author: Titone, J. Meyer, J.

text:
    The People of the State of New York, Appellant, v Nicholas Rosa, Respondent.
    Argued May 30, 1985;
    decided July 11, 1985

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Beth D. Jacob and Robert M. Pitler of counsel), for appellant.
    I. The burden of proving that defendant was actually represented by counsel in an unrelated pending case should rest with defendant and defendant failed to meet that burden. (People v Rogers, 48 NY2d 167; People v Bartolomeo, 53 NY2d 225; People v Kazmarick, 52 NY2d 322; People v Sutton, 47 AD2d 455; People v Whitehurst, 25 NY2d 389; People v Di Stefano, 38 NY2d 640; People v Berrios, 28 NY2d 361; People v Wise, 46 NY2d 321; Dunaway v New York, 442 US 200; People v Garofolo, 46 NY2d 592.) II. The inquiry requirement set forth in People v Bartolomeo should not be applied to cases tried before the decision in People v Kazmarick. (People v Kazmarick, 52 NY2d 322; People v Bartolomeo, 53 NY2d 225; People v Pepper, 53 NY2d 213; People v Rogers, 48 NY2d 167; People v Hobson, 39 NY2d 479; People v Bell, 50 NY2d 869; People v Macedonia, 42 NY2d 944; Michigan v Tucker, 417 US 433; Miranda v Arizona, 384 US 436.) III. The court below erred in concluding that it was required to determine a right to counsel issue which was without support in the suppression hearing either by resort to the trial record or by ordering a supplemental hearing. (People v Samuels, 49 NY2d 218; People v Baldi, 54 NY2d 137; People v Ermo, 47 NY2d 863; People v Kinchen, 60 NY2d 772; People v Charleston, 54 NY2d 622; People v De Mauro, 48 NY2d 892; People v Lucarano, 61 NY2d 138; People v Gonzalez, 55 NY2d 720; People v Havelka, 45 NY2d 636.)

      Oscar Gonzalez-Suarez for respondent.
    I. Respondent met his burden of proof that he was actually represented by counsel at the time if not by direct evidence, then by circumstances. (Johnson v Zerbst, 304 US 458.) II. The issue of retroactivity was not raised in the court below and, moreover, is without merit. (Miranda v Arizona, 384 US 436; People v Kazmarick, 52 NY2d 322; People v Bartolomeo, 53 NY2d 225.) III. The record clearly reflects that respondent was interrogated without concern for counsel.
   OPINION OF THE COURT

Titone, J.

Defendant has been convicted of murder in the second degree, following a jury trial, in Supreme Court, New York County. On appeal, the Appellate Division, First Department, reversed the judgment of conviction, on the law, granted defendant’s motion to suppress certain statements and remanded the matter for a new trial. The People appeal. We conclude that suppression of the statements was not warranted and reverse the order of the Appellate Division and remit for a review of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

On November 7, 1974, Louis Pucci, a 20-year-old college student, warned his neighborhood grocer of an impending robbery by a youth gang. In retaliation, Pucci was shot to death by two gang members, defendant Nicholas Rosa, and Eduardo Matos. Armed with a loaded rifle, Matos had pursued Pucci into the Manhattan grocery store, followed closely by the defendant. Pucci ran to the back of the store, and after defendant told Matos, “Shoot him, shoot him”, Matos fired one shot in Pucci’s direction. Defendant then took the rifle from Matos, aimed it at Pucci and fired the second shot. Louis Pucci later died as a result of a bullet wound in his neck.

Matos surrendered to the police within hours, but the defendant avoided apprehension, until he was arrested on an unrelated charge of kidnapping in Brooklyn in January 1976. On January 26,1976, after the arraignment and preliminary hearing on the kidnapping charge, the defendant was brought to the New York County District Attorney’s office for questioning with respect to the present case. After waiving his Miranda rights, he first made an oral statement to Detective Allen Grant and then a tape-recorded statement to an Assistant District Attorney wherein he admitted being with Matos at the time of the shooting, but denied firing a shot.

A Grand Jury charged Rosa with murder in the second degree (Penal Law § 125.25). Prior to trial, a hearing was held upon defendant’s motion to suppress the statements that he had made to the detective and the Assistant District Attorney. At the hearing, the defendant claimed that, at the time of the police questioning in this case, he had been represented by counsel on a Brooklyn case for which he had received youthful offender treatment. He said that he informed the detective that he was represented by counsel in Brooklyn. Detective Grant testified, inter alia, that after Rosa had been arrested in Brooklyn, he was brought to New York County where he made certain statements after having waived his Miranda rights. Contrary to defendant’s contention at the hearing, the detective said that at the time Rosa was questioned, he did not claim to be represented by an attorney in that Brooklyn case. He further stated that he did not know if Rosa was represented by counsel, but presumed that he was. The detective had made no efforts to ascertain whether the defendant was represented by counsel. In denying the motion to suppress, the trial court credited the testimony of Detective Grant, and rejected that of the defendant.

At trial, witnesses testified that “Coco” (Matos) had fired the first shot at Pucci. A second man, whom they described but did not identify by name, had fired the second shot. The only evidence offered to place Nicholas Rosa at the scene of the murder was his statements to the detective and the Assistant District Attorney. Convicted of murder in the second degree, Rosa was sentenced to an indeterminate prison term of 20 years to life.

The Appellate Division reversed, granted the motion to suppress the statements and ordered a new trial. Citing People v Rogers (48 NY2d 167), it held that since it did not appear that defendant’s claim that he was represented by counsel on the unrelated case at the time of questioning “was or can be controverted” suppression was required (People v Rosa, 80 AD2d 527, 528).

Following our decision in People v Kazmarick (52 NY2d 322), the People sought reargument on the ground that the record of the Huntley hearing did not show whether defendant was in fact represented by counsel at the time that he was questioned and made statements concerning the present case. Upon reargument, the matter was remanded for a reopened Huntley hearing to resolve whether defendant was actually represented on January 26, 1976 (People v Rosa, 81 AD2d 766).

At the conclusion of the reopened Huntley hearing, the court made the following findings of fact: defendant had been arraigned in Kings County on January 20, 1976 on the charge of kidnapping and other related charges; Detective Grant knew that the defendant had been arraigned and was aware that in the metropolitan area of New York indigent defendants are assigned counsel upon arraignment; a Legal Aid Society attorney had been appointed to represent defendant for the purpose of arraignment and the preliminary hearing which immediately followed; at the conclusion of the preliminary hearing, defendant’s counsel had requested that new counsel be assigned under County Law article 18-B to represent defendant because there was a conflict of interest between Rosa and a codefendant; that request was granted; there was no evidence presented as to whether the Legal Aid Society attorney believed that he was relieved from representing defendant or whether he believed that his representation continued until notice of appearance was filed by assigned counsel; Edward Malz filed a notice of appearance in the clerk’s office of the Supreme Court, Kings County, on January 26,1976; there was no evidence of the time of day that the notice was filed; a copy of that notice of appearance was received by the Kings County District Attorney’s office on January 29, 1981 [sic]; Detective Grant did not inquire, nor was he informed by the defendant that counsel had been assigned to the defendant on the Brooklyn case; he was aware of the substantial probability that counsel had, in fact, been assigned; Detective Grant did not know the identity of the assigned counsel, nor whether assigned counsel had filed a notice of appearance.

After reviewing the findings of fact the Appellate Division again reversed defendant’s conviction. The majority of the court held that “[i]n the absence of clear evidence that the earlier representation by Legal Aid was definitively terminated”, the Legal Aid Society’s representation of Rosa continued until the new attorney appeared. The court noted as supportive of its finding of continued representation the fact that the Legal Aid attorney had requested the court to “ ‘appoint an 18B [assigned] attorney for Mr. Rosa’” but did not literally ask to be “‘relieved’ ” (People v Rosa, 99 AD2d 963-965).

We disagree, in two respects, with the Appellate Division’s holding that the defendant continued to be represented by Legal Aid Society counsel on the pending unrelated charge when he was questioned concerning the Pucci homicide. First, insofar as the Appellate Division’s decision is based on an absence of evidence to indicate that defendant’s earlier representation had terminated, it improperly placed the burden of disproving the fact of the earlier representation on the People. Second, that the Legal Aid Society attorney had not asked to be relieved, but only to have an attorney appointed pursuant to County Law article 18-B, does not demonstrate that the defendant was represented by Legal Aid Society counsel or any counsel on the unrelated charge during the questioning on the instant case. Since the defendant failed to prove that he was represented by any counsel on the pending unrelated charge when he made statements to the detective and the Assistant District Attorney herein, the Appellate Division improperly suppressed those statements.

