inside his pocket, the incident-to-arrest exception applies and the search is valid.

That is precisely what happened here. The touch alone did not give the officer justification to search, as would be the case if the "plain touch” doctrine applied, and the Appellate Division did not so hold. Instead, its finding was based upon all the circumstances known to the officer at the time of the search. Based upon these circumstances, it found that r[o]nce the officer felt the vials * * * he had probable cause to arrest” (181 AD2d 597, 599-600 [emphasis added]). Probable cause is a mixed question of law and fact and inasmuch as there is evidence in the record to support that finding, it is beyond our power of review (see, CPL 450.90; People v Brockington, 176 AD2d 743, appeal dismissed 80 NY2d 855). Because the officer had probable cause to arrest defendant and needed no warrant to search under the incident-to-arrest exception, we need not consider the "plain touch” theory as a basis for justifying the search.

While we are expressing our views on the merits, we note that this appeal should be dismissed at the threshold because the Appellate Division reversal is "on the law and facts” and the disposition does not qualify for an appeal under CPL 450.90 (2) (a) (see, People v Brockington, supra).

Chief Judge Kaye and Judges Titone and Smith concur with Judge Hancock, Jr.; Judges Simons and Bellacosa dissent in a joint opinion.

Order reversed, etc.

      . There is no finding either at the hearing court or at the Appellate Division that this was a search incident to an arrest. Indeed, the only argument advanced by the People at the hearing court to justify the search was that "when he [the officer] pats the pocket and feels the crack vials, he’s now at the point where the level is stepped up and can go in and take the vials”, the same argument the People now advance in this Court. Moreover, the hearing court made no finding that defendant was restrained prior to or contemporaneous with the search of his pocket. On the contrary, the court found that defendant walked to the patrol car with "his hands in his trousers’ pocket and was asked to remove his hands which he did, and again as he continued to approach the vehicle, he put his hands back in his pocket and at this point, the officer made a grab at the defendant’s pocket and felt what appeared to be vials of cocaine, vials in his pocket. He then reached into his pocket and retrieved the vials” (emphasis added).

      . The conclusions that the drugs seized from defendant should have been suppressed and that there is no "plain touch” exception to the warrant requirement rest on our analysis of applicable Federal authority (see, US Const 4th Amend; Horton v California, 496 US 128, supra; Arizona v Hicks, 480 US 321, supra; Ybarra v Illinois, 444 US 85, supra; Coolidge v New Hampshire, 403 US 443, supra; Sibron v New York, 392 US 40, supra; Terry v Ohio, 392 US 1, supra). We reach the same conclusions independently by analysis and application of our own State law based on New York authorities supplemented by decisions of other States (see, NY Const, art I, § 12;
        People v Torres, 74 NY2d 224; People v Roth, 66 NY2d 688; People v Basilicato, 64 NY2d 103; People v Spinelli, 35 NY2d 77; People v Rivera, 14 NY2d 441; see also, e.g., State v Dickerson, 481 NW2d 840, supra; State v. Broadnax, 98 Wash 2d 289, 654 P2d 96, supra). Our decision to reverse, therefore, while based on our analysis of Federal law, rests equally on an independently adequate State ground (Michigan v Long, 463 US 1032, 1041-1042; see, People v Stith, 69 NY2d 313, 316).

       As explained by Justice Traynor in People v Simon (45 Cal 2d 645, 648, 290 P2d 531, 533): "Thus, if the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested * * *, there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest. In fact, if the person searched is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous, it is to the advantage of the person searched not to be arrested. On the other hand, if he is not innocent or the search does not establish his innocence, the security of his person, house, papers, or effects suffers no more from a search preceding his arrest than it would from the same search following it.”


author: Chief Judge Kaye.

text:
    Pamela J. Howell et al., Appellants, v New York Post Company, Inc., et al., Respondents.
    Argued February 17, 1993;
    decided April 5, 1993

      POINTS OF COUNSEL

      Schiavetti, DeVito, Begos & Nicholson, New York City (Padraic D. Lee, Lori Ann Maraño, Jacqueline Mandell and Peter Brown of counsel), for appellants.
    I. The court below erred in dismissing the complaint because plaintiffs stated a viable cause of action for reckless infliction of emotional distress. (Guggenheimer v Ginzburg, 43 NY2d 268; Lynch v Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d 632; Rovello v Orofino Realty Co., 40 NY2d 633; Halio v Lurie, 15 AD2d 62; Fischer v Maloney, 43 NY2d 553; Freihofer v Hearst Corp., 65 NY2d 135; Murphy v American Home Prods. Corp., 58 NY2d 293; Nader v General Motors Corp., 25 NY2d 560.) II. The New York Post’s First Amendment right of "free press” does not extend to wrongfully photographing a private psychiatric patient and publishing such a photograph on the front page heedless of medical warnings. (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Gaeta v New York News, 62 NY2d 340; Le Mistral, Inc. v Columbia Broadcasting Sys., 61 AD2d 491.) III. Mr. Howell has a valid cause of action for loss of services and consortium because of defendants’ tortious acts. (Belanoff v Grayson, 98 AD2d 353.)

      Stroock & Stroock & Lavan, New York City (Laurence Greenwald, William A. Rome and Randy L. Shapiro of counsel), for respondents.
    I. The complaint fails to state a cause of action for violation of section 51 of the Civil Rights Law. (Arrington v New York Times Co., 55 NY2d 433, 459 US 1146; Stephano v News Group Publs., 64 NY2d 174; Murray v New York Mag. Co., 27 NY2d 406; Gautier v Pro-Football, Inc., 278 App Div 431, 304 NY 354; Grant v Esquire, Inc., 367 F Supp 876; Roberson v Rochester Folding Box Co., 171 NY 538; Griffin v Harris, Beach, Wilcox, Rubin & Levey, 126 Misc 2d 209, 112 AD2d 514; Freihofer v Hearst Corp., 65 NY2d 135; Wojtowicz v Delacorte Press, 43 NY2d 858; Hurwitz v United States, 884 F2d 684, 493 US 1056.) II. Appellant cannot circumvent the clear legislative intent underlying section 51 of the Civil Rights Law merely by relabelling her privacy claim. (Fischer v Maloney, 43 NY2d 553; Murphy v American Homes Prods. Corp., 58 NY2d 293; Freihofer v Hearst Corp., 65 NY2d 135; Manno v Hembrooke, 120 AD2d 818; Rozanski v Fitch, 113 AD2d 1010; Alexander v Unification Church, 634 F2d 673; Belanoff v Grayson, 98 AD2d 353; Belsky v Lowenthal, 62 AD2d 319, 47 NY2d 820; De Gregorio v CBS, Inc., 123 Misc 2d 491; Morrison v National Broadcasting Co., 19 NY2d 453.) III. The acts allegedly committed by the Post fall far short of the stringent standard applied to claims for the intentional infliction of emotional distress. (Fischer v Maloney, 43 NY2d 553; Burlew v American Mut. Ins. Co., 99 AD2d 11, 63 NY2d 412; Gordon v Roche Labs., 90 AD2d 722; Owen v Leventritt, 174 AD2d 471, 79 NY2d 751; Freihofer v Hearst Corp., 65 NY2d 135; Doe v American Broadcasting Cos., 152 AD2d 482; Nestlerode v Federal Ins. Co., 66 AD2d 504, 48 NY2d 604; Halio v Lurie, 15 AD2d 62; Sullivan v Board of Educ., 131 AD2d 836.)
   OPINION OF THE COURT

Chief Judge Kaye.

