author: Alexander, J. Kaye, J. Simons, J.

text:
    Phyllis Tewari, Individually and as Administratrix of the Estate of Jennifer Tewari, Deceased, Appellant, v Steven Tsoutsouras, Respondent.
    Argued September 6, 1989;
    decided October 24, 1989

      POINTS OF COUNSEL

      Brian J. Shoot, Charles J. Nolet, Jr., and Leslie Schneider for appellant.

      Joseph D. Furlong, Stephen W. O’Leary, Sr., and Stephen W. O’Leary, Jr., for respondent.

      Cory C. Kirchert for Albany Medical Center Hospital and others, amici curiae.

   OPINION OF THE COURT

Alexander, J.

In 1985, as part of a comprehensive reform of medical malpractice, the Legislature enacted CPLR 3406 (a) which requires plaintiffs to file a "notice of dental, medical or podiatric malpractice action” within 60 days of joinder of issue. As a sanction for her failure to timely file this notice, the Appellate Division dismissed the plaintiff’s complaint. We now reverse because a review of the relevant statutes and rules reveals no legislative authority for the imposition of the severe sanction of dismissal in this circumstance. We further conclude that the Appellate Division abused its discretion in determining that plaintiff’s motion to extend the time to file the notice must be denied because she failed to demonstrate both the meritorious nature of her claims and a "reasonable excuse” for the delay.

I

On March 4, 1986, plaintiff commenced this medical malpractice action against the defendant, a licensed physician, alleging that defendant was negligent in the care and treatment of plaintiff’s infant daughter and ultimately caused the child’s death. On June 6, 1986, defendant served his answer, along with demands for a bill of particulars and for disclosure. In the disclosure demands defendant sought, inter alia, the production of X rays, authorizations to obtain the medical records of "all treating doctors”, specifically those of Dr. Robinson and Dr. Rutkowski, authorizations to obtain "all hospital records and charts” of four different hospitals, all writings sent from the defendant to the plaintiff, the names and addresses of all nonparty treating physicians, identification of nonexpert witnesses, and, pursuant to CPLR 3101 (d) (1), identification of expert witnesses, their qualifications, the subject matter of their testimony and the bases of their opinions.

Over the next four-month period, defendant sent plaintiff’s counsel four letters demanding compliance with the discovery demands, specifically requesting plaintiffs authorizations for the admission records at the four hospitals and the records of Dr. Robinson and Dr. Rutkowski. None of the letters demanded that plaintiff file a notice of medical malpractice action as required by CPLR 3406 (a). Plaintiffs counsel did not answer the letters and did not provide the demanded authorizations.

On March 16, 1987, six months after the date of his attorney’s last letter demanding discovery, defendant moved to dismiss the complaint asserting that plaintiff had failed to timely file a notice of medical malpractice action and no motion for an extension had been made. Plaintiff opposed the motion and cross-moved for leave to file a late notice, asserting that her failure to timely file the notice was not deliberate and that she had simply been "awaiting production of voluminous medical records to properly answer defendants [sic] demands for a Bill of Particulars, and serve defendant with appropriate authorizations”. Supreme Court denied defendant’s motion, granted plaintiffs cross motion based upon "the circumstances herein and in the interest of justice”, and scheduled a precalendar conference (CPLR 3406 [b]). The Appellate Division reversed and dismissed the complaint. Analogizing noncompliance with the notice requirement to a pleading default, that court concluded that dismissal was warranted because plaintiff had failed to proffer a reasonable excuse for her eight-month delay in seeking an extension and had not demonstrated- the merit of her claims (Tewari v Tsoutsouras, 140 AD2d 104, 109). We granted leave and now reverse and reinstate the order of Supreme Court.

II

Chapter 294 of the Laws of 1985 (hereinafter the Medical Malpractice Reform Act) amended and added to various provisions of the Public Health Law, the CPLR, the Education Law, the Insurance Law and the Judiciary Law as part of a comprehensive plan intended "to ensure the continued availability and affordability of quality health services” in this State by lowering malpractice insurance premiums and thereby lowering health care costs (L 1985, ch 294, § 1). More specifically, the Medical Malpractice Reform Act was intended to reduce the cost of malpractice insurance [premiums while assuring adequate and fair compensation to injured persons, to expedite the resolution of malpractice claims and thereby reduce the cost of malpractice litigation, and to reduce incidents of medical malpractice (L 1985, ch 294, Mem of State Executive Dept. 1985 McKinney’s Session Laws of NY, at 3022-3027). To expedite malpractice litigation, the Legislature provided for expanded discovery as to expert witnesses (CPLR 3101 [d] [1]), the assessment of costs and attorneys’ fees against a party or attorney advancing frivolous claims (CPLR 8303-a), and a mandatory precalendar conference, presided over by the Judge who would later try the case, in which the parties would explore settlement possibilities, simplify and limit issues and establish expedited discovery and trial schedules (CPLR 3406 [b]). This precalendar conference is triggered by the plaintiiFs filing of a "notice of dental, medical or podiatric malpractice action” pursuant to CPLR 3406 (a) (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3406 [1989 Supp Pamph], at 79-80).

Defendant seeks dismissal of plaintiiFs complaint as a sanction for plaintiiFs failure to timely file this notice rather than for any of the grounds for dismissal articulated in CPLR 3211. As with any other sanction, however, the courts of this State are empowered to grant the sanction of dismissal only when it has been authorized either by the Legislature or by court rules consistent with existing legislation (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5-6). Sanctions may not be imposed by ad hoc judicial decision-making (id., at 6). Upon review of the relevant statutes and rules, we can discern no authority for imposition of the sanction of dismissal for a plaintiiFs noncompliance with the notice requirement of CPLR 3406 (a). Moreover, to allow the imposition of the sanction of dismissal here may very well create the problems the Legislature sought to remedy and thus would contravene the purpose of the Medical Malpractice Reform Act.

Neither the plain language of CPLR 3406 (a) nor the structure of the newly enacted procedural scheme supports the conclusion that the Legislature intended dismissal to be a sanction for failure to timely file the notice. The statute provides: "(a) Mandatory filing. Not more than sixty days after issue is joined, the plaintiff in an action to recover damages for dental, medical or podiatric malpractice shall file with the clerk of the court in which the action is commenced a notice of dental, medical or podiatric malpractice action, on a form to be specified by the chief administrator of the courts. Together with such notice, the plaintiff shall file: (i) proof of service of such notice upon all other parties to the action; (ii) proof, that, if demanded, authorizations to obtain medical, dental or podiatric and hospital records have been served upon the defendants in the action; and (iii) such other papers as may be required to be filed by rule of the chief administrator of the courts. The time for filing a notice of dental, medical or podiatric malpractice action may be extended by the court only upon a motion made pursuant to section two thousand four of this chapter” (CPLR 3406 [a]). CPLR 2004 provides that a court may grant an extension of time "upon such terms as may be just and upon good cause shown”. By contrast, CPLR 3406 (b), which directs the Chief Administrator of the Courts to promulgate special calendar control rules providing for the precalendar conference* and expedited discovery and trial schedules, expressly authorizes "dismissal of an action” as a sanction for "failure of a party or a party’s attorney to comply with these special calendar control rules or any order of a court made thereunder” (emphasis added). Thus the statute contemplates dismissal only as a sanction for noncompliance with the special calendar control rules promulgated under subdivision (b).

Consistent with the statute, the rules promulgated by the Chief Administrator do not authorize dismissal as a sanction for noncompliance with the notice requirement of CPLR 3406 (a). Section 202.56 of the Uniform Rules for Trial Courts (22 NYCRR 202.56) provides in subdivision (a) (1) that a plaintiff must file a notice of medical malpractice action and in subdivision (b) (1) that upon the filing of such notice, the Judge is to schedule the precalendar conference. Subdivision (a) (3) provides that the notice of dental, medical or podiatric malpractice action "shall be filed after the expiration of 60 days only by leave of the court on motion and for good cause shown. The court shall impose such conditions as may be just, including the assessment of costs.” Thus while the rule tracks the requirement of CPLR 3406 (a) and 2004 that an extension be granted only upon "good cause shown”, the rule authorizes only the imposition of "conditions” upon the granting of the extension. Outright dismissal upon a denial of the motion to extend cannot be viewed as such a "condition” because it immediately terminates the action and thus is not conditional.

