author: Alexander, J. Simons, J.

text:
    Richard Stettine, Individually and on Behalf of All Taxpayers Similarly Situated, Appellant, v County of Suffolk et al., Respondents.
    Argued September 4, 1985;
    decided November 26, 1985
    POINTS OF COUNSEL

      William J. Pisarello and Paul W. Thorpe, Jr., for appellant.

      I. The contract between the County of Suffolk and Civil Service Employees Association was negotiated, prepared and authorized in violation of General Municipal Law § 801. (Matter of Dykeman v Symonds, 85 Misc 2d 289, 54 AD2d 159; Matter of Tuxedo Conservation & Taxpayers Assn. v Town Bd., 69 AD2d 320.) II. The contract between the County of Suffolk and the Civil Service Employees Association is void for all purposes. (Matter of Dykeman v Symonds, 85 Misc 2d 289, 54 AD2d 159.) III. The exception provided for in General Municipal Law § 802 (1) (f) does not apply to this collective bargaining agreement. IV. Plaintiff-appellant is entitled to recover legal fees as an item of necessary disbursements. (Gerzof v Sweeney, 52 Misc 2d 505, 29 AD2d 646, 22 NY2d 297; Nance v Town of Oyster Bay, 54 Misc 2d 274, 30 AD2d 918; Chase v City of Syracuse, 34 Misc 144; Matter of Exley v Village of Endicott, 74 AD2d 96.)

      Robert M. Calica and Thomas P. Schulz for County of Suffolk and others, respondents.
    I. The court below correctly determined that defendant Farnetti, as County Director of Labor Relations, did not have a prohibited "pecuniary interest” in the collective bargaining agreement between the County and the CSEA. (New York State Bankers Assn. v Albright, 38 NY2d 430; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463; Zappone v Home Ins. Co., 55 NY2d 131; Landau v Percacciolo, 66 AD2d 80, 50 NY2d 430; Alifieris v American Airlines, 63 NY2d 370; Matter of Citiwide News v New York City Tr. Auth., 62 NY2d 464.) II. The collective bargaining agreement is not a "contract” under General Municipal Law article 18. (Matter of De Perno v Dulan, 9 NY2d 433.)

      Michael J. Smith for the Suffolk County Chapter of the Civil Service Employees Association, respondent.
    I. The collective bargaining agreement at issue, negotiated pursuant to the Taylor Law, is not the kind of contract General Municipal Law article 18 was intended to cover. (Matter of Reese v Lombard, 47 AD2d 327; Local 456 Intl. Bhd. of Teamsters v Town of Cortlandt, 68 Misc 2d 645; Matter of Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268; Matter of Civil Serv. Employees Assn. v Helsby, 31 AD2d 325, 24 NY2d 993.) II. Section 801 (1) (f) applies to the instant collective bargaining agreement. (Martin v Curran, 303 NY 276; Kelso v Cavanagh, 137 Misc 653.) III. The remedy sought should be denied due to plaintiff’s delay in commencing this action and the availability of more equitable remedies. (Matter of Elefante v Hanna, 40 NY2d 908; Matter of Board of Trustees [Maplewood Teachers’ Assn.], 57 NY2d 1025.) IV. There is no basis for an award of counsel fees to the "attorney” for plaintiff. (Matter of Green [Potter], 51 NY2d 627; City of Buffalo v Clement Co., 28 NY2d 241; Young v Toia, 66 AD2d 377; Pitt v City of New York, 111 Misc 2d 569; Realty Equities Corp. v Gerosa, 30 Misc 2d 481; O’Hara v Del Bello, 47 NY2d 363; Felder v Foster, 86 AD2d 766; Gerzof v Sweeney, 22 NY2d 297; Matter of Exley v Village of Endicott, 74 AD2d 96; Nance v Town of Oyster Bay, 54 Misc 2d 274.)
   OPINION OF THE COURT

Alexander, J.

The facts of this case are essentially undisputed. The question that divides the court is whether under those facts and the applicable provisions of General Municipal Law article 18 (General Municipal Law § 800 et seq.), the collective bargaining agreement between the County of Suffolk and the Suffolk County Chapter of the Civil Service Employees Association (CSEA Suffolk) violates General Municipal Law § 801 since it was negotiated by defendant Farnetti at a time when Local Law No. 4 of 1982 provided that all exempt County employees, including Farnetti, would be granted the same salary adjustments as members of bargaining units 2 and 6 of CSEA Suffolk, thereby creating in Farnetti a "prohibited interest” in the contract that would render it void under General Municipal Law § 804. Special Term declared the contract void because of Farnetti’s "prohibited interest”, but the. Appellate Division reversed and declared the contract valid, finding that CSEA Suffolk is a voluntary nonprofit association within the meaning of General Municipal Law § 802 (1) (f) and is therefore excepted from the proscriptions of General Municipal Law § 801. We now affirm.

General Municipal Law § 802 provides that "[t]he provisions of section eight hundred and one of this chapter shall not apply to: 1 * * * f. A contract with a membership corporation or other voluntary non-profit corporation or association”. The gravamen of appellants’ argument, which the dissent finds determinative, is that while CSEA Suffolk may be a voluntary nonprofit association, it is not the type of voluntary association intended to be excepted under General Municipal Law § 802 (1) (f). They contend that the exception should extend only to nonprofit corporations or associations that are charitable, such as nonprofit hospital corporations, nonprofit animal shelters and volunteer firemen’s associations, because it was intended to protect contracts between a municipality and charitable organizations or organizations formed for the public benefit and not contracts entered into with labor unions whose sole purpose is the betterment of their members.

There can be no doubt that CSEA Suffolk is a voluntary nonprofit association. The record establishes that it enjoys nonprofit status by reason of its relationship with Civil Service Employees Association, Inc. (CSEA, Inc.), a State-wide organization and nonprofit corporation as defined in Not-For-Profit Corporation Law § 102 (a) (5) and § 201. Both CSEA, Inc., and CSEA Suffolk enjoy tax-exempt status under Internal Revenue Code (26 USC) § 501 (c) (5), which status is one of the hallmarks of a nonprofit organization (see, Internal Revenue Code § 501 [c]). CSEA Suffolk’s voluntary character is clear based on Civil Service Law § 202 which gives public employees the "right to form, join and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing.” Although member-oriented employee organizations such as CSEA, Inc., and CSEA Suffolk exist primarily to benefit their membership by enhancing their individual members’ economic position with respect to their jobs, this neither militates against their tax-exempt status (see, Albert and Hansell, Tax Status of Modern Labor Unions, 111 U Pa L Rev 137 [1962]; Bittker and Rahdert, Exemption of Non Profit Organizations from Federal Income Taxation, 85 Yale L Rev 299 [1976]) nor provides a sufficient reason to exclude them from the exception of General Municipal Law § 802 (1) (f).

The legislative history of General Municipal Law § 802 (1) (f) does not compel a contrary conclusion as argued by the dissent. The fact that the Comptroller’s 1957 report on conflicts of interest on the part of municipal officers and employees included in its proposed legislation language taken from General Municipal Law former § 88 that exempted from its conflict of interest proscriptions contracts with voluntary nonprofit corporations or associations "primarily engaged in health or social welfare programs or the community planning for such programs” (see, New York State Dept of Audit and Control, Municipal Officials and Conflicts of Interest: An Analysis of the State Law and a Proposed Statute, 1957, at 78), is unpersuasive in determining the intent of the Legislature in

enacting the new article 18 in 1964. Significantly, no reference to the language from former section 88 was included in the Comptroller’s 1964 report to the Governor in support of A2807, the bill that became the statute that was finally enacted. (See, Bill Jacket, L 1964, ch 946, Apr. 2, 1964 letter from Arthur Levitt to Governor’s counsel.) Thus, the legislative history of section 88, discussed extensively by the dissent, does not provide the conclusive guidance attributed to it. That history was known to the Legislature in 1964 and the fact that those provisions were not carried over to the new legislative enactment provides strong support for the conclusion that the Legislature did not intend to limit the reach and applicability of the exemption for voluntary nonprofit associations as appellants now argue (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 193 [a]; Clason v Baldwin, 129 NY 183, 189; De Grauw v Long Is. Elec. Ry. Co., 43 App Div 502, 503, affd 163 NY 597; cf. Munzinger v United Press, 52 App Div 338). Moreover, as conceded by the dissent, an opinion issued shortly after the enactment of article 18 by Comptroller Levitt, whose study and report provided the impetus for the revision and consolidation of the various statutes respecting conflicts of interest and municipal officials, unequivocally expressed the view that collective bargaining agreements were not "contracts” within the meaning of General Municipal Law § 800 (2) (24 Opns St Comp, 1968, p 60). Indeed, the Comptroller stated that "a 'contract’ contemplates an arrangement between a municipality and a third party whereby a consideration passes from the municipal corporation as a result of goods purchased by it or services rendered to it. Otherwise, relating to the CSEA contract, the highly impractical result would be that every employee of the town who belongs to the CSEA would have an interest in the town-CSEA contract which, although perhaps not prohibited by General Municipal Law § 801 would have to be disclosed by the employee pursuant to § 803. Article 18, in such case, would amount to nothing more than an instrument of harassment without purpose, a result surely not intended by the Legislature” (id., at p 61).

In Matter of De Perno v Dulan (9 NY2d 433), this court had occasion to comment on the legislative intent respecting whether collective bargaining agreements were intended to be included within the sweep of General City Law § 3, a statute from which article 18 also derives, which prohibited city officers from having an interest in a city contract. We said in De Perno that "it is inconceivable that the Legislature intended these statutes to embrace labor negotiations and agreements” (id., at p 437). Our statement in De Perno was known to Comptroller Levitt and the Legislature when article 18 was proposed, considered and enacted into law, yet not a word is to be found in its legislative history indicating that collective bargaining agreements were not to be outside the scope of article 18 or that labor unions were not to be excepted as voluntary nonprofit associations under section 802 (1) (f). And while it is true that the present Comptroller, in a number of more recent opinions, has held that collective bargaining agreements with unions are subject to the provisions of article 18, it does not appear that any of those situations presented the question of whether or not a labor union such as CSEA was a voluntary nonprofit association, a contract with which would come within the exception of General Municipal Law § 802 (1) (f).

