author: Chief Judge Kaye.

text:
    [660 NE2d 1131, 637 NYS2d 352]
    The People of the State of New York, Appellant-Respondent, v Jonathan Trappier, Respondent-Appellant.
    Argued October 26,1995;
    decided November 29, 1995

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Marc Frazier Scholl and Donald J. Siewert of counsel), for appellant-respondent.
    A claim of repugnancy should be determined solely by reference to the jury charge. The count submission principles of People v Gallagher (69 NY2d 525 [1987]) are not applicable to a challenge made after a rendered verdict. Even if the Gallagher principles applied, where conduct can lead to multiple outcomes, a person can intend one outcome, but recklessly ignore the possibility of another outcome. (People v Brewer, 186 AD2d 88, 81 NY2d 785; People v Loughlin, 76 NY2d 804; People v Robinson, 75 NY2d 879; People v Moloi, 135 AD2d 576, 70 NY2d 1009; People v Dunkley, 177 AD2d 703, 81 NY2d 839; People v Waldron, 162 AD2d 485.)

      Kerry A. Brennan, New York City, Philip L. Weinstein and Daniel L. Greenberg for respondent-appellant.
    I. This Court lacks appellate jurisdiction with respect to the People’s appeal. (People v Dercole, 52 NY2d 956; People v Hinton, 81 NY2d 867; People v Johnson, 47 NY2d 124; People v Morris, 68 NY2d 799.) II. Defendant’s convictions for attempted assault in the first degree and reckless endangerment in the first degree were inconsistent and, therefore, were properly overturned. (People v Gallagher, 69 NY2d 525; People v Alfaro, 66 NY2d 985; People v Satloff, 56 NY2d 745; People v Stahl, 53 NY2d 1048; People v Robinson, 75 NY2d 879; People v Davis, 72 NY2d 32; People v Samuel, 138 AD2d 543; People v Wilson, 129 AD2d 514; People v Gutierrez, 105 AD2d 754.) III. Defendant’s conviction for criminal possession of a weapon in the second degree should be reversed because there is a reasonable possibility that the error leading to the reversal of other factually similar counts influenced the verdict on the weapon possession count. (People

      v Baghai-Kermani, 84 NY2d 525; People v Kelly, 76 NY2d 1013; People v Harrison, 85 NY2d 891.)
   OPINION OF THE COURT

Chief Judge Kaye.

Can a defendant intend to cause serious physical injury to another person and at the same time recklessly create a grave risk that death will result from that conduct? We conclude that the two mental states are not mutually exclusive when applied to different outcomes and consequently the jury verdict finding defendant guilty of both attempted first degree assault and first degree reckless endangerment was not repugnant.

Following a dispute between defendant and security guard Vernon Hutchinson over whether defendant had thrown a bottle in the plaza area of an apartment complex, Hutchinson asked defendant and his companion to leave the complex. Defendant vowed, "I’ll be back.” He and his companion returned later that evening, and from approximately 70 feet away defendant fired three shots in Hutchinson’s direction. One bullet hit the leg of Hutchinson’s pants, and another travelled just past his ears. Defendant was charged with attempted murder in the second degree (Penal Law § 125.25 [1]), attempted assault in the first degree (Penal Law § 120.10 [1]), criminal possession of a weapon in the second degree (Penal Law § 265.03) and reckless endangerment in the first degree (Penal Law § 120.25).

The attempted assault count accused defendant of attempting to cause serious physical injury to Hutchinson with the specific intent to cause such injury. The reckless endangerment count accused defendant of recklessly creating a grave risk of Hutchinson’s death.

During its charge, the court instructed the jury that an essential element of attempted first degree assault was that defendant intended to cause serious physical injury, which it defined as "a physical injury which creates a substantial risk of death or which causes death or serious and protracted disfigurement or protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” Regarding first degree reckless endangerment, the court instructed that defendant was "charged with having recklessly created a grave risk of death to another person under circumstances evincing a depraved indifference to human life.” The court then explained that a "person recklessly creates a grave risk of death to another person when he is aware of and consciously disregards a substantial and unjustifiable risk that a grave risk of death will result.” None of the four counts was submitted to the jury in the alternative.

Defendant was acquitted of attempted second degree murder but convicted of the remaining counts. Before the jury was discharged, and again in a motion to set aside the verdict at sentencing, defense counsel urged that the jury had found defendant guilty of acting both recklessly and intentionally and that the verdict was therefore repugnant under People v Gallagher (69 NY2d 525). The trial court rejected this contention. The Appellate Division, however, reversed defendant’s attempted assault and reckless endangerment convictions, concluding that they were legally inconsistent counts. We disagree.

A verdict is inconsistent or repugnant — the difference is inconsequential — where the defendant is convicted of an offense containing an essential element that the jury has found the defendant did not commit (see, CPL 300.30 [5] ["(t)wo counts are 'inconsistent’ when guilt of the offense charged in one necessarily negates guilt of the offense charged in the other”]). In order to determine whether the jury reached "an inherently self-contradictory verdict” a court must examine the essential elements of each count as charged (People v Tucker, 55 NY2d 1, 8; see also, People v Loughlin, 76 NY2d 804, 806).

In People v Gallagher (69 NY2d 525, supra), we explained that a defendant who acts with the conscious objective of bringing about a particular result cannot simultaneously act with conscious disregard of a substantial and unjustifiable risk that the very result will occur. Gallagher was a homicide case in which the defendant was convicted of both intentional murder and reckless manslaughter of a single victim. Those counts were inconsistent: "where the shooting (the act) and the death (the result) are the same, a defendant cannot be convicted twice for the murder, once for acting 'intentionally’ and once for acting 'recklessly’ ” (id., at 529 [citations omitted]).

Here, as in Gallagher, the act — the shooting — is the same for the attempted assault and the reckless endangerment counts. Unlike Gallagher, however, these counts entail two distinct results. The result required under first degree reckless endangerment was the reckless creation of a grave risk of Hutchinson’s death. To be guilty of attempted first degree assault, defendant must have attempted to cause serious physical injury to Hutchinson, while possessing the specific intent to cause such injury. As the trial court correctly instructed the jury, serious physical injury includes an injury causing not only death or a substantial risk of death but also serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ (see, Penal Law § 10.00 [10]).

A defendant could certainly intend one result — serious physical injury — while recklessly creating a grave risk that a different, more serious result — death—would ensue from his actions. Defendant, for example, could have fired at Hutchinson with the intent to cause him only serious and protracted disfigurement and simultaneously consciously disregarded a substantial and unjustifiable risk that, by so doing, he would create a grave risk of a more severe outcome, Hutchinson’s death. Thus, a finding that defendant was guilty of attempted first degree assault did not "necessarily negate [his] guilt” of first degree reckless endangerment (CPL 300.30 [5]).

People v Robinson (145 AD2d 184, affd 75 NY2d 879), relied upon by defendant, is not to the contrary. The defendant in Robinson was convicted of one count of manslaughter requiring intent to cause serious physical injury and one count of depraved mind murder, of the same victim, requiring recklessness. We affirmed the Appellate Division’s holding that these counts were inconsistent. While the inconsistent counts in Robinson involved the same culpable mental states at issue here, the defendant in Robinson — like the defendant in Gallagher and unlike the defendant in the instant case — was convicted for acting intentionally and recklessly as to the same result, the death of the victim. Thus, although the Appellate Division dissent in Robinson correctly concluded that intentional and reckless conduct are mutually exclusive "only when the two culpable mental states concern the same result” (145 AD2d, at 188), the dissent overlooked the fact that the two homicide counts in Robinson did indeed involve identical outcomes.

Because the jury here determined that defendant acted intentionally as to one result and recklessly as to a distinct, more serious result, the verdict was not inconsistent.

Accordingly, the order of the Appellate Division should be modified by reinstating defendant’s convictions of attempted assault in the first degree and reckless endangerment in the first degree and remitting to that court for further proceedings in accordance with CPL 470.25 (2) (d) and 470.40 (2) (b) and, as so modified, affirmed.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order modified by reinstating defendant’s convictions of attempted assault in the first degree and reckless endangerment in the first degree and remitting to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

       The Appellate Division further concluded that, because the counts were inconsistent, they should have been submitted to the jury in the alternative. Although defendant did not object to submission of the counts in the conjunctive, reversal of the conviction was necessarily based on the preserved inconsistency issue, and we therefore reject defendant’s argument that the appeal must be dismissed (CPL 450.90 [2] [a]).


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    [661 NE2d 131, 637 NYS2d 659]
    In the Matter of Commissioner of Social Services of Franklin County, on Behalf of Rebecca G., Appellant, v Bernard B., Respondent. In the Matter of Commissioner of Social Services of Franklin County, on Behalf of Lisa U., Appellant, v Steven V., Respondent.
    Argued October 24, 1995;
    decided November 29, 1995

      POINTS OF COUNSEL

      Jonathan C. Wool, Malone, for appellants in the first and second above-entitled proceedings.
    I. The creation of a per se class of nonliable fathers is impermissible. (Matter of Steuben County Dept. of Social Servs. v Deats, 76 NY2d 451; New York State Dept. of Social Servs. v Bowen, 846 F2d 129.) II. Respondent’s ability to pay must be considered. (Matter of Falcon v Accardi, 193 AD2d 1063; Matter of Costello v Geiser, 85 NY2d 103; Matter of Lisa M. UU. v Mario D. VV., 78 AD2d 711.) III. The marital/gender distinction is permitted. (Eisenstadt v Baird, 405 US 438; People v Liberta, 64 NY2d 152.)

      Bernard B., respondent pro se, precluded in the first above-entitled proceeding.