Furthermore, like the statute, the rule authorizes "dismissal of an action” as a sanction only for noncompliance with the provisions relating to the precalendar conference which are articulated in subdivision (b) of the rule. That subdivision expressly provides that a court may impose the sanction of dismissal for noncompliance with "a directive of the court authorized by the provisions of this subdivision” (22 NYCRR 202.56 [b] [2] [emphasis added]).

Nor does the standard for extensions of time articulated in CPLR 2004 provide any legislative authority for the dismissal of a plaintiffs complaint solely upon a failure to timely file the CPLR 3406 (a) notice. That statute merely confers discretion upon the courts to either grant or deny a motion to extend time limits set in the CPLR, including the 60-day time period set forth in CPLR 3406 (a). Moreover, where the extension sought is not an extension of the time to file a pleading, dismissal is not a necessary consequence of a denial of the motion (compare, Sammons v Freer, 99 AD2d 896, affd for reasons stated below 62 NY2d 1018).

This construction of the legislative scheme is consistent with the underlying purposes of the tort reforms enacted in 1985. Although the reforms were intended, in part, to expedite malpractice litigation, as has been noted by some trial courts, the CPLR 3406 (a) notice has itself become the subject of extensive pretrial litigation (see, e.g., Marte v Montefiore Med. Center, 142 Misc 2d 745, 746). To allow dismissal as a sanction for failure to timely file the CPLR 3406 (a) notice would promote even more litigation on this collateral issue by encouraging defendants to litigate every instance of noncompliance. Indeed, defense counsel’s obligation to zealously represent his or her client might well require that defense counsel seize the opportunity to attempt to obtain a dismissal on a mere showing of noncompliance with CPLR 3406 (a) rather than risking a disposition on the merits (Code of Professional Responsibility DR 7-101). Moreover, dismissal may completely nonsuit the plaintiff as defendants commonly wait until after the expiration of the relatively short Statute of Limitations in medical malpractice actions (see, CPLR 214-a) to seek dismissal for noncompliance with CPLR 3406 (a) (see generally, Marte v Montefiore Med. Center, 142 Misc 2d, at 749, supra). In this case, for example, defendants waited six months before seeking dismissal of plaintiffs complaint and after the Appellate Division granted that relief, plaintiff commenced a second action which was held to be time barred (Tewari v Tsoutsouras, 144 Misc 2d 440). Thus we conclude that the Legislature never contemplated the imposition of such a draconian sanction for noncompliance with CPLR 3406 (a), particularly where the practical effect of such a sanction would defeat the very purpose of the Medical Malpractice Reform Act.

We stress, however, that we do not condone the use of dilatory tactics by the plaintiffs’ bar in failing to timely file these notices and note that our decision today does not leave defendants without a remedy for delays in litigation caused by such noncompliance with CPLR 3406 (a). When a notice is not timely filed, a defendant truly seeking expeditious resolution of the underlying malpractice claim may move, even by order to show .cause, to compel the filing of the notice. Once a defendant has obtained an order directing that the notice be filed, a plaintiffs disregard of such order may be deemed willful and construed as a deliberate effort to frustrate the calendar control rules promulgated under CPLR 3406 (b). In that case, dismissal as authorized by that subdivision would be warranted. Disregard of a court order directing the filing of the notice and its attendant authorizations (see, CPLR 3406 [a]) may also be construed as a failure to comply with a court order directing discovery for which dismissal is an authorized sanction (CPLR 3126; see, Zletz v Wetanson, 67 NY2d 711, 713 [dismissal of complaint is within trial court’s discretion where party deliberately disregarded court order to answer interrogatories]; Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568 [willful failure to comply with court orders directing discovery warranted striking of answer and entry of default judgment]). Of course, plaintiffs who have delayed the litigation but nevertheless file the notice in response to such a court order or after having been granted an extension may be punished by the imposition of monetary sanctions such as costs and attorney’s fees (22 NYCRR 202.56 [a] [3]). Alternatively, a defendant who does not seek to compel the filing of the notice may ultimately seek dismissal of the action pursuant to CPLR 3216 for plaintiff’s failure to prosecute.

Accordingly we conclude that the Legislature has not authorized the imposition of the sanction of dismissal for noncompliance with the statutory notice requirement of CPLR 3406 (a). This conclusion does not flow, as the dissent suggests, from simply a "strict” construction of CPLR 3406 (dissenting opn, at 15). Rather, the plain language of CPLR 3406 and the rules promulgated thereunder do not provide any authority for the imposition of the sanction of dismissal in this case. Nor does the legislative history of the statute suggest that the Legislature intended that dismissal be an authorized sanction for a plaintiff’s failure to timely file the notice. In these circumstances, the authority to dismiss cannot be "implied” (see, dissenting opn, at 17) and, consequently, the Appellate Division erred in dismissing plaintiff’s complaint.

Ill

We further conclude that the Appellate Division abused its discretion in analogizing the failure to timely file the CPLR 3406 (a) notice to a pleading default and holding therefore that plaintiff’s motion for an extension must be denied because she had not demonstrated both the meritorious nature of her claims and a "reasonable excuse” for the delay (140 AD2d 104, 109-112; see, A & J Concrete Corp. v Arker, 54 NY2d 870).

CPLR 2004 vests the trial court with discretion to extend the time to perform any act, including the filing of the 3406 (a) notice, "upon such terms as may be just and upon good cause shown”. In considering the motion, the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit. (See generally, 2A Weinstein-Korn-Miller, NY Civ Prac If 2004.03.) In the case of pleading defaults, however, we have held that the absence of an affidavit of merit defeats the motion regardless of the weight of the other factors considered under CPLR 2004 (La Buda v Brookhaven Mem. Hosp. Med. Center, 62 NY2d 1014; A & J Concrete Corp. v Arker, 54 NY2d, at 872, supra; Sammons v Freer, 99 AD2d 896, affd for reasons stated below 62 NY2d 1018,, supra; Smith v Lefrak Org., 96 AD2d 859, affd for reasons stated below 60 NY2d 828).

Contrary to the conclusion of the Appellate Division, failure to timely file the CPLR 3406 (a) notice is not analogous to a pleading default. The notice requirement is a rule of calendar practice which functions to trigger the precalendar conference required by CPLR 3406 (b). Unlike pleadings, the notice does not serve to apprise the adversary of a pending cause of action and imposes no obligation upon the adversary which may result in a default judgment against him or her. Accordingly, the stringent showing required to obtain an extension of time to file a pleading by a party already in default has no application here and plaintiff’s motion does not fail simply because she did not submit an affidavit of the merit of her claims.

In seeking an extension after the time to file had passed, plaintiff averred that she "did not deliberately fail to comply with the directives of [CPLR 3406 (a)], but was awaiting production of voluminous medical records to properly answer defendants [sic] demand for a Bill of Particulars, and serve defendant with appropriate authorizations”. This excuse amounts to little more than law office failure, especially since defendant had repeatedly demanded the authorizations. Nevertheless, specifically rejecting our holdings to the contrary (see, Barasch v Micucci, 49 NY2d 594; Eaton v Equitable Life Assur. Socy., 56 NY2d 900), the Legislature has held that upon a motion to extend the time to appear or plead (CPLR 3012) or to vacate a default (CPLR 5015 [a]), the court may excuse a delay or default resulting from "law office failure” (CPLR 2005). We see no reason to impose a more stringent requirement for the showing of "good cause” under CPLR 2004, particularly where, as here, there is no evidence that defendant was at all prejudiced by plaintiffs delay while plaintiff will be severely prejudiced if the motion is denied.

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

Kaye, J.

(concurring): The dissent acknowledges that it "is possible to construe the language of CPLR 3406 strictly, as the majority has, and deny the court power to dismiss for failure to timely file the 60-day notice, but when the history and the structure of the legislation are considered it is difficult to see why anyone would think it necessary or desirable to do so.” (Dissenting opn, at 15-16.) In addition to the grounds set forth in the court’s opinion — in which I concur fully — these are the further reasons that lead me to conclude that it is both necessary and desirable to read CPLR 3406 (a) as it is written, rather than to imply a dismissal power not found in the statute.