Given the legislative history of this statute and the fact that nothing contained therein indicates a legislative intent .to include only voluntary nonprofit associations that are "primarily engaged in health or social welfare programs or the community planning for such programs” within the exception of General Municipal Law § 802 (1) (f) and the fact that the omission of that language from the Comptroller’s final proposal and the legislation enacted thereon indicates quite the contrary, we decline to read the statute in the restrictive manner urged by appellants and the dissent.

Simons, J.

(dissenting). The order of the Appellate Division should be reversed and the judgment of Special Term granting plaintiff summary judgment and declaring the agreement between defendant County and defendant Suffolk County Chapter of CSEA Local 852 void should be reinstated. The agreement is void because it was negotiated by defendant Farnetti, who ostensibly represented the County and its taxpayers, and at the same time had a prohibited interest in the outcome of the negotiations because increases in his own salary were linked to any increase in salary which he agreed the County would pay to employees represented by Suffolk CSEA (see, General Municipal Law § 800 et seqj. In fact, as a result of the eventual agreement, Farnetti’s salary was to increase 63% during its term. The majority recognize this conspicuous violation of the conflict of interest statute but hold that the agreement is enforceable because labor organizations are exempted from its provisions by section 802 (1) (f). Statutory exceptions must be strictly construed, however, so that the underlying policy of the legislation is not defeated. Because defendants’ claim the benefit of section 802 (1) (f), the burden rests upon them to show that they are within both the letter and spirit of the exception (McKinney’s Cons Laws of NY, Book 1, Statutes § 213). Defendants have failed to do so because labor unions are not expressly excepted from the operation of the statute and nothing in the statute’s history, the interpretations of the agencies involved with enforcing it or in the purpose underlying it suggests that labor agreements should be excepted generally from conflict of interest proscriptions. That being so, I am at a loss to know why the courts should construe the section broadly and condone a practice cynically indifferent to the public interest. All the more is this so because counsel for the union asserts that the practice is not unique, but indeed quite common among municipalities. I, therefore, dissent.

In 1982, Suffolk County entered into negotiations with bargaining units 2 and 6 of Suffolk CSEA to settle the terms and conditions of employment for represented County employees for the period from January 1, 1982 to December 31, 1985. Chief negotiator for the County was defendant Farnetti, the County Director of Personnel and Labor Relations. By the provisions of Local Law No. 4 of 1982, adopted February 22, 1982, the County Legislature provided that all exempt County employees should be granted the same salary adjustments as those concluded by the agreement for the members of bargaining units 2 and 6. Defendant Farnetti was such an exempt employee. Thus, when he started negotiations in March 1982 and until he agreed to recommend the proposed agreement to the County Executive and the County Legislature in August 1982, Farnetti knew that he and other exempt officials of the County would receive exactly the same salary adjustments as those he agreed to give members of the bargaining units. The agreement was subsequently approved by the County and CSEA in February 1983. A week later, the County Legislature passed Local Law No. 4 of 1983, effective March 21, 1983, amending Local Law No. 4 of 1982 and limiting the salary adjustments for exempt employees to the two-year period January 1, 1982 through December 31, 1983. Their salaries for the remainder of the time were to be separately negotiated.

General Municipal Law § 801 provides that "no municipal officer or employee shall have an interest in any contract with the municipality of which he is an officer or employee,” when he has the power to "negotiate, prepare, authorize or approve the contract”. The section also provides that the restriction shall not preclude the payment of "lawful compensation and necessary expenses.” Interest is defined as "a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves” (General Municipal Law § 800 [3]). Section 804 declares that any contract willfully entered into by or with a municipality in which there is an interest prohibited by the statute is void and unenforceable.

The statute embodies a moral concept as old as the history of mankind, the idea that "No man may serve two masters.” Originally such conflicts were governed by common-law rules derived from the law of trusts and agency and which recognized a fiduciary relationship between a municipality and its servants, rules intended to prevent self-dealing by public employees at the people’s expense (see, Smith v City of Albany, 61 NY 444; and see generally, New York State Dept of Audit and Control, Municipal Officials and Conflicts of Interest: An Analysis of the State of the Law and a Proposed Statute, 1957, at 44; Levitt, Conflicts of Interest, 1963 Opns St Comp, p 475; Lillich, Municipal Conflicts of Interest: Rights and Remedies Under an Invalid Contract, 27 Fordham L Rev 31 [1958]; Comment, Conflicts of Interest and the Municipal Employee, 20 Buffalo L Rev 487 [1971]). Municipal contracts implicating that relationship are scrutinized closely and for the benefit of the public (Landau v Percacciolo, 66 AD2d 80, 87 [Hopkins, J.], affd 50 NY2d 430; 4 Williston, Contracts § 615A, at 630-631 [3d ed]).

In time the New York rules developed into a hodge podge of highly complex and inconsistent statutory enactments, court decisions and administrative opinions that frequently censured technical, as well as actual, conflicts, and came close to barring all public employees from having any dealings with their governmental units (see generally, New York State Dept of Audit and Control, 1957, op. cit., at 2; Lillich, op. cit., at 31; see also, Levitt, op. cit., at 475-476). General Municipal Law Article 18 was enacted in 1964 to correct the situation.

The new statute was formulated by Comptroller Arthur Levitt and his staff after a lengthy investigation and study (see, Levitt, op. cit., at 476; see also, New York State Dept of Audit and Control, 1957, op. cit., at 66-68). It restated the conflict of interest doctrine, attempting to reach only contracting officers involved in an actual clash of duties and also to encourage more citizens to seek and accept "positions on planning boards, airport commissions, and other similar boards and agencies offering little if any monetary award” (see, New York State Dept of Audit and Control, 1957, op. cit., at 67; see also, L 1964, ch 946, § 1). The governing rule was defined in simple terms: no conflict exists unless two factors converge: (1) the employee must have a substantial ability to affect the outcome of the transaction and (2) he must have a substantial private connection with effecting it or be able to gain financially in his employment from it (see, Bill Jacket, L 1964, ch 946 letter of Apr. 2, 1964 from Arthur Levitt to the Governor’s counsel).

Although it is disputed, there can be little doubt that Farnetti violated not only the letter of the new statute but the spirit of the general ethical rules on which it is based. He "negotiate[dj” and "approve[d]” this contract and he had a palpable interest in its provisions because under the terms of Local Law No. 4 of 1982 the greater the salary concessions he . made to Suffolk CSEA the higher his salary would be. This is precisely the type of conflict the statute was intended to reach, unredeemed by bootstrap arguments that the section entitled Farnetti to receive his "lawful salary.” Section 802 (1) (f) should not be interpreted to except or excuse it.

The exception contained in section 802 (1) (f) provides that the conflict provisions of article 18 shall not apply to "f. A contract with a membership corporation or other voluntary non-profit corporation or association”. Defendant Suffolk CSEA is neither a membership corporation nor a not-for-profit corporation; it is an unincorporated association governed by the General Associations Law. The issue, then, is whether it should be judged to come within the Legislature’s intended purpose to except other voluntary associations. Surely public employee labor unions have many attributes that remove them from the general understanding of voluntary nonprofit associations because, unlike most nonprofit associations, they are authorized and regulated by statute (Civil Service Law § 200 et seq.), they enjoy legislatively protected rights to exclusive representation of their employee members (Civil Service Law § 204), their membership is not voluntary in the customary sense but consists of all public employees within a bargaining unit, a majority of whom have voted to be represented by the union (Civil Service Law § 204) and membership fees are paid by dues deduction for those who elect to pay dues to the union (Civil Service Law § 201 [2] [a]) and by agency shop fee deductions for those who do not (Civil Service Law § 201 [2] [b]). Moreover, the principal function of a labor union is the financial betterment of its members; most unions could not qualify as a not-for-profit corporation under the not-for-profit corporation statute (Not-For-Profit Corporation Law § 102 [a] [5]). Thus, it appears that Suffolk CSEA is not the type of association clearly intended by the terms of the statutory exception and the underlying history of the section must be examined.

The provisions of article 18 were derived from several sources with the idea that the new statute should retain, not abrogate, basic conflicts of interest concepts (see, Legislative Findings, L 1964, ch 946, § 1). The language of section 802 (1) (f) was derived from General Municipal Law § 88 (repealed by L 1964, ch 946, § 16) which provided, in pertinent part: "Voluntary non-profit corporations or associations: Notwithstanding the provisions of any other law, statutory or otherwise, to the contrary, no claim, account or demand against, or contract with a municipal corporation, school district, improvement district or a fire district shall be invalid solely by reason of any officer or employee thereof being a member, officer, or a member of the board of directors or trustees, of a voluntary non-profit corporation or association primarily engaged in health or social welfare programs or the community planning for such programs, provided such officer or employee shall not be entitled to any compensation from such non-profit corporation or association.” Section 88 was enacted in 1957 at the request of the State Association of Councils and Chests because New York’s conflict of interest doctrine at times had been interpreted to mean that a voluntary agency which had a public official on its board could not receive public funds (see, 1957 NY Legis Ann, at 225-226). The memorandum accompanying the measure noted that this misapplication of the conflict of interest law "could result in public officials resigning from the Boards of private social welfare agencies or community planning agencies”, thus frustrating cooperation between public and private officials in the solution of community problems (id., at 226; cf 1957 Opns St Comp No. 57-744, p 228 [holding that a city airport commissioner violated General City Law § 3 when, in his capacity as a funeral director, he buried city welfare recipients for a partial fee]). Governor Harriman, who signed section 88 into law, had vetoed a similar measure at the request of the Department of Audit and Control in 1956 because the exemption for voluntary nonprofit associations set forth in it was too broad. He preferred that the statute "specify either the name or the type of voluntary group to be excepted” (1956 NY Legis Ann, at 509). The Governor signed the bill the following year because the revised language specifically limited the kind of organization that qualified for exemption. His memorandum stated "This bill is applicable to health and social welfare agencies. Its benefits would be extended to officers and employees of cities, towns, villages, school districts, improvement districts and fire districts, as well as to county officers and employees. This is a worthy objective” (see, 1957 NY Legis Ann, at 480). In its 1957 report proposing the new statutory framework that eventually became article 18, Comptroller Levitt’s staff recommended that the exemption for voluntary nonprofit organizations and associations found in section 88 be retained substantially as it was. This history presents compelling evidence that present General Municipal Law § 802 (1) (f) was intended to address the same concerns as former section 88 from which it was derived.

