author: Jasen, J.

text:
    Eric Liff et al., as Executors of the Estate of Joseph Liff, Deceased, Appellants, v Herman Schildkrout, Respondent. Ronald Grant, as Administrator of the Estate of Patricia Grant, Deceased, et al., Appellants, v Richard Guidotti et al., Defendants, and Edgardo Macalino, Respondent. Vincent Ventura, as Administrator of the Estate of Anthony Ventura, Deceased, Respondent, v Consolidated Edison Company, Inc., et al., Appellants, et al., Defendants. Gannon Personnel Agency, Inc., Plaintiff, v City of New York et al., Defendants. (And 40 Other Actions.)
    Argued February 5, 1980;
    decided March 27, 1980

      POINTS OF COUNSEL

      Seymour L. Colin, P. C., for appellants in the first above-entitled action.
    I. The original wrongful death statute and its successors have mandated fair and just compensation for any pecuniary injury resulting from wrongful death. Loss of consortium constitutes an injury judicially recognized as capable of being valued in money and is a legally cognizable pecuniary injury. There is no sound basis for the exclusion of loss of consortium as an element of damage in a wrongful death action. (Gross v Abraham, 306 NY 525; Oldfield v New York & Harlem R. R. Co., 14 NY 314; Tilley v Hudson Riv. R. R. Co., 24 NY 471, 29 NY 252; McIntyre v New York Cent. R. R. Co., 37 NY 287; Lockwood v New York, Lake Erie & Western R. R. Co., 98 NY 523; Butler v Manhattan Ry. Co., 143 NY 417; Matter of Snedeker v Snedeker, 164 NY 65; Sea-Land Servs. v Gaudet, 414 US 573; London v Cunningham, 1 Misc 408; Bennett v Bennett, 116 NY 584.) II. If stare decisis presently serves to exclude permanent loss of consortium as an element of damage in a wrongful death action, we respectfully request that, the rule being judicially created, this court should reconsider it; and consistent with the philosophy expressed in Millington v Southeastern Elevator Co. (22 NY2d 498), this court should authoritatively expunge the anomaly which permits recovery for temporary loss of consortium in a personal injury action and denies recovery for permanent loss of consortium in a wrongful death action brought under a statute which mandates recovery for pecuniary injuries sustained by the distributees. The court should approve the ruling of the court below in Ventura v Consolidated Edison Co. (65 AD2d 352). (Sea-Land Servs. v Gaudet, 414 US 573; Fabrizi v Griffin,
      162 F Supp 276; Tilley v Hudson Riv. R. R. Co., 29 NY 252; Williams v Hill, 19 Wend 305; Duhan v Milanowski, 75 Misc 2d 1078.)

      Robert W. De Verna for respondent in the first above-entitled action.
    I. The wrongful death cause of action is created and controlled by a statute which does not authorize a recovery for permanent loss of consortium in favor of the surviving spouse. (Phoenix Ind. Co. v Staten Is. R. T. Ry. Co., 251 NY 127, 281 US 98; Matter of Estate of Klein, 162 Misc 589; Matter of Meng, 227 NY 264; Travelers Ins. Co. v Padula Co., 224 NY 397; Stuber v McEntee, 142 NY 200; Tilley v Hudson Riv. R. R. Co., 24 NY 471; Sternfels v Metropolitan St. Ry. Co., 73 App Div 494; Loetsch v New York City Omnibus Corp., 291 NY 308; Horton v State of New York, 50 Misc 2d 1017.) II. A widow has no continuing derivative cause of action for loss of consortium after the death of her spouse since the decedent’s underlying cause of action for conscious pain and suffering terminates at the time of death. (Millington v Southeastern Elevator Co., 22 NY2d 498; Osborn v Kelley, 61 AD2d 367.) III. Clear legislative intent, which excludes permanent loss of consortium from injuries compensable in a wrongful death action, is not subject to change by judicial interpretation. (Grant v Guidotti, 66 AD2d 545; Buduson v Curtis, 285 App Div 517, 309 NY 879; Matter of Erikson v Helfand, 1 AD2d 59, 1 NY2d 775; Matter of Jones, 43 Misc 2d 390; Green v Hudson R. R. Co., 28 Barb 9, 2 Abb Ct App 277.)

      S. Mac Gutman for appellants in the second above-entitled action.
    I. Mr. Grant is vested with a common-law cause of action for loss of consortium, upon which he timely sued. There is no basis in case law, statutory law, or in reason for denying his right to recover damages. (Martins v Ford, 53 AD2d 887; Kilberg v Northeast Airlines, 9 NY2d 34; Ratka v St. Francis Hosp., 44 NY2d 604; Tilley v Hudson Riv. R. R. Co., 24 NY 471; Bell v Cox, 54 AD2d 920; Millington v Southeastern Elevator Co., 22 NY2d 498; Moragne v States Mar. Lines, 398 US 375; Bing v Thunig, 2 NY2d 656; Green v Hudson Riv. R. R. Co., 28 Barb 9, 2 Abb Ct App 277; Osborn v Kelley, 61 AD2d 367.) II. Since respondent did not argue in the trial court or in the court below that Mr. Grant’s common-law action is barred by EPTL 5-4.1, he has waived this defense. (Nasaba Corp. v Harfred Realty Corp., 287 NY 290; Lee v Corn Exch. Bank Trust Co., 270 App Div 2, 295 NY 945;
      Lindlots Realty Corp. v County of Suffolk, 251 App Div 340, 278 NY 45.) III. As the complaint clearly stated a separate cause of action for loss of consortium on behalf of Ronald Grant, the caption will be amended to state that Mr. Grant sues individually and as administrator. (Boyd v United States Mtge. & Trust Co., 187 NY 262; Riviera Congress Assoc. v Yassky, 48 Misc 2d 282, 25 AD2d 291, 18 NY2d 540; Martins v Ford, 53 AD2d 887.)

      Patricia D'Alvia for respondent in the second above-entitled action.
    I. At common law there is no separately vested and established personal cause of action for loss of consortium after death. (Green v Hudson Riv. R. R. Co., 28 Barb 9, 2 Abb Ct App 277; Archambeault v Draper, 101 F Supp 1004; Caffaro v Trayna, 35 NY2d 245; Kilberg v Northeast Airlines, 9 NY2d 34; George v Mt. Sinai Hosp., 47 NY2d 170; Matter of Meng, 227 NY 264; Moragne v States Mar. Lines, 398 US 375; Sea-Land Servs. v Gaudet, 414 US 573; Millington v Southeastern Elevator Co., 22 NY2d 498; Woods v Lancet, 303 NY 349.) II. Assuming that loss of consortium was compensable, plaintiif is barred by the two-year time limitation under EPTL 5-4.1. (Sharrow v Inland Lines, Ltd., 214 NY 101; McDonough v Cestare, 3 AD2d 201; Matter of Meng, 227 NY 264; Titus v Poole, 145 NY 414.) III. Loss of consortium is not compensable in a death action under EPTL 5-4.3 which governs the right of recovery as it is a nonpecuniary injury. (Bell v Cox, 54 AD2d 920; Amerman v Lizza & Sons, 45 AD2d 926; Millington v Southeastern Elevator Co., 22 NY2d 498; Tilley v Hudson Riv. R. R. Co., 24 NY 471, 29 NY 252; Ferrara v Galluchio, 5 NY2d 16; Halio v Lurie, 15 AD2d 62; Sternfels v Metropolitan St. Ry. Co., 73 App Div 494, 174 NY 512; Oldfield v New York & Harlem R. R., 14 NY 310; Gilbert v Stanton Brewery, Inc., 295 NY 270; Mobil Oil Corp. v Higginbotham, 436 US 618.) IV. Any alteration or addition to the compensable damages recoverable under the death statute should come from the Legislature under our public policy. (Matter of Granger v Urda, 44 NY2d 91; Endresz v Friedberg, 24 NY2d 478; Bing v Thunig, 2 NY2d 656; Silver v Great Amer. Ins. Co., 29 NY2d 356; Woods v Lancet, 303 NY 340.)

      Joseph D. Ahearn, Ernest J. Williams and Michael Majewski for Consolidated Edison Company of New York, Inc., appellant in the third above-entitled action.
    I. Since this jurisdiction does not recognize a common-law cause of action for wrongful death, and since the pertinent statute (EPTL 5-4.3) specifically limits damages to "pecuniary injuries”, the court below erred in holding that loss of consortium is a pecuniary injury and thus compensable in a wrongful death action. (Caffaro v Trayna, 35 NY2d 245; Kilberg v Northeast Airlines, 9 NY2d 34; George v Mt. Sinai Hosp., 47 NY2d 170; Ratka v St. Francis Hosp., 44 NY2d 604; Grant v Guidotti, 66 AD2d 545; Amerman v Lizza & Sons, 45 AD2d 996; Loetsch v New York City Omnibus Corp., 291 NY 308; Campbell v Westmoreland Farm, 403 F2d 939; Alvez v American Export Lines, 46 NY2d 634; Millington v Southeastern Elevator Co., 22 NY2d 498.) II. In any event, even assuming, arguendo, the existence of a loss of consortium claim in a wrongful death action, plaintiffs action herein against defendant City of New York is time-barred. (Millington v Southeastern Elevator Co., 22 NY2d 498; Asch v City of New York, 34 AD2d 778; Goldberg v Camp Mikan-Recro, 42 NY2d 1029.)