      Peter Racette, Plattsburgh, for respondent in the second above-entitled proceeding.
    I. Family Court did not abuse its discretion in dismissing the petition seeking recovery of Medicaid expenses made on behalf of Lisa U. from respondent because permitting recovery would have discriminated against respondent on the basis of his gender and marital status; would have violated Medicaid nonrecovery provisions and undermine the purposes of the Medicaid program; and because there are no facts showing an abuse of discretion in this case. (Matter of Commissioner of Social Servs. County of Franklin v Ronald QQ., 209 AD2d 905; Matter of Lisa M. UU. v Mario D. VV., 78 AD2d 711; Orr v Orr, 440 US 268; Matter of Goodell v Goodell, 77 AD2d 684, 51 NY2d 704; Childs v Childs, 69 AD2d 406, 48 NY2d 754; Department of Social Servs. v Nichols, 136 Misc 2d 82, affd sub nom. Matter of Cortland County Dept. of Social Servs. v Thomas ZZ., 141 AD2d 119; Matter of Albany County Dept. of Social Servs. v Englehardt, 124 AD2d 140; Matter of Department of Social Servs. v Barbara M., 123 Misc 2d 523; Matter of Monroe County Dept. of Social Servs. v Bennett, 178 AD2d 974; Matter of Carol J. v William J., 119 Misc 2d 739.) II. Family Court properly dismissed appellant’s claim for recovery of the $520 Medicaid expended on behalf of respondent’s child as respondent was a Medicaid recipient at the time of the child’s birth and therefore was not liable under Social Services Law § 366 (3) (a). (Matter of Steuben County Dept. of Social Servs. v Deats, 76 NY2d 451.)
   OPINION OF THE COURT

Levine, J.

The Commissioner of the Franklin County Department of Social Services filed a petition for child support in each of these cases seeking to hold the respondent unwed fathers liable for birth-related medical expenses incurred by the Franklin County Department of Social Services (the Department) on behalf of the mother and child.

Following an order of filiation declaring respondent Steven V. to be the father of Ashley, Lisa U.’s child, the Department, in Matter of Commissioner of Social Servs. of Franklin County (Lisa U.) v Steven V., sought reimbursement for $520 in medical costs expended on behalf of Ashley and $2,225.23 expended on behalf of her mother in connection with the birth. At the time these expenses were incurred, Steven V. and Lisa U. were living together in the same household. According to the findings of the Family Court Hearing Examiner, at the time of the support hearing Steven V. was employed and earning approximately $180 per week, was still living in the same household with Lisa U., Ashley and another child, and was supporting the children. Under these circumstances, the Hearing Examiner concluded that Steven V.’s liability for past medical assistance had been established in the full amount sought by the Department and ordered him to pay $25 each month to the Franklin County Support Collection Unit.

Upon respondent’s filing of written objections, Family Court determined that, under Matter of Steuben County Dept. of Social Servs. v Deats (76 NY2d 451), it would be improper to hold Steven V. liable for Ashley’s birth-related expenses if he had been in receipt of Medicaid assistance at the time of her birth. Family Court further found that it would be "illogical” to apply a different standard to respondent’s obligations for the mother’s birth-related expenses. Because the Hearing Examiner had not considered Steven V.’s financial ability or Medicaid status at the time the expenses were incurred, the court remanded for a new hearing so that these factual determinations could be made. On remand, the Hearing Examiner found that Steven V. had been in receipt of Medicaid benefits at the time of Ashley’s birth, and in accordance with Family Court’s directive, dismissed the petition. Family Court denied the Commissioner’s objections and the Appellate Division affirmed, holding that a contrary ruling would result in unconstitutional discrimination on the basis of both gender and marital status (207 AD2d 162).

In Matter of Commissioner of Social Servs. of Franklin County (Rebecca G.) v Bernard B., following entry of an order of filiation against respondent Bernard B., the Department sought reimbursement of $3,260.10 for past medical support it had provided in connection with the birth of respondent’s son Michael. Of that amount, $684.79 had been expended on behalf of the child and $2,575.31 on behalf of the mother. The Family Court Hearing Examiner dismissed the support petition, concluding that, as a matter of law, the father may not be held solely responsible for birth-related expenses where the unwed parents had resided together in one household and were both in receipt of medical assistance at the time the birth-related expenses were incurred. The Commissioner filed written objections to the Hearing Examiner’s order, seeking reinstatement of the support petition in its entirety. Family Court, relying solely on the father’s inability to pay at the time the expenses were incurred as shown by his then Medicaid eligibility status, denied the Commissioner’s objections and affirmed the dismissal. The Appellate Division, relying on its analysis in Steven V., affirmed (211 AD2d 965).

We granted leave to the Commissioner in both matters and now modify by reversing so much of the orders of the Appellate Division that upheld dismissal of the Commissioner’s claims for reimbursement of the mothers’ birth-related expenses.

In Matter of Steuben County Dept. of Social Servs. v Deats (76 NY2d 451, supra), we held that the father’s ability to pay at the time the expenses were incurred is the appropriate standard for establishing the father’s liability under Social Services Law § 366 for the birth-related expenses paid on behalf of his child {id., at 458). Because Family Court found that the respondent unwed fathers in these two proceedings were eligible for and receiving Medicaid assistance at the time the birth-related expenses were incurred, and thus did not possess sufficient income and resources at that time under Medicaid eligibility standards, the Appellate Division properly upheld the dismissal of the petitions insofar as they sought recovery for the expenses incurred on behalf of the children (see, id., at 459).

The unsettled issue presented in these two cases is whether as a matter of statutory interpretation or constitutional mandate an unwed father’s liability for the medical expenses for confinement and delivery paid on behalf of the mother must likewise depend on his ability to pay at the time the expenses were incurred. Phrased differently, the question is whether our holding in Deats should be extended to immunize an unwed father from liability for the mother’s birth-related expenses if he was unable to pay for those expenses, as evidenced by his Medicaid eligibility status, at the time of the birth. Because we conclude that the statutory scheme imposes liability on the unwed father under a present ability to pay standard rather than on the basis of ability to pay at the time the expenses were incurred and that application of this standard does not violate equal protection principles, we now reverse on this issue.

We explained in Deats that under the Federal Medicaid program an unwed father is a statutorily defined "responsible relative” (i.e., parent) of his child, and by reason of that status is liable for reimbursement of the child’s birth expenses under the standard set forth in Social Services Law § 366 (Matter of Steuben County Dept. of Social Servs. v Deats, 76 NY2d, at 458, supra). However, we recognized that liability of the unwed father for the child’s expenses was dependent on his ability to pay at birth, when the expenses were incurred. That was because the statutory "implied contract” of a responsible relative to reimburse under section 366 is not created "where the 'responsible relative’ is without sufficient income and resources at the time the department furnishes the assistance to his child” (id., at 458-459).

In Deats, however, we distinguished the unwed father’s familial-based liability for the child’s birth expenses from his liability for the birth expenses paid on behalf of the mother, with whom the unwed father has no legal relationship and as to whom he is not a "responsible relative.” We held that his liability for the mother’s expenses is neither premised on, nor forbidden by, Social Services Law § 366, but rests on a wholly different basis, namely third-party liability. After examining the Federal and State Medicaid provisions, we found no prohibition to the imposition of third-party liability for these expenses (Matter of Steuben County Dept. of Social Servs. v Deats, 76 NY2d, at 455-457, supra). Indeed, as we explained in Deats because the Federal policy is to make Medicaid " 'the payer of last resort,’ ” the Federal program requires participating States to take all reasonable measures to ascertain the legal liability of and seek reimbursement from all potentially liable third parties (id., at 455, quoting Sen Rep No. 146, 99th Cong, 1986 US Code Cong & Admin News, at 279, and citing 42 USC § 1396a [a] [25] [A], [B]). For this reason we found it wholly consistent with the Federal statutory scheme for the State to impose third-party liability on an unwed father for the mother’s birth-related expenses even though he is not liable as a responsible relative for these costs (id., at 457-458). Finally, we recognized that the statutory basis for the unwed father’s third-party liability for the mother’s birth-related expenses is found in sections 514 and 545 of the Family Court Act (id., at 455).

There, thus, being no statutory impediment under the Medicaid program to the imposition of third-party liability in this context, we look to Family Court Act §§514 and 545 for the appropriate standard. Section 545 unambiguously focuses on the unwed father’s present ability to pay, as measured by his current resources and his earning capacity (see, Family Ct Act § 545 [a court order for support including the mother’s pregnancy and confinement expenses may be imposed on "parents possessed of sufficient means or able to earn such means”]), thus echoing the general standard of spousal and child support found in the Family Court Act (see, Family Ct Act § 412 [order for spousal support to be based on means or ability to earn such means]; Family Ct Act § 413 [1] [a] [child support]; see also, Family Ct Act § 513 [support of nonmarital children]). Moreover, while section 514 states that the court may order an unwed father to pay for the mother’s confinement costs in its discretion, it is clear that the court’s discretion is to be exercised consistently with the present means and ability standard of section 545. Thus, in light of the clear mandate in Family Court Act article 5 to measure the unwed father’s third-party liability under a present means and ability standard, and because neither the Federal Medicaid program nor Social Services Law § 366 requires application of a different standard, we find no statutory basis for making the unwed father’s liability for the mother’s birth-related expenses dependent on his ability to pay at the time the expenses were incurred.

Alternatively, respondents contend, and the Appellate Division agreed, that constitutionally, a single standard — based upon the unwed father’s ability to pay at the time of birth — is required as to the imposition of liability for both the mother’s and the child’s birth expenses. Respondents argue, and the Appellate Division held, that application of the present ability to pay standard of Family Court Act §§ 514 and 545 to the father’s separate liability for the mother’s birth-related expenses would result in a denial of equal protection to the respondent unwed fathers on the basis of both gender and marital status. We disagree.

Respondents’ first equal protection argument is that Family Court Act § 514 is facially invalid for gender-based discrimination, since it is phrased to impose potential liability for the mother’s confinement and other birth-related expenses only on fathers. However, when read in connection with the subsequently enacted section 545 of the Family Court Act which imposes liability for these costs on either parent, section 514 is properly understood as authorizing the court to impose liability without regard to gender. The Appellate Division was therefore correct in the instant case in following its decision in Matter of Lisa M. UU. v Mario D. VV. (78 AD2d 711) and interpreting section 514 as applying to a parent of either gender (see, 207 AD2d, at 164).