As in any case of statutory interpretation, the first stop must be the statute itself. CPLR 3406 (b) (referring to precalendar conferences) specifically includes as a sanction "dismissal of an action,” but CPLR 3406 (a) (referring to filing of medical malpractice notices) significantly does not. No better illustration can be found than the history of CPLR 2005 for the proposition that the power to dismiss actions for "law office failure” — even when so fundamental a document as a pleading is involved — is not to be lightly implied (see generally, 2A Weinstein-Korn-Miller, NY Civ Prac ¶¶ 2005.01, 2005.02; Comment, Law Office Failure: The Need for a Definition After Barasch and Eaton, 47 Albany L Rev 826 [1983]). Given that history, the dismissal power should not now be implied for failure to file a medical malpractice notice on time.

However inexcusable the attorney’s "law office failure” may appear, the fact remains that dismissal of the action for failure to file a timely notice penalizes not the attorney but the plaintiff, who is denied any opportunity to prove her allegations that defendant’s negligence caused her child’s death; attorney malpractice actions are no substitute. It is sometimes necessary for a court to terminate a litigant’s case before any evaluation of the merits of the complaint, but that extreme sanction should be invoked "only under constraint of justifying circumstances.” (Sortino v Fisher, 20 AD2d 25, 28 [Breitel, J. P.].) Where the Legislature has not plainly authorized dismissal, and where there has been no violation of a court direction to file the notice, I cannot find the requisite justifying circumstances for dismissal of plaintiffs complaint.

This hardly leaves courts powerless to deal with the systemic problems engendered by stale and meritless medical malpractice claims, and by attorneys’ habitual failure to discharge their professional obligations by filing the notices as required by law. Plaintiffs own counsel urges that compliance should be exacted by the imposition of costs, that "attorneys would not want to be fined.”

Additionally, the problems can be ameliorated by individual Judges exercising firm control in administering litigation before them. Such measures as fixing serious return dates, insisting upon adherence to the schedules, and entering orders enforceable on pain of dismissal (see, Zletz v Wetanson, 67 NY2d 711) would address habitual "law office failures” and systemic delays without unnecessarily penalizing the litigants.

Simons, J.

(dissenting). The history of the efforts of courts and Legislature to rid the judicial system of stale and merit-less claims is too well known to require extensive documentation here (for the history of one part of the problem see, e.g., Sortino v Fisher, 20 AD2d 25, 27-28; and Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3216:l et seq.). It is at least arguable that nowhere has the public paid a higher price for our shortcomings in doing so than in the field of medical malpractice. The burden of such litigation has helped create a crisis which has notably added to the cost of insurance and to the frustrations and disadvantages of practicing medicine in this State (see, L 1985, ch 294, § 1 [legislative findings]). True, the scope of the crisis goes far beyond calendar problems and has required legislation creating such things as a new malpractice insurance system (see, Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N. Y., 72 NY2d 753, 756-757; L 1985, ch 294; L 1986, ch 266) and more stringent procedures to discipline the medical profession (see, Matter of Levin v Murawski, 59 NY2d 35, 49; L 1975, ch 109; 1975 McKinney’s Session Laws of NY, Legislative Mem, at 1599, 1601). For at least the last 15 years, however, the Legislature has recognized that a critical part of the problem was stale and meritless litigation (see, Judiciary Law § 148-a, L 1974, ch 146, as amended [authorizing medical malpractice panels to evaluate claims]; 1975 McKinney’s Session Laws of NY, Legislative Mem, at 1599, 1602). Despite repeated efforts since then to alleviate that problem it persists and, as noted in the memorandum accompanying the Comprehensive Reform Act of 1985, court delay and frivolous malpractice actions have continued and have "called into question” not just malpractice litigation but the tort system itself (see, 1985 McKinney’s Session Laws of NY, Mem of State Executive Dept. at 3019, 3021).

The Comprehensive Reform Act of 1985 (L 1985, ch 294) must be viewed against this background. It sought to address the litigation problems by three provisions now contained in CPLR 3406, the notice provision considered in this appeal, CPLR 3101 (d) (1) (i), which provided for greatly expanded discovery, and CPLR 8303-a which dramatically changed available sanctions and authorized judicial imposition of levies up to $10,000 against parties asserting frivolous claims or defenses in a medical malpractice litigation. The purpose of all of this was to try once more to reduce delay by bringing pending malpractice actions under the control of the courts early, rather than allow them to languish in lawyers’ filing cabinets, so that claims could be evaluated promptly, those with merit processed and those without merit eliminated.

CPLR 3406 requires a plaintiff to file a notice of medical malpractice action notifying the court of the commencement of a medical malpractice action so that it may be placed on an accelerated litigation calendar. The notice must be filed within 60 days after issue is joined and the time limit may not be extended by the parties, only by the court "upon good cause shown” as provided by CPLR 2004. The filed notice must include proof by counsel that, if demanded, authorization for hospital and medical records and discovery items specified in the administrator’s rules have been supplied to defendant. Pretrial conference is mandatory and the participating attorneys must be familiar with the action and authorized to make decisions concerning it. The placing of the action on the calendar, after notice is filed, serves to measure statutorily prescribed periods mandating completion of discovery in 12 months and readiness for trial within 18 months (CPLR 3406 [b]). Complementing this notice requirement are provisions greatly expanding disclosure so that the parties are provided with a basis to evaluate the claim and determine its proper disposition.

It is possible to construe the language of CPLR 3406 strictly, as the majority has, and deny the court power to dismiss for failure to timely file the 60-day notice, but when the history and the structure of the legislation are considered it is difficult to see why anyone would think it necessary or desirable to do so. The statute makes clear that the action cannot proceed unless the 60-day notice is filed and that the time for filing it cannot be extended except upon a showing of good cause. Plaintiff has failed to establish good cause and it would seem self-evident the failure leaves the action moribund and mandates dismissal. Moreover, when one examines the case before us, the perversity of any result other than dismissal becomes clear; by counsel’s own statements he cannot establish good cause now and will not be able to do so in the future.

Plaintiff instituted this action in March of 1986. Defendant’s answer asked for plaintiff’s authorization to examine hospital and medical records along with disclosure of other materials. He was clearly entitled to these authorizations and supplying them required little effort by plaintiffs counsel. Nevertheless, the authorizations were not forthcoming and defendant requested them four more times by letter. Plaintiffs counsel admits he received the letters and that he neither acknowledged them nor delivered the requested authorizations to defendant. Finally, in March 1987 defendant moved to dismiss the complaint for failure to comply with the notice or discovery requirements contained in CPLR 3406 (a). On April 27, 1987, long after the 60-day period had expired, plaintiffs counsel filed a cross motion for leave to file a late notice.

Generally, if lawyers do not meet a legal deadline, they must, in the words of CPLR 2004, show "good cause” for their failure and that there is some purpose in excusing compliance. Counsel must satisfy the court that the litigation is worth perpetuating. In this case, however, counsel did not even attempt to do so. Indeed, he candidly admitted on oral argument that failure to file the 60-day notice was due to inattention to the file and he has offered not a word concerning the merit of the claim. The substance of his position is that he need not satisfy these requirements and establish good cause; plaintiff is entitled to "buy” an extension beyond the statutory 60-day requirement by the simple expedient of paying costs and the court is powerless to impose any other sanction.

A party asserting a claim has the responsibility to go forward with it. This statute was enacted by the Legislature when it determined that neither that responsibility nor interim measures designed to expedite medical malpractice litigation, such as medical malpractice panels (see, Judiciary Law § 148-a), were a sufficient check on stale and meritless claims. The Comprehensive Reform Act in general, and CPLR 3406 in particular, were intended to reduce the prejudice sustained by the system itself as the result of such claims. The majority has analyzed the statute in terms of its effect on the defendant, however; unless the defendant demonstrates prejudice from the delay, plaintiffs failures are of no consequence and an extension of the 60-day time limit is available for the asking. That reduces the notice requirement of CPLR 3406 to an inconsequential annoyance. I agree with the Appellate Division (140 AD2d 104) that the Legislature could not have intended that result and that the power of the court to dismiss claims under such circumstances should be implied from the language of the statute.

I, therefore, dissent.