      Allen G. Schwartz, Corporation Counsel (Bernard Burstein, L. Kevin Sheridan and Irving Cohen of counsel), for City of New York, defendant in the third above-entitled action.
    I. In New York a claim of damages resulting from death is exclusively a matter of statute (EPTL 504.1 et seq.) Ratka v St. Francis Hosp. (44 NY2d 604). (Grant v Guidotti, 66 AD2d 545; Green v Hudson Riv. R. R. Co., 28 Barb 9, 2 Abb Ct App 277; Baird v Daly, 57 NY 236; Matter of Meekin v Brooklyn Hgts. R. R. Co., 164 NY 145; Sharrow v Inland Lines, Ltd., 214 NY 101; Kilberg v Northeast Airlines, 9 NY2d 34; Caffaro v Trayna, 35 NY2d 245; Greco v Kresge Co., 277 NY 26; Ratka v St. Francis Hosp., 44 NY2d 604; Moragne v States Mar. Lines, 398 US 375.) II. The adjective "pecuniary” in the New York death statute (since 1847) is a limitation on the kinds of injuries compensable in death actions, and, by definition, excludes recovery for "loss of consortium” (i.e., "society”). (Mobil Oil Corp. v Higginbotham, 436 US 618; Sea-Land Servs. v Gaudet, 414 US 573; Alvez v American Export Lines, 46 NY2d 634; Millington v Southeastern Elevator Co., 22 NY2d 498; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Bender v Jamaica Hosp., 40 NY2d 560; Greco v Kresge Co., 277 NY 26; Grant v Guidotti, 66 AD2d 545; Michigan Cent. R. R. Co. v Vreeland, 227 US 59; Matter of (New York & Brooklyn Bridge, 72 NY 527.)

      Norman E. Frowley and Abraham Fuchsberg for respondent in the third above-entitled action.
    I. Loss of consortium is a proper item of damages under the New York State wrongful death statute (EPTL 5-4.3). (Millington v Southeastern Elevator Co., 22 NY2d 498; Tilley v Hudson Riv. R. R. Co., 24 NY 471; Spadaccini v Dolan, 63 AD2d 110; Moragne v States Mar. Lines, 398 US 375; Alvez v American Export Lines, 46 NY2d 634; Sea-Land Servs. v Gaudet, 414 US 573; Lehman v Columbia Presbyt. Med. Center, 93 Misc 2d 539; Ratka v St. Francis Hosp., 44 NY2d 604; Lockwood v New York, Lake Erie & Western R. R. Co., 98 NY 523; Kronenbitter v Washburn Wire Co., 4 NY2d 524.) II. The court below correctly reasoned that loss of consortium in a wrongful death case does not constitute a separate cause of action but is an element of damage sustained by the widow-distributee; the claim, therefore, is not "time barred”. (Osborn v Kelley, 61 AD2d 367; Asch v City of New York, 34 AD2d 778; Millington v Southeastern Elevator Co., 22 NY2d 498; Alvez v American Export Lines, 46 NY2d 634.)
   OPINION OF THE COURT

Jasen, J.

The issues on these appeals are whether a surviving spouse, in his or her individual capacity, may maintain a common-law cause of action for loss of consortium due to death and whether loss of consortium may be asserted as an element of damages within a wrongful death action.

In Liff v Schildkrout, the complaint alleges that Joseph Liff died on September 29, 1975 as a result of the malpractice of defendant, Dr. Schildkrout. Plaintiffs, executors of decedent’s estate, served a complaint setting forth two causes of action. The first cause of action sought to recover damages for pain and suffering by the decedent prior to his death, whereas the second cause of action sought to recover damages for the wrongful death of decedent.

After issúe was joined, plaintiffs made a motion seeking leave to serve an amended complaint which would set forth an additional cause of action on behalf of the decedent’s widow, Hilda Liff, for damages for loss of consortium or, in the alternative, deeming the original complaint and bill of particulars amended to include a claim for the widow’s loss of consortium. Special Term granted the motion only to the limited extent of permitting plaintiffs to set forth "a third cause of action on behalf of the widow for loss of consortium during the period of the decedent’s conscious pain and suffering” and ordered that the bill of particulars be amended accordingly. On appeal, the Appellate Division, Second Department, unanimously affirmed the order of Special Term, and plaintiffs appeal to this court on a certified question.

In Grant v Guidotti, the operative facts are as follows: Patricia Grant died on July 20, 1975, while under anesthesia for a Caesarean section at Long Island College Hospital. More than two years after decedent’s death, this action sounding in medical malpractice was commenced against the hospital and three physicians who participated in the surgery. The action was brought in the name of decedent’s husband, Ronald Grant, as administrator of decedent’s estate, and decedent’s two minor children to recover damages for the wrongful death of decedent, for the loss of parental guidance on behalf of the infant distributees, and for the plaintiff husband’s loss of consortium due to the death of his wife.

Thereafter, defendant Macalino moved to dismiss the complaint on the grounds that the wrongful death action was barred by the two-year Statute of Limitations (EPTL 5-4.1) and that the cause of action for loss of consortium was barred for lack of a proper party plaintiff since decedent’s husband did not sue in his individual capacity. Plaintiffs cross-moved for an order amending the caption of the complaint to set forth Ronald Grant’s individual capacity in the action.

Special Term, in two separate orders, granted defendant Macalino’s motion to sever and dismiss the complaint as against him, denied plaintiffs’ cross motion to amend the caption of the complaint to reflect Ronald Grant’s individual capacity, and dismissed the cause of action for loss of consortium. The Appellate Division, Second Department, unanimously affirmed the judgment of Special Term severing and dismissing plaintiffs’ action as against defendant Macalino. In so doing, that court rejected plaintiffs’ contentions that Ronald Grant is vested with a common-law cause of action for loss of consortium and that this cause of action is not subject to the two-year time limitation embodied in EPTL 5-4.1. Plaintiffs were granted leave to appeal to this court by the Appellate Division.

In Ventura v Consolidated Edison Co., the relevant facts are as follows: On December 11, 1970, one Anthony Ventura died as a result of a gas explosion which occurred in lower Manhattan on that same day. Plaintiff, as administrator of the deceased’s estate, then instituted this action claiming damages for wrongful death and conscious pain and suffering. After trial — limited to the issue of liability — Consolidated Edison Co. and the City of New York, along with other defendants, were found liable and an interlocutory judgment was entered. On appeal, the Appellate Division modified the judgment by striking the finding of liability against, and the apportionment of damages to, the City of New York and remitted the matter for a new trial on the issue of the city’s liability and, after a verdict therein, to apportion damages among all defendants held liable. (Gannon Personnel Agency v City of New York, 57 AD2d 538.)

Prior to the commencement of the new trial, plaintiff moved for an order permitting amendment of the complaint to include a cause of action on behalf of the decedent’s widow, individually, for loss of consortium. Trial Term denied the requested relief, stating that it was "not persuaded that loss of consortium is an element of a wrongful death action.” The Appellate Division, First Department, however, reversed the order of Trial Term, concluding that loss of consortium is a pecuniary injury and, thus, compensable in a wrongful death action. Defendants Consolidated Edison and the City of New York appeal to this court on a certified question.

The first issue for our resolution is whether a surviving spouse, in his or her individual capacity, may maintain a common-law cause of action in this State for loss of consortium due to death which is independent and distinct from a statutory action for wrongful death. (EPTL 5-4.1 et seq.) While we recognize the attractive nature of plaintiffs’ arguments, we decline the invitation to change the law of this State and adhere to our pronouncement in Ratka v St. Francis Hosp. (44 NY2d 604, 610-612) that all causes of action arising from the death of an individual must be maintained in accordance with statutory authority.

Although the origin of the common-law notion that "[i]n a civil court, the death of a human being could not be complained of as an injury” (Baker v Bolton, 1 Camp 493, 170 Eng Rep 1033 [KB, 1808]) has been the subject of much speculation and the cited theoretical underpinnings of the rule itself have drawn serious questions as to their continued vitality (e.g., Moragne v States Mar. Lines, 398 US 375, 382-386), there is simply no room left for debate that the common law of this State, despite numerous opportunities and forceful requests to change, does not recognize suits to recover damages for the wrongful death of an individual. (See, e.g., Ratka v St. Francis Hosp., 44 NY2d 604, 610-612, supra; Caffaro v Trayna, 35 NY2d 245, 248; Kilberg v Northeast Airlines, 9 NY2d 34, 38, and concurring opn, at pp 43-44; Green v Hudson Riv. R. R. Co., 28 Barb 9, affd 2 Abb Ct App 277; Osborn v Kelley, 61 AD2d 367, 370; Sorensen v Balaban, 11 App Div 164, 165.) This is not to say that a decedent’s distributees are without a remedy, for a cause of action for wrongful death has been expressly authorized by statute in this State since 1847 (L 1847, ch 450) and is now embodied in EPTL 5-4.1. (See NY Const, art I, § 16 [right of action to recover for injuries resulting in death may not be abrogated].) Thus, the cause of action for wrongful death has been dubbed "a child of statute”. (See George v Mt. Sinai Hosp., 47 NY2d 170, 176.)

Perhaps the most forthright justification for the refusal by the courts of this State to establish a common-law cause of action for wrongful death is the very existence of the statutory right. This is the clear import of our holding in the Ratka case (supra). The courts have deferred to the wisdom of the Legislature in striking the sensitive balance as to the causes of action which should be permitted to be maintained due to the wrongful death of another and also the measure of damages recoverable. (See Mobil Oil Corp. v Higginbotham, 436 US 618, 623-626.) In short, legislative enactments have preempted this area; the rights accorded by statute being in derogation of the common law, the right to sue for injury sustained due to the death of another must be founded in statutory authority.

Nor can it be said that a spouse’s cause of action for loss of consortium exists in the common law independent of the injured spouse’s right to maintain an action for injuries sustained. (See Millington v Southeastern Elevator Co., 22 NY2d 498, 507-508; Green v Hudson Riv. R. R. Co., 28 Barb 9, supra; Sorensen v Balaban, 11 App Div 164, 165, supra.) In this regard, we adopt the reasoning set forth in Osborn v Kelley (61 AD2d 367, 370, supra) "that insofar as plaintiff is attempting to recover for loss of consortium for the period prior to decedent’s death, a cause of action is stated. (Hentze v Curry Chevrolet Sales & Servs., 46 AD2d 800.) Such a cause of action, however, is a derivative one (cf. Millington v Southeastern Elevator Co., 22 NY2d 498.) The wrongful death statute created a new cause of action based not upon damage to the estate of the deceased because of death, but rather for the pecuniary injury to the surviving spouse and next of kin of the decedent (Greco v Kresge Co., 277 NY 26, 32). Since a decedent has no cause of action to recover damages for his death (EPTL 11-3.3), plaintiff has no derivative cause of action to recover for loss of consortium due to decedent’s death.”