The Appellate Division concluded, however, that even when read in a gender-neutral fashion, Family Court Act §§514 and 545 discriminate on the basis of gender in this context because as a matter of law the mother is protected against recoupment under the applicable Medicaid provisions for her own birth expenses (see, Social Services Law § 369 [2] [b]; 42 USC § 1396a [a] [18]; § 1396p [b]), while the father, even if in the same financial position as the mother at the time of the birth, may be held liable for these same expenses under the Family Court Act. Respondents argue that this difference in treatment can only be sustained if it is substantially related to an important government interest (see, e.g., People v Liberta, 64 NY2d 152, 168; Orr v Orr, 440 US 268, 279; Califano v Webster, 430 US 313, 316-317). However, because we reject the argument that application of these provisions results in discrimination on the basis of gender, we review and sustain the statutory scheme under rational basis scrutiny.

The mother is eligible for Medicaid assistance in connection with her pregnancy and birth-related costs as a direct recipient. Her eligibility for these benefits is based on her medical condition of pregnancy, and under the applicable Medicaid provisions, a recipient is protected against liability to the Department for Medicaid benefits that were lawfully paid, i.e., benefits to which the recipient was legally entitled (see, Social Services Law § 369 [2] [b]; 42 USC § 1396a [a] [18]; § 1396p [b]). Thus, the mother’s condition of pregnancy provides the basis for her eligibility for benefits and, at the same time, provides the basis for her immunity from recoupment. The unwed father, on the other hand, because he is not pregnant and does not give birth, is not a direct recipient of any medical assistance in connection with his child’s birth. For this reason, he is not protected by the statutory provisions that prohibit recoupment from direct recipients.

Accordingly, rather than gender, it is the physical condition of pregnancy that distinguishes the unwed mother and father’s statutory liability for the mother’s birth-related expenses. Because "[njormal pregnancy is an objectively identifiable physical condition with unique characteristics, * * * [a]bsent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against members of one sex or the other,” a classification based on pregnancy does not constitute a gender-based classification (Geduldig v Aiello, 417 US 484, 496, n 20). There is no evidence here that the pregnancy-based distinction in the statutes was pretextual. Thus, the difference in treatment of fathers and mothers, which rests on the physical status of pregnancy, is subject only to rational basis scrutiny (see, id.; see also, Lovelace v Gross, 80 NY2d 419, 427 [rational basis is general standard of review applied to social welfare legislation that does not distinguish on the basis of a suspect classification]).

We conclude that a rational basis for the distinction exists. As was previously discussed, the imposition of third-party liability on unwed fathers in this context furthers the congressional policies underlying the Medicaid program. Additionally, the Legislature could rationally determine that imposing the threat of future liability on a medically indigent pregnant woman might discourage her from obtaining medical care necessary for the health and survival of both herself and the child, a consideration not applicable to the liability of the unwed father (cf., Hope v Perales, 83 NY2d 563 [recognizing that one goal of the Medicaid program is to encourage prenatal care]). Because they are, thus, rationally related to a physical distinction — pregnancy—the imposition of different standards of liability with respect to medically indigent expectant mothers and fathers is not unconstitutional.

The Appellate Division also held that applying the present ability to pay standard of Family Court Act §§514 and 545 to determine the liability of an unwed father for the mother’s birth-related expenses would result in an unconstitutional differentiation among fathers on the basis of marital status. The Appellate Division based this conclusion on the different treatment of married fathers and unwed fathers in the statutory scheme. Thus, a married father who is indigent at the time of his child’s birth will permanently escape liability for his spouse’s confinement and birth-related costs as a "responsible relative” under Social Services Law § 366, which looks solely to his ability to pay at the time the expenses were incurred. Contrariwise, an unwed father who was indigent at the time of the birth would not necessarily escape liability as a responsible third party under Family Court Act §§ 514 and 545, since those provisions look to his ability to pay at the time of the support hearing. Respondents acknowledge that such discrimination on the basis of marital status is subject only to rational basis scrutiny (see, People v Liberta, 64 NY2d 152, 163, supra, quoting Eisenstadt v Baird, 405 US 438, 447, and citing People v Onofre, 51 NY2d 476, 491, rearg denied 52 NY2d 1072, cert denied 451 US 987).

Applying that level of scrutiny, we hold that the distinction between married and unmarried fathers with respect to the mother’s birth-related expenses is rationally based. Pursuant to his statutorily imposed spousal support obligations, a married father has an ongoing duty of support to his wife, including liability for her confinement costs and any other necessary medical expenses (Family Ct Act §§ 412, 416). On the other hand, an unmarried father is liable only for the mother’s pregnancy and birth-related expenses since it is the child that provides the only legal connection between the two unwed parents. The far more limited liability of the unwed father for the mother’s needs justifies the more favorable treatment of the married father regarding the mother’s birth expenses. Moreover, a married father, indigent at the time of birth, is exempt from any future liability for his wife’s or child’s birth-related expenses to avoid the destructive effect of future liability on the relationships within the family unit (see, Matter of Steuben County Dept. of Social Servs. v Deats, 76 NY2d, at 456-457, supra).

It follows that although the Appellate Division correctly applied Deats to the respondents’ liability for the children’s birth expenses, the Appellate Division erred in applying the Deats rationale to their liability for the birth-related expenses of the mothers. Thus, we affirm dismissal of that part of each petition seeking reimbursement of the expenses paid on behalf of the child. However, remittal to the Family Court is necessary for a determination of each respondent’s present ability to pay for the birth-related expenses incurred by the Department on behalf of the mothers.

Accordingly, in each of these proceedings the order of the Appellate Division should be modified, without costs, by remitting the matter to Family Court, Franklin County, for further proceedings in accordance with this opinion, and as so modified, affirmed.

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

In each case: Order modified, etc.

      . Section 514 provides: "The father is liable to pay the reasonable expenses of the mother’s confinement and recovery and such reasonable expenses in connection with her pregnancy as the court in its discretion may deem proper”.

      . In pertinent part, Family Court Act § 545 provides: "[T]he court shall direct the parent or parents possessed of sufficient means or able to earn such means to pay * * * a fair and reasonable sum * * * for [the] child’s support and education * * *. The order may also direct each parent to pay an amount as the court may determine and apportion for * * * the necessary expenses incurred by or for the mother in connection with her confinement and recovery [and] such expenses in connection with the pregnancy of the mother as the court may deem proper.”


author: Smith, J.

text:
    [661 NE2d 138, 637 NYS2d 666]
    In the Matter of Nassau County Department of Social Services, on Behalf of Dante M., Respondent, v Denise J., Appellant. (Proceeding No. 1.) In the Matter of Nassau County Department of Social Services, on Behalf of Dantia M., Respondent, v Denise J., Appellant. (Proceeding No. 2.)
    Argued September 13, 1995;
    decided November 30, 1995

      POINTS OF COUNSEL

      Jeremy L. Goldberg, Hempstead, Matthew Muraskin and Kent V. Moston for appellant.
    I. Under the applicable statutory and decisional law of the State of New York, a positive toxicology for cocaine in a newborn infant cannot in itself establish neglect on the part of the mother. (People v Holmes, 81 NY2d 1056; People v May, 81 NY2d 725; People v Howard, 50 NY2d 583, 449 US 1023; Smith v People, 47 NY 330; Matter of Stefanel Tyesha C., 157 AD2d 322, 76 NY2d 983; Matter of Philip M., 82 NY2d 238; Matter of Brian A., 190 AD2d 530, 81 NY2d 710; Matter of Lahey v Kelly, 71 NY2d 135; Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137; Santosky v Kramer, 455 US 745.) II. The Court below, in affirming the judgment of Family Court, either relied on factors which did not justify a finding of neglect or did not specify the grounds for its decision sufficiently to permit this Court’s proper review thereof. (Matter of Michael B., 80 NY2d 299; Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137; Matter of Department of Social Servs. [Mark S.] v Felicia B., 144 Misc 2d 169.) III. Under the circumstances of this case, the judgments of the courts below violated the New York State and United States Constitutions. (People v Felix, 58 NY2d 156, 464 US 802; Matter of Tammie Z., 66 NY2d 1; Mathews v Eldridge, 424 US 319; Santosky v Kramer, 455 US 745; Matter of Lahey v Kelly, 71 NY2d 135; Byrn v New York City Health & Hosps. Corp., 31 NY2d 194, 410 US 949; Weaver v Graham, 450 US 24.)

      Denise R. Langweber, Merrick, Law Guardian for Dante M. and Dantia M.
    I. There was nothing in the record to support a derivative finding of neglect on behalf of Dantia. (Matter of Christina Maria C., 89 AD2d 855; Matter of Cindy JJ., 105 AD2d 189; Matter of John S., 175 AD2d 207; Matter of Eli G., 189 AD2d 764; Matter of Dutchess County Dept. of Social Servs. [Douglas E., III] v Douglas E., Jr., 191 AD2d 694; Matter of Rasheda S., 183 AD2d 770.) II. The positive toxicology report of Dante M., in and of itself, was insufficient for a finding of neglect. (Matter of Rebecca W., 122 AD2d 582; Matter of Stefanel Tyesha C., 157 AD2d 322; Matter of Nassau County Dept. of Social Servs. [Miranda H.] v Laquetta H., 191 AD2d 567; Matter of Theresa J., 158 AD2d 364; Matter of Alfredo S. v Nassau County Dept. of Social Servs., 172 AD2d 528; Matter of Fletcher, 141 Misc 2d 333; Matter of Milland, 146 Misc 2d 1.)