Well established in this State is the primary rule that all questioning of a suspect in custody must cease once an attorney enters the proceeding to represent the suspect on the charges under investigation (People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325). Under these circumstances, an uncounseled waiver will be ineffective (People v Tompkins, 45 NY2d 748, cert denied 440 US 939). The application of this rule has been extended to circumstances wherein the legal authorities have knowledge that the defendant is represented by an attorney on an unrelated pending charge (People v Rogers, 48 NY2d 167, supra). In that instance as well, we have required questioning to cease and held any subsequent waiver made in the absence of counsel to be ineffective.

In People v Kazmarick (52 NY2d 322, supra), we were asked to further extend this rule to a case wherein the police had knowledge of an unrelated charge pending against the defendant on which his right to counsel had attached, even though the defendant was not represented by counsel on that charge. We declined to so hold. Rather, we recognized that “the right to counsel and representation by counsel are not the same thing” (People v Kazmarick, 52 NY2d 322, 328, supra), and to otherwise hold would be an unnecessary and unrealistic limit on police interrogation procedures in that it would charge “law enforcement officials anywhere with knowledge of accusatory instruments on unrelated charges everywhere”. (Ibid.)

Then, in People v Bartolomeo (53 NY2d 225), we were presented with a factual context foretold in Kazmarick, namely, one in which the questioning legal authorities have knowledge that the defendant has a pending unrelated charge, but no knowledge concerning whether he was represented by counsel on that charge, and the defendant does in fact have counsel on the earlier charge. In Bartolomeo, we held that once the police have actual knowledge of a recent pending charge, they have a duty to inquire whether the defendant is represented by counsel in connection with that charge. Failing that inquiry, they are bound by what it would have revealed; in Bartolomeo, it would have revealed that he was represented by counsel in the earlier charge (cf. People v Bertolo, 65 NY2d 111).

It was not until People v Lucarano (61 NY2d 138) that we were asked to define the scope of the obligation to inquire under Bartolomeo. In Lucarano, the police inquiry most logically began with the defendant himself who responded falsely that he was not represented by counsel. Where the defendant’s response, albeit false, was reasonable under all the circumstances, we declined to extend our decision in Bartolomeo to require the police to conduct a further inquiry to an undefined point in time with view to disproving the defendant’s response. In so doing, we recognized that as a practical matter there are limitations to the obligations that should be placed on police to verify the defendant’s claim that he is not represented by counsel. As we held in Lucarano, a simple inquiry of the defendant is not an unrealistic burden to place on the authorities. Indeed, given the personal and confidential nature of the attorney-client relationship, there is no guarantee that any police inquiry of other than the defendant will be as revealing or will accurately reflect the defendant’s most recent posture concerning his legal representation.

When a defendant seeks to suppress his statements because he had in fact been represented by counsel on a pending unrelated charge, he remains the one who is best and most logically able to prove his allegation that he was represented by counsel on that pending unrelated charge. To place the burden on the People to prove that the representation had terminated, would, in essence, require them to prove a negative, a requirement that “is generally unfair, especially since the conclusion that the negative of the circumstances is necessarily a product of definitional and therefore circular reasoning” (People v Patterson, 39 NY2d 288, 305-306 [Breitel, Ch. J., concurring], affd and approved sub nom. Patterson v New York, 432 US 197, 211-212, n 13; accord, 29 Am Jur 2d, Evidence § 153 [collecting cases holding that it is generally not incumbent upon the prosecutor to disprove a negative especially when the relevant facts are more immediately within the knowledge of accused]).

To be sure, the People must prove the voluntariness of a statement beyond a reasonable doubt (People v Anderson, 42 NY2d 35, 38-39; People v Yarter, 41 NY2d 830; People v Valerius, 31 NY2d 51; People v Huntley, 15 NY2d 72). Mindful, however, that the statutory definition of “involuntarily made” contained in CPL 60.45 (2) would transform any constitutional claim into an attack on voluntariness, we decline to mechanically place the burden of disproving a defendant’s representation by counsel on the People. To do so belies common sense. As former Chief Judge Breitel observed in a somewhat analogous context, “The placing of the burden of proof on the defense * * * is fair because of defendant’s knowledge or access to the evidence other than his own on the issue” (People v Patterson, 39 NY2d 288, 305 [Breitel, Ch. J., concurring], affd and approved sub nom. Patterson v New York, 432 US 197, 211-212, n 13, supra). In fact, placing the burden of proof on the defendant in numerous contexts collateral to the question of guilt has long been upheld (see, People v Berrios, 28 NY2d 361; La Fave & Israel, Criminal Procedure § 10.3).

Consequently, we hold that, with respect to a right to counsel claim, after the People go forward to justify the police interrogation, if the defendant makes a claim that he is represented by counsel on another pending charge of which the police had knowledge, it is the defendant’s burden to show that he was, in fact, represented by counsel on the earlier charge at the time of interrogation.

In this case, Detective Grant knew that the defendant had been recently charged in a Brooklyn kidnapping case when he questioned him in New York County concerning the murder of Louis Pucci. Thus, he had a duty to inquire whether defendant had obtained representation on the pending case. Failing that inquiry, he was chargeable with whatever it would have disclosed.

At the reopened Huntley hearing, the evidence showed that on January 20th, the Legal Aid attorney who had represented defendant at the arraignment and preliminary hearing on the pending kidnapping case, asked for counsel to be appointed pursuant to County Law article 18-B because of a conflict of interest between defendant Rosa and a codefendant. There was no evidence as to the time that the newly assigned attorney-in-fact entered the case. The Appellate Division held that, absent evidence to the contrary, representation by the Legal Aid attorney continued, insofar as he did not literally ask to be relieved. That meaning cannot be credited to what was clearly a fortuitous choice of words. Implicit in an application for assignment of another attorney because of a conflict of interest with a codefendant is a request to be relieved from representation. In no other way but by being relieved, could the attorney continue to represent the codefendant. (Code of Professional Responsibility, Canon 5 [in McKinney’s Cons Laws of NY, Book 29, Judiciary Law, appendix].)

Hence when the court granted the Legal Aid Society attorney’s motion to assign counsel, the Legal Aid attorney was relieved of his representation of defendant. There is no doubt that defendant could not be questioned as to the kidnapping, since his right to counsel had indelibly attached (People v Samuels, 49 NY2d 218). But where he was not represented by counsel on that earlier charge, he could be questioned by the police as a suspect in any other matter in the same way as any first offender could be questioned (People v Kazmarick, 52 NY2d 322, 328, supra). As such, he could invoke his right to counsel or effectively waive his right to counsel. In short, sufficient protection was accorded under Miranda v Arizona (384 US 436) and its progeny (see, People v Hopkins, 58 NY2d 1079, 1082; People v Angus, 56 NY2d 549, affg 81 AD2d 971; People v Cunningham, 49 NY2d 203).

In sum, the evidence established that defendant’s Legal Aid attorney on the pending case had been relieved. Since the defendant did not show that any other attorney had entered that proceeding to represent him, he failed to meet his burden of showing that he was represented by counsel on the pending kidnapping charge. Accordingly, the interrogation was violative of none of the defendant’s constitutional rights and his statements were admissible.

The majority has carefully considered the arguments urged in the dissenting opinion and rejects them. Simply put, the facts recited above hardly raise the specter of a manifest injustice. What the dissenter really urges is that Bartolomeo and Rogers should be extended, which we decline to do.

For the reasons stated, the order of the Appellate Division should be reversed and the matter remitted to that court for review of the facts.

Meyer, J.

(dissenting). The majority’s overly literal application of People v Kazmarick (52 NY2d 322) overlooks an essential factual distinction between that case and this — in Kazmarick the defendant never had counsel on the unrelated charge; here counsel had in fact been assigned on the unrelated kidnapping charge. To apply Kazmarick in the instant situation because defendant has not borne the burden of showing that at the exact moment of interrogation on the present murder charge substitute counsel had in fact been appointed for counsel originally assigned on the kidnapping charge is a denigration of the constitutional imperative on which rests the State’s obligation to provide counsel to an indigent defendant and not to conduct interrogation in the absence of counsel, or after waiver in the presence of counsel, once the right to counsel has attached. I, therefore, respectfully dissent.