In sum, we decline the invitation to recognize a common-law cause of action on behalf of the surviving spouse for permanent loss of consortium due to the wrongful death of his or her marital partner. Any cause of action or, indeed, remedy predicated upon the loss of one’s spouse must be founded in statutory authority.

Having so concluded, it becomes necessary to determine the issue whether loss of consortium can be claimed as an element of damages within a wrongful death action. Resolution of this issue centers upon an examination of the statutory language embodied in EPTL 5-4.3.

That section — which delineates the measure of damages in wrongful death actions — provides in pertinent part: "The damages awarded to the plaintiff may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought. In every such action, in addition to any other lawful element of recoverable damages, the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent paid by the distributees, or for the payment of which any distributee is responsible, shall also be proper elements of damage.” (EPTL 5-4.3.)

The qualifying phrase "pecuniary injuries” has been retained since the enactment of the first wrongful death statute in this State (L 1847, ch 450) and has been consistently construed by the courts as excluding recovery for grief, and loss of society, affection and conjugal fellowship — all elements of the generic phrase "loss of consortium”. (See, e.g., Tilley v Hudson Riv. R. R. Co., 24 NY 471; Loetsch v New York City Omnibus Corp., 291 NY 308; Bell v Cox, 54 AD2d 920, mot for lv to app den 41 NY2d 805; Hentze v Curry Chevrolet Sales & Servs., 46 AD2d 800, supra; Amerman v Lizza & Sons, 45 AD2d 996; but see Lehman v Columbia Presbyt. Med. Center, 93 Misc 2d 539.) While it is true that one factor often cited by courts in refusing recovery for loss of consortium — that loss of consortium is incapable of measurement in monetary terms— has been repudiated by this court (Millington v Southeastern Elevator Co., 22 NY2d 498, 507, supra), there still exists a fundamental reason why we should not change the present rule of law.

The Legislature, by including the pecuniary injury limitation in its statutory scheme, clearly intended that damages for loss of consortium should not be recoverable in wrongful death actions. The courts, under such circumstances, are not free to consider the relative merits of the arguments in favor of, or in opposition to, this limitation for the Legislature has "struck the balance for us.” (See Mobil Oil Corp. v Higginbotham, 436 US 618, 623, supra.) As shown, the courts of this State have consistently honored this legislative policy of limitation on damages and, given the failure of the Legislature to amend the statute, we conclude that the Legislature has approved this finding and implementation of legislative intent.

In short, we now reaffirm the principle that a claim for loss of consortium will not be recognized within a wrongful death action in this State. If a change should be made, it is for the Legislature, and not the courts, to make. (Cf. Thornton v Roosevelt Hosp., 47 NY2d 780.)

Applying these principles to the cases now before us, we conclude that plaintiffs’ motion to amend the complaint in Liff v Schildkrout to include a claim for the widow’s loss of consortium was properly granted only to the limited extent of permitting such cause of action to reflect loss of consortium during the period of decedent’s conscious pain and suffering. In Ventura v Consolidated Edison Co., however, the Appellate Division erred in holding that loss of permanent consortium due to the death of a marital partner is a pecuniary injury and thus compensable in a wrongful death action. The statutory scheme simply does not allow recovery for such claimed injury.

In Grant v Guidotti, we agree with the disposition of the courts below severing and dismissing plaintiffs’ action as against defendant Macalino. We have declined the invitation to recognize a common-law cause of action for permanent loss of consortium; and, plaintiffs’ wrongful death action being concededly instituted more than two years after decedent’s demise, it was properly dismissed. (EPTL 5-4.1.)

Accordingly, in Liff v Schildkrout, the order of the Appellate Division, should be affirmed, with costs, and the question certified answered in the affirmative.

In Grant v Guidotti, the order of the Appellate Division should be affirmed, with costs.

In Ventura v Consolidated Edison Co., the question certified is answered in the negative. The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, New York County, reinstated.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg taking no part.

In Liff v Schildkrout: Order affirmed, etc.

In Grant v Guidotti: Order affirmed.

In Ventura v Consolidated Edison Co.: Order reversed, etc.


source: Caselaw Access Project

author: Chief Judge Cooke. Meyer, J.

license: Public Domain

text:
    Liliane Feldsberg et al., as Administrators of the Estate of Eric M. Feldsberg, Deceased, Appellants, v James P. Nitschke, Respondent.
    Argued January 9, 1980;
    decided April 1, 1980

      POINTS OF COUNSEL

      Melvin Hirshowitz and Hyman Bravin for appellants.
    I. The lower courts’ construction of CPLR 3117 (subd [a], par 2) erroneously encumbered that crucial provision with archaic and senseless restrictions, creating a conflict with rulings in two other departments. It caused the prejudicial exclusion of a sharply contradictory part of defendant’s deposition. (Spampinato v A. B. C. Cons. Corp., 35 NY2d 283; Perkins v New York Racing Assn., 51 AD2d 585; Rodford v Sample, 30 AD2d 588; Larkin v Nassau Elec. R. R. Co., 205 NY 267; Caplan v City of New York, 34 AD2d 549; People v Wise, 46 NY2d 321; Nose-worthy v City of New York, 298 NY 76; Andersen v Bee Line, Inc., 1 NY2d 169; Merchants Motor Frgt. v Downing, 227 F2d 247; Fey v Walston & Co., 493 F2d 1036.) II. The lower court erred in not permitting plaintiffs’ expert investigator to render an opinion as to the cause of defendant’s failure to produce skid marks. (Dougherty v Milliken, 163 NY 527; Selkowitz v County of Nassau, 45 NY2d 97; Saladow v Keystone Transp. Co., 241 App Div 161; Clark v Iceland S. S. Co., 6 AD2d 544; Dugan v Dieber, 32 AD2d 815.) III. The trial court erred in excluding reliable evidence of the crucial distances at the scene of the accident.

      Michael Majewski and Joseph D. Ahearn for respondent.
    I. This court lacks jurisdiction to entertain the instant appeal since the dissent by Judge Lynch dealt not with a question of law but rather with an alleged erroneous exercise of discretion by the trial court (CPLR 5601, subd [a]). (Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482; Guaspari v Gorsky, 36 AD2d 225, 29 NY2d 891; Christovao v Unisul-Uniao de Coop. Transf. de Tomate do sul do Tejo, S.C.R.L., 41 NY2d 338; Valentino v State of New York, 62 AD2d 1086, 46 NY2d 1072; Florman v Marks, 64 AD2d 687, 46 NY2d 996; Patron v Patron, 40 NY2d 582.) II. Assuming, arguendo, that this court finds jurisdiction, the judgment below is beyond this court’s power of review since only questions of judicial discretion have been presented. (Martin v Alabama 84 Truck Rental, 47 NY2d 721; Donigi v American Cyanamid Co., 43 NY2d 935; Wright v Reusens, 133 NY 298.) III. Since plaintiffs’ counsel called defendant to the stand, questioned him extensively as an adverse witness while utilizing numerous portions of defendant’s deposition in an effort to impeach defendant, the trial court’s subsequent refusal to permit plaintiffs’ counsel to read a repetitive portion of defendant’s deposition was a reasonable exercise of judicial discretion which in no way constituted an abuse of discretion. (Flynn v City of New York, 35 AD2d 936, affg sub nom. Flynn v Poirier & McLane Corp., 29 NY2d 715; Braun v Consolidated Edison Co. of N. Y., 31 AD2d 165, 26 NY2d 825; Spampinato v A. B. C.

      Cons. Corp., 35 NY2d 283.) IV. Assuming, arguendo, that the exclusion of a portion of defendant’s deposition was error, the exclusions were harmless errors. (People v Crimmins, 36 NY2d 230; Cameron v Todd Hotel Corp., 55 AD2d 519; Marton v McCasland, 16 AD2d 781; Matter of Schaich, 55 AD2d 914, 42 NY2d 802; Farhart v Matuljak, 283 App Div 977; Forman v Azzara, 23 AD2d 793, 16 NY2d 955; Heilbronn v New York Life Ins. Co., 243 App Div 558; Brown v Du Frey, 1 NY2d 190; Perkins v New York Racing Assn., 51 AD2d 585; Rodford v Sample, 30 AD2d 588.) V. The refusal by the trial court to permit the introduction of the transparent overlay was proper. (Meiselman v Crown Hgts. Hosp., 285 NY 389; Medina v New York City Tr. Auth., 57 AD2d 946; Dougherty v Milliken, 163 NY 527; Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140; Cassano v Hagstrom, 5 NY2d 643; People v Patrick, 182 NY 131; Gilliard v Long Is. R. R. Co., 45 NY2d 996; Flansburg v Town of Elbridge, 205 NY 423; Leonard v Ashley Welding Mach. & Iron Co., 11 AD2d 1073, 10 NY2d 993; Cromer v Gull Corp., 5 AD2d 850.) VI. The trial court’s refusal to permit plaintiffs’ expert to render an opinion as to the cause of defendant’s failure to produce skid marks was proper. (Meiselman v Crown Hgts. Hosp., 285 NY 389; Capitula v New York Cent. R.R. Co., 200 App Div 247; Boyer v Scripter, 278 App Div 601; Saladow v Keystone Transp. Co., 241 App Div 161; Dugan v Dieber, 32 AD2d 815; Gilliard v Long Is. R. R. Co., 45 NY2d 996; Cassano v Hagstrom, 5 NY2d 643; Weibert v Hanan, 202 NY 328.)
   OPINION OF THE COURT

Chief Judge Cooke.