The majority claim that the Legislature intended to broaden the exception contained in the new statute to include labor agreements. In support of that position, they rely upon the failure of Comptroller Levitt to limit the exception in his "final report of 1964”. The "final report” referred to is a letter from the Comptroller to the Governor found in the bill jacket and submitted after the bill had been passed by the Legislature. Nothing in it supports the majority’s claim and, indeed, after the bill became law, Comptroller Levitt consistently construed the section as applying to charitable and social service groups. Thus, in the public relations pamphlet explaining article 18 and distributed by the Comptroller to all municipalities in August 1964, the explanation of "who is affected” by the statute says:

"If you’re an officer or employee of a county, city, town, village, fire district, or school district (outside of the City of New York), the new law applies to you — whether you are a paid or unpaid employee or whether you’re just a member of a municipal board, commission, or agency. It applies to you if you’re an employee of a town or county improvement district, a district corporation, or other district or joint service set up to carry on local improvements or services (but not a public authority). The law also applies to you if you work for a consolidated health district, a county vocational education and extension board, a public library, a board of cooperative education services, or an urban renewal agency.

"But the law does not apply solely because you’re a volunteer fireman (not a chief or assistant chief engineer) or a civil defense volunteer.” (See, New York State Dept of Audit and Control, Aug. 1964, at 2 [emphasis supplied].) In the same pamphlet, the exception contained in section 802 (1) (f) is explained in the following manner: "Contracts with membership corporations or nonprofit organizations. If you have an interest in an Organization — say, a fire company or a voluntary hospital — and it has a contract with your municipality, the contract is permitted.” (Id., at 5.)

The State Comptroller and other State officers have also construed the statute in several published opinions. Inasmuch as the Department of Audit and Control is charged with reviewing municipal contracts and auditing municipal finances, the interpretation the Comptroller places on the statute is entitled not only to the respect accorded opinions of State officers generally, but also to the deference we accord interpretations made by those charged with enforcing a statute (see, Matter of Howard v Wyman, 28 NY2d 434). Significantly, the Comptroller has applied section 802 (1) (f) only to voluntary, nonprofit organizations performing a charitable or community service (see, 1983 Opns St Comp No. 83-112 [church]; 1981 Opns St Comp No. 81-115 [nonprofit animal shelter]; 1974 Opns St Comp No. 74-469, p 393; and 1966 Opns St Comp No. 66-440, p 365 [volunteer fire department]; 1973 Opns St Comp No. 73-37 [nonprofit hospital corporation]; 1973 Opns St Comp No. 73-306, p 48 [historical society]; 1966 Opns St Comp No. 66-472, p 393 [firemen’s benevolent association]). The exemption has been similarly construed by the Attorney-General (see, 1965 Opns Atty Gen 140 [community college association]) and the State Education Department (Matter of Pre-Schoolers’ Workshop, 16 Ed Dept Rep 331, 333 [1977] [synagogue]). Indeed, there appears to be no reported opinion of a State official holding that agreements with labor organizations are exempt from the provisions of article 18 by section 802 (1) (f). The Comptroller has interpreted a conflict involving a labor agreement with reference to other provisions of article 18, holding that although the attorney’s agreement under review might be unethical, it was not a "contract” within the meaning of the statutory provisions (1968 Opns St Comp No. 68-46, p 60). The narrow view the Comptroller took in that opinion was consistent with dicta found in our prior decision of Matter of De Perno v Dulan (9 NY2d 433), cited by the majority, but he has expressly superseded it in subsequent opinions which hold that article 18 does apply to labor contracts (see, 1981 Opns St Comp No. 81-415; see also, 1983 Opns St Comp No. 83-122; 1975 Opns Atty Gen 108-109). Moreover, the 1968 opinion was rendered shortly after the statute was enacted and at a time when very few employees outside of New York City (the employees to whom article 18 applies) belonged to labor unions (see generally, Koretz, Labor Relations Law, 20 Syracuse L Rev 258 [1968]). Indeed, the Taylor Law (Public Employees’ Fair Employment Act, Civil Service Law § 200 et seq.), which established New York’s present policy toward public employee organizations and the mechanism for collective bargaining in the.public sector was not adopted until 1967, three years after article 18 was passed and one year before the Comptroller’s opinion. It is also notable that at the time article 18 was enacted, the Department of Civil Service, the department generally responsible for matters involving public employees and their representation (see, Civil Service Law § 205 [1]), voiced no opinion on the proposed legislation because it had no experience with the problems the bill sought to address (see, Bill Jacket, L 1964, ch 946 letter of Apr. 9, 1964, Mary Goode Krone, President of Civil Service Commission). In view of the limited activity of public employee unions at the time, it is hardly surprising that the Comptroller construed the new statute as he did or that his successor superseded the 1968 ruling and applied article 18 to labor contracts when representation of public employees upstate became prevalent.

Finally, no reported decision of the New York courts, before the Appellate Division decision in this case, has held the labor unions are organizations entitled to exemption from the conflict of interest rules found in article 18 or that they come within the definition of voluntary associations found in General Municipal Law former § 88.

In finding Suffolk CSEA a voluntary association within the meaning of section 802 (1) (f), the Appellate Division relied heavily on the status of its parent, CSEA, Inc., as a not-for-profit corporation. CSEA, Inc., however, is not a party to this litigation; it was not a participant in negotiations (indeed it did not have the power to negotiate this contract) and, as Special Term found, it has no responsibility under the contract. Its status cannot provide an exception for Suffolk CSEA. The majority in this court rely upon the tax-exempt status of both CSEA, Inc. and Suffolk CSEA, but the tax-exempt status of an organization is irrelevant in determining whether it is a voluntary association of the type intended by the Legislature. Manifestly, the Legislature enacted the exception for the benefit of charitable and service organizations, not labor unions.

In sum, the conflict of interest statute does not explicitly except labor organizations from its provisions, and nothing in the prior statutes from which article 18 was derived, the predrafting hearings or reports of Comptroller Levitt, the legislative history or the Governor’s records gives the slightest hint that it was intended or designed to exempt labor organizations from conflict of interest proscriptions. In addition, no court or State official responsible for enforcing the statute has interpreted it as exempting labor organizations from its terms. In the face of that evidence, we should not ignore the self-dealing established by the evidence in this record, and apparently common in other municipalities, and enforce the contract. Presumably, the majority is moved by the possibility of injury to the represented employees if the contract is declared void. Plaintiffs do not seek retroactive recoupment of the wages paid, however, and the contract expires by its terms on December 31, 1985. There are remedies available to protect the employees’ rights for the short time remaining (see generally, Lillich, op. cit). Thus, there is no reason why we should deny plaintiffs’ relief, thereby ignoring the violation of the public trust which occurred in this case and encouraging such practices in the future.'

Chief Judge Wachtler and Judges Kaye and Titone concur with Judge Alexander; Judge Simons dissents and votes to reverse in a separate opinion in which Judges Jasen and Meyer concur.

Order affirmed, with costs.

      . The other statutes from which article 18 was derived were: County Law § 412; Education Law § 1617; Local Finance Law § 60.20; Social Welfare Law §§ 147, 186-a to 186-c; Town Law §§ 104, 176 (31); Village Law § 128 (5); §332.

      . Section 6 (a) of the proposed statute exempted: "(a) Contracts of any municipality with a voluntary non-profit corporation or association primarily engaged in health or social welfare programs or the community planning for such programs, provided the interested public representative is not entitled to any compensation from such non-profit corporation or association.” (See, New York State Dept of Audit and Control, Municipal Officials and Conflicts of Interest: An Analysis of the State of the Law and a Proposed Statute, 1957, at 67.)