This appeal, involving a newspaper’s publication of plaintiff’s photograph without her consent, calls upon us to consider the relationship between two separate but potentially overlapping torts: intentional infliction of emotional distress, and invasion of the right to privacy.

In early September 1988, plaintiff Pamela J. Howell was a patient at Four Winds Hospital, a private psychiatric facility in Westchester County. Her complaint and affidavit (accepted as true on this appeal) allege that it was imperative to her recovery that the hospitalization remain a secret from all but her immediate family.

Hedda Nussbaum was also at that time a patient at Four Winds. Nussbaum was the "adoptive” mother of six-year-old Lisa Steinberg, whose November 1987 death from child abuse generated intense public interest (see, e.g., Matter of New York Times v Rothwax, 143 AD2d 592 [vacating Trial Judge’s order barring counsel from discussing case with news media]; see also, People v Steinberg, 79 NY2d 673).

On September 1, 1988, a New York Post photographer trespassed onto Four Winds’ secluded grounds and, with a telephoto lens, took outdoor pictures of a group that included Nussbaum and plaintiff. That night, the hospital’s medical director telephoned a Post editor requesting that the paper not publish any patient photographs. Nevertheless, on the front page of next days’ edition two photographs appeared— one of Nussbaum taken in November 1987, shortly after her arrest in connection with Lisa’s death, and another of Nussbaum walking with plaintiff, taken the previous day at Four Winds.

In the earlier photograph, Nussbaum’s face is bruised and disfigured, her lips split and swollen, and her matted hair is covered with a scarf. By contrast, in the photograph taken at Four Winds, Nussbaum’s facial wounds have visibly healed, her hair is coiffed, and she is neatly dressed in jeans, a sweater and earrings. Plaintiff, walking alongside her, smiling, is in tennis attire and sneakers. The caption reads: "The battered face above belongs to the Hedda Nussbaum people remember — the former live-in lover of accused child-killer, Joel Steinberg. The serene woman in jeans at left is the same Hedda, strolling with a companion in the grounds of the upstate psychiatric center where her face and mind are healing from the terrible wounds Steinberg inflicted.”

The accompanying article centers on Nussbaum’s physical and mental rehabilitation and quotes her as saying: "I feel good. I’m healthy * * * They’re good to me here. The People are nice and I do my photography.” The article concludes by noting that several issues still haunt Nussbaum, including whether she should cooperate with the prosecution and testify against Steinberg.

Although plaintiff’s name was not mentioned in the caption or article, her face is readily discernible. Alleging she experienced emotional distress and humiliation, plaintiff commenced an action against the Post, the photographer and two writers, seeking multimillion dollar damages for alleged violations of Civil Rights Law §§ 50 and 51, intentional and negligent infliction of emotional distress, trespass, harassment and prima facie tort. Plaintiff’s husband, by the same complaint, brought a derivative claim for loss of consortium.

Supreme Court granted in part defendants’ CPLR 3211 (a) (7) motion by dismissing all causes of action except for intentional infliction of emotional distress and the derivative claim, and denied plaintiff’s motion for summary judgment. On the parties’ cross appeals, the Appellate Division modified by dismissing the entire complaint. This Court granted plaintiff’s motion for leave to appeal to consider the dismissal of her claims for violation of the right to privacy and intentional infliction of emotional distress. We now affirm.

The Legal Backdrop

This appeal brings together two separate bodies of tort law, each with a long history that is relevant to resolution of the issues before us.

Intentional Infliction of Emotional Distress

Historically, the common law of this State did not recognize emotional injury — even with physical manifestations — as an independent basis for recovery. In Mitchell v Rochester Ry. Co. (151 NY 107 [1896]), for example, a pregnant woman nearly hit by defendant’s horses suffered a miscarriage. The Court noted that since there was no cause of action for fright, "it is obvious that no recovery can be had for injuries resulting therefrom. That the result may be nervous disease, blindness, insanity, or even a miscarriage, in no way changes the principle.” (151 NY, at 109-110.) The Court expressed two concerns, present even today, with permitting emotional distress damages: (i) the potential "flood of litigation,” and (ii) the ease with which emotional injury "may be * * * feigned without detection” (id., at 110).

Nevertheless, emotional distress damages as an adjunct, or "parasitic,” to recognized torts were allowed (see, e.g., Garrison v Sun Print. & Publ. Assn., 207 NY 1, 8 [1912] [defamation]). Indeed, courts often struggled to find an established cause of action upon which to base an award of emotional distress damages to a deserving plaintiff. This is exemplified by a line of cases allowing victims of unacceptable behavior to recover under a breach of contract theory (see, e.g., Boyce v Greeley Sq. Hotel Co., 228 NY 106; Aaron v Ward, 203 NY 351; de Wolf v Ford, 193 NY 397).

The Restatement of Torts, first adopted in 1934, generally insulated an actor from liability for causing solely emotional distress: "conduct which is intended or which though not so intended is likely to cause only a mental or emotional disturbance to another does not subject the actor to liability * * * for emotional distress resulting therefrom” (Restatement of Torts § 46 [a]). Shortly thereafter, in an influential article surveying the field — including the New York cases — Calvert Magruder concluded that courts were already giving extensive protection to feelings and emotions, showing an "adaptability of technique” in redressing the more serious invasions (Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv L Rev 1033, 1067 [1936]).

Building on the Magruder article, Professor Prosser argued that, without expressly saying so, courts had actually created a new tort consisting of the intentional, outrageous infliction of mental suffering in an extreme form (Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich L Rev 874, 874 [1939]). "Out of the array of technical assaults, batteries, imprisonments, trespasses, 'implied contracts,’ invasions of 'privacy’ or of doubtful 'property rights,’ the real interest which is being protected stands forth very clearly.” (Id., at 886-887.) Prosser suggested that there was no longer a reason or necessity for resorting to such "subterfuges,” and that it was "high time to abandon them, and to rest the action upon its real ground.” (Id., at 881.)

Responding to these and similar importunings, the Restatement in 1948 abandoned its earlier position and declared that "[o]ne who, without a privilege to do so, intentionally causes severe emotional distress to another is liable * * * for such emotional distress” (Restatement of Torts § 46 [a] [1948 Supp]).

While working on the Second Restatement of Torts, its Reporter, Dean Prosser, noted that the 1948 version was so broad as to suggest the need for further limitation (Prosser, Insult and Outrage, 44 Cal L Rev 40, 41 [1956]). The requirement of "extreme and outrageous conduct” was the apparent solution. As the Second Restatement reads: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (Restatement [Second] of Torts §46 [1] [1965]). This Court subsequently adopted the Restatement formulation (see, Fischer v Maloney, 43 NY2d 553, 557; Murphy v American Home Prods. Corp., 58 NY2d 293, 303; Freihofer v Hearst Corp., 65 NY2d 135, 143).