After a trial in an action for wrongful death and conscious pain and suffering, the jury returned a verdict in favor of defendant. Seeking a new trial, plaintiffs challenge certain evidentiary rulings by the trial court. The primary question is whether CPLR 3117 (subd [a], par 2), which permits the use of an adverse party’s deposition for any purpose, overrides in all instances a trial court’s discretionary power to control the litigation before it. It does not have such an effect and, therefore, the order of the Appellate Division is affirmed.

Decedent, Eric M. Feldsberg, died in 1972, shortly after being struck by a mobile camper operated by defendant on the ramp of Exit 18 on the Connecticut Turnpike. Defendant testified that as he approached the exit ramp, he observed Eric leaning against the guardrail on the right shoulder of the ramp. Eric left his position at the guardrail and approached the pavement. Considering him a hitchhiker, defendant steered the camper to the left and continued to decelerate. Eric then stepped onto the pavement, dodged back and forth, and darted to the island on the left side of the exit. Defendant, apparently confused by Eric’s actions, turned the camper further to the left and stepped hard on the brake. These maneuvers were insufficient to avoid impact and Eric was thrown under the vehicle. Testimony from members of defendant’s family who were traveling with him lent support to defendant’s version of the accident.

Mrs. Petrea Anderson Harris, operating a vehicle immediately behind defendant, was a witness to the accident. Through her pretrial deposition, Mrs. Harris testified that defendant entered the deceleration lane close to the exit ramp. She observed Eric run onto the pavement, break stride, and then continue at a fast pace. She did not see Eric dodge or dart back and forth, but did observe defendant decelerate on the exit ramp, veer to the left and saw his brake lights prior to impact.

Both defendant’s negligence and Eric’s contributory negligence were the underlying issues at trial. Plaintiffs’ theory was that Eric, left off on the right shoulder of the exit ramp by another vehicle, observed the camper make a sharp turn onto the ramp and, in an attempt to avoid the oncoming camper, ran across the road to the island on the left of the ramp.

Defendant had been called as plaintiffs’ witness and had been excused after redirect examination. Plaintiffs, however, requested that defendant be available to give testimony in connection with certain photographs of the accident scene. The court at that point made clear that the recall was not to be for the purpose of repeating conflicts concerning the distances involved or to repeat areas of testimony already covered. Counsel did not object and represented that he did not intend to conduct such an examination, indicating that the only purpose for recalling defendant was for his testimony concerning the photographs. However, when defendant was recalled, counsel for plaintiffs began the examination by asking defendant about his observations of decedent’s conduct. The court sustained a defense objection, reminding counsel of the previous ruling that the recall was to be for the limited purpose of marking the photographs. Counsel acknowledged his understanding of the initial ruling but asserted that he had three matters which came up during the intervening period. After the court refused to permit the additional inquiry, counsel further requested a ruling concerning the use of defendant’s deposition for one question claimed to be inconsistent, asserting that the deposition could be read without defendant being present on the stand. Plaintiffs’ counsel then asked if he could use the deposition with defendant on the stand. In light of the reservation concerning the examination of defendant and considering the use of the deposition to be a further examination of defendant, the court ruled that counsel could not make further use of the deposition.

Plaintiffs urge that the refusal to allow further use of the deposition imposed an unwarranted restriction on the presentation of their case and was contrary to the express terms of CPLR 3117 (subd [a], par 2). That rule provides, "the deposition of a party * * * may be used for any purpose by any adversely interested party”. This provision, adapted from former subdivision (d) of rule 26, now subdivision (a) of rule 32, of the Federal Rules of Civil Procedure (see First Preliminary Report of the Advisory Committee on Practice and Procedure, NY Legis Doc, 1957, No. 6[b], p 146), was intended "to authorize use of a party’s deposition unlimitedly against the deponent” (Sixth Report of the Advisory Committee on Practice and Procedure, NY Legis Doc, 1962, No. 8, p 318). The section permits use of the deposition as evidence in chief without making the party-deponent the witness of the party introducing the deposition or binding the offerer to the deponent’s version of events (see CPLR 3117, subd [d]; Spampinato v A. B. C. Cons. Corp., 35 NY2d 283). Plaintiffs would have this court read CPLR 3117 (subd [a], par 2), not as merely establishing the admissibility of the contents of a deposition as evidence of the facts asserted without a showing that the deponent is unavailable (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3117:3, p 491), but also as establishing an absolute and unqualified right to use the deposition at any time during the course of trial. We decline to adopt plaintiffs’ interpretation, however, for to do so would be to do violence to certain well-settled principles of trial practice.

A trial court is not without power to ensure the orderly and fair administration of justice merely because a particular item of evidence is technically admissible. Although there exist general rules for the conduct of trials, deviation from these rules may be necessary to fit the circumstances of a particular case. Indeed, the power to permit deviation is an integral part of the Trial Judge’s function. The court often has before it complex litigation and is duty bound to assure fairness and avoid unnecessarily protracted or confusing presentation of evidence. This power to control the case necessarily is of a discretionary nature, and its exercise is not reviewable save for a clear abuse of discretion (see Richardson, Evidence [10th ed — Prince], § 459, pp 449-450).

Thus, the order of introducing evidence and the time when it may be introduced are matters generally resting in the sound discretion of the trial court (Philadelphia & Trenton R. R. Co. v Stimpson, 14 Pet [39 US] 448, 463; 6 Wigmore, Evidence [3d ed], § 1867, p 498). This "cardinal doctrine” (6 Wigmore, § 1867, p 498) recognizes the court’s power to permit the introduction of evidence after the close of the offerer’s case (People v Koerner, 154 NY 355; Wright v Reusens, 133 NY 298, 307) or prohibit the same (Agate v Morrison, 84 NY 672). Similarly within the trial court’s control is the method and duration of cross-examination to determine a witness’ credibility or accuracy (see Langley v Wadsworth, 99 NY 61, 63). In addition, while the court may not deprive a party of the right to inquire into matters "directly relevant to the principal issues of the case against him” (People v Ramistella, 306 NY 379, 384), it may, in the proper exercise of discretion, restrict inquiry into collateral matters (see People v Braun, 158 NY 558, 567-569) or prohibit unnecessarily repetitive examination (Matter of Friedel v Board of Regents, 296 NY 347, 351).

Nor can it be doubted that recall of a witness for redirect examination is subject to the discretion of the court (see 6 Wigmore, Evidence [3d ed], § 1898, pp 570-572). Generally, sound trial practice demands that every witness be' questioned in the first instance on all relevant matters of which he has knowledge and be excused at the completion of this testimony. In this manner, the litigation is contained within reasonable limits, the adversary is aware of the evidence he will have to meet and the jury is not unnecessarily confused. Recall at a later point in the trial not only may inject untoward administrative burdens into the litigation by reopening the whole range of prior testimony, but may also unfairly disadvantage the adversary in his ability to meet the proof or unnecessarily divert the jury’s attention away from the material issues of the case. In certain situations, however, the trial court may find it necessary to depart from this general rule and may do so in its discretion (see id., pp 570, 572, quoting People v Mather, 4 Wend 229, 249).

Given the considerable body of law recognizing the trial court’s discretionary power to control the case before it, we cannot accept plaintiffs’ contention that CPLR 3117 (subd [a], par 2) establishes an absolute right on the part of the offerer to use a deposition at any time during the presentation of the case, subject only to the exclusion of repetitious matter. A deposition contains no more than testimonial evidence of the party-deponent and is merely the vehicle by which this evidence comes before the trier of fact. CPLR 3117 confers upon the deposition no special qualities rendering its use immune to ordinary rules of trial practice. Thus, the discretionary power to control the use of live witnesses applies with equal force to control the use of a deposition. Of course, in exercising its discretion, the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present his case. But such an abuse of discretion does not infect the ruling here.

Notwithstanding plaintiffs’ protests to the contrary, it is readily apparent that the proffered use of the deposition was merely to continue the examination of defendant, to highlight one more apparent inconsistency. Faced with an adverse ruling concerning the scope of examination on recall, plaintiffs’ counsel asserted the right to read the deposition without defendant on the stand. In the circumstances of this case, the trial court could properly reject this attempt to circumvent its ruling.

Plaintiffs had ample opportunity to present any inconsistencies between defendant’s trial testimony and his deposition. Indeed, after calling defendant to the stand, counsel for plaintiffs conducted an exhaustive examination into defendant’s perceptions and reactions and confronted him with inconsistencies in his deposition. Defendant testified fully concerning the distance between the vehicle and decedent when decedent started to move across the exit ramp. Plaintiffs’ counsel had the opportunity then to use the allegedly inconsistent statement in the deposition. Either through inadvertence or as part of a conscious strategy, he failed to do so.

After affording plaintiffs a full opportunity to elicit testimony concerning the distances involved, the trial court, in an effort to control the case before it, could limit re-examination, through either defendant or his deposition, into matters covered extensively in earlier examination. Whether viewed as a continued examination of defendant on recall or simply as reuse of the deposition, the trial court could properly reject plaintiffs’ attempt to do indirectly what it had ruled could not be done directly.

Of course, this is not to say that the exclusion of a deposition is proper merely because the party-deponent has already testified or is present and available (see Spampinato v A. B. C. Cons. Corp., 35 NY2d 283, supra; Perkins v New York Racing Assn., 51 AD2d 585; Rodford v Sample, 30 AD2d 588; Merchants Motor Frgt. v Downing, 227 F2d 247). Rather, we simply find it inappropriate to establish a per se rule which would strip the court of all power to prevent unnecessary repetition or unfair surprise simply because a deposition is offered (see Coughlin v Capitol Cement Co., 571 F2d 290, 308, n 31; Fey v Walston & Co., 493 F2d 1036, 1046). Like all other evidence, the use of the deposition is subject to the trial court’s control.