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Consolidated Edison Company of New York, Inc., et al., Appellants, v Public Service Commission of the State of New York, Respondent. (And Another Action.)
    Argued November 11, 1985;
    decided December 17, 1985
    POINTS OF COUNSEL

      Peter Garam, Joy Tannian, Celeste A. Contrucci, Frederic H. Lawrence, Kenneth M. Jasinski, Kenneth D. Archer and Richard N. George for appellants.
    I. The court below erred by concluding that the Commission’s order, which disallows for ratemaking purposes one half of the costs of mailing bills to customers when the utilities enclose a bill insert on a controversial matter of public policy in their billing envelopes, does not violate the utilities’ constitutionally protected freedom of speech. (Matter of Beach v Shanley, 62 NY2d 241; Matter of von Wiegen, 63 NY2d 163; N. A. A. C. P. v Button, 371 US 415; Bates v Little Rock, 361 US 516; Matter of Oliver v Postel, 30 NY2d 171; Branti v Finkel, 445 US 507; Elrod v Burns, 427 US 347; Sherbert v Verner, 374 US 398; Speiser v Randall, 357 US 513; Minneapolis Star v Minnesota Commr. of Revenue, 460 US 575.) II. The court below erred by concluding that the Commission’s order, which disallows for ratemaking purposes one half of the costs of mailing bills to customers when the utilities enclose a bill insert on a controversial matter of public policy in their billing envelopes, does not deprive the utilities of their property without just compensation or due process of law. (Board of Commrs. v New York Tel. Co., 271 US 23; Consolidated Edison Co. v Public Serv. Commn., 447 US 530; Matter of Village of Wellsville v Maltbie, 257 App Div 746, 283 NY 689; Matter of General Motors Corp. v Public Serv. Commn., 95 AD2d 876; West Ohio Gas Co. v Commission [No. 1], 294 US 63; Mississippi Riv. Fuel Corp. v Federal Power Commn., 163 F2d 433; People ex rel. Lewis v Safeco Ins. Co., 98 Misc 2d 856; New York ex rel. Woodhaven Gas Light Co. v Public Serv. Commn., 269 US 244; Pennsylvania Coal Co. v Mahon, 260 US 393; City of Buffalo v Clement Co., 28 NY2d 241.)

      Timothy P. Sheehan and David E. Blabey for respondent.
    I. The Commission properly discharged its regulatory responsibilities in allocating mailing costs between ratepayers and shareholders. (Rochester Gas & Elec. Corp. v Public Serv. Commn., 51 NY2d 823, 450 US 961; Matter of General Tel. Co. v Lundy, 17 NY2d 373; Matter of New York State Council of Retail Merchants v Public Serv. Commn., 45 NY2d 661; Federal Power Commn. v Conway Corp., 426 US 271; Colorada Interstate Co. v Commission, 324 US 581; Panhandle Co. v Power Commn., 324 US 635; Matter of New York Tel. Co. v Public Serv. Commn., 64 AD2d 232, 46 NY2d 710; Matter of New York Water Serv. Corp. v Public Serv. Commn., 12 AD2d 122, 10 NY2d 705; Matter of Central Hudson Gas & Elec. Co. v Public Serv. Commn., 108 AD2d 266; Groesbeck v Duluth, S. Shore & Atl. Ry. Co., 250 US 607). II. An allocation of bill mailing expenses between ratepayers and shareholders does not violate the 5th Amendment rights of the utilities. (Rochester Gas & Elec. Corp. v Public Serv. Commn., 64 AD2d 345, 51 NY2d 823.) III. The Commission’s cost allocation decision in no way restricts or limits the utilities from exercising their 1st Amendment expressional rights. (Consolidated Edison Co. v Public Serv. Commn., 447 US 530; Rochester Gas & Elec. Corp. v Public Serv. Commn., 51 NY2d 823; Southwestern Elec. Power Co. v Federal Power Commn., 304 F2d 29, cert denied sub nom. Alabama Power Co. v Federal Power Commn., 371 US 924.)
   OPINION OF THE COURT

Per Curiam.

The determination of respondent Public Service Commission (PSC) — that when petitioner utilities enclose political messages with billing statements their shareholders must pay 50% of fixed costs associated with preparing and mailing those statements to ratepayers — does not violate the utilities’ right of free speech under the Federal Constitution.

In Consolidated Edison Co. v Public Serv. Commn. (447 US 530), the Supreme Court struck down a prior PSC determination prohibiting utilities from including bill inserts that expressed views on controversial public policy issues as violative of the utilities’ right of free speech under the 1st Amendment (US Const 1st Amend). The court, however, specifically left open the question whether the PSC could constitutionally allocate, between shareholders and ratepayers, the costs of bill inserts addressing controversial issues of public policy (447 US, at p 543, n 13; see also, id., at p 544 [Marshall, J., concurring]).

Following the court’s decision, the PSC instituted proceedings and invited comments regarding possible other action with respect to bill inserts. On March 23, 1983, the PSC issued an order providing that, if utilities enclosed inserts concerning matters defined in Account 426.4 with billing statements, 50% of many fixed costs associated with preparation and mailing of those statements would be allocated to the utilities’ shareholders. In arriving at this decision, the PSC concluded that otherwise the ratepayers would in effect be subsidizing utility management: "[In 1977] we concluded that utility management receives a subsidy for the dissemination of its views when it uses the billing process to send political messages to ratepayers. Nothing has happened since that time to persuade us that our finding is incorrect. In the extensive litigation following our 1977 Statement of Policy no party has contended that a utility does not derive an economic benefit by using the billing process (whose costs are paid for by ratepayers) as opposed to alternative means to disseminate political messages. We therefore continue to conclude that using the billing process provides a subsidy to utility management.”

One of the PSC’s duties is to insure that the public receives utility services at charges that are "just and reasonable” (Public Service Law § 65 [1]). In setting rates, "a prime function of the commission, as a regulatory body, is to separate those costs which should be borne by ratepayers from those which are properly chargeable to shareholders.” (Rochester Gas & Elec. Corp. v Public Serv. Commn., 51 NY2d 823, 825, appeal dismissed 450 US 961.) In Rochester Gas we held that the PSC did not violate the utility’s 1st Amendment rights by refusing to include a portion of the utility’s informational advertising, which the PSC found was unnecessary to the furnishing of utility services, as an allowable expense; the Constitution does not require the PSC "to allow the utility to charge ratepayers for all communications which the utility may choose to make” (51 NY2d, at p 825).

Rochester Gas is controlling here. Although this case involves the allocation of fixed rather than marginal costs, the principle is the same: nothing in the Constitution requires that the shareholders get a free ride on the backs of the ratepayers.

Petitioner claims that respondent’s ruling is invalid because Account 426.4 is impermissibly based on the content of speech. In fact, however, the thrust of the regulation is to distinguish between expenditures that primarily advance the interests of the corporation (properly chargeable to the shareholders) and expenditures that primarily advance the interests of the ratepayers (properly chargeable to them) (cf. 16 NYCRR 136.80, 143.9). In making this distinction, the PSC was therefore only implementing its statutory and regulatory mandate, and the case is indistinguishable from Rochester Gas, in which the PSC allocated expenses based on its determination whether the advertising was "unnecessary to the furnishing of utility services” (51 NY2d, at p 825); see also, Southwestern Elec. Power Co. v Federal Power Commn. (304 F2d 29, 47, cert denied sub nom. Alabama Power Co. v Federal Power Commn. 371 US 924).

Finally, PSC’s ruling also represented a proper attempt to balance competing 1st Amendment interests of the shareholders and the ratepayers. If costs were not allocated the ratepayers might have cause to complain that they were being compelled to subsidize and support the speech of the utilities in violation of the rule of Abood v Detroit Bd. of Educ. (431 US 209) and Wooley v Maynard (430 US 705). (See, Consolidated Edison Co. v Public Serv. Commn., 447 US, at p 543, n 13, supra; id., at p 544 [Marshall, J., concurring]; id., at p 549 [Blackmun and Rehnquist, JJ., dissenting].) As the dissenting Justices noted in Consolidated Edison, "[e]yen though the free ride may cost the ratepayers nothing additional by way of specific dollars, it still qualifies as forced support of the utility’s speech” (447 US, at p 552).

In these circumstances, the 50-50 division of costs made by the PSC was reasonable and within its discretion.

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

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in Per Curiam opinion.

Order affirmed, with costs.

       Account 426.4, 16 NYCRR, ch II, subch F (Account 323.1 for telephone utilities) provides:
      "Expenditures for Certain Civic, Political and Related Activities.
      "This account shall include expenditures for the purpose of influencing public opinion with respect to the election or appointment of public officials, referenda, legislation, or ordinances (either with respect to the possible adoption of new referenda, legislation or ordinances or repeal or modification of existing referenda, legislation or ordinances) or approval, modificatian or revocation of franchises; or for the purpose of influencing the decisions of public officials or advancing the political objective of the utility, but shall not include such expenditures which are directly related to appearances before regulatory or other governmental bodies in connection with the reporting utility’s existing or proposed operations.”


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Respondent, v Bruce Wood, Appellant.
    Argued November 19,1985;
    decided December 19, 1985
    POINTS OF COUNSEL

      John B. Garrity, Jr., Public Defender (Samuel Collins of counsel), for appellant.
    I. Arrant, grievous prosecutorial misconduct by the prosecutor occurred upon cross-examination of a crucial witness, defendant’s psychiatrist, by inquiring as to the witness’ "belief in God”, compels reversal. (Torcaso v Watkins, 367 US 488; McGowan v Maryland, 366 US 420; Everson v Board of Educ., 330 US 1; Lemon v Kurtzman, 403 US 602; Walz v Tax Commn., 397 US 664; Committee for Public Educ. v Nyquist, 413 US 756.) II. The ultimate question cannot be dismissed as impulsive or isolated: it was designed to discredit a psychiatrist by a series of profoundly improper questions upon cross-examination. III. The trial court committed reversible error in excluding or severely curtailing psychiatric testimony as to defendant’s mental disease: the posttraumatic stress syndrome also known as "Viet Nam Syndrome”. IV. The People failed to prove defendant guilty of murder in the second degree beyond a reasonable doubt. V. The court should have dismissed the count of the indictment charging murder in the second degree upon defendant’s motion. (People v Patterson, 39 NY2d 288.)