Judges Kaye, Titone and Hancock, Jr., concur with Judge Alexander; Judge Kaye concurs in a concurring opinion in which Judge Hancock, Jr., also concurs; Judge Simons dissents and votes to affirm in another opinion; Chief Judge Wachtler and Judge Bellacosa taking no part.

Order reversed, etc.

      . As originally enacted, CPLR 3406 (a) required the notice only in dental and medical malpractice actions. The references to podiatric malpractice actions were added in 1986 (L 1986, ch 485, § 6). In 1988 the catchline of CPLR 3406 and the provisions of CPLR 3406 (b) relating to the precalendar conference were similarly amended to include podiatric malpractice actions (see, L 1988, ch 184, § 3).

      . CPLR 3406 (b) provides: "The chief administrator of the courts, in accordance with such standards and administrative policies as may be promulgated pursuant to [section 28] of article six of the constitution, shall adopt special calendar control rules for actions to recover damages for dental, podiatric or medical malpractice. Such rules shall require a precalendar conference in such an action, the purpose of which shall include, but not be limited to, encouraging settlement, simplifying or limiting issues and establishing a timetable for disclosure * * * The timetable for disclosure shall provide for the completion of disclosure not later than twelve months after the notice of dental, podiatric or medical malpractice is filed and shall require that all parties be ready for the trial of the case not later than eighteen months after such notice is filed. * * * The chief administrator of the courts also shall provide for the imposition of costs or other sanctions, including imposition of reasonable attorney’s fees, dismissal of an action, claim, cross-claim, counterclaim or defense, or rendering a judgment by default for failure of a party or a party’s attorney to comply with these special calendar control rules or any order of a court made thereunder”.

      . As the dissent acknowledges, other aspects of the Medical Malpractice Reform Act were intended to expedite the resolution of medical malpractice claims (see, dissenting opn, at 15). Most significantly, the Legislature squarely addressed the problem of frivolous litigation by enacting CPLR 8303-a which authorizes the court to impose the sanctions of costs and attorneys’ fees upon either a party or an attorney advancing a frivolous claim. Our decision today, which holds simply that dismissal is not an authorized sanction for noncompliance with CPLR 3406 (a), in no way undermines the effectiveness of CPLR 8303-a or the other aspects of the Medical Malpractice Reform Act.


source: Caselaw Access Project

author: Alexander, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Thomas Mastrodonato and Patricia Mastrodonato, Appellants.
    Argued October 13, 1989;
    decided November 30, 1989
    POINTS OF COUNSEL

      Norman A. Palmiere for appellants.

      Howard R. Relin, District Attorney (Robert Mastrocola of counsel), for respondent.
   OPINION OF THE COURT

Alexander, J.

A law enforcement officer’s disclosure in a search warrant application of intercepted communications relating to unanticipated criminal activity by persons who are not the targets of the eavesdropping warrant is a use of those communications "appropriate to the proper performance of [the officer’s] official duties” (CPL 700.65 [2]) and not a use "while giving testimony under oath in any criminal proceeding in any court” (CPL 700.65 [3]). Accordingly, no retrospective amendment of the eavesdropping warrant is required by the statute (see, CPL 700.65 [4]).

I

Defendants pleaded guilty to criminal possession of gambling records in the second degree (Penal Law § 225.15) after Supreme Court denied their motion to suppress gambling records seized from their home pursuant to a search warrant. The facts established on the suppression motion are essentially undisputed. On September 15, 1986, a Monroe County Court Judge issued an eavesdropping warrant authorizing the Irondequoit police to intercept telephone conversations at the residence of a named individual in connection with a narcotics investigation. During the course of that surveillance, the police intercepted several telephone calls from the wiretap target to defendants’ home which indicated that these defendants were involved in gambling activities. On September 20, 1986, an application was made to prospectively amend the eavesdropping warrant to include the crime of gambling. The County Court Judge who issued the warrant denied the application because there was no probable cause to believe that the wiretap target was involved in gambling activities since he was placing bets rather than accepting bets.

On January 11, 1987, after completion of the narcotics investigation, the Irondequoit police applied to the Town Justice for a warrant to search the defendants’ residence for evidence relating to illicit gambling activities. The application was based upon the defendants’ conversations pertaining to gambling intercepted during the unrelated narcotics investigation as well as other independently developed evidence, including information obtained through the lawful placement of a pen register device on one of defendants’ two telephone lines. On the basis of this collective information a warrant was issued to search defendants’ home for bookmaking and other gambling-related property and records. Gambling records were seized upon the execution of the warrant and defendants were subsequently indicted and charged with the crimes of possession of gambling records in the first degree (Penal Law § 225.20 [1]) and promoting gambling in the second degree (Penal Law § 225.05).

Defendants moved to suppress the seized evidence, arguing that the search warrant improperly included information obtained from the intercepted conversations and absent that information, was not based upon probable cause. Specifically, defendants argued that the intercepted conversations were not properly disclosed in the search warrant application because the eavesdropping warrant had never been retrospectively amended to preserve the gambling conversations. The People conceded that probable cause for the search warrant did not exist without the intercepted communications, but argued that no amendment of the eavesdropping warrant was necessary before those communications could be disclosed in a search warrant application. Supreme Court denied the motion, reasoning that disclosure of intercepted communications in a search warrant application fell within CPL 700.65 (2) rather than CPL 700.65 (3) and therefore that no amendment of the eavesdropping warrant was required (136 Misc 2d 854). Defendants pleaded guilty to criminal possession of gambling records in the second degree and the Appellate Division, Fourth Department, affirmed their convictions (142 AD2d 460). Defendants appeal by leave of an Associate Judge of this court and we now affirm.

II

CPL 700.65 permits the use by a law enforcement officer of intercepted communications or evidence derived therefrom to the extent "appropriate to the proper performance of [the officer’s] official duties” (CPL 700.65 [2]) and also permits disclosure of such intercepted communications or derivative evidence by any person "while giving testimony under oath in any criminal proceeding in any court, in any grand jury proceeding, or in any action commenced pursuant to article thirteen-A of the civil practice law and rules” (CPL 700.65 [3]). When the intercepted communications are related to offenses other than those enumerated in the eavesdropping warrant, CPL 700.65 (4) requires that the eavesdropping warrant be amended to include the conversations before they may be disclosed pursuant to subdivision (3). No amendment is required, however, for disclosures pursuant to subdivision (2). By authorizing the use of intercepted communications which are unrelated to the subject of the eavesdropping warrant, the statute incorporates the plain view exception to the Fourth Amendment’s requirement that evidence to be seized be particularly described in the search warrant (People v Di Stefano, 38 NY2d 640, 648). The statute imposes a requirement more stringent than the constitutional standard only in requiring timely amendment of eavesdropping warrants to include testimonial uses of intercepted conversations pursuant to subdivision (3).

Defendants argue that a search warrant application is a "criminal proceeding” as that term is defined in CPL 1.20 (18) and therefore, disclosure of such unrelated communications in the course of that proceeding is a use under subdivision (3) of CPL 700.65 and amendment of the eavesdropping warrant is required. The argument is without merit.

CPL 700.65 was modeled upon the Federal wiretapping statute, 18 USC § 2517, and was intended to "conform!] State standards for court authorized eavesdropping warrants with federal standards and [to] increase^ the flexibility of this law enforcement tool in the battle against organized crime” (Governor’s Mem, L 1969, ch 1147, 1969 McKinney’s Session Laws of NY, at 2586). Significantly, 18 USC § 2571 (5), the Federal provision which is nearly identical to CPL 700.65 (4), has been construed to permit disclosures of unrelated communications in subsequent warrant applications because, in the view of the Federal courts, Congress intended to require judicial approval only for testimonial disclosures bearing directly upon guilt or innocence, or used to corroborate or impeach a witness, or to refresh his or her recollection (United States v Johnson, 539 F2d 181, 186-188; United States v Vento, 533 F2d 838, 854; United States v Licavoli, 456 F Supp 960, 966; see also, 1968 US Code Cong & Admin News, at 2188-2189). Indeed the legislative history of section 2517 explains that a use of intercepted communications "appropriate to the proper performance of [a law enforcement officer’s] official duties” (18 USC § 2517 [2]) is a disclosure "to establish probable cause for arrest, to establish probable cause to search, or to develop witnesses” (1968 US Code Cong & Admin News, at 2188, quoting Sen Rep No. 1097, 90th Cong, 2d Sess, at 12 [citations omitted]). We conclude, therefore, that the disclosure of defendants’ intercepted conversations at the search warrant application at issue here is a use falling within subdivision (2) of CPL 700.65 rather than a testimonial use in a criminal proceeding pursuant to subdivision (3) (see also, People v Basilicato, 64 NY2d 103, 115, n 2 [noting that CPL 700.65 (4) permits retrospective amendment of an eavesdropping warrant as the basis for "admission at trial” of inadvertently intercepted communications]). Thus the courts properly determined that no amendment of the eavesdropping warrant was required.