Indeed, exclusion of the deposition worked no prejudice to plaintiffs. Although characterizing the deposition testimony as directly contradicting defendant’s trial testimony, a closer examination reveals that the conflict is more apparent than real. At the deposition, defendant testified that decedent was approximately 20 feet away when he went directly in front of the vehicle. Defendant testified at trial that when decedent took one or two steps onto the concrete he was 25 to 50 yards away, when he moved further over the concrete slab he was about 20-25 yards away and finally, when he darted back and forth, he was between 5 to 15 yards away. Thus, the portion of the deposition sought to be introduced apparently conflicted with testimony relating to a different point in time; any remaining discrepancy is of minor significance. Additionally, although there was sufficient evidence to show that defendant was negligent, there was ample evidence to support a finding that decedent was contributorily negligent. In light of the evidence and plaintiffs’ considerable attack on defendant’s credibility, the exclusion of the offered portion of the deposition, even if it were deemed erroneous, would not warrant reversal.

Turning then to plaintiffs’ additional assignments of error, we find no basis for reversal. Addressing defendant’s testimony that there were no skid marks from his vehicle, plaintiffs sought to introduce testimony of an expert as to the cause of skid marks. Assuming without deciding that this was a proper area for expert testimony, this testimony was properly excluded. The investigator was not shown to have been familiar with the circumstances of the particular accident and, thus, in the absence of a proper foundation, any testimony concerning the lack of skid marks would have been speculative. Similarly proper was the exclusion of a transparent overlay which purported to represent the distances at the accident scene. As the measurements were made by pacing the distances, the trial court could properly exclude the overlay as not presenting accurate figures for the jury’s consideration.

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

Meyer, J.

(dissenting). Crucial to the determination of this appeal is the fact that the three questions and answers plaintiffs sought to read from defendant’s deposition constituted an admission on his part bearing materially upon the issue of decedent’s contributory negligence. I agree that neither CPLR 3117 nor CPLR 4514 gives a party the absolute right to decide the point in the trial at which he will read to a jury an inconsistent statement of his opponent made during a deposition taken under oath. Both sections deal with admissibility and while either would make the three questions and answers in issue admissible, neither deals with the time at which such evidence is to be introduced nor indicates that the right to introduce it may not be waived. That does not leave the matter in the wholly unfettered discretion of the Trial Judge, however. Admissible evidence is not to be excluded on the basis of generalizations concerning what the effect of its admission could be, but rather only when the specific circumstances of the particular case warrant doing so. Under the circumstances of this case exclusion of the three questions and answers was an abuse of discretion, prejudicial to plaintiffs, and requires reversal and the granting of a new trial.

As then Judge Fuld put it in another context in Ando v Woodberry (8 NY2d 165, 167), "[I]t is well to recall the principle, basic to our law of evidence, that 'All facts having rational probative value are admissible’ unless there is sound reason to exclude them, unless, that is 'some specific rule forbids’ (1 Wigmore, Evidence [3d ed., 1940], p. 293). It is this general principle which gives rationality, coherence and justification to our system of evidence and we may neglect it only at the risk of turning that system into a trackless morass of arbitrary and artificial rules.” A corollary of that principle is that though the Trial Judge has the power through his control of the conduct of the trial to exclude admissible evidence for reasons of fairness, it is not a power to be exercised by way of pavlovian reaction, but only when there is good reason, in terms of unfairness to the opposing side in so doing. The role of a Trial Judge is a great deal more than that of a traffic cop (see People v Moulton, 43 NY2d 944, 945), but of necessity it is the trial lawyer who determines in the first instance the order in which proof will be presented. He may offer evidence at a particular time to accommodate the convenience of witnesses, because he feels the facts can be most simply presented in a particular order or because he considers a particular point in the trial the time when specific items of evidence will have the greatest- effect on the jury. As concerns clearly relevant and material evidence, his choice, whether strategic or inadvertent, should not be the basis for excluding such evidence from consideration by the jury unless it would in fact be unfair to the other side not to exclude it. Though unfairness was argued by defendant’s attorney, the record clearly demonstrates that there was none.

The majority acknowledges that there was sufficient evidence to take the negligence issue to the jury (p 646), but its statement of general rules and characterization of plaintiffs’ attorney’s conduct obscures the issue upon which the Trial Judge ruled and its relationship to the contributory negligence issue. It will be helpful, therefore, to sharpen focus as to the issue under discussion.

The specific questions and answers which plaintiffs’ counsel sought to read in order to show inconsistency in Dr. Nitschke’s testimony were:

"Question: How far away was he when he went directly in front of you?

"Answer: I don’t recall.

"Question: Could you say it was as far as twenty feet?

"Answer: It may have been.

"Question: Might it have been farther than twenty feet?

"Answer: I doubt it. I really don’t recall exactly.”

It is undisputed that this portion of the deposition had not previously been put before the jury, that plaintiffs’ attorney sought simply to read the questions and answers to the jury without the defendant on the stand, and that defendant had never been examined concerning a statement by him that decedent was no more than 20 feet from defendant when decedent was directly in front of the camper. Irrelevant, therefore, is discussion of the recall of a witness (pp 643-644), the reopening of a whole range of testimony (p 644), diversion of the jury’s attention from the main issues of the case (p 644), limiting re-examination of a witness (p 645), and unnecessary repetition (p 645). Likewise inappropriate is the suggestion that plaintiffs sought to "continue the examination of defendant” by the proffered use of the deposition (p 644), for the majority recognizes (p 644, n 2) that CPLR 4514 makes any prior inconsistent statement under oath admissible and agrees (p 644, n 3) CPLR 3117 permits use of the deposition alone as such a statement. The inappropriateness of the suggestion becomes apparent if we suppose that the out-of-court statement of defendant had been made in an MV-104 report, for that paper would be admissible on the certification of the Commissioner of Motor Vehicles alone at any point in the trial without reference to whether defendant were on the stand at the time or his deposition had been used to contradict him, or even if he had never taken the stand and his deposition had never been read, simply because the statement constituted an admission.

It is, moreover, a misreading of the record to suggest that plaintiffs’ counsel was attempting to "circumvent” the adverse ruling concerning scope of examination on recall (p 644). Counsel did first ask if he could use the deposition while defendant was on the stand but, the Trial Judge having ruled he could not, then asked for a ruling whether he could read from it an inconsistency. The Trial Judge apparently did not believe his prior rulings were being circumvented for he first ruled that he would permit use of the deposition "for that limited purpose”, but then, in light of plaintiffs’ attorney’s limited reservation with respect to further examination of defendant, reversed himself and sustained the objection. Plaintiffs’ attorney then pointed out his right to read the deposition without defendant on the stand and the court reserved decision until after the luncheon recess. After recess, on the basis of additional research, plaintiffs’ attorney quoting from Wig-more argued that an admission of an opponent can be used against him without calling him and that a deposition is no less an admission than any other statement of the opponent. The Trial Judge then ruled that having called defendant and used his deposition in the course of that examination plaintiffs’ counsel had made an election and could not thereafter utilize the deposition for any purpose (a ruling which the majority agrees [p 644, n 3] was erroneous). He never focused on whether there would be any unfairness to defendant in permitting it to be used, perhaps because any question of possible unfairness had been removed from the case when plaintiffs’ counsel, pointing out to the court that he only sought to read from the deposition, not to recall defendant, said "The only reason I mention Dr. Nitschke is in the spirit of fair play, so that he may be here if there are any answers counsel wants him to make.” Had counsel not so forewarned his opponent, there would nevertheless be substantial question whether reading the questions and answers could be held unfair (cf. Gonzalez v Medina, 69 AD2d 14, 21-22 ["The right of the party to read the deposition transcript of an adverse party is not dependent upon the voluntary decision made by the adverse party to absent himself from the trial”]). Since he did, the absence of unfairness is clear.

Thus, the Trial Judge’s ruling was based on his erroneous view of the law as to plaintiffs’ election, rather than on his discretionary assessment of unfairness or confusion that might arise if defendant’s otherwise relevant and admissible admission was put before the jury, but if the ruling be considered nevertheless to have been discretionary, it must nonetheless be reversed as an abuse of discretion in light of the total absence from the record of any indication of unfairness or possible jury confusion.

Nor can I agree with the majority that the error was harmless. To be borne in mind is the fact that this is an action for both wrongful death and conscious pain, in which the burden of proof as to contributory negligence is on the defendant. The contention of plaintiffs was that Dr. Nitschke did not make his turn into the exit lane until he was nearly past the deceleration lane (an added lane at the extreme right-hand side of the turnpike, several hundred yards in length), which would have put defendant’s vehicle much closer to decedent at the time of defendant’s turn than did defendant’s version. Defendant’s contention was that he had entered the deceleration lane near its beginning, that decedent had started across the exit lane when defendant was close to him and had reversed course several times in front of the camper before being struck. Had defendant entered the deceleration lane when he said, decedent would have had longer warning of defendant’s intended use of the exit lane, and, therefore, greater time to evaluate his own movements, and the probability of a jury finding of contributory negligence would likewise be enhanced. The fact that Dr. Nitschke had testified at his examination before trial that decedent was but 20 feet away when he went directly in front of defendant, but testified at trial to distances of up to 50 yards when decedent stepped onto the concrete, 25 yards when he was three quarters of the way across the concrete of the exit lane, and 5 to 15 yards when decedent began to go back and forth as defendant claimed was bound to be of greater than minor significance in the jury’s deliberations. It bore materially on whether the jury believed defendant’s claim of an early turn into the deceleration lane. It also lent some credence to defendant’s darting back and forth contention, which was much more possible to have occurred over a 75-foot or a 45-foot distance than at a 20-foot distance. Mrs. Harris, the driver of the car behind the Nitschke camper as it entered the exit lane, placed its entry quite close to the exit lane, and testified as to decedent’s movements (not all of which could she see) that he hesitated and then ran quite fast when he disappeared from her view in front of the camper. Her testimony on those points would tend to negate defendant’s contention that decedent darted back and forth. Moreover, both her markings on a photograph and defendant’s wife’s trial testimony placed decedent off the exit lane and on its left-hand shoulder at the time he was struck. In light of the foregoing, it is impossible to conclude that the jury’s verdict may not have been different than it was had the Trial Judge not erroneously excluded the questions and answers he did.