The tort has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. The first element — outrageous conduct— serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff’s claim of severe emotional distress is genuine (see, Prosser, Insult and Outrage, 44 Cal L Rev, at 44-45; compare, Mitchell v Rochester Ry Co., 151 NY, at 110). In practice, courts have tended to focus on the outrageousness element, the one most susceptible to determination as a matter of law (see, Restatement [Second] of Torts § 46, comment h; Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct ["Social Decency”], 82 Colum L Rev 42, 42-43 [1982]).

Unlike other intentional torts, intentional infliction of emotional distress does not proscribe specific conduct (compare, e.g., Restatement [Second] of Torts § 18 [battery]; id., § 35 [false imprisonment]), but imposes liability based on after-the-fact judgments about the actor’s behavior. Accordingly, the broadly defined standard of liability is both a virtue and a vice. The tort is as limitless as the human capacity for cruelty. The price for this flexibility in redressing utterly reprehensible behavior, however, is a tort that, by its terms, may overlap other areas of the law, with potential liability for conduct that is otherwise lawful. Moreover, unlike other torts, the actor may not have notice of the precise conduct proscribed (see, Givelber, Social Decency, 82 Colum L Rev, at 51-52).

Consequently, the "requirements of the rule are rigorous, and difficult to satisfy” (Prosser and Keeton, Torts § 12, at GO-61 [5th ed]; see also, Murphy, 58 NY2d, at 303 [describing the standard as "strict”]). Indeed, of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous (see, Freihofer v Hearst Corp., 65 NY2d, at 143-144; Burlew v American Mut. Ins. Co., 63 NY2d 412, 417-418; Murphy, 58 NY2d, at 303; Fischer v Maloney, 43 NY2d, at 557). " 'Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ ” (Murphy, 58 NY2d, at 303, quoting Restatement [Second] of Torts § 46, comment d).

The Right to Privacy

While legal scholarship has been influential in the development of a tort for intentional infliction of emotional distress, it has had less success in the development of a right to privacy in this State. In a famous law review article written more than a century ago, Samuel Warren and Louis Brandéis advocated a tort for invasion of the right to privacy (Warren and Brandeis, The Right to Privacy, 4 Harv L Rev 193 [1890]). Relying in part on this article, Abigail Marie Roberson sued a flour company for using her picture, without consent, in the advertisement of its product (Roberson v Rochester Folding Box Co., 171 NY 538). Finding a lack of support for the thesis of the Warren-Brandeis study, this Court, in a four to three decision, rejected plaintiffs claim.

The Roberson decision was roundly criticized (see, Saveli, Right of Privacy-Appropriation of a Person’s Name, Portrait, or Picture For Advertising or Trade Purposes Without Prior Written Consent: History and Scope in New York ["Right of Privacy-Appropriation”], 48 Alb L Rev 1, 11-12 [collecting articles]). The Legislature responded by enacting the Nation’s first statutory right to privacy (L 1903, ch 132), now codified as sections 50 and 51 of the Civil Rights Law. Section 50 prohibits the use of a living person’s name, portrait or picture for "advertising” or "trade” purposes without prior written consent (Civil Rights Law §50). Section 50 provides criminal penalties and section 51 a private right of action for damages and injunctive relief.

Although the statute itself does not define the terms "advertising” or "trade” purposes, courts have consistently held that the statute should not be construed to apply to publications concerning newsworthy events or matters of public interest (Finger v Omni Publs. Intl., 77 NY2d 138, 141-142; Stephano v News Group Publs., 64 NY2d 174, 184). This is both a matter of legislative intent and a reflection of constitutional values in the area of free speech and free press (Stephano, 64 NY2d, at 184; Arrington v New York Times Co., 55 NY2d 433, 440). Thus, a " 'picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise’ ” (Murray v New York Mag. Co., 27 NY2d 406, 409, quoting Dallesandro v Holt & Co., 4 AD2d 470, 471, appeal dismissed 7 NY2d 735; see also, Finger, 77 NY2d, at 142; Stephano, 64 NY2d, at 185; Arrington, 55 NY2d, at 440).

At least three other "privacy” torts have been recognized elsewhere (see, Prosser, Privacy, 48 Cal L Rev 383; Restatement [Second] of Torts §§ 652A-652E): unreasonable publicity given to another’s private life (Restatement [Second] of Torts § 652D); unreasonable intrusion upon seclusion (id., § 652B); and publicity that unreasonably places another in a false light (id., § 652E). While the courts of other jurisdictions have adopted some or all of these torts, in this State the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law; we have no common law of privacy (Stephano, 64 NY2d, at 182; Arrington, 55 NY2d, at 439-440; Cohen v Hallmark Cards, 45 NY2d 493, 497, n 2; Flores v Mosler Safe Co., 7 NY2d 276, 280). Balancing the competing policy concerns underlying tort recovery for invasion of privacy is best left to the Legislature, which in fact has rejected proposed bills to expand New York law to cover all four categories of privacy protection (see, Arrington, 55 NY2d, at 440; Savell, Right of Privacy-Appropriation, 48 Alb L Rev, at 3, n 4).

Application of the Law to the Present Appeal

The core of plaintiff’s grievance is that, by publishing her photograph, defendants revealed to her friends, family and business associates that she was undergoing psychiatric treatment — a personal fact she took pains to keep confidential. There is, of course, no cause of action in this State for publication of truthful but embarrassing facts. Thus, a claim grounded in the right to privacy must fall within Civil Rights Law §§ 50 and 51.

The statutory right to privacy is not transgressed unless defendants used plaintiff’s photograph in connection with trade or advertising. Accordingly, if plaintiff’s picture accompanied a newspaper article on a matter of public interest, to succeed she must demonstrate that the picture bore no real relationship to the article, or that the article was an advertisement in disguise (see, Stephano, 64 NY2d, at 185; Arrington, 55 NY2d, at 440; Murray v New York Mag. Co., 27 NY2d, at 409). Plaintiff concedes that, in the aftermath of Lisa Steinberg’s death, articles about Hedda Nussbaum were a matter of public interest. Additionally, the Post article plainly was not a veiled advertisement. Thus, analysis of the civil rights claim centers on the "no real relationship” requirement.

We have been reluctant to intrude upon reasonable editorial judgments in determining whether there is a real relationship between an article and photograph (Finger, 77 NY2d, at 143; see also, Gaeta v New York News, 62 NY2d 340, 349). In Finger, for example, a magazine without consent used a photograph of plaintiffs and their six children to illustrate a segment about caffeine-enhanced fertility. Although none of the children had been conceived in the manner suggested by the article, we concluded that the requisite nexus between the article and photograph was established because the article’s theme — having a large family — was fairly reflected in the picture (see, Finger, 77 NY2d, at 142-143).