      Owen B. Walsh, County Attorney of Nassau County, Mineóla (Marilyn L. Olshansky of counsel), for respondent.
    I. New theories attacking the sufficiency of the toxicology results for cocaine, disputing the premise that prenatal exposure to cocaine is harmful, and raising new constitutional arguments have not been preserved for appellate review and should not be entertained. (Persky v Bank of Am. Natl. Assn., 261 NY 212; Melahn v Hearn, 60 NY2d 944; People v Two Wheel Corp., 71 NY2d 693; People v Riccardi, 285 NY 21.) II. A positive toxicology for cocaine in a newborn comprises proper and sufficient support for an adjudication of neglect pursuant to article 10 of the Family Court Act. (Matter of Gloria C. v William C., 124 Misc 2d 313; Matter of Vanesa "F.”, 76 Misc 2d 617; Woods v Lancet, 303 NY 349; Hughson v St. Francis Hosp., 92 AD2d 131.) III. The Family Court adjudication of the subject children as neglected pursuant to Family Court Act § 1012 (f) (i) (B) was correct and proper and did not impose new standards of strict liability. (Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137; Matter of Philip M., 82 NY2d 238; Matter of Department of Social Servs. [Mark S.] v Felicia B., 144 Misc 2d 169.) IV. The lower court decisions were not in abrogation of the United States or New York State Constitution. (Roe v Wade, 410 US 113.)
   OPINION OF THE COURT

Smith, J.

The issue before this Court is whether a finding of neglect as to a newborn and the newborn’s older sibling may be based solely on the newborn’s positive toxicology for a controlled substance. We conclude that more than a positive toxicology is generally required for a neglect determination. We affirm in this case because, as the Appellate Division concluded, there is additional evidence in the record supporting the Family Court’s findings of neglect.

Appellant gave birth to her son Dante in November 1990. Both mother and son tested positive for cocaine. After learning of the positive toxicologies, the Nassau County Department of Social Services (DSS) brought a petition pursuant to section 1022 of the Family Court Act to temporarily remove Dante from appellant’s care. Family Court conducted a hearing on the removal petition on November 21, 1990.

At the hearing, DSS presented evidence that Dante was born with a positive toxicology for cocaine and a low birth weight. DSS also presented evidence that appellant had a history of cocaine abuse, had been admitted to several drug rehabilitation centers, and that appellant’s mother had custody of two of appellant’s children because appellant’s drug use rendered her incapable of caring for them. Appellant’s mother informed DSS that she had observed appellant high on cocaine in the last weeks of appellant’s pregnancy with Dante. Appellant told DSS that she smoked a cigarette at a Halloween party at the end of her pregnancy which may have contained cocaine.

Appellant did not present any witnesses at the removal hearing, but argued that DSS had failed to sustain its burden of proof because no toxicology report or witnesses to recent drug abuse had been produced. Appellant’s counsel also argued that appellant had not admitted to recent, intentional, drug use. Family Court dismissed the petition and directed the hospital to release Dante to appellant’s custody. That removal proceeding is not before us.

DSS subsequently brought this consolidated child protective proceeding against appellant on behalf of Dante, appellant’s son, and Dantia (born in 1987), appellant’s daughter. At the fact-finding hearing, DSS introduced into evidence two medical reports showing a positive toxicology for cocaine from Dante and positive toxicology for cocaine and opiates from appellant. DSS also presented evidence of appellant’s prior history of drug abuse and appellant’s admission that she may have smoked a cigarette containing cocaine, while she was pregnant with Dante, at a Halloween party.

Appellant presented two experts who testified that appellant provided a clean, well-ordered environment for her children, that appellant interacted appropriately with her children and that four random urine samples taken from appellant tested negative for controlled substances. The experts opined that appellant had not been a regular user of controlled substances since the latter half of the 1980’s. The experts also testified that appellant was voluntarily receiving counseling at a general education and support program run by the Family Service Association. Appellant did not testify at the fact-finding hearing.

Dante’s medical records reveal a primary diagnosis of prematurity, even though they also indicate 38-39 weeks of gestation, with a low birth weight (4 pounds, 14 ounces) for his gestation period. Dante remained in the Neonatal Intensive Care Unit for the duration of his stay at the Nassau County Medical Center. He was released to the custody of his mother on November 21, 1990, after the Family Court refused to order removal.

The medical records also contain a note from the medical center’s social worker documenting a phone call from appellant’s aunt at the beginning of November, before Dante’s birth, alerting the social worker to appellant’s drug use and expressing concern about Dante’s health. The records further contain a discharge assessment form indicating a discharge diagnosis of prematurity and advising follow-up care in the high-risk clinic.

Family Court found that Dante’s positive toxicology for cocaine constituted sufficient evidence for a finding of neglect as to Dante and Dantia. The Family Court further found that a presentment agency need not produce any evidence for a finding of neglect other than a positive toxicology for a controlled substance in the newborn. Appellant was permitted to retain custody of Dante and Dantia and placed under the supervision of DSS for a one-year period. The Appellate Division affirmed, relying on additional evidence in the record for its factual findings of neglect.

Section 1012 (f) (i) (B) of the Family Court Act defines a "neglected child” as a child less than 18 years of age "whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” because of a parent’s failure to exercise a minimum degree of care "by misusing a drug or drugs.” Thus, the statute sets forth two predicates for a finding of neglect: actual physical, emotional or mental impairment, or the imminent danger of such impairment.

Although physical impairment is not defined by statute, section 1012 (h) of the Family Court Act defines "impairment of emotional health” and "impairment of mental or emotional condition” as "a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior”. The Practice Commentaries to section 1012 use that statutory definition as a model to define "impairment of a physical condition” and arrive at the following formulation: "a state of substantially diminished physical growth, freedom from disease, and physical functioning in relation to, but not limited to, fine and gross motor development and organic brain development” (Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1012, at 239).

The imminent danger standard is not specifically defined by statute, but clearly reflects the judgment of the Legislature that a finding of neglect may be appropriate even when a child has not been actually impaired, in order to protect that child and prevent impairment. Consequently, the imminent danger of impairment to a child is an independent and separate ground on which a neglect finding may be based.

A report which shows only a positive toxicology for a controlled substance generally does not in and of itself prove that a child has been physically, mentally or emotionally impaired, or is in imminent danger of being impaired. Relying solely on a positive toxicology result for a neglect determination fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child. The Family Court thus erred in concluding that Dante’s positive toxicology alone was sufficient for the findings of neglect. A positive toxicology report, however, in conjunction with other evidence, may support a neglect finding. Even though here, the trial court did not make any findings linking the positive toxicology to physical impairment, the record contains other evidence which supports the findings of neglect on the ground that appellant’s children were placed in imminent danger of impairment by appellant’s drug use, and justifies the limited DSS intervention which was ordered.

Dante was born prematurely, with low birth weight and a positive toxicology for cocaine. Dante required a specialized level of care and spent his entire hospital stay in the Neonatal Intensive Care Unit. After discharge from the hospital, Dante required a high degree of follow-up care at the high-risk clinic. Appellant had a history of being unable to care for her children because of her drug use and was observed high on cocaine during the end of her pregnancy with Dante. Although two experts opined that appellant had not regularly used drugs since the second half of the 1980’s, appellant’s mother and aunt stated that appellant had been high during the end of her pregnancy with Dante.

A trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding (Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137, 141). Appellant did not testify at the fact-finding hearing. Consequently, it may be inferred that appellant knowingly used cocaine during her pregnancy. Appellant’s use of cocaine during her pregnancy, considered in conjunction with her prior, demonstrated inability to adequately care for her children while misusing drugs provided a sufficient basis to conclude, at the least, that Dante was in imminent danger of impairment (see, Family Ct Act § 1046 [a] [ii]). Moreover, that same evidence indicated a substantial impairment of judgment leading to a conclusion of neglect (see, Family Ct Act § 1046 [a] [iii]).

Appellant’s conduct and lack of judgment created an imminent danger of impairment as to Dantia, who was under appellant’s care during that time period. Proof of neglect as to one child is admissible on the issue of neglect as to another (see, Family Ct Act § 1046 [a] [i]). Appellant’s neglect of Dante could be considered in determining whether appellant neglected Dantia. Consequently, the Appellate Division had sufficient grounds to sustain the neglect findings as to Dante and Dantia.

The fact that appellant had a series of negative toxicology tests subsequent to Dante’s birth, and that social workers testified at the fact-finding hearing that appellant was currently providing a good home were relevant in this proceeding to the disposition, and not to whether appellant previously neglected the children by her acts or omissions. It should be emphasized that there is no issue here of the removal of either Dante or Dantia from the care of appellant. Nevertheless, the record supported the need to insure the adequacy of care provided to both children. The limited supervision ordered by the Family Court achieved this goal with an appropriate level of State intervention.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order affirmed, without costs.

       [4] Expert testimony would be particularly helpful in cases such as these, where medical records must be interpreted, especially when a question exists as to whether a newborn exhibited drug withdrawal symptoms after birth.


author: Titone, J.

text:
    [661 NE2d 142, 637 NYS2d 670]
    Julius Oden, Respondent, v Chemung County Industrial Development Agency et al., Defendants and Third-Party Plaintiffs. Streeter Associates, Inc., Third-Party Defendant-Appellant.
    Argued October 19,1995;
    decided November 30, 1995

      POINTS OF COUNSEL

      Williamson, Clune & Stevens, Ithaca (John H. Hanrahan, 3d,

    of counsel), for third-party defendant-appellant.
    I. A plain reading of CPLR 4545 (c) requires "any” economic loss to be offset by "any” qualifying collateral source. II. Requiring awards for economic loss to be offset only by collateral sources of the same category or type is contrary to the language of the collateral source statute and its legislative intent. (Eschberger v Consolidated Rail Corp., 174 AD2d 983; Ausch v St. Paul Fire & Mar. Ins. Co., 125 AD2d 43; Kelly v Seager, 163 AD2d 877; Greenspan v East Nassau Med. Group, 204 AD2d 273; Levy v Gemma Contr. Co., 184 AD2d 219.) III. The Court below erred in imposing a new, previously unknown requirement that awards and collateral sources be "categorized” prior to directing any offset.

      Young and Paniccia, Binghamton (Alfred Paniccia, Jr., of counsel), for respondent.
    I. Because the only economic loss plaintiff’s disability retirement pension replaces is the loss of a regular retirement pension, the collateral source does not reduce any other element of the jury award. (Healy v Rennert, 9 NY2d 202; Coyne v Campbell, 11 NY2d 372; Eschberger v Consolidated Rail Corp., 174 AD2d 983, 79 NY2d 752; Hill v Muchow, 178 AD2d 954.) II. The denial of an award for future pain and suffering and loss of enjoyment of life is error as a matter of law. (Irizarry v Raybern Bus Serv., 183 AD2d 872.) III. The Court below employed the wrong standard for determining whether the jury’s awards for future damages deviated materially from what would be reasonable compensation. (Raucci v City School Dist., 203 AD2d 714.)
   OPINION OF THE COURT

Titone, J.