      William V. Grady, District Attorney (Joan H. McCarthy of counsel), for respondent.
    I. The People proved defendant guilty of murder in the second degree beyond a reasonable doubt. (People v Kennedy, 47 NY2d 196, 48 NY2d 635; People v Bracey, 41 NY2d 296; People v Malizia, 62 NY2d 755; People v Casassa, 49 NY2d 668; People v Horton, 18 NY2d 355; People v Wood, 12 NY2d 69; People v Joyiens, 39 NY2d 197; People v Regina, 19 NY2d 65.) II. The questions posed by the prosecutor to the defense witness do not require reversal. (People v Chaitin, 61 NY2d 683; People v Love, 57 NY2d 1023; People v West, 56 NY2d 662; People v Weston, 56 NY2d 844; People v Cedeno, 52 NY2d 847; People v Qualls, 55 NY2d 733; People v Dancey, 57 NY2d 1033; People v Jackson, 196 NY 357; People v Patterson, 39 NY2d 288, affd sub nom. New York v Patterson, 432 US 197; People v Tutt, 38 NY2d 1011.) III. The record does not support appellant’s allegation of a pattern of prosecutorial misconduct. IV. The trial judge did not exclude or severely curtail psychiatric testimony concerning the posttraumatic stress syndrome. V. The court did not err when it denied defendant’s motion for a trial order of dismissal. (People v Sabella, 35 NY2d 158; People v Wood, 12 NY2d 69.) VI. The trial court’s instructions on extreme emotional disturbance were proper. (People v Cadorette, 56 NY2d 1007; People v Patterson, 39 NY2d 288, affd sub nom. New York v Patterson,
      432 US 197; People v Casassa, 49 NY2d 668; People v Gonzales, 56 NY2d 1001; People v Russell, 266 NY 147; People v Anthony, 24 NY2d 696, 396 US 1025.)
   OPINION OF THE COURT

Chief Judge Wachtler.

On this appeal, we must determine whether the prosecutor’s questioning of the primary defense witness about his religious beliefs and his decision to affirm, rather than swear, to the truth of his testimony constitutes reversible error. While we decline to hold that such questioning constitutes error per se, we hold that, except under extraordinary circumstances, it must be deemed sufficiently prejudicial to require a new trial, at least where the trial judge fails to give a prompt and clear corrective instruction.

The defendant was charged with the murder of an acquaintance. After meeting in a bar, they returned to her apartment and engaged in sexual intercourse, after which defendant, according to his own statement to a police officer, "snapped” and began to strangle her with her brassiere. He then took a glass jar filled with pennies and struck her in the head. After realizing the victim was dead, defendant returned to his own apartment and unsuccessfully tried to take his own life. He stated to the officer that there had been no argument or fight, and he did not know why he had killed his victim.

The circumstances of the alleged crime having been established by the defendant’s own admission, as well as physical evidence placing him at the scene of the crime, his trial strategy was to establish a reasonable doubt concerning his mental competence. Several witnesses testified to the defendant’s previous spontaneously violent behavior and to his responses to various psychological tests. His principal expert was a psychiatrist, Dr. Teich, who concluded that the defendant was suffering from a mental disease or defect at the time he killed the victim and lacked substantial capacity to know or appreciate the nature and consequences of his conduct or that such conduct was wrong. Dr. Teich affirmed, rather than swore, to the truth of his testimony. During the People’s cross-examination, the following occurred:

"Q. * * * Now I know that you affirmed your testimony in this case; is that true?

"mr. sammarco [defense counsel]: Objection. What does that have to do with anything?

"the court: Overruled.

"mr. sammarco: Exception. It has to do with being expert in the field of psychiatry?

"the court: Overruled.

"mr. sammarco: Exception.

"Q. Did you affirm your testimony in this case?

"A. Yes, I did.

"Q. Would you not swear under oath, swear to God to tell the truth, nothing but the truth? Would you personally not do that?

"A. I affirmed.

"mr. sammarco: I’m going to ask the Court to instruct the jury on an affirmation because [the prosecutor] brought it up and it’s out of place.

"the court: Application denied.

"mr. sammarco: Exception.

"Q. Do you believe in God, period?

"A. I would like to complete my description of my affirmation because you asked me a question about swearing.

"As I understand the constitution of this country as a separation of church and state, and here I believe I’m in one of the organs of state, and any inclusion of reference to the church should be separated.

"So, I’ve chosen to separate it and take a course of action that is a lay course of action and that is to affirm and I do that out of choice.”

After denying a defense motion for a mistrial, the trial judge indicated he would "bring it up” in his charge if defense counsel so desired. During the course of his charge, he instructed the jury:

"Dr. Stephen S. Teich, prior to testifying, made an affirmation rather than giving you an oath. An affirmation is, 'a solemn declaration made by a person who conscientiously decline [sic] taking an oath; is equivalent to an oath and is just as binding; if a person has religious or conscientious scruples against taking an oath, the Notary Public should have the person affirmed. The following is a form of affirmation: You do solemnly, sincerely, and truly declare and affirm that the statements made by you are true and correct.’

"The fact that this witness gave an affirmation rather than an oath has no legal consequences as his testimony should be given no less consideration nor [sic] no more consideration than those witnesses who have given an oath.”

The jury rendered a verdict of guilty of murder in the second degree, and the court imposed sentence. A divided Appellate Division affirmed, the majority holding in essence that while the court’s permitting the prosecutor to inquire into Dr. Teich’s religious beliefs was erroneous, such error was harmless in light of the court’s "satisfactory curative instructions” (107 AD2d, at p 831).

There was legally sufficient evidence of the defendant’s guilt, including his state of mind at the time of the crime. As noted, defendant’s commission of the act was established both directly and circumstantially by his own statement and by physical evidence placing him at the scene when the killing occurred. On rebuttal, the People offered competent expert testimony which, if believed by the jury, established that defendant was suffering from an "explosive personality,” but was able to appreciate the nature and consequences of his acts, and that the disorder did not rise to the magnitude of a mental disease or defect. However, that evidence followed Dr. Teich’s voluminous testimony to the contrary, presenting the jury with a close question on the issue of defendant’s mental state.

Dr. Teich, of course, had a constitutional and statutory right to affirm, rather than swear, to the truth of his testimony. Section 3 of article I of our Constitution provides, in pertinent part, that "no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief’. CPLR 2309, applicable in criminal trials as well as civil (CPL 60.10), by its terms contemplates an equivalency between oaths and affirmations.

With limited exceptions not relevant here, any attempt to discredit or otherwise penalize a witness because of his religious beliefs or for the exercise of his right to affirm the truth of his testimony is improper, because those factors are irrelevant to the issue of credibility (Toomey v Farley, 2 NY2d 71, 82, rearg denied 2 NY2d 785; Brink v Stratton, 176 NY 150, 156 et seq. [opn by Cullen, J., joined by four members of the court]; People v De Pasquale, 54 Misc 2d 91, 92, affd 21 NY2d 715; Richardson, Evidence [Prince 10th ed] § 387; Fisch, New York Evidence § 464 [2d ed]).

The lower courts of our State, when confronted with such prosecutorial misconduct in criminal trials, have considered it error, but have employed harmless error analysis in determining whether reversal is required (e.g., People v Valdivia, 108 AD2d 885, 886; People v Connette, 101 AD2d 699, 700 [dictum]; cf. People v Thomas, 91 AD2d 857, 858). There appears to be a split among other jurisdictions on the question (compare, People v Hall, 391 Mich 175, 182-183, 215 NW2d 166; and State v Thomas, 130 Ariz 432, 437, 636 P2d 1214 [per se rule adopted], with Commonwealth v Mimms, 477 Pa 553, 558-559, 385 A2d 334; State v Estabrook, 162 Ore 476, 91 P2d 838, 850; and State v Beal, 199 NC 278, 154 SE 604 [no per se rule]; see generally, Impeachment of Witness — Religious Belief, Ann., 76 ALR3d 539, §§ 7, 8).

Our own court has been reluctant to hold that any particular error requires reversal without examination into whether actual prejudice to the defendant resulted (e.g., People v Crimmins, 36 NY2d 230; CPL 470.05 [1]). Generally, the cases have limited findings of fundamental error to violations of a clear constitutional or statutory command (e.g., People v Jones, 47 NY2d 409, cert denied 444 US 946 [violation of right to public trial per se error]; and People v Britt, 43 NY2d 111 [refusal to charge that no adverse inferencé may be drawn from a defendant’s failure to testify per se error]). The out-of-State cases in this area follow a similar pattern. Thus, in State v Thomas (130 Ariz 432, 636 P2d 1214, supra), the count’s determination of fundamental error was based on a constitutional provision (Ariz Const, art II, § 12) which stated in part that no person may "be questioned touching his religious belief in any court of justice to affect the weight of his testimony.” Similarly, in People v Hall (391 Mich 175, 215 NW2d 166, supra), a statute (Mich Comp L Ann § 600.1436; Mich Stats Ann § 27A.1436) provided in pertinent part: "No witness may be questioned in relation to his opinions on religion, either before or after he is sworn.”

In our State, no constitutional or statutory provision prohibits impeachment by questions concerning the religious beliefs of a witness. That our courts have deemed such questioning improper as being irrelevant to credibility does not transform a violation of the rule into per se reversible error. Thus, we must determine whether the prosecutor’s questions on cross-examination, asked with the acquiescence of the trial court, require reversal in this case.

There are several factors to be considered in determining whether prosecutorial misconduct constitutes harmless error. The over-all framework is the test of People v Crimmins (36 NY2d 230, 241-242, supra; see also, People v Roopchand, 107 AD2d 35, affd 65 NY2d 837), which focuses on the quantum and nature of the proof, and the likelihood that, if the error had not been committed, the outcome would have been different. In addition, our cases have focused on whether the prosecutor’s misconduct was provoked by defense counsel (e.g., People v Morgan, 66 NY2d 255, 259; People v Bailey, 58 NY2d 272, 277; People v Galloway, 54 NY2d 396, 400); to what extent the alleged misconduct has been preserved for our review (People v Bailey, 58 NY2d, at p 278, supra; People v Broady, 5 NY2d 500, 514, remittitur amended 6 NY2d 814, appeal dismissed and cert denied 361 US 8); and the extent to which the trial judge promptly acted to remove any prejudicial effect (People v Arce, 42 NY2d 179; People v Ashwal, 39 NY2d 105, 111).