In the present case, similarly, plaintiff has failed to meet her burden. The subject of the article was Hedda Nussbaum’s physical and emotional recovery from the beatings allegedly inflicted by Joel Steinberg. The photograph of a visibly healed Nussbaum, interacting with her smiling, fashionably clad "companion” offers a stark contrast to the adjacent photograph of Nussbaum’s disfigured face. The visual impact would not have been the same had the Post cropped plaintiff out of the photograph, as she suggests was required. Thus, there is a real relationship between the article and the photograph of plaintiff, and the civil rights cause of action was properly dismissed.

Defendants would have our analysis end here — without considering whether plaintiff has stated a cause of action for intentional infliction of emotional distress — arguing that the tort may not be used as an end run around a failed right to privacy claim. Insofar as plaintiff’s claim is based on the publication of her photograph, we agree, for the publication was qualifiedly privileged — meaning that defendants acted within their legal right — and no circumstances are present that would defeat the privilege.

The distinction between privileged and nonprivileged conduct as it relates to infliction of emotional distress is implicit in our cases and explicit in the Restatement. In Murphy v American Home Prods. Corp. (58 NY2d, at 303), an employment case, we held that plaintiff could not "subvert the traditional at-will contract rule by casting his cause of action in terms of a tort of intentional infliction of emotional distress.” If an employer has the right to discharge an employee, the exercise of that right cannot lead to a claim for infliction of emotional distress, however distressing the discharge may be to the employee. In the course of discharging the employee, however, an employer’s deliberate reprehensible conduct intentionally or recklessly causing severe emotional distress is not within the employer’s right, and may support a claim for intentional infliction of emotional distress.

The 1948 Restatement expressly provided that privileged conduct could not be the basis for liability (Restatement of Torts §46 [1948 Supp]), and the comments to the current version signify an intent to continue the privileged-conduct exception: "The conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where [the actor] has done no more than to insist upon his [or her] legal rights in a permissible way, even though he [or she] is well aware that such insistence is certain to cause emotional distress.” (Restatement [Second] of Torts § 46, comment g.)

A newspaper’s publication of a newsworthy photograph is an act within the contemplation of the "privileged-conduct” exception (compare, Hustler Mag. v Falwell, 485 US 46, 56). Thus, even if defendants were aware that publication would cause plaintiff emotional distress (see, Restatement [Second] of Torts § 46, comment f), publication — without more — could not ordinarily lead to liability for intentional infliction of emotional distress. We do not mean to suggest, however, that a plaintiff could never defeat the privilege and state a claim for intentional infliction of emotional distress. But because plaintiffs allegations offer no basis for concluding that the privilege has been abused, we need not explore today what circumstances might overcome the privilege.

That does not conclude our analysis, for plaintiff additionally complains that the manner in which her photograph was obtained constituted extreme and outrageous conduct contemplated by the tort of intentional infliction of emotional distress.

Courts have recognized that newsgathering methods may be tortious (see, e.g., Galella v Onassis, 487 F2d 986, 995 [2d Cir]) and, to the extent that a journalist engages in such atrocious, indecent and utterly despicable conduct as to meet the rigorous requirements of an intentional infliction of emotional distress claim, recovery may be available. The conduct alleged here, however — a trespass onto Four Winds’ grounds— does not remotely approach the required standard. That plaintiff was photographed outdoors and from a distance diminishes her claim even further.

Accordingly, the order of the Appellate Division, insofar as it pertains to the individual defendants, should be affirmed, with costs.

Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

Order, insofar as it pertains to the individual defendants, affirmed, with costs.

      . Subsequent to oral argument, the New York Post filed a chapter 11 bankruptcy petition, which operates as an automatic stay of this proceeding (11 USC § 362 [a] [1]). That stay, however, does not apply to the individual defendants in the circumstances presented. Accordingly, the appeal with respect to the Post is stayed, and this opinion applies only to the individual defendants.

      . Plaintiff does not contest the dismissal of her causes of action for trespass, harassment, prima facie tort and negligent infliction of emotional distress.

      . See, e.g., Harper and McNeely, A Re-examination of the Basis for Liability for Emotional Distress, 1938 Wis L Rev 426; Void, Tort Recovery for Intentional Infliction of Emotional Distress, 18 Neb L Bull 222 (1939); Borda, One’s Right to Enjoy Mental Peace and Tranquility, 28 Geo U 55 (1939); Seitz, Insults-Practical Jokes-Threats of Future Harm — How New as Torts?, 28 Ky LJ 411 (1940).


author: Simons, J. Bellacosa, J.

text:
    In the Matter of John Duffy, Appellant, v Benjamin Ward, as Police Commissioner of the City of New York, et al., Respondents.
    Argued February 9, 1993;
    decided March 30, 1993

      POINTS OF COUNSEL

      Lysaght, Lysaght & Kramer, P. C., Lake Success (Raymond E. Kerno of counsel), for appellant.
    The judgment of the courts below should be reversed because respondents’ determination, summarily dismissing appellant from his civil service position of New York City Police Officer, pursuant to the automatic termination provision for civil servants convicted of misdemeanors under Public Officers Law § 30 (1) (e), was erroneous and should be set aside, where appellant was terminated upon conviction of criminal trespass in the second degree (Penal Law § 140.15), which cannot be construed as to constitute a violation of appellant’s oath of office as a New York City Police Officer. (Matter of Briggins v McGuire, 67 NY2d 965, cert denied sub nom. Briggins v Police Dept., 479 US 930; Matter of Toro v Malcolm, 44 NY2d 146, 439 US 837; People v Armstead, 98 AD2d 726; United States ex rel. Horelick v Criminal Ct., 507 F2d 37; Sroka v Municipal Civ. Serv. Commn., 57 AD2d 1064; Lemieux v City of Niagara Falls, 138 AD2d 945; Matter of Sharkey v Police Dept., 179 AD2d 655.)

      O. Peter Sherwood, Corporation Counsel of New York City (Fay Ng and Elizabeth S. Natrella of counsel), for respondents.
    The Police Commissioner properly terminated petitioner pursuant to Public Officers Law § 30 (1) (e), after he was convicted of criminal trespass in the second degree, a crime which constitutes a violation of his oath of office to enforce the laws and to maintain the public peace. Accordingly, the Court below properly dismissed petitioner’s article 78 proceeding challenging his dismissal. (Matter of Briggins v McGuire, 67 NY2d 965, cert denied sub nom. Briggins v Police Dept., 479 US 930; Matter of Gunning v Codd, 49 NY2d 495; Matter of Hodgson v McGuire, 75 AD2d 763; Canteline v McClellan, 282 NY 166; Matter of Sharkey v Police Dept., 179 AD2d 655; Matter of Coughlin v Regan, 85 AD2d 762; Matter of Bal v Murphy, 55 AD2d 26, 43 NY2d 762; Matter of Bell v Codd, 57 AD2d 814; De Paulo v City of Albany, 49 NY2d 994; People v Basch, 36 NY2d 154.)
   OPINION OF THE COURT

Simons, J.