CPLR 4545 (c) authorizes the court in a personal injury action to reduce the amount of the plaintiff’s award if it finds that any element of the economic loss encompassed in the award was or will be replaced, in whole or in part, from a collateral source. The issue before us on this appeal is whether the economic loss portion of an award should be reduced by the proceeds from any collateral source or whether reduction is authorized only when the collateral source payment represents reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded. Based on both the language and the purposes of CPLR 4545 (c), we now adopt the latter narrower construction of the statute.

The present action arises out of a December 1988 incident in which plaintiff, a 48-year-old ironworker, was injured when he was struck by a falling steel column that was apparently dislodged by a small hydraulic crane. Plaintiff sued the owner of the crane, the crane operator, the contract agency that provided the crane operator and the owner and lessee of the work site, alleging various Labor Law and common-law causes of action. The defendants subsequently asserted cross claims against each other, as well as third-party claims against Streeter Associates, plaintiff’s employer.

Following a bifurcated jury trial, plaintiff was awarded damages as follows: $5,752.75 for past medical expenses, $20,000 for pain and suffering, $27,550 for lost past earnings, $66,000 for lost pension benefits and $80,000 for future lost earning and health and welfare benefits. The total was apportioned among the defendants, and all defendants were granted judgment over against third-party defendant Streeter. Following a hearing pursuant to CPLR 4545 (c), the court ordered that the total award for future economic loss ($146,000) be reduced by the $141,330, the value of the disability retirement benefits that plaintiff expected to receive over his lifetime.

On plaintiff’s appeal, the Appellate Division modified by restoring the full amount of the $80,000 award for future lost earnings and benefits and adjusting the total damages award upward accordingly. The Court held that "where a jury award for a discrete category of economic loss is wholly satisfied and in fact exceeded by a collateral source of the very same category, [CPLR 4545 (c)] operates only to eliminate the jury award for that category.” (211 AD2d 997, 999.) The Court impliedly determined that only the award for lost pension benefits was sufficiently related to the collateral disability retirement benefits to qualify for the offset permitted by CPLR 4545 (c). Third-party defendant Streeter has appealed by leave of this Court.

Under traditional common-law principles, a personal injury award may not be reduced or offset by the amount of any compensation that the injured person may receive from a source other than the tortfeasor (see, Kish v Board of Educ., 76 NY2d 379, 384; Healy v Rennert, 9 NY2d 202, 206). The collateral source rule, which is both a rule of evidence and a rule of damages, is based on the premise that a negligent defendant should not, in fairness, be permitted to reduce its liability by the proceeds of insurance or some other source to which that defendant has not contributed (Kish v Board of Educ., supra, at 384; Healy v Rennert, supra, at 206; see, Standard Oil Co. v United States, 153 F2d 958, affd 332 US 301). Although the rule has been criticized (see, Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4545:l, at 344), it was not modified or curtailed by the courts of this State.

Beginning in 1975, however, the Legislature initiated efforts to limit the rule’s effect in response to a perceived "crisis” in the medical malpractice insurance industry. The first incursion on the rule’s scope was an amendment to CPLR 4010 which permitted juries in medical malpractice actions to consider evidence of collateral source payments when determining the award for economic loss (L 1975, ch 109). This exception was solidified and strengthened in 1981, when the Legislature made the reduction for compensation from collateral sources mandatory and transferred the responsibility for making the reduction from the jury to the court (L 1981, ch 269).

In 1984, CPLR 4010 was repealed and its provisions were incorporated in the newly enacted CPLR 4545 (a) (L 1984, ch 701). At the same time, the mandatory offset for collateral source payments was extended, on a limited basis, to personal injury and wrongful death awards obtained by public employees (id.; see, CPLR 4545 [b]). Additional changes in CPLR 4545 (a) were adopted the following year extending the collateral source reduction to dental malpractice awards and to all medical and dental malpractice awards for future economic losses that would, "with reasonable certainty,” be reimbursed or indemnified (L 1985, ch 294, § 8; cf., Ryan v City of New York, 79 NY2d 792 [noting that Legislature had not extended the rule permitting reduction for future collateral source payments to actions by public employees]).

The most recent step in the process was the 1986 enactment of CPLR 4545 (c), which applies to all personal injury, property damage and wrongful death actions commenced on or after June 28, 1986 (L 1986, ch 220, § 36). The statute provides:

"In any action brought to recover damages for personal injury, injury to property or wrongful death, where the plaintiff seeks to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source such as insurance * * *, social security * * * workers’ compensation or employee benefit programs”.

Under the statute, "[i]f the court finds that any such cost or expense was or will, with reasonable certainty, be replaced or indemnified from any collateral source, it shall reduce the amount of the award by such finding.”

Relying on its view of the language and purposes of the statute, appellant Streeter argues that CPLR 4545 (c) requires the court to reduce the total award for economic loss by the total amount of collateral source payments for economic loss that the plaintiff has or will receive as a result of the incident that led to the lawsuit. In contrast, plaintiff contends that the award for economic loss should be broken down into categories and the reductions for collateral source payments should then be made only in those categories that correspond to analogous collateral source categories. We conclude that plaintiff has the better of the argument.

We note at the outset that CPLR 4545 (c) is a statute enacted in derogation of the common law and, as such, is to be strictly construed (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 301 [a]; see also, Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408, 414). Further, it is to be construed in the narrowest sense that its words and underlying purposes permit, since the "rules of the common law must be held no further abrogated than the clear import of the language used in the statute absolutely requires” (McKinney’s, op. cit., § 301 [b]).

These principles and a close analysis of the statutory text provide support for plaintiffs position. The statute first refers to actions to recover for enumerated and other economic losses and then authorizes the trial court to consider that any "such” losses were or will be replaced from a collateral source. This use of the term "such”, which serves as a grammatical echo for its immediate antecedent (McKinney’s, op. cit, § 254, at 418), suggests that a direct correspondence between the item of loss and the type of collateral reimbursement must exist before the required statutory offset may be made.

The statute’s provision for the offset of "any such cost or expense” by a payment from "any collateral source” (emphasis added) does not contradict this conclusion. The statute’s dual reference to "any” cost or expense and "any” collateral source was evidently a legislative effort to establish that, apart from the express statutory reservations, there are to be no limitations on the types of economic losses or the types of collateral benefits that the offset is intended to reach (cf., CPLR 4545 [b]). Nothing in the use of that inclusive adjective negates the separate implication arising from the statute’s other operative language that only those collateral source payments that actually replace a particular category of awarded economic loss may be used to reduce the injured’s judgment.

The statutory requirement that the court make a finding that the awarded cost or expense "was or will * * * be replaced or indemnified” (emphasis added) from a collateral source belies the contention that the statute’s juxtaposition of "any * * * cost or expense” with "any collateral source” was intended as a direction to treat all collateral source payments as fungible. To "replace” means to "take the place of” or substitute (Webster’s Ninth New Collegiate Dictionary 999 [1986]); to "indemnify” means to make good on a loss that has been incurred (Black’s Law Dictionary 692 [5th ed]). A disability annuity received as a result of an accident cannot be said to "replace” an out-of-pocket medical expense that the plaintiff incurred as a result of accident-related injuries. The proposition that a payment from "any” collateral source "replace[s] or indemnified]” "any” accident-related cost or expense thus cannot be sustained.

The correctness of this construction of the statute is also supported by the policy considerations underlying the common-law collateral source rule and its recent legislative modifications. The chief criticism of the common-law rule was that it permitted double recovery (see, Ryan v City of New York, 79 NY2d 792, 795, supra; Alexander, op. cit., at 344). While the resulting windfalls to plaintiffs were deemed a necessary and acceptable "evil” when the primary aim of tort law was to punish and deter wrongdoers, the collateral source rule’s doctrinal underpinnings were seriously eroded by the law’s shift in focus to the considerably different goal of compensating injured individuals. If just compensation is the main end toward which tort law is directed, it makes little sense to perpetuate a damages rule that tolerates two or more recoveries for the same injury. It was this perception, along with rising insurance costs, that motivated the Legislature to take steps to modify the common-law rule (see, Governor’s Program Mem, L 1986, ch 220, 1986 NY Legis Ann, at 135-136; Governor’s Advisory Commn on Liability Insurance [1986] [recommending CPLR 4545 (c)’s adoption]; see also, Governor’s Program Mem, L 1985, ch 294, 1985 NY Legis Ann, at 131; Mem of Assembly Rules Comm, L 1984, ch 701, 1984 NY Legis Ann, at 251; Mem of Assemblyman Tallón, L 1981, ch 269,1981 NY Legis Ann, at 153).

The Legislature’s goal of eliminating plaintiffs’ duplicative recoveries is served by subtracting from the total award those collateral source payments that duplicate or correspond to a particular item of economic loss. The broader rule that appellant Streeter advocates — which would mandate subtraction of all collateral source payments arising from the incident regardless of whether they duplicate an awarded item of pecuniary loss — would ouercompensate and produce results beyond those necessary to remedy the "evil” at which the legislation was aimed. Indeed, the rule appellant advances would confer an undeserved windfall on tort defendants and their insurers by permitting' them to obtain a credit for collateral source payments that do not correspond to the items of economic loss that they are being called upon to reimburse.

In this instance, appellant Streeter seeks to have plaintiff’s award reduced by the entire amount he is expected to realize from his disability retirement pension. However, contrary to Streeter’s argument, plaintiff’s retirement pension benefits have not been shown to replace the lost future earnings and health and welfare benefits for which the jury awarded him $80,000. Rather, those benefits are paid in lieu of ordinary pension benefits and do not necessarily correspond to any future earning capacity plaintiff might have had. Indeed, it is undisputed that, notwithstanding his retirement as an ironworker, plaintiff would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits. Thus, it cannot be said that the disability pension benefits plaintiff expects to receive are duplicative of the award he received for lost future earnings. Accordingly, the Appellate Division properly limited the operation of CPLR 4545 (c) in this case by applying plaintiff’s anticipated $141,330 disability pension benefits to reduce to zero the $66,000 award for lost ordinary pension benefits which the disability pension benefits did replace.