Finally, our decision in People v Winograd (68 NY2d 383) is not to the contrary. We held in Winograd that conversations of the targets of a wiretap investigation were unlawfully seized because they did not relate to the offenses enumerated in the eavesdropping warrant and the warrant had not been timely amended to include those offenses. It was not disputed that amendment of the warrant was required and in fact was made. Rather, the defendants argued that the wiretap was unlawful because not timely amended. Although defendants sought suppression of both the seized conversations and their derivative fruits, the People disputed only the legality of the wiretap (see, People v Winograd, 68 NY2d, at 390-393, supra). The question presented in this case — the distinction between subdivision (2) and subdivision (3) of CPL 700.65 insofar as relevant to the amendment requirement of subdivision (4)— was not raised. Having considered that issue, we conclude that defendants’ conversations were properly seized "in plain view” and that CPL 700.65 (4) does not require amendment of the eavesdropping warrant in these circumstances because an application for a search warrant is a use of those conversations "appropriate to the proper performance of [the law enforcement officer’s] duties” (CPL 700.65 [2]) rather than a testimonial use pursuant to CPL 700.65 (3).

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

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Orders affirmed.

      . At the time defendants were charged the CPL 700.65 provided in pertinent part
      "2. Any law enforcement officer who, by any means authorized by this article, has obtained knowledge of the contents of any intercepted communication * * * may use such contents to the extent such use is appropriate to the proper performance of his official duties.
      "3. Any person who has received, by any means authorized by this article, any information concerning a communication * * * may disclose the contents of that communication or such derivative evidence while giving testimony under oath in any criminal proceeding in any court * * *
      "4. When a law enforcement officer, while engaged in intercepting communications in the manner authorized by this article, intercepts a communication which was not otherwise sought and which constitutes evidence of any crime that has been, is being or is about to be committed, the contents of such communications, and evidence derived therefrom, may be disclosed or

        used as provided in subdivisions one and two. Such contents and any evidence derived therefrom may be used under subdivision three when a justice amends the eavesdropping warrant to include such contents. The application for such amendment must be made by the applicant as soon as practicable.” (L 1970, ch 996, § 1 [emphasis added].)
      The statute was subsequently amended to encompass both eavesdropping and video surveillance warrants and subdivision (4) was amended to require that an application for amendment be made "within ten days after probable cause exists” rather than "as soon as practicable” (see, L 1988, ch 744, § 20, eff Dec. 22, 1988).

      . 18 USC § 2517 provides, in pertinent part:
      "(2) Any investigative or law enforcement officer who ** * * has obtained knowledge of the contents of any wire, oral, or electronic communication * * * may use such contents to the extent such use is appropriate to the proper performance of his official duties.
      "(3) Any person who has received * * * any information concerning a wire, oral, or electronic communication * * * may disclose the contents of that communication * * * while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.
      "(5) When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications * * * intercepts wire, oral, or electronic communications * * * relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.”


text:
    Julia Kriz, Appellant, v David Schum et al., Respondents, et al., Defendant. Sheri Denkensohn, an Infant, by Charles Denkensohn, Her Father and Natural Guardian, et al., Respondents, v Richard Davenport et al., Defendants and Third-Party Plaintiffs-Respondents, and Archie Lawrence & Son, Appellant. Seaboard Industries, Third-Party Defendant-Appellant.
    Argued September 12, 1989;
    decided November 30, 1989
    Decided November 30, 1989

      POINTS OF COUNSEL

      Michael R. Law and Kenneth W. Gordon for appellant in the first above-entitled action.

      Louis B. Cristo for David Schum and others, respondents in the first above-entitled action.

      Robert J. Burke and Thomas J. Rzepka for Clover Home Leisure Centers, Inc., respondent in the first above-entitled action.

      Paul J. Campito for appellant in the second above-entitled action.

      Cynthia K. Fichera for Sheri Denkensohn, respondent in the second above-entitled action.

      Dianne Bresee Mayherger for third-party defendant-appellant in the second above-entitled action.
   OPINION OF THE COURT

Alexander, J.

In each of these cases the plaintiff was seriously injured as a result of diving from or sliding down a pool slide into the shallow end of a swimming pool. The common issue presented by their appeals is whether the records on these motions for summary judgment conclusively establish that the reckless conduct of the plaintiffs was the sole legal cause of their injuries (see, Howard v Poseidon Pools, 72 NY2d 972, 974; Boltax v Joy Day Camp, 67 NY2d 617). We conclude in Kriz v Schum that Julia Kriz’s conduct in sliding down a pool slide into the shallow end of a pool was not, as a matter of law, an unforeseeable use of the slide such as to constitute the sole legal cause of her injuries. Similarly, in Denkensohn v Davenport, neither Sheri Denkensohn’s conduct in diving from the top of a pool slide into water of an unknown depth nor the conduct of her companion in advising her that it was safe to do so and in failing to adequately illuminate the pool area, was, as a matter of law, an unforeseeable superseding cause of her injuries. Accordingly, the records on these summary judgment motions demonstrate that issues of fact requiring a trial exist in each case.

I

Kriz v Schum

On July 25, 1985, plaintiff Julia Kriz was seriously injured after sliding headfirst down a pool slide into a shallow, above-ground pool owned by defendants David and Linda Schum. David and Linda Schum were away on the day of the accident but their daughter Karen, who is also joined as a defendant, had invited plaintiff, Paul Bauer and Eddie Clouston to use the pool, which plaintiff had never visited before. A few minutes after entering the pool, plaintiff used the pool slide, first sliding down in a seated position and next in a headfirst "belly slide”. Neither slide was eventful. The water in the pool was four to five feet deep; plaintiff was approximately five feet three inches tall at the time of the accident and the water level reached just above her shoulders. On her next slide, plaintiff executed another headfirst belly slide but this time, negotiated her body through an inner tube held flat on the water by Bauer. She hit her head on the bottom of the pool and tragically was rendered a quadriplegic.

Plaintiff commenced this negligence action against the Schums, Clover Pool Supply Company (Clover), the retailer from whom the Schums had purchased the slide and Aqua Slide "N” Dive (Aqua Slide), the manufacturer of the slide. Aqua Slide has since sought protection under chapter 11 of the United States Bankruptcy Code and is not a party to this appeal. Following the completion of discovery, defendants Schum and Clover moved and plaintiff cross-moved for summary judgment.

The submissions demonstrate that the Schums purchased the pool slide from defendant Clover in 1975. They claim that Clover also installed the slide, an assertion that Clover disputes. The president of Aqua Slide testified at his deposition that it was not uncommon for people to slide headfirst down pool slides such as the one owned by the Schums and that the slides had been designed with that fact in mind. Indeed advertisements for the slides depicted people performing such headfirst belly slides. Moreover, the affidavit of plaintiff’s expert indicated that it was commonly known in the pool slide industry that people often used inner tubes as targets while sliding off the slides. The expert further opined, however, that while the slide design conveyed a deceptive appearance of safety to its users, actually such belly slides may cause the torso to tilt downward upon entry into the water, converting the slide into a dangerous dive.

In 1976, about a year after the Schums purchased their pool slide, the Consumer Product Safety Commission (CPSC) promulgated standards applicable to all pool slides sold in the United States. The standards required, in part, that instructions on the use of these slides, including warnings about the danger of sliding headfirst, be affixed to the slide upon installation. It is undisputed that although Aqua Slide subsequently distributed warnings to Clover about the dangers of the pool slide, Clover never conveyed the warnings to the Schums and no warning labels were ever affixed to the slide. David and Linda Schum testified that they did not know of the dangers of headfirst belly slides, although they admitted warning their children to be careful in performing such slides.