Petitioner, a New York City Police Officer, was found guilty of the misdemeanor of criminal trespass in the second degree after an off-duty scuffle with another man. Following the conviction, respondent Ward, the Police Commissioner, summarily terminated petitioner’s employment pursuant to Public Officers Law § 30 (1) (e). That provision directs that a public office becomes vacant when the incumbent is convicted of a felony or "a crime involving a violation of his oath of office”. By its terms, section 30 (1) (e) applies to any felony conviction (Matter of Graham v Coughlin, 135 AD2d 1014, affd 72 NY2d 1014) but the second clause of the statute, which must be interpreted to decide this appeal, has a less certain meaning. We conclude that in applying the statute to misdemeanor convictions arising outside the line of duty, courts should look not to the facts of the particular case but solely to the elements of the crime. Inasmuch as the elements of criminal trespass in the second degree (Penal Law § 140.15), charged here, cannot be read to constitute a crime involving a violation of petitioner’s oath of office, he should have been afforded a hearing before termination.

I

Evidence introduced at petitioner’s criminal trial established that he was driving on a Queens street when the driver of the vehicle in front of him stopped and left his vehicle unattended while he went to open his garage door. The stopped vehicle temporarily blocked petitioner’s passage, thereby provoking an argument between the two until the driver went into his residence. Petitioner followed him into the vestibule and the disagreement quickly escalated into a scuffle involving petitioner, the driver and other residents. Finally, petitioner drew his service revolver, pointed it at the driver and the others to restrain them and then left to summon police. Much to petitioner’s surprise, when the police arrived and investigated the incident, they arrested him instead of the driver.

In a nonjury trial, petitioner was acquitted of misdemeanor criminal mischief in the fourth degree (Penal Law § 145.00) and misdemeanor menacing (Penal Law § 120.15) but convicted on the criminal trespass count. Following the conviction respondent signed a "Final Order of Dismissal” summarily terminating petitioner’s employment. Petitioner then instituted this CPLR article 78 proceeding seeking reinstatement. Supreme Court concluded that a trespass on private property in the heat of an argument did not violate petitioner’s oath of office for purposes of the statute. A divided Appellate Division reversed, the majority finding that "petitioner entered private premises unlawfully prolonging a dispute when his adversary had retreated, an act clearly violative of his oath to protect property”. (182 AD2d 361, 363.) We now reverse and reinstate the order and judgment of Supreme Court.

II

The predecessor to Public Officers Law § 30 (1) (e) was enacted more than a century ago (L 1892, ch 681, §20). The statute remains substantially unchanged today. Its directive is "clear and unqualified”: every public office automatically becomes vacant upon a conviction falling within its purview (Matter of Toro v Malcolm, 44 NY2d 146, 149-150; see, Matter of Obergfell, 239 NY 48, 50, rearg denied 239 NY 589; Matter of Breslin v Leary, 35 AD2d 794, 795). Summary termination is not a punishment for the officeholder’s crime, and reversal of the conviction on appeal does not automatically entitle the officeholder to return to the vacated position (see, Public Officers Law § 30 [1] [e] [procedures for seeking reinstatement following reversal or vacation of conviction]; Matter of Hays v Ward, 179 AD2d 427, 428, lv denied 80 NY2d 754; see also, Matter of Toro v Malcolm, supra; Matter of Briggins v McGuire, 67 NY2d 965, cert denied sub nom. Briggins v Police Dept., 479 US 930). Rather, the statute’s requirement that the office be vacated on conviction reflects two legislative concerns. First, as a practical matter, governmental work should not go unattended, or a position unfilled, while a convicted officeholder pursues a potentially lengthy appeal (Matter of Toro v Malcolm, supra, at 150; Matter of Briggins v McGuire, supra, at 967). Second, and more fundamentally, the public has a "right to rest assured that its officers are individuals of moral integrity in whom they may, without second thought, place their confidence and trust” (Matter of Toro v Malcolm, supra, at 152). Although the result of implementing the statute is sometimes harsh, it is clear that "the balance must be struck in favor of the public” when the officer’s interest is weighed against that of State’s citizens (id., at 151-152; see also, Matter of Briggins v McGuire, supra).

III

When an officeholder’s termination is premised on a "crime involving a violation of [the] oath of office”, two questions are raised. First, should a court, before sustaining a vacatur, look solely to the elements of the crime as set forth in the Penal Law or may it permissibly review the underlying facts of the particular incident leading to the criminal charge (compare, De Paulo v City of Albany, 49 NY2d 994 [statutory definition of offense was not related to officer’s oath]; and Matter of Sharkey v Police Dept., 179 AD2d 655, 657 ["Resort to the record is necessary in order to ascertain whether the officer violated his oath of office”])? Second, what type of misdemeanor comes within the terms of the statute?

The courts have disagreed on how to articulate the appropriate test — and even whether such a test can be articulated— for determining the scope of the section. In the present proceeding Supreme Court declared that the statute reaches only crimes indicative of a "lack of moral integrity” (143 Misc 2d 851, 852-853). The Appellate Division expressly rejected that standard as too narrow (182 AD2d 361, 363). By contrast, the Second Department has proposed that a per se violation of an officer’s oath occurs only when the underlying conduct is "intimately related to official duties” (Matter of Sharkey v Police Dept., 179 AD2d 655, 656 supra). Respondent offers still another view: that the Legislature, by choosing not to state a more exact standard in the statute, intended that each conviction be evaluated on its facts in light of the particular oath taken. Because the oath prescribed by the State Constitution requires each public officer to swear to "faithfully discharge the duties of the office” (NY Const, art XIII, § 1), the test for a section 30 (1) (e) offense would necessarily vary, under respondent’s theory, depending upon the precise duties of the particular office.

Despite the lack of agreement on the appropriate standard, the courts have most often sustained summary dismissal. Officers have been dismissed, for example, following convictions for perjury (Lemieux v City of Niagara Falls, 138 AD2d 945, lv denied 72 NY2d 806), conspiracy to bribe (Sroka v Municipal Civ. Serv. Comma., 57 AD2d 1064), reckless endangerment (Matter of DeCaro v Ward, Sup Ct, NY County, Index No. 19130/85, affd without opn 134 AD2d 967) and assault (Matter of Farnworth v Ward, Sup Ct, NY County, Index No. 20131/86, affd without opn 141 AD2d 1011, lv denied 72 NY2d 810). In only one case cited was the officer’s petition granted. In that case, Matter of Sharkey v Police Dept. (179 AD2d 655, supra), the Second Department held that an officer’s conviction for driving while intoxicated following a fatal automobile crash was not sufficient to trigger summary termination; a civil service hearing was needed to develop fully the facts of the incident to determine whether dismissal was warranted. Petitioner also relies on our decision in Matter of De Paulo v City of Albany (49 NY2d 994, 996, supra), in which three Judges of a six-Judge Court stated in dicta that the violation of the oath must be found in the definition of the offense. The remaining three Judges, although concurring in result, took issue with the definitional approach and argued that the underlying facts should be analyzed: "Obviously in such a case it should be the conduct, not the label placed upon it, which determines the sanction” (id., at 997 [Wachtler, J., concurring]).