We note that, despite appellant Streeter’s expressed concerns about the practicality of requiring a close correspondence between the collateral source payment and the item of pecuniary loss to be replaced, we see no insurmountable difficulty in establishing the necessary linkage in appropriate cases. CPLR 4111 (f), which requires a detailed itemization of the elements included in the jury’s damage award, will operate to facilitate the task. The problem of matching up a collateral source to an item of loss is simply a matter of proof and factual analysis. The burden of establishing the requisite correspondence rests, of course, on the party seeking the CPLR 4545 (c) offset. Where that burden is not sustained because the connection between the item of loss and the collateral source payment is tenuous or because the necessary correspondence between their essential elements is lacking, the purposes of the statute would not be served by applying the mandatory offset.

Finally, plaintiff-respondent’s fact-based argument about the adequacy of the over-all future damages award and the affirmed finding against him on his request for future pain and suffering damages must be rejected at the threshold. Plaintiff did not seek and has not been granted leave to appeal to this Court and, accordingly, is not entitled to the affirmative relief he seeks (Hecht v City of New York, 60 NY2d 57; see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112).

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

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs.

      . Cross appeals that had been taken by two of the defendants were deemed abandoned.

      . The provision was applicable only in cases involving job-related injuries and only employer-sponsored collateral source payments were to be deducted.


author: Bellacosa, J.

text:
    [661 NE2d 146, 637 NYS2d 674]
    Rhoda G. Rothstein, as Executrix of Ari Rothstein, Deceased, Respondent, v Tennessee Gas Pipeline Company, Formerly Known as Tenneco. Inc., et al., Appellants, et al., Defendants.
    Argued October 26, 1995;
    decided November 30, 1995

      POINTS OF COUNSEL

      Dechert Price & Rhoads, New York City (Norbert F. Bergholtz, Robert A. Cohen and Andrea Masley of counsel), and Fulton Duncombe & Rowe (Joseph T. C. Hart of counsel), for appellants.
    I. The rules of statutory construction mandate that chapter 682 be read to revive only those claims specified in the revival statute. (Prego v City of New York, 147 AD2d 165; 35 Park Ave. Corp. v Campagna, 48 NY2d 813; Hopkins v Lincoln Trust Co., 233 NY 213; Singer v Lilly & Co., 153 AD2d 210; Sandberg v White Labs., 871 F2d 3; Char-Mo Investors v Market Ins. Co., 58 AD2d 589, 44 NY2d 793; Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150; Matter of Beary v City of Rye, 44 NY2d 398; Di Marco v Hudson Val. Blood Servs., 147 AD2d 156; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340.) II. Legislative history affirms that CPLR 214-c (6) was not intended to revive barred claims. (Matter of Sutka v Conners, 73 NY2d 395; Hymowitz v Lilly & Co., 136 Misc 2d 482, 139 AD2d 437, 73 NY2d 487, 493 US 944; Singer v Lilly & Co., 153 AD2d 210; Sandberg v White Labs., 871 F2d 3.)

      Laurence H. Pearson, New York City, and Levy, Angstreich, Finney, Baldante, Mann & Burkett, P. C. (Steven E. Angstreich, Michael Coren and Amy R. Brandt, of the Pennsylvania Bar, admitted pro hac vice, of counsel), for respondent.
    I. The Court below correctly held that CPLR 214-c (6) affords respondent the benefit of New York’s discovery rule. (Enright v Lilly & Co., 77 NY2d 377; Hymowitz v Lilly & Co., 73 NY2d 487; Prego v City of New York, 147 AD2d 165; Singer v Lilly & Co., 153 AD2d 210; Glod v Ashland Chem. Co., 145 Misc 2d 200; Di Marco v Hudson Val. Blood Servs., 147 AD2d 156; Fusaro v Porter-Heyden Co., 170 AD2d 239.) II. The application of the archaic last exposure rule to respondent’s claims is violative of respondent’s due process rights under the Fourteenth Amendment of the United States Constitution. (Schwartz v Heyden Newport Chem. Co., 12 NY2d 212; Thornton v Roosevelt Hosp., 47 NY2d 780; Urie v Thompson, 337 US 163; Gilbert v Ackerman, 159 NY 118; Muilitello v Piotrowski Bldrs., 145 Misc 2d 1056.)
   OPINION OF THE COURT

Bellacosa, J.

Plaintiffs decedent in this case was allegedly injured in the late 1940’s by ingestion, at approximately age 10, of a radioactive contrast dye. His injuries allegedly did not manifest themselves until 1988 and, thus, were not "discovered” until just before his death that same year during exploratory surgery. Giving the complaint on this CPLR 3211 motion all favorable inferences, we apply the toxic tort discovery statute (L 1986, ch 682; CPLR 214-c) and agree with the Appellate Division that the subject causes of action are not time-barred.

The complaint alleges that in either 1948 or 1949, Ari Roth-stein was given thorium dioxide, known as Thorotrast, as a radioactive contrast dye for X-ray purposes. Almost 40 years later, while being diagnosed for severe abdominal pain, he underwent exploratory surgery on December 6, 1988. A malignancy of his liver was found. Rothstein died that same day from massive internal bleeding related to the cancer and the surgery.

In September 1990, Rothstein’s widow sued defendants, the manufacturers of the dye, and others. She alleged negligence, strict products liability, wrongful death and breach of warranty. The complaint asserted that her husband’s cancer was caused by ingestion of the dye.

Supreme Court dismissed the complaint as time-barred under CPLR 3211 (a) (5). It concluded that CPLR 214-c, which provides that toxic tort claims for latent effects of exposure to harmful substances accrue on the date of reasonable discovery of the injury, applies only to tort situations in which the exposure and discovery occurred after the effective date of the remedial legislation package in 1986.

The Appellate Division, with two Justices dissenting, reversed Supreme Court’s dismissal as to all causes of action except breach of warranty, which is not at issue here. That Court then granted defendants leave to appeal and certified the following question: "Was the opinion and order of this court dated October 3, 1994, properly made?” We now affirm and answer the certified question in the affirmative.

The long-standing rule in toxic tort cases in New York has been that "when chemical compounds are injected into a person’s body, the injury occurs upon the drugs introduction, not when the alleged deleterious effects of its component chemicals become apparent” (Thornton v Roosevelt Hosp., 47 NY2d 780, 781; see, Schmidt v Merchants Desp. Transp. Co., 270 NY 287). The policy justification and legislative deference for this rule may be capsulized by the proposition that an injured individual’s "occasional hardship is outweighed by the advantage of outlawing stale claims,” as delimited by enacted statutes of repose (Schmidt, supra, at 302). An unbroken string of this Court’s decisions from Schmidt in 1936 to Consorti v Owens-Corning Fiberglas Corp. (86 NY2d 449) this year has upheld these benchmarks and consistently barred claims brought more than three years after exposure (see, Snyder v Town Insulation, 81 NY2d 429; Fleishman v Lilly & Co., 62 NY2d 888, cert denied 469 US 1192; Martin v Edwards Labs., 60 NY2d 417; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008; Thornton v Roosevelt Hosp., 47 NY2d 780, 785, supra; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212).

In 1986, the Legislature enacted chapter 682 of the Laws of 1986, which amended the CPLR to add section 214-c to replace the exposure rule with a balanced and more equitable discovery accrual mechanism (CPLR 214-c [2]). It also allowed for a limited revival of foreclosed claims (L 1986, ch 682, § 4). Section 214-c (6) announced the new regime’s effective date and retroactivity aspects as follows:

"This section shall be applicable to acts, omissions or failures occurring prior to, on or after July first, nineteen hundred eighty-six, except that this section shall not be applicable to any act, omission or failure:
"(a) which occurred prior to July first, nineteen hundred eighty-six, and
"(b) which caused or contributed to an injury that either was discovered or through the exercise of reasonable diligence should have been discovered prior to such date, and
"(c) an action for which was or would have been barred because the applicable period of limitation had expired prior to such date.”

Thus, on its face, including for those cases where the alleged tort was committed "prior to” July 1, 1986 but the injury or its manifestation was not allegedly discovered until afterwards, the discovery rule applies (CPLR 214-c [6]). The statute concomitantly precludes the application of the discovery amelioration only if (1) exposure occurred before July 1, 1986, and (2) discovery occurred before July 1, 1986, and (3) more than three years had elapsed between the date of exposure and July 1, 1986 (CPLR 214 [5]).

Defendants-appellants recognize that the plain language of the statute runs against their interest, but argue, nevertheless, that reading the statute as written would strip significance from an additional, uncodified revival statute, enacted contemporaneously in chapter 682 (L 1986, ch 682, § 4; see, McKinney’s Cons Laws of NY, Book 1, Statutes § 98, at 220). This statutory construction axiom fails to carry the weight of defendants’ argument in the face of the enactment’s manifest expression. The revival provision, moreover, applies to a class of cases separate and distinct from the more comprehensive range of those within the remedial purview and sweep of CPLR 214-c.

As to DES, asbestos, tungsten-carbide, chlordane or polyvinyl-chloride, any personal injury action "which was dismissed prior to the effective date of this act solely because the applicable period of limitations has or had expired is hereby revived,” for a period of one year from the effective date (L 1986, ch 682, § 4). Defendants argue that this extraordinary and distinctive remedy demonstrates the Legislature’s intent to grant relief only to previously time-barred claims among these enumerated categories of latent dangerous substances and to no others (see, Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665). Allowing the claim in this case for the decedent’s injuries related to ingestion of Thorotrast in the late 1940’s, defendants further insist, would render an integral part of the legislative enactment meaningless, a construction that courts are generally obliged to avoid (see, Rocovich v Consolidated Edison Co., 78 NY2d 509, 515; McKinney’s Cons Laws of NY, Book 1, Statutes § 98, at 220).