Examining these factors in the context of the present case, we find that the evidence of defendant’s freedom from mental disease or defect and his capacity to understand the consequences of his actions was far from overwhelming. Rather, the jury was called upon to decide the winner of a closely fought battle of fully qualified experts, each of whom explained the bases for his opinion and testified at great length on a subject not easily understood by lay persons. The improper impeachment of defendant’s expert gave the People an unfair advantage which could very well have led the jury to accept their expert’s position.

In no way were the prosecutor’s remarks provoked, directly or indirectly, by defense counsel, who did not mention Dr. Teich’s religious beliefs on direct examination. Moreover, defense counsel did not attempt to "even the score” by employing similar tactics on the People’s witnesses.

The prosecutor’s misconduct was fully preserved for our review as a matter of law by defense counsel’s objection, request for a curative instruction and motion for a mistrial. This is not a case where only a small portion of the claimed misconduct is preserved for our review (compare, e.g., People v Broady, 5 NY2d, at pp 514-515, supra).

Finally, and most important, the trial judge did not act as a "saving grace,” handling the episode "promptly ánd forcefully” (People v Galloway, 54 NY2d, at p 399, supra). As noted in People v Ashwal (39 NY2d, at p 111, supra): "That is not to say that the trial was hopelessly flawed once the prosecutor made the improper remarks. It is possible that the court might have dissipated the prejudice by promptly and clearly advising the jury that the comments were improper and must be completely disregarded [citations]. But when, as here, the court overrules the defendant’s objections, and gives 'standing to the statement of the District Attorney as legitimate’ * * * the possibility of prejudice is greatly enhanced.” Here, not only was defendant’s objection to the improper question overruled, but his request for a curative instruction was denied in the presence of the jury. Under such circumstances, the court’s later instruction on the equivalency of an affirmation and an oath, coming as it did in the middle of an extended charge, with no apparent emphasis or reference to its earlier rulings, cannot be deemed to have vitiated the prejudice caused by the court’s earlier apparent indorsement of the improper questioning.

We have considered defendant’s remaining contentions and find them to be without merit. The order of the Appellate Division should be reversed and a new trial ordered.

Judges Jasen, Meyer, Simons, Kaye and Alexander concur; Judge Titone taking no part.

Order reversed, etc.


author: Alexander, J.

text:
    In the Matter of Virginia R. Bliss, Appellant, v Richard M. Bliss, Respondent. In the Matter of Kay C. Collyer, Respondent, v Robert B. Proper, Appellant.
    Argued November 15, 1985;
    decided December 19, 1985

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Noreen M. Giusti and Larry A. Sonnenshein of counsel), for appellant in the first above-entitled proceeding.
    In considering Domestic Relations Law § 248, which provides for the discretionary annulment of an alimony provision of a divorce judgment "upon proof that the wife is habitually living with another man and holding herself out as his wife,” the court below construed the "holding out” requirement in a manner contrary to the statutory construction adopted by this court in Northrup v Northrup. The undisputed facts in this record, as a matter of law, do not establish that petitioner is holding herself out as the wife of another man. Additionally, the court below abused its discretion as a matter of law in dismissing the petition seeking enforcement of the alimony provision where the undisputed facts are that petitioner is receiving public assistance and her ex-husband is fully able to pay the alimony. (Northrup v Northrup, 43 NY2d 566; Waddey v Waddey, 168 Misc 904, 290 NY 251; Weintraub v Weintraub, 302 NY 104; Roth v Michelson, 55 NY2d 278; Department of Welfare v Siebel, 6 NY2d 536; Meltzer v Koenigsberg, 302 NY 523; Orange & Rockland Utils. v Hess Corp., 59 AD2d 110; Matter of Common Council v Town Bd. of Town of Johnstown, 37 AD2d 459, 32 NY2d 1; Citron v Citron, 91 Misc 2d 785.)

      William G. ODonnell and Stuart F. Gartner for respondent in the first above-entitled proceeding.
    I. The public policy of the State of New York is to prevent circumvention of the statute terminating alimony upon the remarriage of a former wife. (Waddey v Waddey, 168 Misc 904, 259 App Div 852; Citron v Citron, 91 Misc 2d 785; Matter of Heitman, 154 Misc 838, 247 App Div 855, 272 NY 533; Graham v Graham, 211 App Div 580; Kirkbride v Van Note, 275 NY 244; Gaines v Jacobsen, 308 NY 218; Johnson v Johnson, 54 Misc 2d 1005; Stern v Stern, 88 Misc 2d 860; Northrup v Northrup, 43 NY2d 566.) II. Virginia Bliss has habitually lived with Thomas Fleming. (Matter of Watson v Watson, 39 AD2d 660; Krawczuk v Krawczuk, 49 AD2d 1003; Stern v Stern, 88 Misc 2d 860; Citron v Citron, 91 Misc 2d 785.) III. The conduct of Virginia Bliss and Thomas Fleming over 15 years indicates a holding out as husband and wife. (Northrup v Northrup, 43 NY2d 566; Smith v Smith, 88 AD2d 658; People v Uplinger, 58 NY2d 936; People v Onofre, 51 NY2d 476; Loving v Virginia, 388 US 1; Griswold v Connecticut, 381 US 479; Eisenstadt v Baird, 405 US 438.)

      Kenneth J. Connolly for appellant in the second above-entitied proceeding.
    Appellant’s obligation to pay alimony to respondent has terminated in accordance with the terms of the stipulation entered into between the parties. (Northrup v Northrup, 43 NY2d 566; Leffler v Leffler, 50 AD2d 93, 40 NY2d 1036; Russell v Russell, 80 AD2d 970.)

      Daniel S. Ross for respondent in the second above-entitled proceeding.
    Appellant, under the terms of the judgment of divorce and stipulation regarding termination of alimony, failed to prove, pursuant to Domestic Relations Law § 248, the existence of both the requirements of the two-part test of the spouse: (1) habitually living with a man and (2) holding herself out as his wife. In the absence of one, the Family Court is without power, in its discretion, to modify alimony. (Northrup v Northrup, 43 NY2d 566; Smith v Smith, 88 AD2d 658.)
   OPINION OF THE COURT

Alexander, J.

A former husband who seeks to terminate his support obligations pursuant to Domestic Relations Law § 248 by alleging that his former wife is cohabiting with another man must demonstrate both cohabitation and conduct by the former wife amounting to a "holding out” that she is married to her paramour. Accordingly, in Matter of Bliss v Bliss there should be a reversal and in Matter of Collyer v Proper an affirmance.

I

Virginia and Richard Bliss were married in New York in 1955. Four children were born of the marriage which ended in 1970 with the entry of a judgment of divorce in Connecticut Superior Court. The judgment directed Richard Bliss to pay $640 per month to Virginia Bliss as alimony. Soon after the divorce, Virginia Bliss and her children moved into the nearby home of Thomas Fleming. She and Fleming shared the master bedroom and Fleming participated in all family activities, including attending the children’s school functions and participating in holiday activities. Virginia Bliss did not change her name nor portray herself as married to Fleming. This relationship continued on a somewhat on-again-off-again basis over time, with Mrs. Bliss at one point telling her ex-husband to discontinue alimony payments, only to request their resumption a few months later because she could "no longer live without the alimony”. She later requested that Bliss take custody of the two younger children because she "was having a hard time and couldn’t get a new life in taking care of the children”. In 1977, she moved to Florida "to build a new life” but remained there only for approximately one year. Fleming neither accompanied her to Florida nor visited her during that time. From Florida, Virginia Bliss relocated to Maine to live with Mr. Fleming on property they previously had purchased jointly. They resided in a winterized "barn” on the Maine property until November 1979 when she moved to the Bahamas to live and work with her parents. Again, Fleming did not visit her while she was living in the Bahamas. However, she returned to the Maine property in May 1980 and resumed living with Fleming in the "barn”. In October 1981, Bliss moved into a house on adjoining property belonging to her mother, but has continued to maintain a sexual and social relationship with Fleming. He takes his meals with her three or four times a week and pays her approximately $25 per week for those weeks when he eats at her house. They continue to pay the taxes on the jointly owned property in equal shares.

Richard Bliss stopped paying the required alimony in the summer of 1982. In April of 1983, Virginia Bliss commenced this proceeding pursuant to Domestic Relations Law article 3-A (Uniform Support of Dependents Law) to enforce the alimony provision of the Connecticut divorce judgment. Richard Bliss asserted as a defense that the alimony provision should be annulled pursuant to Domestic Relations Law § 248 because petitioner had habitually lived with another man for various and extended periods over the past 14 years. Family Court granted the petition, finding that respondent had not met his burden of establishing that Virginia Bliss, through her conduct, had held herself out to be another man’s wife. A unanimous Appellate Division reversed, finding that Mrs. Bliss "clearly took on all of the accoutrements of married life with Fleming” and therefore that the "two-prong test of section 248 is satisfied” (107 AD2d 394, 396).

II

Kay C. Collyer and Robert B. Proper were married in 1954 and divorced in 1978. The divorce judgment incorporated, but did not merge with the terms of a stipulation entered on the record in open court between the parties wherein it was provided, that "alimony would cease upon the remarriage of the plaintiff or in the event that within the meaning of the Domestic Relations Law that such circumstances exist parallel to a marriage and in that event alimony would cease.” Subsequent to the divorce, Mrs. Collyer moved to Florida, where she shared a one-bedroom apartment with its owner, Angelo Trenga until August 1985. It appears from the record that she maintained her own checking account, provided her own health insurance and paid her share of the household expenses during the time she resided with Trenga. On an infrequent basis, as her finances allowed, she would pay some $200 a month to Trenga for rent. Both of their names appeared on the mailbox at their apartment building and they maintained separate listings in the telephone directory. Although they vacationed together on occasion, there is no evidence that she ever portrayed herself as married to Trenga.