Supreme Court granted the Schums’ motion and dismissed the complaint as against them but denied summary judgment to Clover against plaintiff and on its cross claim for contribution from the Schums. Supreme Court also denied plaintiff’s cross motion for summary judgment against both defendants.

Because- it concluded that the facts concerning plaintiff’s conduct were "materially indistinguishable” from the facts in Howard v Poseidon Pools (72 NY2d 972, supra), the Appellate Division modified by granting summary judgment to Clover and dismissing the complaint against it. Two Justices dissented, concluding that unlike the plaintiff in Howard, plaintiff here was engaged in a reasonably foreseeable use of the slide, did not indicate that she knew that the use was dangerous and that no safety warnings of the danger were posted. Thus they found that issues of fact existed such as would warrant denial of the drastic remedy of summary dismissal of the complaint and would require a trial for their resolution. On plaintiff’s appeal pursuant to CPLR 5601 (a), we now modify the order of the Appellate Division, deny summary judgment to Clover and the Schums and reinstate the complaint.

Denkensohn v Davenport

This action also arose from a diving accident. Plaintiff was injured in August 1983 while using a residential in-ground swimming pool owned by defendants Richard and Betty Davenport. The record before Supreme Court established that on the night of the accident, plaintiff Sheri Denkensohn, then 16 years old, had attended a party with her girlfriend, Stacy Gorman. She later left the party with Gorman, David Davenport and Brian Cessarato. After stopping at a local bar/restaurant, the four proceeded to Davenport’s home to swim. Plaintiff had never been to the Davenport home before.

After they arrived at the Davenport home and changed into their swimsuits, David announced that a "ritual” existed whereby each person had to enter the pool for the first time by diving from the top of the pool slide. As the group walked out the house to the pool area, plaintiff remembered that she was wearing her contact lenses and went to the car to remove them. Meanwhile, David and Stacy dove into the deep end of the pool from the top of the pool slide. The slide curved toward the deeper end of the pool, but was located at the side of the pool, near the area where a white line on the pool bottom indicated the division between the deep and the shallow areas. A diving board was located perpendicular to the side of the pool where the slide was installed. The pool area was illuminated only by a light on the back porch because David had failed to turn on a 300-watt underwater light in the pool.

When the plaintiff returned to the pool area after removing her contact lenses, she could hear her friends splashing around in the pool, but was unable to see them because of the darkness. She was able, while climbing to the top of the slide, to see the steps of the slide ladder. While on the slide platform, she could not discern the depth of the water, although she could see the water’s surface. Before diving, plaintiff asked David whether it was all right to dive and he responded that it was. Relying on the fact that other pool slides with which she was familiar had been located at the deep end of pools, and on David’s assurances that it was all right to dive, plaintiff presumed that the water in front, of her was deep enough for diving. Tragically, it was not — she dove into the shallow end of the pool adjacent to the slide, struck her head on the pool bottom and was rendered a quadriplegic.

Additionally, as in Kriz, the submissions on summary judgment demonstrated that the pool slide industry was aware of the dangers of the slides. In 1976, three years after the Davenports purchased their pool slide, the CPSC promulgated regulations requiring, among other things, that certain warnings be affixed to the slides. In response to these regulations, the manufacturer of the Davenports’ pool slide began putting warning decals on its slides and in fact furnished the decals to its distributors, including Archie Lawrence. One of the warning decals provided "No Standing Up On Top Platform of This Slide. Careless Misuse Can Cause Serious Injury”. No such decals, however, were ever placed on the Davenports’ pool slide.

This action was commenced against the manufacturers and distributors of the in-ground pool (collectively Pacific Pools), against defendant Archie Lawrence & Son, the contractor who installed both the pool and the slide, against defendant Aqua Slide "N” Dive Corporation, the manufacturer of the slide, and against Richard and Betty Davenport and their son David. Seaboard Industries, the company that bought the slide from Aqua Slide and sold it to Archie Lawrence, was impleaded as a third-party defendant by the Davenports. Plaintiff subsequently settled with the Davenports and after the manufacturer filed for bankruptcy, her action against Aqua Slide was pursued in Federal court.

Pacific Pools, Archie Lawrence, and Seaboard sought summary judgment dismissing the complaint, contending that plaintiff had failed to establish, prima facie, that the alleged acts and omissions charged to them were the proximate cause of her injuries. Supreme Court granted the motions but a divided Appellate Division modified by denying summary judgment to Seaboard and Archie Lawrence. The majority concluded that this case was distinguishable from our decisions in Howard (supra), Smith v Stark (67 NY2d 693) and Boltax v Joy Day Camp (67 NY2d 617, supra) because here, plaintiff did not know the depth of the water into which she dove. The two dissenting Justices concluded that plaintiff’s conduct coupled with that of David Davenport was a superseding cause of her injuries. Seaboard and Archie Lawrence appeal by leave of the Appellate Division, which, stating that no issue of fact was considered by that court, certified to us that a question of law, decisive on the correctness of its determination has arisen which ought to be reviewed by the Court of Appeals. We now answer the question in the negative and affirm the order of the Appellate Division denying summary judgment to the appellants.

II

We note at the outset that both of these cases were resolved below on motions for summary judgment and as the plaintiffs aptly observe, on such a motion, the court’s role is limited to issue finding, not issue resolution. The plaintiffs in each case contend that various questions of fact are presented which preclude a grant of summary judgment to the defendants. Assuming, as plaintiffs contend, that these defendants owed their respective plaintiffs a duty to warn of the dangers of pool slides, each plaintiff must nevertheless establish, as part of a prima facie case, that the conduct of the defendants was the legal cause of her injuries. It is well settled that because the determination of legal causation turns upon questions of foreseeability and "what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; see also, Levy v Cascades Operating Corp, 289 NY 714 [issues of negligence and assumption of risk arising out of injuries suffered as a result of headfirst belly slide were questions of fact for the jury]). Thus summary judgment is appropriate in those instances "where only one conclusion may be drawn from the established facts” (51 NY2d, at 315).

Applying these principles to negligence actions arising out of diving accidents occurring in swimming pools, we have held that summary judgment is appropriate where "the record eliminates any legal cause other than the reckless conduct of the plaintiff” (Howard v Poseidon Pools, 72 NY2d, at 974, supra; see also, Manning v Manning, 72 NY2d 972; Smith v Stark, supra). In Howard, we held that the reckless conduct of the six-foot, three-inch plaintiff in diving through an inner tube into an above-ground pool he knew to be shallow constituted the sole legal cause of his injuries. Similarly, in Manning, the plaintiff was injured when he dove headfirst into his parents’ above-ground pool, which he had used many times and knew to be shallow (see also, Smith v Stark, 67 NY2d 693, supra [lack of depth warning devices was not the proximate cause of plaintiff’s injuries since he must have known that the area into which he dove contained shallow water]).

In each of these cases it was determined that the plaintiff’s conduct in undertaking the open and obvious risk of diving headfirst into shallow water was not an intended use of the pools and was not foreseeable to the defendant manufacturers, retailers and landowners. Thus, while a plaintiff need not demonstrate "that the precise manner in which the accident happened, or the extent of injuries, was foreseeable” to establish that the defendant’s negligence was a substantial cause of his or her injuries (Derdiarian v Felix Contr. Corp., 51 NY2d, at 315, supra [emphasis added]; Restatement [Second] of Torts § 435), the undisputed facts in Howard, Manning and Smith failed to demonstrate even the possibility that any event other than the plaintiffs own reckless conduct caused the injuries.

Additionally, we have determined summary judgment to be appropriate notwithstanding that a defendant’s negligence might have been a causative factor in the accident where the reckless conduct of the plaintiff constituted an unforeseeable superseding event, sufficient to break the causal chain and thus absolve the defendant of liability (Boltax v Joy Day Camp, 67 NY2d, at 620, supra; see, Derdiarian v Felix Contr. Corp., 51 NY2d, at 315, supra; Prosser and Keeton, Torts § 44 [5th ed]). Thus, in Boltax, we held that despite the defendant’s negligence in failing to properly fill a pool and in placing a lifeguard chair near the pool’s shallow end, the reckless conduct of the plaintiff who admitted knowledge of the various water levels of a pool and nevertheless chose to dive headfirst from the top of the lifeguard chair into shallow water was an unforeseeable superseding event sufficient to absolve the defendant landowner of liability.