A threshold flaw in defendants’ argument is evident. While section 4 of chapter 682 is a revival statute (see, L 1986, ch 682, § 4), CPLR 214-c (6) is not. The latter does not serve to revive any claims for discovered injuries in existence on the 1986 effective date (cf., Forti v New York State Ethics Commn., 75 NY2d 596, 609). Instead, it serves two different functions. First, it was designed in part as a transition measure for situations in which discovery predated the effective date, but the injury had occurred fewer than three years before that date, allowing those claims to proceed (CPLR 214-c [6] [b], [c]). Notably, though, CPLR 214-c nowhere exhibits any limitation of subdivision (6) to transition cases only, as Supreme Court found. Second, CPLR 214-c purports to act prospectively as a distinct accrual mechanism, allowing individuals who allegedly discover or reasonably should have discovered toxic-tort-related injuries on or after the effective date (July 1, 1986), three years from discovery to file facially timely claims (see, CPLR 214 [5]).

The revival statute, on the other hand, is a "distinct but related provision, not to be confused with CPLR 214-c and its application in future cases” (Siegel, NY Prac § 40, at 48 [2d ed]). The revival piece of the intricate 1986 legislative package expressly covers only those claims that were "barred as of the effective date” or that had been "dismissed prior to the effective date,” because the Statute of Limitations had expired (L 1986, ch 682, § 4). Thus, this provision truly revives already otherwise extinct claims, as contrasted to section 214-c’s principal function of fixing when future claims may be deemed to accrue.

In enacting the revival provision, the Legislature intended to help those who they knew, with reasonably established scientific and medical certainty, had already been injured by specified deleterious substances (see, Hymowitz v Lilly & Co., 73 NY2d 487, 515, cert denied 493 US 944; see also, New York State Assembly, Transcript of June 24, 1986, Assembly Debates on Bill No. A. 10664, record on opp, at 179 [statement of Assemblyman M. H. Miller, at 451]). For claimants to qualify as beneficiaries of the revival statute on July 1, 1986, they would have to have known that they had in fact been injured. People who had been exposed but were not known to be injured, therefore, were not covered by the revival piece of the remedial enactment (see, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C214-c:6, at 636 [1990] ["if the injury was not, and could not have been, discovered before July 1, 1986, then the new statute (CPLR 214-c) applies, and this is so even if the action was barred by the old New York rule”]). Because the revival provision is not rendered meaningless by our construction of CPLR 214-c (6) in plaintiffs favor in this case, we do not offend the argued statutory construction axiom.

Thus, because the statutory enactment is a remedial package of complex, interlocking provisions, we read it generously to effect the core and overriding purpose (see, 1 Weinstein-Korn-Miller, NY Civ Prac 214-c.OG, at 2-497 ["this remedial statute should be liberally construed * * * in keeping with the legislative intent to afford relief to victims whose claims were barred under the old law, even before they became aware of their injuries”]; McKinney’s Cons Laws of NY, Book 1, Statutes § 96, at 209 ["The object of a statute is of especial importance in the construction of a remedial act designed to cure some evil in the existing system of law.”]). The discovery rule was enacted to "remed[y] a fundamental injustice in the laws of our State which has deprived persons suffering from exposure to toxic or harmful substances from having an opportunity to present their case in court” (Governor’s Mem approving L 1986, ch 682, 1986 NY Legis Ann, at 288 [emphasis added]). To read the statute as barring all but those claims with respect to which exposure did not occur until after the effective date would contradict or at least frustrate that articulated goal.

While Justice Krausman’s dissenting opinion at the Appellate Division identifies important policy concerns, Justice Altman’s majority opinion cogently resolves the conflicting considerations as follows:

"The revival statute, in contrast to CPLR 214-c, revived actions which had previously been dismissed or causes of action where the discovery of the injury predated the new discovery rule and were time barred in July 1986 and therefore would not be governed by CPLR 214-c. * * * [T]he focus of section 214-c is to change the accrual date of a cause of action. Its effect is prospective because the cause of action does not arise until the injury is discovered or should have been discovered.” (204 AD2d 39, 44.)

Contrary to the defendants’ position here, the Legislature enacted two separate, albeit generally related, statutory schemes and each has its own distinct application and objective.

The interplay of the discovery accrual provision and the corresponding revival remedy may be illustrated as follows: A DES victim, who had already discovered her injury by the statute’s effective date and would thus be barred by the exposure rule, would have a one-year extension in which to file under the revival statute. The same would not apply to a similarly situated Thorotrast victim, because that kind of victim was not beneficially and categorically listed among the five categories in the revival provision. However, the same theoretical Thorotrast victim, if he or she reasonably discovered the injury after July 1, 1986, should be given the benefit of the prospective application of the accrual mechanism (see, Prego v City of New York, 147 AD2d 165 [CPLR 214-c applies to virus ingested more than three years before effective date, but not discovered until afterwards]; 1 Weinstein-Korn-Miller, op. cit., 214-C.06, at 2-497 ["if an injury were caused by an act, omission or failure that occurred before July 1, 1986, but with diligence was not discovered until after that date, the victim would have the benefit of the three year period of CPLR 214-c”]). That is essentially the case alleged here. Because discovery allegedly did not occur until 1988, the cause of action would not have been time-barred until 1991. Since the action was started in 1990, it is timely.

We emphasize the precise nature of our holding by noting the CPLR 3211 procedural stage of this matter and the fact that no implications or inferences are appropriate at this stage concerning causation with respect to a 1948 ingestion of an allegedly dangerous product with a facially asserted 1988 injury.

Finally, we reject defendants’ contention that this Court’s decision in Matter of Thomas v Bethlehem Steel Corp. (63 NY2d 150) compels a different result. That case involved an entirely separate statutory scheme, with a different history. The analogy is inapplicable and, in any event, fails in the face of the specific analysis involving chapter 682’s intricate and interlocking parts.

Our holding and analysis make it unnecessary to reach plaintiff-respondent’s alternative constitutional argument or any other issues advanced by defendants-appellants on this certified question appeal.

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

Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.

Order affirmed, etc.


text:
    [661 NE2d 679, 637 NYS2d 949]
    In the Matter of Oswald N., Respondent. Commissioner of the New York State Office of Mental Health, Appellant. District Attorney of Queens County, Respondent.
    Argued October 26,1995;
    decided December 5, 1995

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, New York City (Julie S. Mereson, Victoria A. Graffeo and Harvey M. Berman of counsel), for appellant.
    Defendant acquitted of a crime by reason of mental disease or defect may, for good cause shown, be subject to an order of conditions for more than 10 years following his release from the custody of a State mental health facility. (Matter of Sutka v Conners, 73 NY2d 395; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Matter of State of New York v Ford Motor Co., 74 NY2d 495; Matter of 1605 Book Ctr. v Tax Appeals Tribunal, 83 NY2d 240; People v Stone, 138 AD2d 4, 73 NY2d 296; Matter of Martin B., 138 Misc 2d 685; Matter of Long v Adirondack Park Agency, 76 NY2d 416; Sanders v Winship, 57 NY2d 391; People v White, 73 NY2d 468.)

      Kim L. Darrow, Mineóla, Gerald TV. Kaplan and Dennis B.

      Feld for Oswald N., respondent.
    I. Ten years is the maximum duration of the effective period of an order of conditions affecting a released not responsible acquittee under CPL 330.20 (1) (o). (Matter of Martin B., 138 Misc 2d 685; People v Stone, 138 AD2d 4, 73 NY2d 296; Pajak v Pajak, 56 NY2d 394; Matter of George L., 85 NY2d 295; Foucha v Louisiana, 504 US 71; Matter of Edward L., 137 AD2d 818; Matter of Carl C, 126 AD2d 640; Matter of Harry M., 96 AD2d 201; Matter of Scopes v Shah, 59 AD2d 203.) II. It is a violation of the Due Process and Equal Protection Clauses of the United States and New York Constitutions to extend the effective period of an order of conditions affecting a released not responsible acquittee more than 10 years past the time when such person was found to be not dangerous and not in need of inpatient care and treatment. (Jones v United States, 463 US 354; Addington v Texas, 441 US 418; People v Stone, 73 NY2d 296; Matter of Francis S., 206 AD2d 4.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Sharon Y. Brodt and Steven J. Chananie of counsel), for District Attorney of Queens County, respondent pro se.

    An order of conditions relating to defendant acquitted of a crime by reason of mental disease or defect may be extended repeatedly, for good cause shown, for successive five-year periods beyond 10 years after defendant’s release from the custody of a State mental health facility. (New York State Bankers Assn. v Albright, 38 NY2d 430; Matter of Smathers, 309 NY 487; People ex rel. Lehigh & N. Y. R. R. Co. v Sohmer, 217 NY 443; Matter of Sutka v Conners, 73 NY2d 395; People v Ryan, 274 NY 149; Matter of 1605 Book Ctr. v Tax Appeals Tribunal, 83 NY2d 240; Matter of Long v Adirondack Park Agency, 76 NY2d 416; Sanders v Winship, 57 NY2d 391; Matter of George L., 85 NY2d 295.)
   OPINION OF THE COURT

Chief Judge Kaye.

This case presents a straightforward question of statutory interpretation: do the provisions of CPL 330.20 authorize an order extending the conditions placed on an insanity acquit-tee’s release from a psychiatric facility for a period greater than 10 years? We conclude that CPL 330.20 authorizes such an extension, and therefore reinstate the three-year extension ordered by the trial court.

In 1966, while on a weekend pass from Creedmoor Psychiatric Center, a secure psychiatric facility in Queens Village, defendant Oswald N. — a paranoid schizophrenic — strangled his wife of two months because her “face turned into a devil.” Having achieved the capacity to understand the proceedings against him (CPL 730.10), defendant was ultimately found to be not responsible by reason of a mental disease or defect for the crime of second degree murder. In posttrial proceedings resulting from his insanity acquittal, the court determined that defendant constituted a physical danger to himself or others and in March 1976 remanded him to the custody of the Commissioner of Mental Health for recommitment to Creed-moor for five years (see, CPL 330.20 [6]; 330.20 [1] [c]).