People v Bartolomeo (53 NY2d 225, 231) holds that “[kjnowledge that one in custody is represented by counsel, albeit on a separate, unrelated charge, precludes interrogation in the absence of counsel and renders ineffective any purported waiver of the assistance of counsel when such waiver occurs out of the presence of the attorney”. Although the statement suppressed in Bartolomeo had been obtained during the investigatory phase of the homicide to which it related, its holding was said to follow “naturally on the awareness on the part of law enforcement personnel of judicial concern for, and protection of, a criminal defendant’s right to the aid of counsel at every critical stage of proceedings against him.” It was, therefore, judicial concern for, and protection of, Bartolomeo’s right to the aid of counsel in the unrelated arson proceeding that required suppression of his statement concerning the homicide, made in the absence of counsel.

There can be no question, however, that the same judicial concern for, and protection of, a criminal defendant’s right to aid of counsel would have prevented interrogation of Bartolomeo on the arson charge had his assigned counsel found it necessary because of a conflict to ask to be relieved, even though substitute counsel had not yet been assigned at the time the interrogation took place. This is because once a critical stage of the criminal proceeding is reached, defendant is entitled to the “opportunity to consult counsel, assigned if necessary, without delay” (People v Samuels, 49 NY2d 218, 223), because “[i]t cannot be assumed that an attorney would abandon his client merely because the police represent that they seek to question on a matter unrelated to the charge on which the attorney has been retained or assigned” (People v Rogers, 48 NY2d 167,173), because “[counsel initially appointed should continue to represent the defendant through all stages of the proceedings unless a new appointment is made because * * * necessary,” and because “[i]f leave to withdraw is granted * * * successor counsel should be appointed” (ABA Standards Relating to Providing Defense Services §§ 5.2, 5.3). It necessarily follows from the obligation of the criminal justice system to assure continuity of counsel once the right to counsel has attached and from the Rogers-Bartolomeo reasoning that interrogation on the new charge still under investigation is likewise barred during a hiatus in representation of defendant by counsel, not brought about by defendant.

The majority nevertheless avoids that result by holding that defendant failed to establish that he was in fact represented by substitute counsel at the time he was interrogated, reasoning that if the burden of proof is imposed on the People they will have to prove the negative of something within the knowledge of defendant. For me that is an unacceptable construct; unacceptable because it is the State’s obligation to provide substitute assigned counsel “without delay” and because whether the State has carried out that obligation is as much within the knowledge of the People as it is within the knowledge of the defendant. Far from seeking to extend Rogers-Bartolomeo, as the majority suggests, I seek only to preserve the rule declared by this court but a short time ago.

What is particularly distressing about the majority holding is that although People v Lucarano (61 NY2d 138, 147) recognized that “[t]he value of this protection [of the right to counsel] to the individual far exceeds the inconvenience caused by requiring that the police make a simple inquiry of defendant” whether he is represented by counsel on the unrelated charge of which they are aware, the present holding encourages the police to go ahead with interrogation without inquiry because they have little or nothing to lose. If defendant is in fact represented, the statement will be suppressed in any event; if he is not because the State has not fulfilled its obligation to appoint substitute counsel, or, even though it has, defendant cannot prove that at or before the moment of interrogation it had, the statement is admissible.

Nor can I accept the majority’s characterization of the Appellate Division’s holding as a fortuitous choice of words (majority opn, at p 387). That the assigned attorney sought appointment of substitute counsel did not require that counsel be relieved, for defendant could, after proper inquiry of him by the court, have waived the conflict (People v Lombardo, 61 NY2d 97; People v Jackson, 60 NY2d 848; People v Gomberg, 38 NY2d 307). But more importantly, the crux of the Appellate Division’s ruling was that the originally assigned attorney’s representation continued until a new attorney effectively appeared (99 AD2d, at p 964). With respect to the right of the police to interrogate defendant, I agree with that conclusion. It was the State’s obligation to provide defendant with continuing representation, defendant being in no way responsible for interruption of his representation by counsel first assigned. To hold otherwise is to permit the police to take advantage of the failure of the State to accord defendant his constitutionally protected right to counsel.

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

Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

      . The People’s argument that our right to counsel decisions should be limited to prospective application is foreclosed by a consistent line of contrary holdings (People v Pepper, 53 NY2d 213,221; People v Albro, 52 NY2d 619,624; People v Bell, 50 NY2d 869, 871; People v Singer, 44 NY2d 241, 251; People v Macedonia, 42 NY2d 944).

      . The burden of proof in Federal cases with respect to voluntariness is also on the People but they need prove it only by a preponderance of the evidence (Lego v Twomey, 404 US 477).

      . Parenthetically, the People’s contention that the Appellate Division improperly ordered a reopened Huntley hearing since the defendant had failed to present that specific claim at the original Huntley hearing is meritless. The original record made apparent the issue which was further explored at the reopened hearing and as such, appellate review was not precluded (People v Kinchen, 60 NY2d 772; People v Charleston, 54 NY2d 622).

       Thus in People v Osgood (52 NY2d 37) we declined to accept the District Attorney’s argument that return of an indictment, after dismissal of a felony complaint for inexcusable delay in prosecution, commenced a new speedy trial period, noting {id., at p 45, n 2) the anomalies that would be thus created: “For instance, the defendant’s right to counsel which attaches upon the filing of a felony complaint, thus precluding the police from questioning the defendant by acquiring a waiver of counsel in the absence of counsel (People v Samuels, 49 NY2d 218) would now arguably disattach once the felony complaint is dismissed or withdrawn by the police, thus permitting the defendant to be manipulated into his waiver of counsel where he is once again vulnerable to uncounseled questioning.”


source: Caselaw Access Project

author: Kaye, J. Meyer, J.

license: Public Domain

text:
    In the Matter of the Estate of Angela Violi, Deceased. Vincent D’Antoni et al., Respondents; Anthony L. Violi, Appellant.
    Argued June 3, 1985;
    decided July 2, 1985

      POINTS OF COUNSEL

      Michael Swaaley and Ralph P. Casella for appellant.
    The decision of the court below was incorrect and should be reversed: appellant as the survivor of a tenancy by the entirety is entitled to total fee ownership. (Kahn v Kahn, 43 NY2d 203; Bertles v Nunan, 92 NY 152; Torrey v Torrey, 14 NY 430; Stelz v Shreck, 128 NY 263; Schiller v Schiller, 80 AD2d 164; Lawriw v City of Rochester, 14 AD2d 13, 11 NY2d 759; Matter of Maguire, 251 App Div 337, 277 NY 527; Sterns v Stevans, 20 Misc 2d 417; Ackerman v Ackerman, 45 AD2d 856.)

      Linda Smyth Victorio and Howard G. Meyers, Jr., for respondents.
    I. The court below correctly reversed the lower court decision in finding that respondents herein are entitled to one half of the proceeds from the sale of the marital residence in accordance with the parties’ separation agreement. (Hiles v Fisher, 144 NY 306; Matter of Schenk, 205 Misc 148; Sterns v Stevans, 20 Misc 2d 417; Topilow v Peltz, 43 Misc 2d 947, 25 AD2d 874; Azzara v Azzara, 1 AD2d 1012, 2 NY2d 829; Matter of Price, 56 Misc 2d 774, 33 AD2d 732.) II. The court below correctly distinguished Schiller v Schiller (80 AD2d 164) from the instant case thereby rendering a decision which is consistent with the law as it stands in New York.
   OPINION OF THE COURT

Kaye, J.

In their separation agreement, a husband and wife provided that the marital residence they owned as tenants by the entirety would, within four years, be sold at the prevailing market price, and the proceeds divided between them. Before termination of the marriage, and before any sale, the wife died. In this action by the administrators of her estate to recover half the proceeds from the subsequent sale of the house, we hold that the separation agreement did not transform the tenancy by the entirety to a tenancy in common and, consequently, the surviving husband alone is entitled to the proceeds.

Angela and Anthony Violi owned their marital residence as tenants by the entirety. On June 24, 1980, they entered into a separation agreement, which provided that for up to four years, Angela would have exclusive possession of the residence and could determine if and when it would be sold. Three and a half years from the date of the separation agreement, if the house had not by then been sold, it was to be placed on the market, to be sold to the first bona fide purchaser offering the established market price. On August 20, 1981, after a one-year separation pursuant to the agreement, Angela sued for divorce. Anthony did not contest the proceeding. However, before any divorce decree was signed by the court and before the residence was sold, on September 9, 1981 Angela died. Anthony sold the residence on January 15, 1982.

Plaintiffs, who are Angela’s parents and the administrators of her estate, commenced this action to recover half of the net proceeds from the sale of the house. The Surrogate denied their motion for summary judgment, granted Anthony’s cross motion for summary judgment, and dismissed the complaint, ruling that the tenancy by the entirety had not been terminated and that Anthony alone owned the residence. The Appellate Division reversed, awarding plaintiffs half the proceeds, on the theory that the separation agreement created an “ ‘equitable if not express lien’” in favor of each spouse on half the sales proceeds. We now reverse and reinstate the Surrogate’s determination.