In view of my conclusion concerning the deposition point, I deem it unnecessary to discuss the expert testimony rulings.

For the foregoing reasons, I vote to reverse the order of the Appellate Division and grant a new trial.

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

Order affirmed, with costs.

      .  In reaching the merits of the instant appeal, it is first noted that defendant incorrectly argues that the dissent at the Appellate Division was not on a question of law and thus precludes an appeal as of right (see CPLR 5601, subd [a]). The dissent did not consider the trial court’s ruling merely an improper exercise of discretion. Rather, the dissent, in essence, viewed CPLR 3117 as prohibiting the trial court’s limitation on the use of the deposition. The dissent, therefore, was on the law and the appeal is properly before the court.

      . Plaintiffs also place reliance on CPLR 4514, which permits introduction of a prior inconsistent statement sworn or subscribed by the witness for purposes of impeachment. This section, however, no more limits the trial court’s general powers of control than does CPLR 3117.

      . As part of the ruling, the trial court stated that plaintiffs had elected to call defendant and use the deposition in the course of that examination and could not thereafter offer into evidence the deposition alone. If the court considered CPLR 3117 to mandate such an election, this portion of the rationale was erroneous. The record, however, reveals that the court’s ruling was predicated primarily on an exercise of discretion after a consideration of the circumstances of the particular case.

      . The argument that the inconsistent statement may also be considered an admission does not render the trial court’s ruling erroneous. Plaintiffs exploited defendant as a witness through both live testimony and the deposition. Plaintiffs simply were not deprived of a meaningful opportunity to present material evidence to the trier of fact.

      . Accord: People v Wise (46 NY2d 321, 327): "In case of doubt, therefore, the balance should be struck in favor of admissibility” (cf. People v Ramistella, 306 NY 379, 384, cited by the majority).

      . "He” refers to plaintiffs’ decedent.

      . Even to contradict statements of defendant in a deposition of defendant read by plaintiff as part of his case in chief (Yeargans v Yeargans, 24 AD2d 280).

      . "It is well settled law that in a civil action the admissions by a party of any fact material to the issue are always competent evidence against him wherever, whichever and to whomsoever made” (Nappi v Falcon Truck Renting Corp., 286 App Div 123, 126, affd 1 NY2d 750 [citing Reed v McCord, 160 NY 330, 341]; see, also, Fisch, New York Evidence [2d ed], § 791).

      . He quoted from the Fourth Edition. The present version is to be found at volume 5 of Wigmore on Evidence (Chadbourne rev, § 1416, p 243).

      . Taken a year and a half after the accident.

      . Some four and a half years after the accident.


author: Meyer, J. Gabrielli, J.

text:
    Nancy J. Tedeschi, Appellant, v Wagner College, Respondent.
    Submitted February 4, 1980;
    decided April 1, 1980

      POINTS OF COUNSEL

      Harry Grossman for appellant.
    I. Defendant-respondent acted arbitrarily in regard to the suspension of plaintiff-appellant without any hearing as contractually called for by its rules and guidelines. (Goldstein v New York Univ., 76 App Div 80; People ex rel. Cecil v Bellevue Hosp., 60 Hun 107, 128 NY 621; Matter of Carr v St. John’s Univ., N. Y., 17 AD2d 632, 12 NY2d 802; Anthony v Syracuse Univ., 224 App Div 487; Matter of Ryan v Hofstra Univ., 67 Misc 2d 651; Matter of Sofair v State Univ. of N. Y. Upstate Med. Center Coll. of Medicine, 54 AD2d 287; Wisch v Sanford School, 420 F Supp 1310; Matter of Kwiatkowski v Ithaca Coll., 82 Misc 2d 43.) II. The suspension of plaintiff-appellant by defendant-respondent without any charges or any hearing was violative of her due process rights. (Matter of Hecht v Monaghan, 307 NY 461; Matter of De Prima v Columbia-Greene Community Coll., 89 Misc 2d 620; Brookins v Bonnell, 362 F Supp 379; Matter of Murray v Murphy, 24 NY2d 150; Matter of Bolles-Texas Corp.

      v Board of Stds. & Appeals of City of N. Y., 53 Misc 2d 798; Matter of Citron v O’Shea, 244 App Div 158; Matter of Merritt v Swope, 267 App Div 519; Morgan v United States, 304 US 1.)

      Howard Newman for respondent.
    I. When a university under the circumstances shown here, acts within its jurisdiction, not arbitrarily but in the exercise of an honest discretion based upon facts within its knowledge that justify the exercise of discretion, a court may not review this exercise of discretion. (Wisch v Sanford School, 420 F Supp 1310; Matter of Carr v St. John’s Univ., N. Y, 17 AD2d 632, 12 NY2d 802; Goldstein v New York Univ., 76 App Div 80; Anthony v Syracuse Univ., 224 App Div 487; Matter of Kwiatkowski v Ithaca Coll., 82 Misc 2d 43.) II. Plaintiff-appellant has failed to show any facts whatsoever that would constitute a violation of any due process or abuse of discretion. (San Antonio School Dist. v Rodriguez, 411 US 1; Matter of De Prima v Columbia-Greene Community Coll., 89 Misc 2d 620; Powe v Miles, 407 F2d 73; Grossner v Trustees of Columbia Univ. in City of N. Y., 287 F Supp 535.) III. The court found that defendant-respondent did in fact attempt to afford a hearing which was ignored by plaintiff-appellant. IV. The proof adduced by plaintiff has failed to show any evidence of any damage sustained.
   OPINION OF THE COURT

Meyer, J.

This appeal concerns the effect of guidelines or rules published by a private educational institution upon its right to suspend a student. We hold that such an institution is bound by its own rules and, therefore, reverse the order of the Appellate Division and remit the matter to the Supreme Court, Richmond County, for entry of a judgment in accordance with this opinion.

Plaintiff Nancy Jean Tedeschi was admitted to Wagner College, a private institution, in September, 1976. She was a part-time student taking courses in mathematics, Latin and psychology. Her performance during the fall semester presented both academic and social problems, however. Dr. Thompson, her Latin professor, testified that she did not participate in class, did not know the required material and only once of the several times called upon was able to answer correctly even a simple question about Latin grammar. Her conduct during class was also disruptive in that three or four times during each period she would pick up her handbag and leave the room, returning after two to five minutes.

On the evening of December 20, 1976 Ms. Tedeschi sat for her Latin examination, but at the end of it dramatically tore up her blue book and did not hand it in. In response to her question, Dr. Thompson advised her that without an examination score her grade for the course would be an F. Beginning at 4 a.m. the next morning and continuing until late in the evening of December 22, Dr. Thompson was subjected to a barrage of telephone calls in which Ms. Tedeschi repeatedly threatened to commit suicide, or to "fix” Dr. Thompson, and at one point appeared in a distraught condition at the front door of his home. Only when the police were summoned and advised plaintiff of the possible criminal consequences did the calls cease.

On January 10, 1977 through his secretary, Dr. Wendel, the academic dean, contacted plaintiff and her mother by telephone to arrange a meeting with them for the purpose of discussing plaintiff’s academic situation, in view of her incomplete grades in two courses. Plaintiff, however, refused to meet stating that there was no problem. There followed, nevertheless, another series of harassing calls by plaintiff to Dr. Thompson. Later that evening in a telephone conversation between Dr. Thompson and Nancy’s mother, Mrs. Tedeschi refused to discuss the matter with college officials and insisted that any problem should be presented to her in a formal letter from the college. The next day plaintiff was orally advised by Dr. Wendel that she was suspended by the college because of her bad character and the repeated disruption of her Latin class. Thereafter she met with the academic dean, the dean of students and an assistant to the president, who testified that during the interviews plaintiff’s conduct was irrational and discussion fruitless. By letter dated January 13, 1977 plaintiff was advised by the dean of students, Dr. Guttu, that after consultation with Dr. Wendel and other members of the faculty and the administration, she was "withdrawn from classes for the 1977 spring semester” but could, if she wished, reapply in the fall. Shortly thereafter plaintiff’s tuition for the spring semester was refunded. Plaintiff’s mother testified that she called the school several times to arrange a hearing, but without success.

Plaintiff then began this action alleging that she had not been granted a hearing or afforded an opportunity to defend herself and that she had been arbitrarily frustrated in completing her education. She asked for an order reinstating her and for damages. The trial court found that there was no constitutional violation since Wagner College was not State involved, that it could not review the decision to suspend plaintiff on the basis of her academic record, that the disciplinary aspects of her suspension were not arbitrary, that the college was obligated only to act in good faith, that the informal procedure followed was believed to be in plaintiffs best interests and that she had failed to prove any damage. On appeal from the judgment for defendant entered on that decision, the Appellate Division affirmed by a divided court. The majority took note of the college guideline quoted below but held that plaintiff had rebuffed several attempts by the college to arrange a conference; the dissenters reasoned that the relationship between a college and its students is contractual and that the college was bound to follow its own rules relating to suspension. Though we do not arrive at our conclusion on exactly the same reasoning, we agree with the dissenters below that the college has not conformed to the procedure its guidelines prescribed and that plaintiff is entitled to have it do so. We, therefore, reverse.

The guideline referred to is part of a publication distributed by the office of the dean of students entitled 1976-1977 Guidelines of Wagner College. The portion pertinent to this appeal reads:

"Whenever it shall appear that any student is not making satisfactory progress in his studies, and that his scholastic standing does not meet the requirements specified by the Committee on Academic Standards he shall be discharged from the College. If for any other cause a student is deemed to be an unfit member of the College, the Dean of Students may notify parents or guardians in order that they may have an opportunity to withdraw the student.