Turning to the present appeals, we reject the defendants’ contention in Kriz v Schum that, as a matter of law, their alleged negligence could not have caused plaintiffs injuries. There is evidence in the submissions on the summary judgment motions that the headfirst belly slide performed by plaintiff was an intended use of the pool slide and therefore foreseeable to the defendants. Aqua Slide’s president admitted that such headfirst belly slides were not uncommon and that the slides had been designed with that fact in mind. There was also the sworn statement of plaintiffs expert that it was known in the pool slide industry that people often used inner tubes as targets to dive through when sliding off the slides. Moreover, the standards promulgated by the CPSC, which require that labels be affixed to the slides warning of the dangers of sliding headfirst down the slides, also suggest that the prevalence and tendency to engage in such headfirst slides was known throughout the pool slide industry. Notably, both these CPSC standards and the testimony of plaintiffs expert suggest on the other hand that the dangers of sliding headfirst were not commonly known to users of the slides. This record, therefore, does not present a circumstance where " 'only one [legal] conclusion may be drawn from the established facts’ ” (Howard v Poseidon Pools, 72 NY2d, at 974, supra). Rather, an issue of fact is raised as to whether the allegedly negligent conduct of the defendants in failing to affix warnings to the slide or to otherwise warn the plaintiff of the dangers of sliding headfirst was the legal cause of her injuries. Accordingly, summary judgment was improperly granted.

Similarly in Denkensohn v Davenport a jury could find that plaintiff’s conduct in diving off the top of a pool slide into shallow water, on the assurances of her companion that it was safe to do so, was not the sole legal cause of her injuries. Unlike Howard, Manning and Smith, the record does not demonstrate that plaintiff knew the depth of the water into which she dove. Plaintiff’s deposition testimony is to the contrary. The pool area was poorly lit, she had never been in the pool before and although she could see the steps of the slide as she climbed to the platform, while standing on the platform she could not discern the depth of the water and could not see her friends in the pool. There was also opinion evidence in the record that diving off the top of slide was a predictable use of the equipment and plaintiff alleged that the defective design of the slide facilitated such dives. Consequently, notwithstanding the fact that plaintiff’s dive may not be an intended use of the pool slide, it was not unforeseeable as a matter of law and there is a triable issue of fact as to whether the lack of appropriately placed warnings, the design of the slide or its placement near the shallow end of the pool were causative factors in her injury.

Furthermore, we find no merit in defendants’ contention that even if their alleged acts of negligence were causative factors in her injury, they are relieved of liability because plaintiff’s conduct is a superseding cause of the injury. In these circumstances, a superseding act does not break the causal nexus unless it is "an intervening act * * * extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct” (Derdiarian v Felix Contr. Corp., 51 NY2d, at 315, supra). While summary judgment is generally appropriate only in those cases where the intervening acts "operate upon but do not flow from the original negligence” (id.; see also, Lynch v Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d 632, 636-637), we have recognized that even where the injury flows from defendant’s negligence the reckless conduct of a plaintiff may be, as a matter of law, extraordinary and unforeseeable so as to break the causal chain (see, Boltax v Joy Day Camp, supra). Here, unlike Boltax, however, a jury could find that plaintiffs dive was not reckless because she did not know the depth of the water into which she dove. Thus the record does not demonstrate that plaintiffs conduct was a superseding cause as a matter of law, and her conduct cannot be transformed into such a superseding cause simply because David Davenport may have been reckless.

Finally, we agree with the Appellate Division that David Davenport’s negligence in failing to adequately light the pool area and in advising plaintiff that it was safe to dive cannot, on this record, be considered an independent superseding cause as a matter of law (144 AD2d 58, 62). We conclude, therefore, that summary judgment was properly denied to defendants Archie Lawrence and Seaboard because there are issues of fact requiring a trial.

We have considered those remaining arguments raised by the parties which are subject to our review and find them to be without merit.

Accordingly, the order of the Appellate Division insofar as appealed from in Kriz v Schum should be reversed, with costs, and summary judgment denied to defendant Clover Pool Supply Company and defendants Schum. The order of the Appellate Division insofar as appealed from in Denkensohn v Davenport should be affirmed and the certified question answered in the negative.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

In Kriz v Schum: Order insofar as appealed from reversed, etc.

In Denkensohn v Davenport: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order insofar as appealed from affirmed, etc.

      . Julia Kriz, an adult, brings the action in her own name, while the claim of Sheri Denkensohn, an infant, is prosecuted by her father Charles Denkensohn, who also asserts a derivative action. As used in this opinion, plaintiff refers only to Julia Kriz or Sheri Denkensohn, as the case may be.

      . Plaintiff pursued her action against Aqua Slide in Federal court.

      . The Appellate Division certified the following question: "Did this Court err, as a matter of law, by reversing so much of the Supreme Court Order as dismissed the complaint, cross claims and counterclaims asserted against defendant Archie Lawrence & Son and third-party defendant, Seaboard Industries; denying the motions as to those claims; and, as so modified, affirming the order?”

      . Although Kriz moved for summary judgment at Supreme Court, she has not cross-appealed from a denial of that motion.


text:
    American List Corporation, Respondent-Appellant, v U.S. News and World Report, Inc., Appellant-Respondent.
    Argued November 16, 1989;
    decided December 19, 1989

      POINTS OF COUNSEL

      Leslie A. Nicholson, Jr., Campbell Killefer and Cheryl A.

      Duncan for appellant-respondent.

      Ira G. Greenberg and Kathryn J. Fritz for respondent-appellant.
   OPINION OF THE COURT

Alexander, J.

Defendant U.S. News and World Report repudiated its contract with plaintiff American List Corp. whereby defendant agreed to rent, over a 10-year period, mailing lists of the names of college students to be compiled by plaintiff. The primary issue presented on this appeal is whether the damages suffered by plaintiff are general, thus requiring only that plaintiff prove that they flowed naturally from the breach, or whether the damages were special damages for lost profits which, to be compensable, must have been foreseeable and within the contemplation of the parties at the time the contract was made. We conclude that the damages sought by plaintiff are general damages which were sufficiently proved at trial. We further conclude, however, that Supreme Court erred in calculating the amount of these damages because in discounting to present value the total due under the contract, the court improperly considered the risk that the plaintiff would be unable to perform the contract in the future. Accordingly, we modify the order of the Appellate Division and remit to Supreme Court for the determination of a proper discount factor and a recalculation of damages.

I

Defendant publishes a national weekly news magazine which, in 1983, had the third largest circulation for such magazines in the Nation. In an attempt to expand its circulation by entering the college student market, defendant negotiated an agreement with plaintiff whereby, for a 10-year period, plaintiff would compile and rent to defendant mailing lists of college student names. Plaintiff had previously produced such mailing lists for high school, but not college, students. Consequently defendant agreed to finance plaintiffs start-up costs by paying a larger fee per name in the first five years of the arrangement. A schedule of the estimated number of names to be provided and the fees to be paid by defendant as well as the estimated losses and profits of plaintiff in each of the 10 years contemplated by the agreement was appended to the agreement. In addition, the agreement, which was drafted by defendant, provided that "[U.S. News and World Report has] agreed to take as much as 25% more names than the estimated compilation at the cost pername [sic] shown in years one through five.” The agreement further provided for an annual review of the estimated figures for the purpose of adjusting the cost per name to be charged to defendant.

The agreement was signed by the parties on January 25 and 26, 1984. Martin Lerner, plaintiffs president, signed on behalf of plaintiff and Joseph Acerno, the vice-president of circulation, signed on behalf of defendant. One year after the contract was signed, defendant was purchased by a new owner and Acerno was replaced by Jacob Weintraub. Weintraub canceled the contract in September 1985 although prior to that cancellation, defendant had accepted and paid for names provided by plaintiff for three mailings conducted over a one and one-half-year period.