Where property is held in a tenancy by the entirety — in which a husband and wife own real property as if they were one person (see, Matter of Reister v Town Bd., 18 NY2d 92,95) — and one spouse dies, the surviving spouse takes the entire estate, not because of any right of survivorship, but because that spouse remains seized of the whole (see, Kahn v Kahn, 43 NY2d 203, 207; Stelz v Shreck, 128 NY 263, 266; Bertles v Nunan, 92 NY 152,156; 5A Warren’s Weed, New York Real Property, Tenancy by Entirety § 8.01, at 68-69). A tenancy by the entirety may, while both spouses are alive, be converted into a tenancy in common by certain definitive acts: a conveyance of the property in which both spouses join; a judicial decree of separation, annulment or divorce; or execution of a written instrument that satisfies the requirements of section 3-309 of the General Obligations Law, which permits division or partition of real property held in a tenancy by the entirety if clearly expressed in such an instrument (see, Kahn v Kahn, 43 NY2d 203, 207, supra; see also, Lawriw v City of Rochester, 14 AD2d 13, 15-16, affd 11 NY2d 759).

At the time of Angela’s death, there was no conveyance of the property which had been joined in by both spouses, and no judicial decree of separation, annulment or divorce terminating the marriage. Nor was the separation agreement an instrument of partition or division under General Obligations Law § 3-309. The agreement at most constituted an executory contract to divide the proceeds when a sale occurred.

A tenancy by the entirety is not terminated merely by a provision in a separation agreement for the sale of a marital home at a future date. In Matter of Maguire (251 App Div 337, 339, affd 277 NY 527), the court held that the death of a spouse after execution of a contract of sale, but before the date set for closing of title, did not create a right in the decedent’s heirs to a share of the proceeds. Rather, the surviving spouse remained seized of the whole estate in his capacity as the “entirety.” (Accord, Matter of Keyworth, 19 AD2d 688; Matter of McKinney, 175 Misc 377; cf. Matter of Schenk, 205 Misc 148.)

Given that an executory sales contract does not ordinarily constitute a partition or division of the property, it follows that an agreement to seek a buyer and convey the entirety’s interest at some time in the future does not transform the tenancy to one in common. Thus, in Schiller v Schiller (80 AD2d 164), a tenancy by the entirety was not affected by a separation agreément providing that one spouse would have exclusive possession of the marital residence until either she wanted the residence sold or she remarried or occupied the house with another man, and that on such sale the proceeds would be shared. Similarly, in Sterns v Stevans (20 Misc 2d 417, 418-419 [Meyer, J.]), an agreement to sell property held in a tenancy by the entirety “ ‘as quickly as practical at a price agreed upon by both parties, and [to divide equally] all money received’ ” did not constitute a partition or division under what is now General Obligations Law § 3-309.

That the separation agreement established both a time limit for the sale of the property and a mechanism for determining the minimum price does not elevate it to the status of an instrument to “make partition or division of*** real property” within the meaning of the General Obligations Law. There is no language in the agreement evincing an intent to alter the form of ownership. Nor does the provision in the separation agreement for the waiver and relinquishment of “any and all rights [each party] may now have or hereafter acquire * * * to share in the property of the estate of the other as a result of marriage” compel a contrary conclusion, since in the case of a tenancy by the entirety the estate of a deceased spouse would not in any event have an interest in the property.

In reaching this conclusion, we are mindful also of a public policy favoring certainty in title to real property, both to protect bona fide purchasers and to avoid conflicts of ownership which may engender needless litigation (see, Barkenthien v People, 212 NY 36, 44, rearg denied in opn 213 NY 554). As a general matter, title to estates in land should be altered only by clear expressions of intent. No such intent having been expressed here, the tenancy by the entirety continued until the time of Angela’s death, when Anthony became sole owner of the property.

The Appellate Division’s imposition of an equitable lien on one half the proceeds (see also, Matter of Price, 56 Misc 2d 774, affd 33 AD2d 732) was in these circumstances an impermissible attempt to accomplish by indirection what could not be done directly. While a constructive trust may be imposed to prevent a wrongdoer’s unjust enrichment (see, 4A Powell on Real Property If 624, at 707), no wrongdoing is alleged here.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Surrogate’s Court, Richmond County, granting defendant summary judgment and dismissing the complaint, reinstated.

Meyer, J.

(dissenting). The separation agreement between Anthony and Angela Violi required that the marital dwelling be put on the market “3 years and 6 months from the execution of this Agreement” for sale at a price determined as provided in the agreement and sold to the first bona fide purchaser offering the market price, and that “the husband and wife shall equally divide the equity and any net profits”, and further provided that during the period prior to sale the wife was to have exclusive possession of the premises not under “a tenancy between the husband as landlord, and the wife, as tenant, but * * * as a licensee” (emphasis supplied). The holding of the majority ignores the effect of General Obligations Law § 3-309 in light of that express agreement. I, therefore, dissent.

General Obligations Law § 3-309 provides that “[hjusband and wife * * * may make partition or division of any real property held by them as * * * tenants by the entireties.” The right of plaintiffs to one half the proceeds of sale of the house arises not from any theory of equitable lien, as the Appellate Division held, but from the agreement of the parties made in contemplation of divorce, requiring that the dwelling be sold at a fixed time and an ascertainable price and the proceeds divided and changing the wife’s interest from that of a tenant by entirety in possession to a “licensee” of her husband, conditioned on her vacation of the premises on sale subject, however, to her receipt of one half of the proceeds. The contract considered in Matter of Maguire (251 App Div 337, affd 277 NY 527) was by the husband and wife with a third-party purchaser and contained no such indication of dissolution of the marriage and of the tenancy by the entirety. Likewise, Kahn v Kahn (43 NY2d 203) dealt not with a separation agreement speaking specifically of the property held as tenants by the entirety but with whether a court awarding a separation was empowered by Domestic Relations Law § 234 to order the sale of such property.

Indeed, none of the cases cited by the majority except Schiller v Schiller (80 AD2d 164) and Sterns v Stevans (20 Misc 2d 417) considered General Obligations Law § 3-309 or concerned a separation agreement. The Schiller case is clearly distinguishable in that the agreement it involved contained no time limitation or other provision requiring that the residence be sold, only an agreement that if it was, the proceeds would be divided, and the Sterns case was a dispute between husband and wife concerning the payment of expenses on property owned by them as tenants by the entirety during the period between their execution of a separation agreement which fixed neither the time of nor the price at which the property was to be sold and the date of divorce.

Here, the effect of the separation agreement was to terminate the tenancy by the entirety, subject only to the wife’s right to occupy the property as a licensee until the mandated sale. Angela and Anthony thus made clear their intent that the tenancy by entirety between them be no longer continued and, the present contest being over whether Anthony should receive a windfall to the exclusion of Angela’s heirs, no public policy with respect to the protection of bona fide purchasers should play any part in our determination. To hold as does the majority that the agreement between them was ineffective to carry out their intent is to rewrite General Obligations Law § 3-309.

Chief Judge Wachtler and Judges Simons, Alexander and Boomer concur with Judge Kaye; Judge Meyer dissents and votes to affirm in a separate opinion in which Judge Jasen concurs; Judge Titone taking no part.

Order reversed, with costs, and order of the Surrogate’s Court, Richmond County, reinstated.

      . The separation agreement states:
      “7. DWELLING: The parties acknowledge that they own as tenants by the entirety a house at 2118 Clove Road, Staten Island, New York, and that the wife is in possession of said house and shall remain in exclusive possession of said house for a period of four consecutive years, commencing with the execution of this Agreement. During the period of the wife’s exclusive possession she shall have the right to determine if and when said house will be sold, and the parties agree that the price at which the house shall be sold shall be at the prevailing market price established at that time. To establish the market price, each party shall have an appraisal performed by an independent appraiser doing business on Staten Island for a consecutive period of five (5) years at the time the appraisal is performed. The market price shall be determined by the average of the two appraisals, as performed by the parties’ independent appraisers. In the event that the wife decides to sell the house during the period of her exclusive possession, the husband shall be notified of such decision and shall have a period of 30 days from the time of such notification to a right of first refusal to purchase the house at the established market price.
      “At the expiration of 3 years and 6 months from the execution of this Agreement, the parties agree that the house shall be put on the market for sale, at the market price as established supra. The parties agree to sell the marital residence to the first bona fide purchaser offering the market price, and the parties agree to cooperate fully in executing whatever documents that may be necessary to effectuate said sale. Upon the sale of the house at 2118 Clove Road, Staten Island, New York, whether to the other party, or to a third party, the husband and wife shall equally divide the equity and any net profits (after all expenses of the sale have been paid).
      “Nothing herein contained shall be deemed to create a tenancy between the husband as landlord, and the wife, as tenant, but merely creates an exclusive possession of the premises to the wife, as a licensee, and the wife affirmatively covenants and agrees for herself, her heirs, administrators and assigns to promptly quit the premises immediately upon the date of closing for the sale of the house.”