Analysis starts by recognizing that the alternatives are not either summary dismissal or continued employment as a police officer. Dismissal may still occur after a hearing. The practical effect of granting petitioner a hearing will be to ensure that he is afforded an opportunity to present his version of the incident before a determination is made on whether dismissal is warranted (see, Civil Service Law § 75).

Understanding that over-all statutory scheme is critical to understanding the purposes of Public Officers Law § 30 (1) (e). In making convictions upon certain crimes grounds for immediate dismissal, the Legislature implicitly acknowledged that no factual showing by the officeholder was needed, for under no circumstances could facts unique to the incident mitigate the violation of the public trust confirmed by, and arising from, the criminal conviction. Thus, all felony convictions, whether on duty or off duty, whether crimes of violence or crimes of deception, trigger automatic dismissal. It follows that the second category of offense in section 30 (1) (e), "a crime involving a violation of [the] oath of office”, should likewise be interpreted in such a way that no factual inquiry is needed to trigger automatic dismissal.

To construe the law as giving the Commissioner unbridled discretion to make a fact-based determination about dismissal but foreclosing the opportunity to develop the facts, would risk the potential for arbitrary government action. To be sure a public officer has the opportunity to make a factual record in the criminal proceeding, but because of defense strategy, plea bargaining, or other reason unrelated to fitness for office, may not do so. The employee should not be placed in the position of choosing between a criminal defense strategy and the need to preserve public office. If the facts of the conduct underlying conviction are to be relevant to dismissal, they should be developed in an appropriate civil forum, not taken from the unexplained conduct charged in the accusatory instrument as the dissent maintains (dissenting opn, at 136).

Accordingly, a misdemeanor conviction for conduct outside the line of duty will be "a crime involving a violation of [the] oath of office” under Public Officers Law § 30 (1) (e) only if the violation is apparent from the Penal Law’s definition of the crime.

IV

The remaining question is what crimes fall within section 30 (1) (e)’s purview. Petitioner, like all New York City Police Officers, took the oath prescribed by the State Constitution (art XIII, § 1) to "support the constitution of the United States, and the constitution of the State of New York,” and to "faithfully discharge the duties of the office of’ police officer. Implicit in that oath is a vow to uphold the laws of New York. Thus, it might well be thought that any criminal conduct, undertaken knowingly, would violate the oath. That construction of the statute could not have been intended by the Legislature, however, for it would effectively read out of the statute the limiting language of the phrase, "a crime involving a violation of his oath of office” (emphasis added). Instead, meaning must be found in the underlying rationale for the statute.

The statute’s purpose is to assure citizens that their public officers are individuals of "moral integrity” worthy of confidence and trust (Matter of Toro v Malcolm, 44 NY2d 146, 152, supra). While the oath itself does not expressly establish a duty to act with moral integrity, the very act of taking the oath is rendered meaningless if the officer lacks the capacity to swear honestly or has no serious intention of abiding by its promises. When an officer’s moral integrity is called into question, so is the oath, and the public’s trust in its government is necessarily undermined — the very concern Public Officers Law § 30 (1) (e) was meant to address (see, Sroka v Municipal Civ. Serv. Commn. 57 AD2d 1064, supra; see also, Matter of Pesale v Beekman, 81 AD2d 590; Lemieux v City of Niagara Falls, 138 AD2d 945, supra; cf., Matter of Sharkey v Police Dept., 179 AD2d 655, supra). Thus, reading Public Officers Law § 30 (1) (e) as reaching only those misdemeanors that demonstrate a lack of moral integrity construes the provision in a manner consistent with the statute’s underlying purposes and, at the same time, gives practical effect to the Legislature’s manifest intention to draw some limits on the invocation of summary dismissal.

Accordingly, we hold that for misdemeanor convictions arising outside the line of duty, Public Officers Law § 30 (1) (e) applies to crimes that, as defined in the Penal Law, arise from knowing or intentional conduct indicative of a lack of moral integrity. We have not had occasion to define what specific offenses constitute crimes implicating "moral integrity”, and it may be impossible to demarcate the precise boundaries of the term, but we note that "integrity” has been defined as "freedom from every biasing or corrupt influence or motive” (46 CIS 1100). As Chief Judge Cardozo said of the term "dishonesty”, the critical consideration is "an infirmity of purpose” (World Exch. Bank v Commercial Cas. Ins. Co., 255 NY 1, 5). For a crime to be one demonstrating a lack of moral integrity, it must be one involving willful deceit or a calculated disregard for honest dealings. More than intent or a criminal mens rea is needed for summary dismissal; there must be an intentional dishonesty or corruption of purpose inherent in the act prohibited by the Penal Law.

V

It remains only to apply our holdings to the matter before us. Upon doing so it becomes apparent that the petition to set aside the termination must be granted. Criminal trespass in the second degree occurs when a person "knowingly enters or remains unlawfully in a dwelling” (Penal Law § 140.15). In contrast to misdemeanors such as perjury (see, Penal Law §§ 210.00, 210.05) or bribery (see, e.g., Penal Law § 180.00), for example, a lack of moral integrity is not implicit in the elements of criminal trespass. A conviction for the offense may arise during the heat of argument, as Supreme Court found here, or as a result of an unreasonable belief that one had license to enter or remain (cf., People v Basch, 36 NY2d 154, 159). In neither circumstance would moral integrity of the actor necessarily be called into question. Thus, we conclude that criminal trespass is not the sort of misdemeanor that can be construed facially as a crime "involving a violation of [the] oath” for purposes of Public Officers Law § 30 (1) (e), and summary dismissal was not warranted. The facts assumed by respondent in terminating petitioner and by the dissent are serious indeed, but petitioner seeks to explain and controvert those facts. A hearing is required so that the extent and nature of his misconduct can be resolved before he is disciplined (see, Civil Service Law § 75; McKinney’s Uncons Laws of NY § 891 [L 1940, ch 834]).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order and judgment of Supreme Court, New York County, reinstated.

Bellacosa, J.

(dissenting in part). I respectively dissent for essentially the reasons expressed in the majority memorandum at the Appellate Division, and would affirm its order upholding the New York City Police Commissioner’s summary dismissal of appellant-petitioner from the police force.

The determinative question should not be whether the definition of criminal trespass in the second degree, as an abstract proposition under Penal Law § 140.15, involves a violation of a police officer’s oath of office. Rather, the key to this case should be whether appellant’s particular misdemeanor conviction for criminal trespass involved "a violation of his oath of office” (Public Officers Law § 30 [1] [e]).

While off duty, this officer became involved in a street argument stemming from his becoming blocked in the roadway in his vehicle. He was behind another driver who had stopped in the middle of the street and left his vehicle, leaving no lane for cars to pass. Both drivers left their cars and engaged in a shouting match. The officer then pursued the private citizen on foot into that citizen’s private dwelling place. There, the officer escalated the situation significantly by drawing his service revolver and pointing it at several people, including the driver whom he had followed into the building.

The officer was ultimately arrested and charged with several crimes. The fact that he was acquitted of two of the charges (menacing and criminal mischief) does not change or mitigate the essence of the criminal conduct for which he was charged and convicted. The accusatory instrument, in customary form, particularized the criminal acts that violated Penal Law § 140.15. He was thus convicted of the conduct specified in that charge, not of a disembodied Penal Law definition.