In the summer of 1983, Tricia, an unemancipated daughter of the Proper marriage, who had been living in Cobleskill with her father, relocated to Florida to live with an older married sister. In October 1983, because of Tricia’s relocation, Mrs. Collyer commenced a proceeding pursuant to Family Court Act article 4 seeking an upward modification of child support. Mr. Proper counterclaimed, seeking a downward modification of maintenance and/or support due to a "substantial change in circumstances” occurring since the entry of the judgment of divorce. Specifically, Proper sought to terminate all support payments because the provisions of the stipulation and decree authorized such termination "in the event that within the meaning of Domestic Relations Law * * * such circumstances exist parallel to a marriage”. Family Court denied both the petition for upward modification of the support and the counterclaim to terminate the alimony payments, holding that no adequate basis for an upward modification had been demonstrated and that Proper had not satisfied the two-pronged standard of Domestic Relations Law § 248 requiring both a "living together” and a "holding out”. Upon cross appeals to the Appellate Division, that court unanimously affirmed. Robert Proper appeals pursuant to leave granted by this court.

Ill

Domestic Relations Law § 248 states in relevant part: "The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife.”

We have previously held in Northrup v Northrup (43 NY2d 566), where a former husband sought to annul his alimony obligations because his former wife lived with a man "not her husband, shared the same bedroom with him, cooked meals, did his wash, permitted him to use her car, and shared household expenses with him” (43 NY2d, at p 569), that the clear language of the statute "imposes two requisites for the termination of alimony [to a former wife] in the absence of remarriage: (1) habitually living with a man, and (2) holding herself out as his wife” (id., at pp 571-572). We concluded that evidence that the former wife had "habitually lived with another man” and that "the individuals may conform to the life style of a married couple is not enough” (id., at p 572) to satisfy this two-pronged test. There must be in addition, some objective evidence of a "holding out” by the former wife that she is not the wife of the other man.

Neither of these appeals present sufficient evidence that the former wives were holding themselves out as another man’s wife. Absent such a showing, courts have no power under Domestic Relations Law § 248 to modify or annul support obligation. In Northrup we said that " 'some assertive conduct’ ” must be demonstrated to warrant a finding of "holding out” (43 NY2d, at p 571, citing People v Shokunbi, 89 Ill App 2d 53, 58, 232 NE2d 226), and noted illustrative situations such as where a woman is listed in a telephone directory or on the couple’s joint checking account using the man’s surname (43 NY2d, at p 571, citing Lang v Superior Ct., 53 Cal App 3d 852, 126 Cal Rptr 122). Other illustrations of the kind of assertive conduct necessary to satisfy the holding out requirement can be found in Matter of Paul S. v Roberta S. (91 Misc 2d 211), where the ex-wife shared a cooperative apartment with her paramour and the application for the apartment had been signed by them as husband and wife. Additionally, the woman in that case adopted the man’s surname on her W-2 forms and driver’s license, and indicated on her employment records that she was married to him (91 Misc 2d, at p 212). The proof required to demonstrate a holding out is, of course, not limited to the above illustrations. What is clear, however, is that cohabitation alone is insufficient as a matter of law.

In Bliss, the fact that Virginia Bliss’s relationship with Fleming has continued over some 14 years, and that early in the relationship he participated in what may be characterized as family activities are not sufficient to establish a holding out. The record does not reveal any conduct by Mrs. Bliss, either through direct action or by implication, indicating that she ever wished anyone to believe that she was married to Fleming nor does the evidence support such a belief. She was always referred to as "Mrs. Bliss”, and she lived in a different State and in a different country for periods of time. Similarly, the uncontroverted facts in Collyer ineluctably lead to the conclusion that Mrs. Collyer never held herself out to be Mr. Trenga’s wife. Quite the contrary, she maintained her own checking account and health insurance and at various times paid money to Trenga to be applied to the rent for the apartment which stood in his name alone.

The Northrup decision was based on the plain language of Domestic Relations Law § 248. "In the construction of a statute, meaning and effect should be given to all its language, if possible, and words are not to be rejected as superfluous when it is practicable to give each a distinct and separate meaning” (McKinney’s Cons Laws of NY, Book 1, Statutes § 231). The statutory language clearly mandates discrete findings of cohabitation and holding out.

We acknowledged in Northrup that "[t]he statute may indeed be circumvented where the woman negates any inference that she is holding herself out as married * * * The fact that a woman may avoid the loss of alimony by tailoring her conduct should not be surprising”. (43 NY2d, at p 571.) We concluded however, that "[t]he fact of the matter is that section 248 of the Domestic Relations Law, as presently drafted, does not authorize a court to terminate a provision for alimony merely upon a showing that an ex-wife is living with another man” (id., at p 572). Thus, the fact that the construction of the statute compelled by the plain meaning of its language may, in some instances, "convert the shield of the statute into a sword of inequity, dependent only upon the deftness with which a former spouse can parry assertions that her conduct in a protracted relationship is marital in substance” (Matter of Bliss v Bliss, 107 AD2d 394, 397) is a matter to be addressed by the Legislature and not by the courts. "[T]he courts of this State have no common-law jurisdiction over divorce or its incidents. The power to modify a provision for alimony is only such as is conferred by statute. * * * The court cannot extend the reach of the statutes * * * Change, if deemed advisable, must come from the Legislature” (Northrup v Northrup, 43 NY2d, at pp 570, 572, supra).

We note the numerous unsuccessful attempts following the Northrup decision to amend the language of Domestic Relations Law § 248. (See for example, 1978 NY Legis Rec and Index, Senate Intro No. 7144, Assembly Intro No. 11474; 1985 Senate Intro No. 769, 1985 Assembly Intro No. 1824; Steinberg v Steinberg, 46 AD2d 684, 685), and conclude therefrom that our determination is not contrary to the intent of the Legislature.

The order of the Appellate Division in Bliss therefore should be reversed and the order of Family Court, New York County, reinstated. The order of the Appellate Division in Collyer should be affirmed.

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

In Matter of Bliss v Bliss: Order reversed, with costs, and order of Family Court, New York County, reinstated.

In Matter of Collyer v Proper: Order affirmed, with costs.

       Mr. Proper’s argument that Domestic Relations Law § 248 is inapplicable because of the stipulation entered into by the parties is belied by the words of the stipulation that specifically refer to the Domestic Relations Law as the standard to be applied in determining "circumstances * * * parallel to a marriage”.


text:
    Rashan Williams, an Infant, by His Father and Natural Guardian, Nicholas Williams, et al., Appellants, v Roosevelt Hospital et al., Respondents, et al., Defendants.
    Argued November 13, 1985;
    decided December 19, 1985
    POINTS OF COUNSEL

      Paul A. Krez and Ellen M. Saunders for appellants.
    I. Confidential information concerning the medical history of a nonparty to an action is privileged and nondiscoverable even if relevant. (Hughson v St. Francis Hosp., 93 AD2d 491; Galligano v Galligano, 245 App Div 743; Mullarkey v Misericordia Hosp. & Med. Center, 104 AD2d 1064; Scharlack v Richmond Mem. Hosp., 102 AD2d 886; Herbst v Bruhn, 106 AD2d 546; Burgos v Flower & Fifth Ave. Hosp., 108 Misc 2d 225; Larsson v Mithallal, 72 AD2d 806; Lenard v New York Univ. Med. Center, 83 AD2d 860.) II. Testimony, as well as documents such as medical records, concerning a nonparty’s medical history and condition is privileged pursuant to CPLR 4504 (a). (Mullarkey v Misericordia Hosp. & Med. Center, 104 AD2d 1064; Burgos v Flower & Fifth Ave. Hosp., 108 Misc 2d 225; Edington v Mutual Life Ins. Co., 67 NY 185; Davis v Supreme Lodge, 165 NY 159; Rubin v Equitable Life Assur. Socy., 269 App Div 677; Woernley v Electromatic Typewriters, 271 NY 228; Renihan v Dennin, 103 NY 573; People v Bloom, 193 NY 1.) III. Testimony as to ordinary incidents and facts which are plain to the observation of anyone without expert or professional knowledge do not constitute a waiver of the physician-patient privilege. (Klein v Prudential Ins. Co., 221 NY 449; People v Newman, 32 NY2d 379; Patten v United Life & Acc. Ins. Assn., 133 NY 450; Edington v Aetna Life Ins. Co., 77 NY 564.) IV. The court below erred in creating an exception to the legislatively created physician-patient privilege. (Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130; Matter of City Council v Goldwater, 284 NY 296; People v Decina, 2 NY2d 133; People v Shapiro, 308 NY 453; Steinberg v New York Life Ins. Co., 263 NY 45; People v Murphy, 101 NY 126; Matter of Stern v Morgenthau, 62 NY2d 331; Matter of Beach v Shanley, 62 NY2d 241.) V. Defendants-respondents failed to show that the medical conditions and histories of the nonparties to this action are in issue. (Koump v Smith, 25 NY2d 287; Dunham v Ottinger, 243 NY 423.)