      . Section 3-309 of the General Obligations Law states: “Husband and wife may convey or transfer real or personal property directly, the one to the other, without the intervention of a third person; and may make partition or division of any real property held by them as tenants in common, joint tenants or tenants by the entireties. If so expressed in the instrument of partition or division, such instrument bars the wife’s right to dower in such property, and also, if so expressed, the husband’s tenancy by curtesy.”


text:
    Julius Strauss, Appellant, v Belle Realty Company, Defendant, and Consolidated Edison Company of New York, Inc., Respondent.
    Argued May 30, 1985;
    decided July 2, 1985

      POINTS OF COUNSEL

      Bruce L. Birnbaum and Benjamin J. Golub for appellant.
    I. Con Edison owed a duty of care to Strauss. (De Angelis v Lutheran Med. Center, 58 NY2d 1053; Donohue v Copiague Union Free School Dist., 64 AD2d 29, 47 NY2d 440; Havas v Victory Paper Stock Co., 49 NY2d 381; MacPherson v Buick Motor Co., 217 NY 382; White v Guarente, 43 NY2d 356; Rosenbaum v Branster Realty Corp., 276 App Div 167; Smith v Jay Apts., 33 AD2d 624; Hoggard v Otis Elevator Co., 52 Misc 2d 704, 28 AD2d 1207; Wroblewski v Otis Elevator Co., 9 AD2d 294; Kelly v Watson Elevator Co., 309 NY 49.) II. Con Edison has already been found grossly negligent in causing the city-wide power blackout on July 13-14,1977 and is therefore collaterally estopped from relitigating the issue of its gross negligence. (Food Pageant v Consolidated Edison Co., 54 NY2d 167; Schwartz v Public Administrator, 24 NY2d 65; Shaid v Consolidated Edison Co., 95 AD2d 610; Goldstein v Consolidated Edison Co., 93 AD2d 589.)

      William E. Hegarty, Ernest J. Williams, Thomas J. Kavaler, Stanley K. Shapiro and Lisa Schilit for respondent.
    Con Edison owed no duty to plaintiff-appellant to provide uninterrupted service. (Howard v Lecher, 42 NY2d 109; Ventricelli v Kinney Sys. Rent A Car, 45 NY 2d 950; Palsgraf v Long Is. R. R. Co., 248 NY 339; De Angelis v Lutheran Med. Center, 58 NY2d 1053; Beck v FMC Corp., 53 AD2d 118, 42 NY2d 1027; Nicholson v City of New York, 271 App Div 899, 297 NY 548; Shubitz v Consolidated Edison Co., 59 Misc 2d 732; Macey v New York State Elec. & Gas Corp., 80 AD2d 669; Kraye v Long Is. Light. Co., 42 AD2d 972; Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652.)
   OPINION OF THE COURT

Kaye, J.

On July 13, 1977, a failure of defendant Consolidated Edison’s power system left most of New York City in darkness. In this action for damages allegedly resulting from the power failure, we are asked to determine whether Con Edison owed a duty of care to a tenant who suffered personal injuries in a common area of an apartment building, where his landlord — but not he — had a contractual relationship with the utility. We conclude that in the case of a blackout of a metropolis of several million residents and visitors, each in some manner necessarily affected by a 25-hour power failure, liability for injuries in a building’s common areas should, as a matter of public policy, be limited by the contractual relationship.

This court has twice before confronted legal questions concerning the 1977 blackout (see, Koch v Consolidated Edison Co., 62 NY2d 548, cert denied 105 S Ct 1177; Food Pageant v Consolidated Edison Co., 54 NY2d 167).

Plaintiff, Julius Strauss, then 77 years old, resided in an apartment building in Queens. Con Edison provided electricity to his apartment pursuant to agreement with him, and to the common areas of the building under a separate agreement with his landlord, defendant Belle Realty Company. As water to the apartment was supplied by electric pump, plaintiff had no running water for the duration of the blackout. Consequently, on the second day of the power failure, he set out for the basement to obtain water, but fell on the darkened, defective basement stairs, sustaining injuries. In this action against Belle Realty and Con Edison, plaintiff alleged negligence against the landlord, in failing to maintain the stairs or warn of their dangerous condition, and negligence against the utility in the performance of its duty to provide electricity.

Plaintiff moved for partial summary judgment against Con Edison (1) to estop it from contesting the charge of gross negligence in connection with the blackout, and (2) to establish that Con Edison owed a duty of care to plaintiff. He argued that Con Edison was prohibited from denying it was grossly negligent by virtue of the affirmed jury verdict in Food Pageant v Consolidated Edison Co. (54 NY2d 167, supra), and that it owed plaintiff a duty even though he was “not a customer of Consolidated Edison in a place where the accident occurred.” Con Edison cross-moved for summary judgment dismissing the complaint, maintaining it had no duty to a noncustomer.

The court granted the motion insofar as it sought collateral estoppel regarding gross negligence, and denied Con Edison’s cross motion to dismiss the complaint, finding a question of fact as to whether it owed plaintiff a duty of care. The Appellate Division reversed and dismissed the complaint against Con Edison. Citing Moch Co. v Rensselaer Water Co. (247 NY 160), the plurality concluded that “Con Ed did not owe a duty to plaintiff in any compensable legal sense” (98 AD2d 424, 428). Justice Gibbons dissented, finding extension of the duty tolerable here because “[t]he tenants of the building in question constitute a defined, limited and known group of people” (id., at p 437). On public policy grounds, we now affirm the Appellate Division order dismissing the complaint against Con Edison.

A defendant may be held liable for negligence only when it breaches a duty owed to the plaintiff (Pulka v Edelman, 40 NY2d 781, 782). The essential question here is whether Con Edison owed a duty to plaintiff, whose injuries from a fall on a darkened staircase may have conceivably been foreseeable, but with whom there was no contractual relationship for lighting in the building’s common areas.

Duty in negligence cases is defined neither by foreseeability of injury (Pulka v Edelman, supra, at p 785) nor by privity of contract. As this court has long recognized, an obligation rooted in contract may engender a duty owed to those not in privity, for “[t]here is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use” (MacPherson v Buick Motor Co., 217 NY 382, 393). In Fish v Waverly Elec. Light & Power Co. (189 NY 336), for example, an electric company which had contracted with the plaintiff’s employer to install ceiling lights had a duty to the plaintiff to exercise reasonable care. And in Glanzer v Shepard (233 NY 236), a public weigher, hired by a seller of beans to certify the weight of a particular shipment, was found liable in negligence to the buyer. (See also, Wroblewski v Otis Elevator Co., 9 AD2d 294, 296; Rosenbaum v Branster Realty Corp., 276 App Div 167).

But while the absence of privity does not foreclose recognition of a duty, it is still the responsibility of courts, in fixing the orbit of duty, “to limit the legal consequences of wrongs to a controllable degree” (Tobin v Grossman, 24 NY2d 609, 619; see also, Howard v Lecher, 42 NY2d 109), and to protect against crushing exposure to liability (see, Pulka v Edelman, 40 NY2d 781, supra; Ultramares Corp. v Touche, 255 NY 170). “In fixing the bounds of that duty, not only logic and science, but policy play an important role” (De Angelis v Lutheran Med. Center, 58 NY2d 1053,1055; see also, Becker v Schwartz, 46 NY2d 401, 408). The courts’ definition of an orbit of duty based on public policy may at times result in the exclusion of some who might otherwise have recovered for losses or injuries if traditional tort principles had been applied.