"A student may be suspended or expelled from the College by the Dean of Students or the Dean of Academic Affairs. If he is suspended or expelled for any cause other than failure in his academic work, and has not had recourse to a hearing before an established College Court, he shall have the right to be heard by the Student-Faculty Hearing Board which shall present its findings to the President of the College for final determination. ’ ’

The differentiation between suspension or expulsion for academic unfitness and suspension or expulsion for causes other than academic failure drawn in that guideline reflects the dichotomy in decisional law drawn along similar lines.

As is recognized by our recent decision in Matter of Olsson v Board of Higher Educ. (49 NY2d 408) and the cases cited therein, because matters involving academic standards generally rest upon the subjective judgment of professional educators, courts are reluctant to impose the strictures of traditional legal rules. Though such matters are subject to judicial scrutiny, the issue reviewed in such a case is whether the institution has acted in good faith or its action was arbitrary or irrational.

Suspension or expulsion for causes unrelated to academic achievement, however, involve determinations quite closely akin to the day-to-day work of the judiciary. Recognizing the present day importance of higher education to many, if not most, employment opportunities, the courts have, therefore, looked more closely at the actions of educational institutions in such matters.

The legal theory upon which review should be predicated in such cases is, however, not entirely clear. Plaintiff argues, and the dissenters in the Appellate Division agree, that the student-private college relationship is contractual and that it is an implied term of the contract that rules such as the Wagner College Guidelines will be adhered to by the college. There is support for that concept in decisional law (Matter of Carr v St. John’s Univ., N. Y., 17 AD2d 632, affd 12 NY2d 802; People ex rel. Cecil v Bellevue Hosp. Med. Coll., 60 Hun 107, affd 128 NY 621; Goldstein v New York Univ., 76 App Div 80; Drucker v New York Univ., 59 Misc 2d 789) and in legal commentary as well (Beach, Fundamental Fairness in Search of a Legal Rationale in Private College Expulsions, 2 J Coll & Univ L 65, at pp 65-70, 79-81; Center for Law & Education, The Constitutional Rights of Students: Analysis and Litigation Materials For The Student’s Lawyer, pp 371-372 [hereafter "Student’s Lawyer”]; Note: 48 Ind LJ 253; Note: 37 Ohio State LJ 608; Note: 72 Yale LJ 1362).

Contract theory is not wholly satisfactory, however, because the essentially fictional nature of the contract results in its generally being assumed rather than proved, because of the difficulty of its application, and because it forecloses inquiry into, and a balancing of, the countervailing interests of the student on the one hand and the institution on the other (see Matter of Ryan v Hofstra Univ., 67 Misc 2d 651, 659; "Student’s Lawyer”, at p 372; Abrams & Hofman, Common Law Rights for Private University Students: Beyond the State Action Principle, 84 Yale LJ 120, 122, 143-144 [hereafter "Common Law Rights”]; Rabban, Judicial Review of the University-Student Relationship: Expulsion and Governance, 26 Stan L Rev 95, 97, 104-106 [hereafter "Judicial Review”]). An added problem is that when urged in academic achievement as distinct from nonacademic matters the contract tends to be limited to the implied in law condition of good faith, i.e., not to act arbitrarily (cf. Matter of Olsson v Board of Higher Educ., supra) to the ultimate confusion of the rules applicable in the two situations.

An alternate basis for review of nonacademic disputes between students and private colleges, the application of the principles of the law of associations, is supported by case law in some other States (Baltimore Univ. v Colton, 98 Md 623; Abbariao v Hamline Univ. School of Law, — Minn —, 258 NW2d 108, 112; Commonwealth ex rel. Hill v McCauley, 3 Pa County Ct 77; see Student Bar Assn. v Byrd, 293 NC 594; Blatt v University of So. Cal., 5 Cal App 3d 935) as well as by legal commentators (Chafee, Internal Affairs of Associations Not for Profit, 43 Harv L Rev 993, 996, 1013-1014, 1026, 1028-1029; Developments in the Law — Judicial Control of Actions of Private Associations, 76 Harv L Rev 983, 989, 1011, 1014, 1032 [hereafter "Developments”]; "Student’s Lawyer”, at pp 373-374; "Common Law Rights”, at pp 140-150; "Judicial Review”, at pp 112-117, 119-129).

The law of associations accords judicial relief to an association member suspended or expelled without adherence to its rules (Chafee, op. cit., at pp 1014, 1018-1020; "Developments”, at pp 995, 1021; 14 CJS 1288-1289, Clubs, § 17; 6 Am Jur 2d 465-468, Associations & Clubs, §§ 36, 37). The courts of this State have consistently recognized the right to such relief (Browne v Hibbets, 290 NY 459; Polin v Kaplan, 257 NY 277; Simons v Berry, 240 NY 463; People ex rel. Deverell v Musical Mut. Protective Union, 118 NY 101; People ex rel. Meads v McDonough, 8 App Div 591; Loubat v Le Roy, 40 Hun 546).

The parallel between associations and universities is, of course, not exact since students do not participate in the governance of a university with the same voice as generally do members in the functioning of an association (cf. "Common Law Rights”, at pp 144-145). The situation is further confused by the facts that at least in part the association law under discussion is stated in terms of contract (Browne v Hibbets, supra, at p 466; Polin v Kaplan, supra, at p 282), and that in several cases the obligation to follow its own rules has been applied to a private university without reference to contract law (Matter of Kwiatkowski v Ithaca Coll., 82 Misc 2d 43, 48; Matter of Ryan v Hofstra Univ., 67 Misc 2d 651, 660-661, supra; see Matter of Olsson v Board of Higher Educ., 66 AD2d 196, 198, revd on other grounds 49 NY2d 408, supra; Matter of Sofair v State Univ. of N. Y. Upstate Med. Center Coll. of Medicine, 54 AD2d 287, 292, revd on other grounds 44 NY2d 475).

We do not find it necessary in the present case to resolve such problems as may arise out of the different theoretical predicates. Whether by analogy to the law of associations, on the basis of a supposed contract between university and student, or simply as a matter of essential fairness in the somewhat one-sided relationship between the institution and the individual, we hold that when a university has adopted a rule or guideline establishing the procedure to be followed in relation to suspension or expulsion that procedure must be substantially observed.

We are brought then to a consideration of the guideline in question in relation to the suspension of Nancy Tedeschi. Had her suspension been solely for unsatisfactory progress in her studies, the guideline would have imposed no further obligation on the college and the only judicially re viewable question would have been whether it had acted in good faith (Matter of Olsson v Board of Higher Educ., supra). Moreover, there was substantial compliance with so much of the guideline as required that Nancy’s parent be notified that Nancy was considered unfit for a cause other than academic, since Dr. Wendel sought to arrange a meeting between Mrs. Tedeschi and college officials to discuss Nancy’s problems.

The guideline permits either the dean of students or the dean of academic affairs to expel or suspend a student. The withdrawal letter forwarded on January 13, 1977 by the dean of students was, therefore, in conformance with its provisions. But the guideline does not stop there. It requires a further hearing by the Student-Faculty Hearing Board and review of that board’s findings by the president of the college in any case in which suspension is for a cause other than academic failure and the student has not had a hearing before an established college court.

Dr. Guttu testified that the college court normally dealt with civil disorders or complaints by one student against another, but that cannot avail the college for it is undisputed that no court or board of any kind ever considered Nancy’s case. As to the cause for Nancy’s suspension, the Appellate Division found that it was based on her irrational and disruptive conduct. It, thus, apparently tacitly overruled the Trial Judge’s reference to academic standing as a cause, but even if it did not, the further proceedings required by the guideline would still be mandated. This is because a suspension for both academic and other causes is necessarily, at least in part, a suspension for a cause other than academic failure. That is not to say that the board would have the right, not given it by the guideline, to review Nancy’s scholastic standing as a ground for suspension, but simply to require that she have what the guideline accords her: review of the cause other than academic failure that it involved.

The college argues that Nancy’s informal meetings with the two deans and the president’s assistant was sufficient compliance with the guideline. Though those meetings may have been sensitive and fair, as the Trial Judge indicated, it constituted no acceptable substitute for a hearing board composed of both students and faculty. The college also suggests that the refusal of Mrs. Tedeschi to meet with its officials constituted a waiver of Nancy’s hearing rights, but the guideline itself refutes that, since the purpose of such a meeting is simply to give the parent the possibility of avoiding embarrassment by withdrawing the student. Nor can we accept the suggestion that plaintiff was obliged to make a formal demand for a hearing before the Student-Faculty Hearing Board. Not only is the guideline phrased in mandatory terms ("shall have the right to be heard”) but also it was the obligation of the college in effecting the suspension to call plaintiff’s attention to the further procedures provided for by the guidelines (Loubat v Le Roy, 40 Hun 546, 552, 556, supra). Even were that not so, plaintiff’s complaint which specifically noted that she had never had a hearing would constitute a sufficient demand (see Fried v Straussman, 41 NY2d 376, 380).

Under the guideline plaintiff was properly suspended but was entitled to review of her suspension by the hearing board and the president. So much of the complaint as sought money damages and the right to a due process hearing based on claimed "state action” was properly dismissed, but she was entitled to judgment directing review by that body and that official as the guidelines require.

A few words with respect to the dissent are in order. What the guideline contemplates, and what this opinion holds that it requires (supra, pp 660-662) is review, by the Student-Faculty Hearing Board and by the president, of the nonacademic cause for Ms. Tedeschi’s suspension. The apparent purpose of that review is the different viewpoint that may be taken by a hearing board composed of faculty and students than will be taken by a dean, whether the dean of students or the dean of admissions. No reason, other than the possible burden on the college in holding such a hearing, is suggested by the dissent for denying her that right.