In my view, appellant’s conviction in this case strikes at the heart of his oath as a police officer to uphold the peace, not to breach and threaten it. He is surely unfaithful to his oath when he converts common street-sparring-with-words into a far more dangerous brawl by trespassing into another’s private dwelling space, and by displaying his "off duty” firearm in a manner suggesting threatened use by pointing it at people.

Appellant’s counsel expressly asked for a rule that allows the Police Commissioner to take cognizance of the facts underlying a conviction when applying Public Officers Law § 30 (1) (e). Taking the legal proposition and the facts as presented on this record for the judicial review of that agency head’s disciplinary determination, I discern no possible legal justification, in a civil departmental disciplinary context, for this officer’s oath-defying conduct. Thus, with or without consideration of the underlying specific conduct, I would conclude that the Appellate Division correctly grasped that this individual’s crime undeniably transgressed his oath as a police officer within the meaning of the employment disciplinary statute, and that the Police Commissioner justifiably fired him summarily.

Chief Judge Kaye and Judges Titone, Hancock, Jr., and Smith concur with Judge Simons; Judge Bellacosa dissents and votes to affirm in a separate opinion.

Order reversed, etc.

       Because the Court concluded that Public Officers Law § 30 (1) (e) reached only "crimes” and not "violations” like disorderly conduct (the sole offense for which petitioner was convicted), the definitional analysis was not needed to dispose of the appeal.


author: Bellacosa, J.

text:
    Phoenix Acquisition Corporation et al., Plaintiffs, v Campcore, Inc., et al., Defendants, Chester Wickwire, Respondent, and Marine Midland Bank, N. A., Appellant.
    Argued February 11, 1993;
    decided March 30, 1993

      POINTS OF COUNSEL

      Hancock & Estabrook, Syracuse (Thomas C. Buckel, Jr., of counsel), for appellant.
    I. The alleged April 1983 default in paying one installment did not automatically start the Statute of Limitations running for all subsequent installments due by Campcore. (Newgold v Woodstock Dev. Corp., 26 AD2d 142, 19 NY2d 894; Utica Mut. Ins. Co. v Knox, 71 AD2d 763; True v Brainard, 134 Misc 70; Matter of Philippe, 31 Misc 2d 193, 19 AD2d 587, 14 NY2d 600; Continental Ill. Natl. Bank & Trust Co. v Best, 20 F Supp 80; Quackenbush v Mapes, 123 App Div 242; Oneida Natl. Bank & Trust Co. v Kranz, 70 Misc 2d 595; First Natl. City Trust Co. v Caserta, 29 Misc 2d 166; Thompson v Willson, 183 Misc 949, 269 App Div 829.) II. The judgment affirmed by the Court below improperly required Marine Midland Bank to return collateral pledged by Wickwire as security for his guaranty, since the lien of the collateral was not impaired even if the remedy for recovery of the debt was barred by the Statute of Limitations. (Hulbert v Clark, 128 NY 295; Allstate Ins. Co. v Consolidated Mut. Ins. Co., 35 AD2d 535; People v Freeman, 110 App Div 605; McCoy v American Express Co., 253 NY 477; House v Carr, 185 NY 453; Hills v Flynn, 161 App Div 127; Matter of Lacaille, 44 Misc 2d 370.)

      Theodore Fenstermacher, Cortland, for respondent.
    I. The guaranty is unenforceable, and respondent Wickwire is discharged from any liability thereunder, by reason of the Statute of Limitations. (American Trading Co. v Fish, 42 NY2d 20; Peoples Trust Co. v O’Neil, 273 NY 312; Chemical Bank N. Y. Trust Co. v Amory, 27 AD2d 730, 21 NY2d 832; General

      Phoenix Corp. v Cabot, 300 NY 87; Marine Midland Bank v Walter Perlstein, Inc., 175 AD2d 523; Bayside Fuel Oil Depot Corp. v Savino Oil & Heating Co., 133 AD2d 658.) II. The within guaranty is unenforceable because appellant Marine Midland did not give respondent Wickwire the prescribed 30-day notice of Campcore, Inc.’s default. (Andes Co-op. Dairy Co. v Commercial Cas. Ins. Co., 207 App Div 102, 237 NY 622.) III. Because his guaranty is unenforceable, respondent Wickwire’s collateral security therefor should be returned to him. (Knight v Knight, 182 AD2d 342.)
   OPINION OF THE COURT

Bellacosa, J.

We granted leave in this case to decide whether defendant debtor Campcore, Inc.’s default on one installment payment under its promissory note triggered the Statute of Limitations accrual against the entire debt. Upon that initial default in the installment payment, the creditor, Marine Midland Bank, chose not to exercise its option to accelerate the balance of the indebtedness. At issue is Marine’s attempt to recover against a guarantor, Chester Wickwire (Wickwire), on otherwise timely portions of Campcore’s debt. Supreme Court and the Appellate Division ruled that the Statute of Limitations blocked Marine’s reach against guarantor-Wickwire, because Wickwire became obligated to pay the whole debt upon the initial default in a payment by Campcore. On the grant of leave to appeal to Marine, we now reverse the order of the Appellate Division.

I.

In July 1978, appellant creditor Marine loaned Campcore $500,000, secured by a promissory note providing, in part, that "[t]he holder hereof shall have the option to declare the balance due and owing hereunder at any time to be immediately due and payable * * * upon the happening of * * * 1. Nonpayment of any sum of principal or interest on the date which the same shall become due”. The term loan agreement between the debtor and creditor contained a corresponding acceleration option exercisable unilaterally by the creditor bank. Marine later acquired a mortgage from Phoenix Acquisition Corp. and Dome Corp. as security for the loan.

Wickwire guaranteed a portion of the loan as follows: "[T]he undersigned hereby absolutely and unconditionally guaranties the full and prompt payment to Bank when due, whether by acceleration or otherwise, of such indebtedness of the borrower to Bank to the extent of [$105,000] and the unpaid accrued interest thereon.” This guaranty also contained a provision that Marine would notify Wickwire of default in payment of any installment of principal or interest within 30 days after such default. The guaranty further added that "[i]f any default shall be made in the payment of the above indebtedness, the [guarantor] hereby agrees to pay the same to the extent above provided [ ] without requiring protest or notice of nonpayment to the [guarantor]”.

On April 1, 1983, Campcore defaulted on a principal payment of $6,000 plus interest. From October 1983 to October 1987, Campcore made partial payments on other installments on the note, but it never regained currency on the payments of its indebtedness. In January 1988, Marine notified Camp-core that its 1978 term loan had matured and demanded payment in full — the principal balance of $244,593.51 and interest due of $21,190. Litigation ensued in August 1990 when plaintiffs Phoenix Acquisition Corp. and Dome Corp. sought to rescind the mortgage held by Marine securing the loan. In October 1990, as a cross claim in that action, Wick-wire sought a declaration that Marine’s claim on the Wick-wire guaranty was time-barred.