Considerations of privity are not entirely irrelevant in implementing policy. Indeed, in determining the liability of utilities for consequential damages for failure to provide service — a liability which could obviously be “enormous,” and has been described as “sui generis,” rather than strictly governed by tort or contract law principles {see, Prosser and Keeton, Torts § 92, at 663 [5th ed]) — courts have declined to extend the duty of care to noncustomers. For example, in Moch Co. v Rensselaer Water Co. (247 NY 160, supra), a water works company contracted with the City of Rensselaer to satisfy its water requirements. Plaintiff’s warehouse burned and plaintiff brought an action against the water company in part based on its alleged negligence in failing to supply sufficient water pressure to the city’s hydrants. The court denied recovery, concluding that the proposed enlargement of the zone of duty would unduly extend liability. Similarly, in Beck v FMC Corp. (42 NY2d 1027, affg 53 AD2d 118), an explosion interrupted a utility’s electrical service, which in turn resulted in the loss of a day’s pay for hourly workers at a nearby automobile plant. In an action brought by the workers, the court denied recovery on the basis of controlling the'unwarranted extension of liability (see also, Nicholson v City of New York, 272 App Div 899, affd 297 NY 548; Kraye v Long Is. Light. Co., 42 AD2d 972; Shubitz v Consolidated Edison Co., 59 Misc 2d 732).

Moch involved ordinary negligence, while Con Edison was guilty of gross negligence, but the cases cannot be distinguished on that basis. In reserving the question of what remedy would lie in the case of “reckless and wanton indifference to consequences measured and foreseen” (247 NY, at p 169), the court in Moch contemplated a level of misconduct greater than the gross negligence involved here (cf. Matter of Almgren v Fletcher, 304 NY 547; Weld v Postal Telegraph-Cable Co., 210 NY 59; 1 NY PJI2d 2:10A [1984 Cum Supp]; Prosser and Keeton, Torts § 34, at 208 [5th ed]). The court in Food Pageant, in upholding the jury’s verdict against Con Edison, noted as instances of Con Edison’s misconduct its employee’s failure to follow instructions to reduce voltage by “shedding load” after lightning had hit the electrical system, and its staffing decisions (54 NY2d, at pp 173-174, supra). Though found by the jury to constitute gross negligence, this behavior was not so consciously culpable as to fall into the category of conduct contemplated as “reckless and wanton” by the court in Moch (compare, Hall v Consolidated Edison Co., 104 Misc 2d 565).

In the view of the Appellate Division dissenter, Moch does not control because the injuries here were foreseeable and plaintiff was a member of a specific, limited, circumscribed class with a close relationship with Con Edison. The situation was thought to be akin to White v Guarente (43 NY2d 356), where an accounting firm was retained by a limited partnership to perform an audit and prepare its tax returns. As the court noted there, the parties to the agreement contemplated that individual limited partners would rely on the tax returns and audit; Refusing to dismiss a negligence action brought by a limited partner against the accounting firm, the court said, “the services of the accountant were not extended to a faceless or unresolved class of persons, but rather to a known group possessed of vested rights, marked by a definable limit and made up of certain components” (id., at p 361; see also, Glanzer v Shepard, 233 NY 236, supra; Fish v Waverly Elec. Light & Power Co., 189 NY 336, supra).

Central to these decisions was an ability to extend the defendant’s duty to cover specifically foreseeable parties but at the same time to contain liability to manageable levels. In White, for instance, liability stemmed from a single isolated transaction where the parties to the agreement contemplated the protection of identified individuals. Here, insofar as revealed by the record, the arrangement between Con Edison and Belle Realty was no different from those existing between Con Edison and the millions of other customers it serves. Thus, Con Edison’s duty to provide electricity to Belle Realty should not be treated separately from its broader statutory obligation to furnish power to all other applicants for such service in New York City and Westchester County (Transportation Corporations Law § 12; Public Service Law § 31 [1]). When plaintiff’s relationship with Con Edison is viewed from this perspective, it is no answer to say that a duty is owed because, as a tenant in an apartment building, plaintiff belongs to a narrowly defined class.

Additionally, we deal here with a system-wide power failure occasioned by what has already been determined to be the utility’s gross negligence. If liability could be found here, then in logic and fairness the same result must follow in many similar situations. For example, a tenant’s guests and invitees, as well as persons making deliveries or repairing equipment in the building, are equally persons who must use the common areas, and for whom they are maintained. Customers of a store and occupants of an office building stand in much the same position with respect to Con Edison as tenants of an apartment building. In all cases the numbers are to a certain extent limited and defined, and while identities may change, so do those of apartment dwellers (compare, White v Guarente, 43 NY2d 356, 361, supra [“situation did not involve prospective limited partners, unknown at the time”]). While limiting recovery to customers in this instance can hardly be said to confer immunity from negligence on Con Edison (see, Koch v Consolidated Edison Co., 62 NY2d 548, supra), permitting recovery to those in plaintiff’s circumstances would, in our view, violate the court’s responsibility to define an orbit of duty that places controllable limits on liability.

Finally, we reject the suggestion of the dissent that there should be a fact-finding hearing to establish the alleged catastrophic probabilities flowing from the 1977 blackout and prospective blackouts, before any limitation is placed on Con Edison’s duty to respond to the public for personal injuries (see, Tobin v Grossman, 24 NY2d 609, 620 [Keating, J., dissenting], supra). In exercising the court’s traditional responsibility to fix the scope of duty, for application beyond a single incident, we need not blind ourselves to the obvious impact of a city-wide deprivation of electric power, or to the impossibility of fixing a rational boundary once beyond the contractual relationship, or to the societal consequences of rampant liability.

In sum, Con Edison is not answerable to the tenant of an apartment building injured in a common area as a result of Con Edison’s negligent failure to provide electric service as required by its agreement with the building owner. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Meyer, J.

(dissenting). My disagreement with the majority results not from its consideration of public policy as a factor in determining the scope of Con Ed’s duty, but from the fact that in reaching its public policy conclusion it has considered only one side of the equation and based its conclusion on nothing more than assumption. I, therefore, respectfully dissent.

As Professors Prosser and Keeton have emphasized (Prosser and Keeton, Torts, at 357-358 [5th ed]), “The statement that there is or is not a duty begs the essential question — whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct * * * It is a shorthand statement of a conclusion, rather than an aid to analysis in itself * * * But it should be recognized that ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” We accepted the concept without reservation in De Angelis v Lutheran Med. Center (58 NY2d 1053, 1055), stating as to the role played by policy that, “A line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit.”

Although De Angelis did not define the “competing policy considerations” to be reviewed in deciding where the line is to be drawn, it made clear that “absent legislative intervention, the fixing of the ‘orbit’ of duty, as here, in the end is the responsibility of the courts”. Thus, the suggestion in the plurality opinion at the Appellate Division (98 AD2d, at p 429) that the liability issue now considered is “best addressed to the Legislature” is no more correct in the present situation than it was when in Codling v Paglia (32 NY2d 330) we imposed upon manufacturers the economic burden of strict products liability to bystanders as well as to those in privity.

There is, of course, legislative intervention in the regulation of gas and electric companies (Transportation Corporations Law art 2; Public Service Law art 4). But the only “legislative” limitation upon the liability of such companies consists of Public Service Commission acceptance and approval of Con Ed’s rate schedule, which incorporates the rule, previously enunciated by this court (Weld v Postal Telegraph-Cable Co., 199 NY 888, on second appeal 210 NY 59), that liability “be limited to damages arising from the utility’s willful misconduct or gross negligence” (Food Pageant v Consolidated Edison Co., 54 NY2d 167, 172). But, as Food Pageant and Koch v Consolidated Edison Co. (62 NY2d 548, cert denied_US_, 105 S Ct 1177) establish, what caused the injuries for which compensation is sought in this action was Con Ed’s gross negligence.

What policy considerations are involved in determining whether Con Ed’s gross negligence liability should be extended to “bystanders” and where, if at all, a line should be drawn between the varying bystander situations is, then, the issue to be decided. Codling v Paglia looked at the total exclusion of the bystander from opportunity to detect a product defect, the system of mass production and distribution, the ability of the manufacturer to pass on, in part if not in whole, the economic burden of postdistribution liability, and the added incentive toward safety that could be expected to result (32 NY2d, at p 341). To that extent at least it departed from the rationale of Moch Co. v Rensselaer Water Co. (247 NY 160,168) that performance of a contract to supply water to a municipality did not impose “another duty, apart from contract, to an indefinite number of potential beneficiaries.”

Ultramares Corp. v Touche (255 NY 170), Tobin v Grossman (24 NY2d 609) and Pulka v Edelman (40 NY2d 781), on which the majority rely, spoke, it is true, to the necessity of avoiding crushing liability, but articulated no factors by which the crushing nature of the potential liability was to be determined. They can, perhaps, be distinguished from Codling on the ground that the service businesses they involved (accounting, medicine and parking) do not have the potential of Codling’s mass distribution system to pass on or absorb the resulting economic burden, but the same cannot be said for the present defendant though it too is involved in furnishing a service.