The crux of the dissent is contained in its references (p 666) to elevating "formal legalistic principles over the dictates of ordinary common sense” and to "a mechanistic approach to the law”. As Mr. Justice Felix Frankfurter wrote almost 40 years ago in McNabb v United States (318 US 332, 347), "The history of liberty has largely been the history of observance of procedural safeguards.” If that be true in the dealings of the State with citizens enmeshed with its criminal justice system it is no less true in the dealings of a college with the members of its student body. To suggest, as does the dissent, that the college can avoid its own rules whenever its administrative officials in their wisdom see fit to offer what they consider as a suitable substitute is to reduce the guidelines to a meaningless mouthing of words. We do not countenance that in other relationships nor should we between student and college.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court, Richmond County, with directions to enter judgment reinstating plaintiff as a student for the September, 1980 term of the college, unless prior to the opening of that term she has been accorded a hearing by the Student-Faculty Hearing Board.

Gabrielli, J.

(dissenting). More than three and one-half years ago, Nancy Jean Tedeschi, a part-time, nonmatriculated student, was forced to withdraw from classes at Wagner College due to her disruptive and sometimes threatening conduct in and out of the classroom. Today, a majority of this court, after reviewing the extensive evidence that was offered at trial, has nevertheless directed that the college conduct a formal hearing, presumably for the purpose of determining the correctness and wisdom of its original decision. Since I am persuaded that such a hearing could be nothing more than a painful exercise in futility given the peculiar circumstances in this case, I am compelled to dissent.

Preliminarily, it must be noted that the Trial Judge in this case found the testimony of the school officials regarding Ms. Tedeschi’s disruptive and irrational behavior to be "extremely credible” (95 Misc 2d, at p 514). Also credited were the statements made by the school authorities concerning their unsuccessful efforts to resolve this delicate matter privately through informal conferences. Inasmuch as the Appellate Division affirmed without making new findings of fact, we must accept these findings as true for purposes of the present appeal (CPLR 5501, subd [b]; Cohen and Karger, Powers of the New York Court of Appeals, pp 476-480).

The statements of the school authorities, taken together, paint a portrait of a distraught, emotionally disturbed young woman who seemed incapable of controlling her own feelings of aggression and was equally incapable of fulfilling her responsibilities as a student in an institution of higher learning. Ms. Tedeschi habitually disrupted her Latin class throughout her first semester at the college and, indeed, failed to complete two of the three courses in which she was enrolled. The rapid deterioration of her emotional state culminated in a series of harassing telephone calls and suicide threats which, understandably, alarmed the authorities at the school. Under the circumstances, it cannot be said that the college officials reacted in an arbitrary or unfair manner. To the contrary, in attempting to bring Ms. Tedeschi and her mother in for an informal interview to discuss the student’s academic and emotional difficulties, the school officials obviously were hoping to reach a solution which would spare this unfortunate young woman further unnecessary embarrassment. That this is so is reflected in the college’s final letter to Ms. Tedeschi, which stated that she was being asked to withdraw from classes, but indicated that she was free to apply for readmission if and when she straightened out her emotional difficulties. I cannot imagine a fairer resolution of the immediate problem, particularly in view of Ms. Tedeschi’s continued inability to discuss the concerns of the school officials in a calm and rational manner.

Yet, three and one-half years after the fact, a majority of this court concludes that the college is required to afford Ms. Tedeschi a hearing. What possible constructive purpose would be served by such a hearing we are not told. Ordinarily, a hearing serves the salutary purpose of permitting all sides to air their conflicting versions of events and bring forth all of the disputed facts. In the educational setting in particular, the United States Supreme Court has described the purpose of a disciplinary hearing as "an effort to inform [the student] of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done” (Goss v Lopez, 419 US 565, 580). Furthermore, "requiring [an] informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect” (id., at pp 583-584). In the case of Ms. Tedeschi, however, there was never any reason to believe that the student had an alternate version of the facts to present to a neutral hearing body. To the contrary, the evidence accepted by the trial court demonstrates that Ms. Tedeschi and her mother had repeatedly rebuffed efforts by the school authorities to elicit their side of the story. When Ms. Tedeschi finally did come in to speak with the academic dean and the other school officials, she was unable to provide a rational or coherent explanation for her conduct. Significantly, according to the testimony that was credited by the Trial Judge, Ms. Tedeschi never requested an opportunity to have her case heard by a neutral hearing body, although she did speak to school officials personally on at least two occasions. Indeed, everything about the behavior of Ms. Tedeschi and her parent indicated that they had no interest in presenting their case to college officials.

It has been argued that the school had an affirmative obligation to notify Ms. Tedeschi of her right to a hearing before the Student-Faculty Hearing Board pursuant to the college’s regulations. Although the regulation relied upon by the majority states that the dean of students "may notify parents or guardians in order that they may have an opportunity to withdraw the student” when the student is "deemed to be an unfit member of the College”, however, there is nothing in the regulation that suggests that the school has an affirmative obligation to give the student formal notice of his right to a hearing prior to his suspension from classes. In any event, the special facts presented by Ms. Tedeschi’s case cannot be ignored. In view of her continued inability to conduct herself in a rational manner, it cannot be said that a hearing before a student-faculty board would have been an appropriate or effective safeguard of her interests. Inasmuch as the facts concerning her behavior were not seriously disputed, I cannot conclude that the school authorities acted unreasonably or unfairly because they did not think to invite Ms. Tedeschi to present her case to a hearing board.

Nevertheless, the majority, without definitively adopting any particular theory; now holds that the college was bound to follow its internal regulations and provide Ms. Tedeschi with a hearing even in the absence of a request for an opportunity to present her case. Presumably, it has done so in order to vindicate the general principle that once a university establishes and publishes a rule outlining the procedures to be followed in disciplinary matters, it must invariably adhere to that rule. There can be no disagreement with this concept as a general principle of law. In a case such as this, however, our application of such general principles must be tempered by our understanding of the somewhat unusual facts. Ms. Tedeschi was suffering from an emotional breakdown at the time in question. Her suspension from classes for the spring semester was not a "disciplinary” measure in the traditional sense, but rather was a recognition by the school officials that her continued attendance would be fruitless from an academic standpoint: Given these facts, to require that the college adhere to its published procedures regarding student discipline would be to elevate formal legalistic principles over the dictates of ordinary common sense. I cannot concur with such a mechanistic approach to the law.

In the recent case of Matter of Olsson v Board of Higher Educ. (49 NY2d 408), this court stated that college officials must be accorded wide latitude in evaluating the academic progress of their students (cf. Board of Curators of Univ. of Mo. v Horowitz, 435 US 78). In an effort to overcome the rationale in Olsson as well as the college’s own rule permitting academic dismissals without a prior hearing, the majority asserts that the decision to dismiss Ms. Tedeschi was not rooted in academic concerns. The arguments advanced by the majority in connection with this assertion are not convincing. First, the majority erroneously states that the Appellate Division’s finding that the dismissal was based upon Ms. Tedeschi’s "irrational and disruptive conduct” somehow "tacitly overruled” the Trial Judge’s conclusion that the dismissal was grounded in academic reasons. Next, the majority reasons that, even if this is not the case, a hearing still should have been required because the school officials were motivated, at least in part, by reasons unrelated to Ms. Tedeschi’s academic failure. I find, however, that the majority’s attempts to parse out a distinction between dismissal for academic failure and dismissal for "other reasons” are, in this case, unavailing, since, in any event, Ms. Tedeschi was plainly suspended because of her inability to function in the academic setting. Given the student’s failure to make satisfactory progress in her studies as well as her repeatedly disruptive behavior in class, it cannot be said that the authorities at Wagner College were not acting in the proper exercise of their academic discretion when they made the decision to suspend Ms. Tedeschi without a prior hearing. Indeed, even the majority acknowledges that Ms. Tedeschi was terminated, at least in part, as a result of her academic performance. Accordingly, she was not entitled to a hearing under the regulations promulgated by the college.

In closing, I would note that the form of relief ordered by the majority serves only to highlight the problems inherent in its approach to this case. The majority has held that Wagner College must either reinstate Ms. Tedeschi or hold a belated formal inquiry into the facts surrounding her dismissal. I cannot perceive, however, what possible purpose could be served by such a hearing at this point, particularly since three separate courts have already reviewed the facts underlying the dismissal. If Ms. Tedeschi has recovered from her emotional difficulties in the three and one-half years since she attended class at Wagner College, there presumably would be no obstacle to her applying for readmission. If, on the other hand, she has not yet managed to bring her problem under control, a ritualistic hearing regarding events long past will not advance her interests:

For all these reasons, I respectfully dissent and cast my vote in favor of affirming the decision of the Appellate Division.

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

Order reversed, with costs, and the case remitted to Supreme Court, Richmond County, with directions to enter judgment in accordance with the opinion herein.

       "[E]ven if the facts are undisputed and the determinative issue is whether the student’s actions warrant his expulsion under existing policy or rules, the student should have some opportunity to justify his behavior so that the decision making tribunal has available the arguments of both sides and can form a balanced judgment” (Developments In The Law — Academic Freedom, 81 Harv L Rev 1045, 1138-1139).

      . Ms. Tedeschi’s mother testified that she had telephoned the college and requested a hearing for her daughter. Later in her testimony, however, the student’s mother admitted: "I didn’t say hearing but I said I would like to come with Nancy and see what is happening in the school”. This belated request for a conference was made only after the school sent the final suspension letter to Ms. Tedeschi. Inasmuch as the mother had previously repulsed the efforts of school administrators to resolve the matter in a private interview, she must be deemed to have waived by her conduct any right she may have had to present arguments in opposition to her daughter’s suspension to the school authorities.

      . The majority states that Ms. Tedeschi’s complaint in the instant action constituted a "sufficient demand” for a hearing. I fail to see, however, how a complaint served months after the dismissal can be regarded retroactively as a substitute for a timely notification to the college that Ms. Tedeschi wished to be heard.