Plaintiff commenced this action for breach of contract. After a bench trial, Supreme Court found defendant liable and awarded damages of $1,449,344 for the breach, which sum constituted the balance due plaintiff on the contract for the years 1985 to 1994, as reduced to present value. In assessing the present value of the moneys due plaintiff under the 10-year contract, the court used a "realistic discount factor of 18%”. On the parties’ cross appeals, the Appellate Division affirmed, without opinion. Both parties appeal by leave of this court.

Defendant argues that the damages awarded to plaintiff are actually "lost future profits” which are special damages and not compensable absent a showing that they were foreseeable and contemplated by the parties at the time the contract was made (see, Kenford Co. v County of Erie, 67 NY2d 257) (Kenford I), a showing plaintiff failed to make because the lost future profits it seeks, like the lost future profits sought in Kenford I, are too speculative for calculation. Plaintiff counters that it seeks general rather than special damages and that it has sufficiently proven that its damages are the natural and direct consequence of defendant’s breach of their agreement.

On its cross appeal, plaintiff argues that Supreme Court erred in its calculation reducing to present value the total amount due plaintiff under the 10-year contract and in determining that plaintiff was not entitled to compensation for an increase of 25% more names which defendant was obligated to accept during the first five years of the contract period.

II

We reject at the outset defendant’s contention that the courts below improperly awarded plaintiff "lost future profits” which are special damages not sufficiently proven at the trial.

The distinction between general and special contract damages is well defined but its application to specific contracts and controversies is usually more elusive. General damages are those which are the natural and probable consequence of the breach (Kenford Co. v County of Erie, 73 NY2d 312, 319) (Kenford II), while special damages are extraordinary in that they do not so directly flow from the breach. These extraordinary damages are recoverable only upon a showing that they were foreseeable and within the contemplation of the parties at the time the contract was made (Kenford II, 73 NY2d, at 319, supra; Chapman v Fargo, 223 NY 32, 36; Cramer v Grand Rapids Show Case Co., 223 NY 63; Wakeman v Wheeler & Wilson Mfg. Co., 101 NY 205; Hadley v Baxendale, 9 Exch 341, 156 Eng Rep 145). Thus in Kenford I (67 NY2d 257, supra) the nonbreaching party to a contract for the management of a domed sports stadium claimed special damages in the form of the lost future profits which that party would have received from its operation of the stadium. We concluded that the claimed lost future profits could not be recovered because it could not be demonstrated that such damages were caused by the breach, the alleged loss was not capable of proof with reasonable certainty, and it had not been proven that those damages were within the contemplation of the parties at the time the contract was made (id., at 261-263; see also, Hadley v Baxendale, 9 Exch 341, 156 Eng Rep 145, supra [failure to prove foreseeability of claimed damages of lost profits of mill operation resulting from common carrier’s breach of contract to timely deliver broken mill shaft for repairs]).

Here, by contrast, it is clear that plaintiff has sought only to recover moneys which defendant undertook to pay under the contract, thereby assuming a definite obligation. By the express terms of the agreement drafted by defendant, its appended schedule reflected the "cost of this joint venture” to defendant and set forth the fees to be paid to plaintiff for a specific number of names to be provided by plaintiff in each of the 10 years contemplated by the arrangement. That schedule also contemplated that plaintiff would suffer losses during the first five years because of its additional start-up costs, and defendant agreed to pay a larger fee per name for names provided during that period. These contemplated losses, however, do not alter the fact that defendant agreed to pay a specific amount over a period of 10-years — a sum explicitly stated in the contract schedule to be $3,027,500 and thus unquestionably within the contemplation of the parties. Moreover, contrary to defendant’s contention, the fact that plaintiff did not incur costs as great as anticipated during part of the time in which the parties had contemplated that plaintiff would suffer losses is irrelevant to defendant’s obligation under the agreement. Thus, as the trial proof establishes, plaintiff has sufficiently demonstrated that the moneys it seeks — the present value of the balance owed by defendant under the contract less the costs reasonably saved by plaintiff as a result of the breach — are general damages flowing as a natural and probable consequence of the breach.

Ill

Turning to the calculation of these general damages, we conclude that Supreme Court erred in discounting to present value the balance due under the contract by a figure which incorporated a consideration of plaintiff’s ability to perform the contract in the future.

The doctrine of anticipatory breach is applicable to bilateral contracts which contemplate some future performance by the nonbreaching party (Long Is. R. R. Co. v Northville Indus. Corp., 41 NY2d 455, 466-468; compare, Kelly v Security Mut. Life Ins. Co., 186 NY 16, 19 [doctrine inapplicable to contracts for the payment of money only]). Pursuant to this doctrine, a wrongful repudiation of the contract by one party before the time for performance entitles the nonrepudiating party to immediately claim damages for a total breach (Long Is. R. R. Co. v Northville Indus. Corp., 41 NY2d, at 463, supra). The nonrepudiating party need not, however, tender performance nor prove its ability to perform the contract in the future (Nichols v Scranton Steel Co., 137 NY 471, 485; Windmuller v Pope, 107 NY 674; see also, Tenavision, Inc. v Neuman, 45 NY2d 145, 150 [buyer’s repudiation of contract governed by UCC 2-610 eliminates need for further performance by the seller]; see generally, 4 Corbin, Contracts § 978, at 925 [willingness and ability to perform need not continue after wrongful repudiation]). Rather, the doctrine relieves the nonrepudiating party of its obligation of future performance and entitles that party to recover the present value of its damages from the repudiating party’s breach of the total contract (Long Is. R. R. Co. v Northville Indus. Corp., 41 NY2d, at 468, supra; Nichols v Scranton Steel Co., 137 NY, at 487-488, supra).

Defendant argues that in discounting the total amount due under the contract to its present value, the court may factor in the risk that the nonrepudiating party will be unable to perform the contract in the future. Such a rule, however, does violence to the settled principles of the doctrine of anticipatory breach because it would require the nonrepudiating party to prove its ability to perform in the future, despite the fact the doctrine is intended to operate to relieve the nonrepudiating party from that very performance.

In calculating the damages due plaintiff in this case, Supreme Court properly computed the total due plaintiff under the contract, taking into account the costs reasonably saved by plaintiff as a result of the breach and subtracting the amount already paid by defendant for mailing lists it received in 1984 and 1985. Applying the rule of Long Is. R. R. Co. v Northville Indus. Corp. (supra) and Nichols v Scranton Steel Co. (supra), the court then discounted the balance due under the contract to its present value. The record demonstrates, however, that the 18% discount figure chosen by the court necessarily included a consideration of the risk that plaintiff would be unable to perform the contract in the future. Plaintiff’s expert opined that a 10% discount rate was appropriate. Defendant’s expert disputed this figure, testifying that a determination of the present value of money to be paid in the future required consideration of several factors and concluded that consideration of some of these factors justified a discount factor of up to 14%. It was the consideration of plaintiff’s ability to perform the contract in the future, however, which led defendant’s expert to the conclusion that a discount factor of 14% to 20% was appropriate.

Thus, in adopting the 18% figure, Supreme Court necessarily credited the testimony of defendant’s expert as to the valuation of the risk that plaintiff would be unable to perform the contract in the future. As this factor may not properly be considered where, as here, damages are sought by reason of an anticipatory breach of the contract, the matter must be remitted to Supreme Court for a determination of the appropriate discount factor to be applied and a recalculation of damages.

IV

Plaintiff also argues that Supreme Court erred in calculating the total amount due under the contract because the court failed to award damages for 25% more names that defendant was obligated to accept during the first five years of the contract period. The argument must be rejected. The contract indicates that unlike the fixed number of names to be provided to defendant each year, plaintiff was not obligated to provide these additional names and defendant was obligated to accept the additional names only if they were provided. Thus as to these additional names, plaintiff was required to prove its ability to provide them. Supreme Court’s contrary finding, affirmed by the Appellate Division and having support in the record, is beyond our review.

We have considered defendant’s remaining contention and conclude that it is without merit.

Accordingly, the order of the Appellate Division should be modified, with costs to plaintiff, the case remitted to Supreme Court for determination of an appropriate discount factor and a recalculation of damages, and, as so modified, affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacos a concur.

Order modified, with costs to plaintiff, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.