Criteria more extensive than the unsupported prediction of disaster for determining liability are not wanting, however. Thus, in Tarasoff v Regents of Univ. (17 Cal 3d 425,434,551 P2d 334, 342), the Supreme Court of California listed the major factors to be balanced in determining duty as “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.” Prosser and Keeton (op. cit., supra, at 359), on the basis of the Tarasoff case and Vu v Singer Co. (538 F Supp 26, affd 706 F2d 1027, cert denied 464 US 938), list similar factors, which are discussed at greater length in section 4 of their treatise. As to the loss distribution factor, they note (op. cit, at 24-25) that, “The defendants in tort cases are to a large extent public utilities, industrial corporations, commercial enterprises, automobile owners, and others who by means of rates, prices, taxes or insurance are best able to distribute to the public at large the risks and losses which are inevitable in a complex civilization. Rather than leave the loss on the shoulders of the individual plaintiff, who may be ruined by it, the courts have tended to find reasons to shift it to the defendants”, except where there are “limitations upon the power of a defendant to shift the loss to the public * * * [as] where the liability may extend to an unlimited number of unknown persons, and is incapable of being estimated or insured against in advance.”

The majority’s blind acceptance of the notion that Consolidated Edison will be crushed if held liable to the present plaintiff and others like him ignores the possibility that through application to the Public Service Commission Con Ed can seek such reduction of the return on stockholders’ equity (Public Service Law § 66 [16]; cf. Matter of Consolidated Edison Co. v Public Serv. Commn., 74 AD2d 384, appeal dismissed 51 NY2d 877, lv denied 51 NY2d 705) or increase in its rates, or both, as may be necessary to pay the judgments obtained against it. It ignores as well the burden imposed upon the persons physically injured by Con Ed’s gross negligence or, as to those forced to seek welfare assistance because their savings have been wiped out by the injury, the State. Doing so in the name of public policy seems particularly perverse, for what it says, in essence, is the more persons injured through a tort-feasor’s gross negligence, the less the responsibility for injuries incurred.

I agree that there are situations encompassed by our tort system that require such a result, perverse though it may be, but before granting public utilities absolution beyond that which they already enjoy through the limitation of their liability to acts of gross negligence, I would put the burden upon the utility to establish the necessity for doing so. I am not suggesting that the issue is to be determined by a jury for, as already noted, I do not question that “duty” is a question of law to be determined by the courts. But the law is not without illustrations of preliminary issues involving facts to be determined by a Judge (e.g., competency and privilege of witnesses, Richardson, Evidence § 117 [Prince 10th ed]; Morgan, Evidence § 53 [3d ed]; suppression of evidence, CPL 710.60; Richardson, op. cit. § 550). Nor am I necessarily suggesting that a retrospective determination of how crushing the liability from the 1977 blackout may be, as distinct from a more generalized prospective determination, should govern, although I would not balk at the former if the latter proved impossible of demonstration. All that I am suggesting is that it is Con Ed which claims that its duty does not encompass plaintiff, not because Con Ed was not grossly negligent, but because the effect of that negligence if Con Ed is held liable for it would be to cripple Con Ed as well as the victim’s of the negligence. There simply is no basis other than the majority’s say so for its assumptions (majority opn, at p 405) that the impact of a city-wide deprivation of electric power upon the utility is entitled to greater consideration than the impact upon those injured; that a rational boundary cannot be fixed that will include some (apartment tenants injured in common areas, for example), if not all of the injured; that the consequence of imposing some bystander liability will be more adverse to societal interests than will follow from blindly limiting liability for tort to those with whom the tort-feasor has a contractual relationship. Before we grant Con Ed’s motion to dismiss, therefore, we should require that a rational basis for such assumptions be established.

Con Ed may well be able to do so, but before its motion is granted at the expense of an unknown number of victims who have suffered injuries the extent and effects of which are also unknown, it should be required to establish that the catastrophic probabilities are great enough to warrant the limitation of duty it seeks (cf. Tobin v Grossman, 24 NY2d 609, 620 [Keating, J., dissenting], supra).

I would, therefore, deny the summary judgment motions of both sides and remit to Supreme Court for determination of the preliminary fact issues involved.

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

Order affirmed, with costs.

      . The collateral estoppel question was decided against Con Edison in Koch v Consolidated Edison Co. (62 NY2d 548).

      . In deciding that public policy precludes liability to a noncustomer injured in the common areas of an apartment building, we need not decide whether recovery would necessarily also be precluded where a person injured in the home is not the family bill payer but the spouse. In another context, where this court has defined the duty of a public accounting firm for negligent financial statements, we have recognized that the duty runs both to those in contractual privity with the accountant and to those whose bond is so close as to be, in practical effect, indistinguishable from privity, and we have on public policy grounds precluded wider liability to persons damaged by the accountant’s negligence. (See, Credit Alliance Corp. v Andersen & Co., 65 NY2d 536 [decided herewith].)

       Nor can I accept the “consciously culpable” distinction which the majority seeks to impose between Con Ed and the employee who failed to “shed load.” If, as Ultramares holds (255 NY 170, at p 193), the employer can be held for its subordinate’s fraud, absent a showing that the subordinate acted out of an interest adverse to the employer, the same should be true of gross negligence.


author: Alexander, J.

text:
    The People of the State of New York, Appellant, v Vernon Bagby, Respondent.
    Argued March 26, 1985;
    decided July 2, 1985
    POINTS OF COUNSEL

      Carl A. Vergari, District Attorney (Lois Ann Cullen and Anthony Joseph Servino of counsel), for appellant.
    The court below erred in holding that the Trial Judge committed reversible error by sustaining a 5th Amendment privilege, predicated upon a potential peijury prosecution, claimed by a witness who had testified for the prosecution during their case-in-chief (and was subject to full cross-examination) and was thereafter recalled by the defense, which proposed to propound the same questions as those previously answered. (People v Mordino, 83 AD2d 775; People v Adams, 53 NY2d 241; People v Shapiro, 50 NY2d 747; People v Arroyo, 46 NY2d 928; People v Osario, 86 AD2d 233, 57 NY2d 671; People v Owens, 97 AD2d 855; People v Sapia, 41 NY2d 160, 434 US 823; United States v Cardillo, 316 F2d 606, 375 US 822; Dunbar v Harris, 612 F2d 690; Klein v Harris, 667 F2d 274.)

      Howard Rukeyser for respondent.
    I. Defendant-respondent’s several motions addressed to the warrant were improperly denied. (People v Cerrato, 24 NY2d 1, 397 US 940; Aguilar v Texas, 378 US 108; United States v Scharfman, 448 F2d 1352; People v Montague, 19 NY2d 121; People v Rogers, 15 NY2d 422; People v Scavone, 59 AD2d 62; People v Brown, 40 NY2d 183; People v Galleges, 80 Misc 2d 265; People v Carter, 56 AD2d 948.) II. The trial court improperly prevented the defense from cross-examining the complainant detective regarding the gender of the informant. (Alford v United States, 282 US 687; People v Becker, 210 NY 274; People v Cole, 43 NY 508; Matter of Friedel v Board of Regents, 296 NY 347; People v Ramistella, 306 NY 379; People v Lustig, 206 NY 162; People v Schwartzman, 24 NY2d 241.) III. The improper curtailment by the trial court of the examination of Sandra Mann upon her invoking the 5th Amendment privilege was error that was properly reversed by the court below. (Brown v United States, 356 US 148; People v Cassidy, 213 NY 388; Rogers v United States, 340 US 367; Steinbrecher v Wapnick, 24 NY2d 354; United States v Cardillo, 316 F2d 606; Klein v Harris, 667 F2d 274; People v Jones, 99 AD2d 471; People v Schneider, 44 AD2d 845, 36 NY2d 708; People v Laino, 10 NY2d 161; People v Acomb, 87 AD2d 1.) IV. A coupling of judicial and prosecutorial misconduct combined effectively to drive Ms. Mann off the stand thereby depriving defendant of his right to due process and a fair trial. (Washington v Texas, 388 US 14; Webb v Texas, 409 US 95; United States v Morrison, 535 F2d 223; Berg v Morris, 483 F Supp 179; People v Lee, 58 NY2d 773; People v Shapiro, 50 NY2d 747.) V. The erroneous ruling of the trial court which drove the witness from the stand was preserved for review. (People v Farruggia, 77 AD2d 447.) VI. The witness’ privilege must yield to defendant’s due process right to a fair trial. (People v Shapiro, 50 NY2d 747; Brady v Maryland, 373 US 83.) VII. After having waived the privilege, subsequent refusal to answer further questions required the entire testimony of the witness to be stricken, whereby not only must the conviction of defendant be reversed but the indictment should be dismissed.
   OPINION OF THE COURT

Alexander, J.