At the end of the five-year commitment period and upon a finding that he no longer suffered from a dangerous mental disorder, defendant was conditionally released from hospitalization in 1981 (see, CPL 330.20 [12]). Defendant’s release, however, was expressly made subject to an order requiring him to make regular visits to a psychiatric clinic every two weeks where he would receive injections of prolixin to reduce the frequency of his delusions. "With defendant’s consent, the original order of conditions was extended twice, first on February 10, 1988, and then on May 22, 1989.

In 1990, when the Commissioner sought to extend the order of conditions for a third time, defendant objected on the ground that the court lacked jurisdiction to extend an order of conditions beyond 10 years. Supreme Court rejected this argument, interpreting the language of CPL 330.20 (1) to permit the extension. At an evidentiary hearing held to determine whether good cause had been shown for the proposed extension, the court heard the testimony of two experts, defendant’s treating psychiatrist and a second forensic psychiatrist, both of whom concurred in defendant’s continued diagnosis as a paranoid schizophrenic and agreed that defendant’s auditory hallucinations persisted, though controlled somewhat by medication, with one psychiatrist characterizing his prognosis as “guarded.” The two psychiatrists further opined that the order of conditions should be extended to insure that defendant continue to report for his biweekly injections of prolixin and thus avoid the danger posed by a relapse of the violent behavior brought on by his previously more severe delusional symptoms.

Based on the experts’ ”strong[ ]” recommendations, on June 7, 1993, the court extended the order of conditions another three years, concluding that ”[w]hile [defendant] may be willing to take his medication * * * and undergo treatment voluntarily, it is, in his best interests, as well as in the interests of public safety and welfare, that an order of conditions be continued.”

The Appellate Division reversed and denied the extension, reasoning that the court’s supervisory capacity over defendant was limited to 10 years. Two Justices dissented in a comprehensive opinion by Justice Miller. We now reverse.

Under CPL 330.20, the statute which establishes the procedure in criminal cases for the commitment of insanity acquit-tees, once a defendant found after verdict or plea to be either mentally ill (a "track two” defendant) or mentally ill and dangerous (a "track one” defendant) no longer requires the inpatient services of a psychiatric center or no longer suffers from a dangerous mental disorder, the law mandates that the defendant be either conditionally released (CPL 330.20 [12]; Mental Hygiene Law § 29.15) or transferred to a nonsecure facility (CPL 330.20 [11]). As a "track one” insanity acquittee (see, Matter of George L., 85 NY2d 295), defendant was released in 1981 upon a finding that continued confinement in a psychiatric facility was no longer essential for his long-term treatment and care.

Whenever a court issues either a release order or a transfer order, however, it must also issue an order of conditions. The order of conditions, incorporating a prescribed treatment plan prepared by psychiatrists familiar with the defendant’s history, "shall contain any conditions that the court determines to be reasonably necessary or appropriate” (CPL 330.20 [12]). These conditions may include required periodic visits to a specified outpatient facility (see, People v Stone, 73 NY2d 296, 299), restrictions on a defendant’s alcohol consumption or place of residence (see, Matter of Jill ZZ., 83 NY2d 133, 136), or, if the defendant has been transferred to a nonsecure facility, the requirement that defendant not leave the premises without written authorization. Should a defendant fail to comply with the treatment plan specified in the order of conditions and thereafter become dangerous to himself or others, the courts may, upon a hearing, recommit the defendant to a secure psychiatric hospital.

At issue on this appeal is the arguably ambiguous language in the statute providing that an order of conditions "shall be valid for five years from the date of its issuance, except that, for good cause shown, the court may extend the period for an additional five years” (CPL 330.20 [1] [o]). Defendant argues that by using the word "an” the Legislature intended that there be only one five-year extension of an order of conditions subsequent to the initial order, so that, together, a defendant can only be subject to an order of conditions for a maximum of 10 years. In other words, under defendant’s interpretation, the word "an” really means "one” extension of five years and because the defendant has been subject to an order of conditions since his release from Creedmoor in 1981, the latest five-year extension ordered by the court in 1991 was impermissible.

Neither the language nor the policy of CPL 330.20, however, supports such an absolute limitation.

First and most importantly, there is nothing in the language of CPL 330.20 that affirmatively limits courts to only two consecutive five-year orders of conditions. As noted by the Appellate Division dissenters, had the Legislature intended such a limitation, "it could easily have so provided” (208 AD2d, at 739). In contrast to the analogous provisions in CPL 330.20 governing the length of retention and furlough orders, the statute does not specify that an order of conditions shall be valid for a period "not to exceed ten years” or that the order may be extended only for "one additional period not to exceed five years” (compare, CPL 330.20 [1] [g] ["for a period not to exceed one year”]; CPL 330.20 [1] [h] ["not to exceed two years”]; CPL 330.20 [1] [k] ["not exceeding fourteen days”]). Rather, the language and structure of the statute indicate that the five-year period specified was likely intended to insure that regular monitoring of a defendant’s condition occur at least at five-year intervals, thus restricting the length, not the number of extensions.

Further supporting our reading of the statute is the fact that issuance of an order of conditions is not limited to situations like the one here, where the defendant has been released from confinement altogether. Rather, the statute also requires courts to issue an order of conditions in connection with the transfer of a defendant from a secure to a nonsecure psychiatric facility, thus conditioning the transfer upon the defendant’s agreement not to attempt an escape (CPL 330.20 [11]). In light of the fact that mentally ill insanity acquittees can be committed to such nonsecure facilities until such time as they no longer require inpatient care and treatment (see, CPL 330.20 [1] [d] [defining term "mentally ill”]; Jones v United States, 463 US 354, 368), we cannot assume that the Legislature intended the order of conditions to be limited only to the first 10 years of confinement.

The postacquittal procedures now codified in CPL 330.20 and initially enacted into law as part of the Insanity Defense Reform Act of 1980 (L 1980, ch 548) were intended to protect the public from persons found not responsible of a crime by reason of mental disease or defect while providing effective treatment for such individuals (People v Stone, 73 NY2d 296, 303, supra). An order of conditions, in particular, is "the vehicle by which the convicting court effectuates its continuing supervisory authority over the acquittee” (Matter of Jill ZZ., 83 NY2d 133, 138, supra). However, a once dangerously mentally ill insanity acquittee can only be recommitted under CPL 330.20 — should the defendant again become dangerous — if an order of conditions is still in place (see, People v Stone, 73 NY2d, at 303).

Given the above, the Legislature "could not rationally have intended to subject the public to the enormous risk that would be created by abandonment of all supervision of the acquittee whose potential violent conduct is controllable only when medicated” (208 AD2d, at 741). As the Law Revision Commission which proposed the legislation largely incorporated in CPL 330.20 recognized, since

"psychiatry cannot now guarantee the safety of the public from future dangerous acts of persons found not responsible * * * and will most likely be unable to do so in the foreseeable future, the procedures governing commitment, treatment, and release of such defendants are critically important. * * * [T]he mental condition of the defendant when released into the community — is the basis of public and professional concern” (1981 Report of NY Law Rev Commn, 1981 McKinney’s Session Laws of NY, at 2261).

Significantly, the Law Revision Commission Report, while carefully delineating the functioning of the proposed legislative scheme, never refers to the period of release subject to an order of conditions as limited to 10 years.

Defendant’s argument that the Legislature must have intended a 10-year limit because otherwise the statute would permit an order of conditions to go on indefinitely, subject to unlimited extensions, is belied by the provisions of CPL 330.20 which permit the Commissioner to apply for a discharge order terminating a defendant’s order of conditions and releasing the defendant unconditionally (see, CPL 330.20 [1] [n]; [13]). Such discharge orders are authorized for defendants who are no longer mentally ill or dangerous and who have been receiving care on an outpatient basis for a minimum of three years (CPL 330.20 [13]). A court may not issue a discharge order, however, unless it finds that it is "consistent with the public safety and welfare of the community and the defendant” (id.). Maintaining ongoing judicial supervision over an acquittee’s treatment pursuant to an order of conditions for a period greater than 10 years promotes both these goals in that it fosters public safety as well as provides for effective treatment of the acquittee.

Finally, defendant’s arguments that his constitutional rights would be violated by an extension of the order of conditions beyond 1991 are without merit. As for the purported equal protection concerns, it is "widely and reasonably held view that insanity acquittees constitute a special class that should be treated differently from * * * candidates for [civil] commitment” (Jones v United States, 463 US 354, 370, supra).

Defendant’s due process challenge can also be rejected. An order of conditions like the one at issue here merely requiring an individual to receive psychiatric care twice a month on an outpatient basis is far less restrictive of that individual’s liberty than actual commitment in a psychiatric hospital. Yet the Constitution does not forbid an insanity acquittee from being committed (as opposed to merely conditionally released) for a period longer than that for which he might have been incarcerated if convicted (id., at 368-370).

Accordingly, the order of the Appellate Division should be reversed, without costs, and the order of Supreme Court, Queens County, reinstated. In that the Appellate Division order is final, an answer to the certified question is unnecessary.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order reversed, etc.

      . That the Commissioner of Mental Health submitted a bill to the Legislature in 1993 to "clarify” the ambiguity in CPL 330.20 (1) (o) and thus affirmatively state that orders of conditions can be extended for additional periods (see, Mem of Office of Mental Health in Support of Assembly Bill 6437, OMH No. 10R-93, at 2) does not materially alter our analysis. As we have explained in other contexts, "[(legislative inaction, because of its inherent ambiguity, affords the most dubious foundation for drawing positive inferences” (Clark v Cuomo, 66 NY2d 185, 190-191 [citations omitted]).

      . [3] To the extent that the prevailing view was once that no "constitutional justifications exist for significant distinctions between” persons civilly committed under the Mental Hygiene Law and insanity acquittees committed under the Criminal Procedure Law (1981 Report of NY Law Rev Commn, 1981 McKinney’s Session Laws of NY, at 2262; see also, Matter of Torsney, 47 NY2d 667, 676; Matter of Jill ZZ., 83 NY2d 133, 137, supra), such a requirement is no longer an accurate statement of the law (see, e.g., People v Escobar, 61 NY2d 431, 441).