      Howard R. Cohen for respondents.
    I. The decision of the court below is in accord with the trend of the law toward broad disclosure. (Allen v Crowell-Collier Pub. Co., 21 NY2d 403; Wolfe v Fazzini, 50 AD2d 723; Groben v Travelers Indem. Co., 49 Misc 2d 14, 28 AD2d 650; Matter of Hofberg, 50 Misc 2d 147; State of New York v De Groot, 35 AD2d 240; Hughson v St. Francis Hosp., 93 AD2d 491; Avila Fabrics v 152 W. 36th St. Corp., 22 AD2d 238; Turner v Town of Amherst, 62 Misc 2d 257; Koump v Smith, 25 NY2d 287; Hoenig v Westphal, 52 NY2d 605.) II. The discovery ordered by the court below in the matter at hand is not barred by CPLR 4504 (a). (Edington v Aetna Life Ins. Co., 77 NY 564; People v Maynard, 80 Misc 2d 279; Matter of Camperlengo v Blum, 56 NY2d 251; Matter of People v Doe, 107 Misc 2d 605; Matter of Do Vidio v Do Vidio, 56 Misc 2d 79; Milano v State of New York, 44 Misc 2d 290; Lenard v New York Univ. Med. Center, 83 AD2d 860; Larsson v Mithallal, 72 AD2d 806.) III. The discovery sought by respondents is relevant to the issues raised by the matter at hand. (Prink v Rockefeller Center, 48 NY2d 309; Murray v Donlan, 77 AD2d 337; Battala v State of New York, 26 AD2d 203, 24 NY2d 980; Kaempfe v Lehn & Fink Prods. Corp., 21 AD2d 197, 16 NY2d 1044, 18 NY2d 784, 19 NY2d 702, 20 NY2d 818; Matter of Hartop, 311 F2d 249; Hughson v St. Francis Hosp., 93 AD2d 491; Gannotta v Long Is. Coll. Hosp., 92 AD2d 930; Paldino v E. J. Korvettes, Inc., 65 AD2d 617.) IV. Even if the information sought were privileged under CPLR 4504 (a), that privilege was waived by the testimony voluntarily given. (Apter v Home Life Ins. Co., 266 NY 333; Strader v Collins, 280 App Div 582; People v Bloom, 193 NY 1.) V. The court below properly declined to follow Hughson v St. Francis Hosp. (Hughson v St. Francis Hosp., 93 AD2d 491; Greuling v Breakey, 56 AD2d 540.) VI. The relief ordered by the court below is reasonable and equitable in light of the safeguards available to plaintiffs. (Tymko v K-Mart Discount Stores, 75 AD2d 987, 51 NY2d 708; Snyder v Parke, Davis & Co., 56 AD2d 536; McLaughlin v Searle & Co., 38 AD2d 810; Hyman v Revlon Prods. Corp., 277 App Div 1118; Fibron Prods, v Hooker Chem. Corp., 26 Misc 2d 779; Mullarkey v Misericordia Hosp. & Med. Center, 104 AD2d 1064; Burgos v Flower & Fifth Ave. Hosp., 108 Misc 2d 225.)
   OPINION OF THE COURT

Alexander, J.

A witness at an examination before trial in a medical malpractice action may invoke the physician-patient privilege (CPLR 4504) to avoid revealing the substance of confidential communications made to her physician, but may not refuse to testify as to relevant medical incidents or facts concerning herself or her children. Accordingly, we find no error in the Appellate Division’s decision granting defendants’ motion for further examination of the nonparty witness.

The infant plaintiff, Rashan Williams, was born on March 17, 1979, and, the complaint alleges, suffered brain damage as a result of negligent obstetrical care. This action was brought by the infant and his father. At an examination before trial, plaintiffs produced the infant’s mother, a nonparty witness, and the following exchanges took place:

“Q. How many children do you have? A. Three.

"Q. How old are they, and their names? A. Melinda Williams; she is 20. Cedric Williams, 18; Rashan Williams, 4.

"Q. And where was Melinda born? A. Petersburg, Virginia.

"Q. Was she a full-term? A. Yes.

"Q. Did she have any congenital problems or physical problems when she was born?

"Mr. Meisenberg [plaintiffs’ attorney]: Objection. When I object, you wait for me to finish. I direct you not to answer that question.

* * *

"Q. Did you have any other pregnancies besides Melinda and Cedric? A. Yes. I had one abortion.

"Q. When was that?

"Mr. Meisenberg: Just note my objection for the record. Do not answer that question.

* * *

"Q. Did you ever have a child that was born with an injury? A. No.

"Q. Do you want to correct that? A. Yes.

"Q. And what is your answer now? A. Yes.

"Q. And what child was that? A. Rashan Williams.

"Q. What injury was he born with? A. Arm injury, brain injury.

"Q. Where was Cedric born? A. Queens.

"Q. Where? A. St. Alban’s Naval Hospital, 1965.

"Q. And Melinda? That was '63? A. '62.

"Q. And Rashan was born in '79? A. '79.

"Q. For ten years prior to or before the birth of Rashan— that would be from 1969 to 1979 — were you under the care of any physician — A. No.

"Q. —for anything?

"Mr. Meisenberg: Note my objection for the record.

"Q. Were you seen at the Roosevelt Hospital Clinic for any reason during that ten-year period? A. G.Y.N.

"Q. Were you seen by any particular doctor at that clinic or were you followed by any particular physician? A. No.

"Q. Were you taking any medication of any kind for one year before the birth of Rashan? A. No.

"Mr. Meisenberg: Note my objection. I will make an objection for the record.

"Q. Did Melinda have any learning disabilities?

"Mr. Meisenberg: Objection. Direct that witness not to answer, based on the prior questions [sic] that were stated for the record.

"Q. Did Cedric have any learning disabilities?

"Mr. Meisenberg: Same objection.”

Defendants subsequently moved for an order directing the infant’s mother to appear for further examination before trial and to answer questions concerning her prior health history and the birth and physical condition of her two eldest children. Although Special Term expressed its view that disclosure should be directed, it denied the motion on constraint of the Second Department’s holding in Hughson v St. Francis Hosp. (93 AD2d 491). The Appellate Division reversed and granted the motion for further examination before trial. The court held that "there is no [physician-patient] privilege in testimony as to what actually happened. The privilege applies to confidential information given to the physician which enables him to act in his professional capacity” (108 AD2d 9, 10-11).

Under this State’s liberal discovery scheme, "[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]; Allen v Crowell-Collier Pub. Co., 21 NY2d 403). However, "[u]pan objection of a party privileged matter shall not be obtainable” (CPLR 3101 [b]). Potentially shielded from discovery, therefore, are communications deemed privileged under CPLR 4504, which provides in part that: "Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, or dentistry shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”

Although the physician-patient privilege did not exist at common law, New York became the first jurisdiction to adopt the privilege by statute in 1828. Its enactment was based on the belief that fear of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment (3 Commission on Revision of Statutes of NY, at 737 [1836]; Fisch, NY Evidence §§ 541, 557 [2d ed]; see, Edington v Mutual Life Ins. Co., 67 NY 185, 194). The privilege has been severely criticized because of serious doubts, that its truth-inhibiting effect can be justified by any real promotion of the public health (e.g., Fisch, op. cit. § 557; 8 Wigmore, Evidence § 2380a [McNaughton rev 1961]; Morgan, Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence, 10 U Chi L Rev 285 [1942]; Lipscomb, Privileged Communications Statute—Sword and Shield, 16 Miss LJ 181 [1944]; Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor’s Mouth on the Witness Stand?, 52 Yale LJ 607 [1943]; see, Koump v Smith, 25 NY2d 287, 293). The privilege applies at examinations before trial (Hughson v St. Francis Hosp., 93 AD2d 491, 498, supra; Hughes v Kackas, 3 AD2d 402), and it covers both oral testimony and documents, such as hospital records (Fisch, op. cit. § 542, at 358), which presumably are drawn up in large part based on communications imparted by the patient to the treating physician.

Although the statute is phrased in terms of not allowing a medical professional to reveal information acquired in a professional capacity from a patient, it serves also to protect the patient from being compelled to disclose the substance of a communication made to the medical professional in an attempt to obtain treatment (Hughson v St. Francis Hosp., 93 AD2d, at pp 497-498, supra; Galligano v Galligano, 245 App Div 743; Fisch, op. cit. § 542, at 358). Were the rule otherwise, little practical protection would be accorded patient-doctor communications (Hughson v St. Francis Hosp., 93 AD2d, at p 498, supra). That which the privilege seeks to protect, however, and thereby foster, are confidential communications, not the mere facts and incidents of a person’s medical history (see, Klein v Prudential Ins. Co., 221 NY 449, 453; Richardson, Evidence § 432 [Prince 10th ed]). Instructive on this point is the United States Supreme Court decision in Upjohn Co. v United States (449 US 383), which dealt with the attorney-client privilege. The Upjohn court held that: " '[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, "What did you say or write to the attorney?” but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.’ Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (ED Pa 1962).” (449 US, at pp 395-396 [emphasis in original].) Thus, just as "a party cannot conceal a fact merely by revealing it to his lawyer” (State ex rel. Dudek v Circuit Ct, 34 Wisc 2d 559, 580, 150 NW2d 387, 399), a witness may not refuse to answer questions regarding matters of fact, such as those posed in this case, as to whether her children had any physical or congenital problems, whether she was in the care of a physician or was taking medication during a certain period of time, or concerning the facts surrounding an abortion merely because those topics relate to events that required medical care or advice from a physician. In determining whether certain information is protected under the physician-patient privilege, the burden is on the party asserting the privilege " 'to show the existence of circumstances justifying its recognition’ (Bloodgood v. Lynch, 293 N. Y. 308, 314)” (Koump v Smith, 25 NY2d 287, 294, supra).

We have no need on this appeal to decide whether the information sought by defendants is relevant. Such a determination must be made by the trial court based on the circumstances of each case with due regard for the policy favoring broad pretrial discovery (see, CPLR 3101 [a]; Allen v Crowell-Collier Pub. Co., 21 NY2d 403, supra). We interpret the certified question of law as asking only whether the Appellate Division had the power to allow further examination of the witness at defendants’ option. Because we hold that physician-patient privilege does not provide a basis for the witness here to refuse to reveal the information sought, the certified question is answered in the affirmative.

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

Order affirmed, with costs. Question certified answered in the affirmative.