The Supreme Court granted Wickwire’s motion for summary judgment, and the Appellate Division affirmed. In reversing, we hold that separate causes of action accrued as installments of the loan indebtedness became due and payable. We reject guarantor Wickwire’s argument that Creditor-Marine’s action was barred by the Statute of Limitations because any action with respect to the entire debt accrued all at once on April 1, 1983 upon the initial default in an installment payment.

IL

The contractual language fixes the boundaries of the legal obligation of the guarantor. Without acceleration of the entire debt by Marine, Wickwire was liable only for the payment of the installment which was due and payable and in default. The Statute of Limitations began to run only for that discrete obligation and amount. The fact that Marine had a bargained-for, exclusive acceleration option to call the entire indebtedness due immediately upon any default does not, by operation of law, trigger the accrual of a cause of action for portions of the indebtedness which neither the debtor nor the guarantor were then liable to pay.

By the terms of the promissory note and the term loan agreement between Marine and Campcore, payments of principal and interest became due and payable according to a specified repayment schedule. Unless Marine exercised the acceleration option, the balance of the loan was not due and payable by the debtor. The guaranty obligated Wickwire to make "full and prompt payment to Bank when due, whether by acceleration or otherwise” of "indebtedness” of Campcore to Marine, up to the limit of $105,000 plus interest. The Wickwire guaranty is an explicit guaranty of "payment * * * when due”. Therefore, Wickwire became explicitly and contractually liable only for sums which were due and payable.

Wickwire acknowledges that the extent of the debtor’s liability following a single, skipped installment payment would depend on whether the creditor exercised the acceleration option. However, he would contrast the debtor’s limited obligation on a default in a single payment from his broader immediate obligation to pay the entire debt as guarantor, including amounts not accelerated and not yet due and payable by the debtor. Wickwire finds support for this view in particular language of the guaranty, which stipulates that "[i]f any default shall be made in the payment of the above indebtedness, the undersigned hereby agrees to pay the same to the extent above provided”, and contends that the "extent above provided” is the maximum amount of the guaranty, $105,000. The Appellate Division accepted that distinction, finding that "[t]he guarantee provides that Wickwire is obligated to pay the entire debt (up to $105,000) upon 'any’ default by the debtor.” (182 AD2d 1101.)

We do not agree that the language of this guaranty supports an extension of the obligation of the guarantor beyond the indebtedness which is due and payable by the debtor in the first instance. The portion of the guaranty instrument which articulates liability upon "any default * * * to the extent above provided” is part of a paragraph discussing notice requirements. It should not be invoked to add obligations to the substantive guaranty liability. Moreover, the express limitation, "to the extent above provided” should be read, in conjunction with the primary guaranty obligation clause, "when due, whether by acceleration or otherwise”. This liability refers only to amounts due and payable to the limit of $105,000.

Apart from the language of the guaranty, the authorities relied upon to trigger a complete accrual upon any default in these circumstances also falter. General Phoenix Corp. v Cabot (300 NY 87) is concerned essentially with the distinction between a guaranty of payment and a guaranty of collection. That case holds that where a guaranty is one of payment, liability under a guaranty attaches and a cause of action accrues against the guarantor as soon as there is a default by the debtor in the payment of the obligation. Chemical Bank N. Y. Trust Co. v Amory (27 AD2d 730, affd no opn 21 NY2d 832), explicitly concerned a demand promissory note. The Statute of Limitations affecting a note payable upon demand, without doubt, begins to run from the date of its execution (McMullen v Rafferty, 89 NY 456, 459 [1882]). Thus, the holding of Amory, that the obligation of a guarantor attaches and the Statute of Limitations begins to run on execution and delivery of a demand note, does not govern this case. Demand and installment obligations are critically distinct in this context and warrant different considerations and results under the Statute of Limitations’ microscope.

Wickwire would regard Marine’s failure in fact to exercise its option to accelerate against debtor-Campcore as irrelevant in the dispute between the creditor and the guarantor. This is so, Wickwire argues, because a guarantor’s obligations to a lender are "separate and distinct” from those which exist between a lender and a borrower. Wickwire’s position in this Statute of Limitations context is that even though the indebtedness which is guaranteed is not payable by the primary debtor by the terms of the loan agreement, "all of the conditions to the liability of the guarantee have occurred”. However, the law does not so gingerly differentiate between the roles of guarantor and debtor in such a way as to vitiate, for limitations purposes, the fundamental coextensiveness of their substantive obligations (see, McMullen v Rafferty, 89 NY 456, 459, supra). Had Marine exercised its acceleration option following the April 1, 1983 default, it would have triggered an obligation by Wickwire to pay Campcore’s entire indebtedness up to $105,000 and interest. But Marine chose not to do so. Thus, a crucial link in the chain of events surrounding the accrual of the creditor’s claim was left disconnected.

Next, Wickwire presses the point that the policy interests served by the Statute of Limitations override the unexercised acceleration option where an obligation against a guarantor is pursued. These statutes "compel the exercise of a right of action within a reasonable time” (18 Williston, Contracts § 2020, at 673 [3d ed 1978]), to avoid "the disrupting effect that unsettled claims have on commercial intercourse” (Note, Developments in the Law — Statutes of Limitations, 63 Harv L Rev 1177, 1185). However, these important policy values are not without significant competing policy considerations in the circumstances of this case and the kind of commercial transaction at issue here. If a creditor’s action against a guarantor accrues wholly and immediately at the point of the first default in payment — the six-year limitations period for any action against the guarantor clocking in at that point — then creditors would be left with no alternative or incentive but to accelerate the entire debt or risk losing all opportunity to pursue the guaranty. The prudent commercial practice rule would keep in place incentives to the creditor to proceed with some flexibility in working with the debtor based on stipulated contractual provisions. In that dynamic, for example, parties might be able to continue to work toward amicable and fair resolutions between themselves rather than immediately drawing litigation swords and marching off to a courthouse.

Finally, Wickwire presents an alternative basis for affirmance. He claims that a notice requirement in the guaranty was a condition precedent to the enforcement of the guaranty. The guarantor’s bargained-for right to notice is not without significant practical and legal effect. However, the trial court correctly found that the parties did not intend the notice provision contained in this guaranty to serve as a condition precedent and, therefore, that feature of this case does not preclude Marine from enforcing the guaranty (Barhydt v Ellis, 45 NY 107 [1871]). Barhydt involved a guaranty which, like the one at issue here, included inconsistent provisions regarding the effects of a failure to give notice. The Court in Barhydt reconciled the provisions by classifying the notice provision as a positive condition, not a condition precedent to liability. As a positive condition, it might mitigate a creditor’s claim by the amount of damages resulting from the alleged failure to notify. Inasmuch as we are reversing the order of the Appellate Division and denying Wickwire’s motion on summary judgment for dismissal on Statute of Limitations grounds, we also remit the matter to Supreme Court to determine the issue of the positive condition of notice.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant Wickwire’s motion to dismiss Marine Midland’s answer or for summary judgment on its cross claim denied.

Chief Judge Kaye and Judges Simons, Titone and Smith concur; Judge Hancock, Jr., taking no part.

Order reversed, etc.