The issue on this appeal is whether a nonparty witness who testifies for the prosecution and is fully cross-examined without invoking her 5th Amendment privilege thereby waives the right to invoke that privilege, in the face of a threat of a perjury prosecution, when recalled as a defense witness and asked the same questions she had previously answered. We hold that under these circumstances, the 5th Amendment privilege against self-incrimination is not waived.

On December 26,1978, members of the Mount Vernon Police Department went to an upstairs apartment leased by Sandra Mann in a two-family, house in order to execute a warrant to search both the premises and defendant Vernon Bagby. The officers entered the unoccupied apartment and found quantities of several controlled substances and assorted drug paraphernalia. Defendant was thereafter arrested and charged with criminal possession of a controlled substance in the first, third, fifth and eighth degrees and two counts of criminally using drug paraphernalia. Defendant and Mann had been married; divorced and remarried at the time of defendant’s arrest, but by the time of his trial they were again divorced. A critical issue at defendant’s nonjury trial was whether he had been residing at Mann’s apartment in December 1978 or had exercised sufficient dominion and control over the premises during that period to infer that he had constructive control over the drugs found therein.

The prosecution subpoenaed Mann to testify during its casein-chief. She testified that defendant had lived with her for a three-week period during December 1978, that she had given him a set of keys to the premises and that they were the only two persons who had keys. She denied possessing any of the drugs found in the apartment and claimed that defendant had been at her apartment and had threatened to harm her “if anything went wrong with the case.” She was thoroughly cross-examined by the defense but maintained the essential thrust of her direct testimony. She confirmed that she had been interviewed at her place of employment about a week before the trial by a police officer who told her she would have to testify, but denied that they had threatened her with prosecution for drug possession if she refused.

On the day following her testimony, Mann contacted defense counsel and requested to go back on the stand and “tell the truth”. Defense counsel informed the Trial Judge of Mann’s request and his intention to recall her as a defense witness. The court appointed an attorney to protect Mann’s interests. The prosecutor informed the attorney on the record that prior to testifying, Mann had given him a sworn statement that was consistent with the favorable testimony she had given for the People and that “if the testimony [on recall] is materially different there is a good likelihood of a peijury prosecution.” The court then recessed so that Mann’s attorney could speak with her and further advise her.

When trial resumed, the defense called Mann to the stand and began to question her as follows:

“Q. Miss Mann, you recall you testified previously in this case, I think last Wednesday, do you remember that? A. Yes.

“Q. At that time, I believe, that you testified that during the month of December, 1978, up until December 26th, that your husband, the defendant had been living with you at 127 South 12th Avenue in Mt. Vernon, was that a correct statement? A. I take the Fifth Amendment.

“Q. Was the defendant living with you during December of 1978? A. I take the Fifth Amendment.

“Q. Did the defendant have keys to the outer door of the premises at 127 South 12th. A. No, he did not.”

At this point the prosecutor objected, asserting that the witness should not be allowed to selectively invoke her 5th Amendment privilege. Traynor (Mann’s attorney) then advised the court that she did in fact wish to invoke her privilege against self-incrimination and had not expected to be questioned further following the assertion of the privilege. The court sustained the objection to the last question, and following an in camera discussion with the witness and her counsel and their statements made on the record that she intended to assert her privilege in response to all questions, the court discharged the witness.

The Appellate Division reversed the judgment of conviction and ordered a new trial based on its view that “[b]y testifying for the prosecution on its direct case, Mann waived her right to subsequently invoke the privilege * * * By allowing withdrawal of the waiver, the trial court effectively deprived defendant of the opportunity to impeach Mann, even though she had earlier been subjected to cross-examination” (100 AD2d 625, 627 [citations omitted]).

As the Appellate Division correctly noted, “a witness is the judge of her own right to invoke the [5th Amendment] privilege (People v Thomas, 51 NY2d 466, 472; People v Arroyo, 46 NY2d 928, 930) * * * [and] the witness may claim the privilege based upon the fact that the proposed testimony would be so inconsistent with prior statements under oath as to expose him to conviction for peijury (see, e.g., People v Sapia, 41 NY2d 160, 164, cert den 434 US 823)” (100 AD2d 625, 626). We do not agree, however, that in the circumstances here presented it would have been proper for the trial court to have directed Mann to testify under threat of contempt, if necessary, or to strike her earlier testimony if she continued to claim her privilege.

Although in some instances a witness, by giving testimony, will be found to have waived the right subsequently to invoke the privilege in the same proceeding, the cases establishing this principle and their underlying rationale are inapposite to the circumstances of this case. In its classic application, the waiver principle prevents a witness from testifying in his or her own defense and thereafter refusing to answer questions on cross-examination regarding matters made relevant by the direct examination because the answers might tend to be incriminating (see, Brown v United States, 356 US 148, 156). Thus, a witness who foregoes the protection of the constitutional privilege against self-incrimination by giving testimony to his advantage or to the advantage of his friends cannot in the same proceeding assert the privilege and refuse to answer questions that are to his disadvantage or the disadvantage of his friends (People v Cassidy, 213 NY 388, 394).

However, a witness may assert the privilege anew in a separate proceeding, where circumstances and surroundings can often differ dramatically (People v Cassidy, 213 NY 388, 395-396, supra). Thus, in Matter of Neff (206 F2d 149), a witness was allowed to assert the privilege against self-incrimination at a criminal trial although no claim of the privilege had been asserted earlier when testifying regarding the same subject matter during a Grand Jury hearing. The Neff court noted that at trial, “the setting in which the questions were asked of her had greatly changed and she could well have had apprehensions as to the incriminating effect of her requested testimony which she did not have on the earlier occasion” (206 F2d, at pp 152-153).

A further distinction has been drawn between defendants in criminal cases and “ordinary witnesses” — nonparties in criminal cases and witnesses in civil cases (see, Steinbrecher v Wapnick, 24 NY2d 354; Rogers v United States, 340 US 367). Because the criminal defendant can never be compelled to take the stand, when he does so voluntarily he waives his 5th Amendment privilege and cannot refuse to answer questions regarding any matters relevant to the case (Steinbrecher, supra, at p 360).

A nonparty witness in a criminal case, however, can be compelled to testify against his will and thus does not waive his 5th Amendment privilege merely by acceding to the command of a subpoena. Thus, “ ‘where the previous disclosure by an ordinary witness is not an actual admission of guilt or incriminating facts, he is not deprived of the privilege of stopping short in his testimony whenever it may fairly tend to incriminate him’” (Steinbrecher, supra, at pp 360-361, quoting McCarthy v Arndstein, 262 US 355, 359; see also, Brown v United States, 356 US 148, supra).

A waiver should be found only when a witness’ statements are “ ‘incriminating’, meaning that they did not merely deal with matters ‘collateral’ to the events surrounding commission of the crime * * * but directly inculpated the witness on the charges at issue * * * and * * * [thus] contained] information that the witness was privileged not to reveal” (cf. Klein v Harris, 667 F2d 274, 288). Thus in Matter of Bohland v Markewich (26 AD2d 545), a Grand Jury witness was found to have waived the privilege when he gave answers to general inquiries concerning his participation in acts of bribery, which were the subject of the investigation, but thereafter declined to answer questions about a specific incident.

Applying these general principles to the present case, it is clear that in testifying initially Mann did not waive her right to later assert her 5th Amendment privilege to avoid exposing herself to possible peijury — criminality wholly unrelated to the subject matter of her original nonincriminating testimony. As a nonparty witness, Mann had no option but to testify when subpoenaed by the prosecution. At that time she could not rightfully have asserted a 5th Amendment privilege unless her answers would have exposed her to a real danger of criminal liability or implicated her with respect to the events of which she was testifying, neither of which they did. It was not until she was recalled by the defense and faced with the danger of exposing herself to possible peijury by answering the questions then put to her in a manner materially different from her previous answers that her privilege against self-incrimination became relevant, and thus waivable.

We conclude that by testifying and being fully cross-examined as a nonparty witness concerning facts that were not self-incriminating, in that they did not directly inculpate her on the charges at issue, Mann did not waive her right, upon being recalled by the defendant, to invoke her 5th Amendment privilege so as to avoid giving testimony that might have involved her in criminality (perjury) that was not the subject of her initial testimony.

Accordingly, the order of the Appellate Division, rendered on the law alone, should be reversed, the judgment of conviction reinstated and the matter remitted to the Appellate Division for consideration of the facts underlying the judgment of conviction.

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

Order reversed, judgment of conviction reinstated and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.