author: Levine, J.

text:
    [638 NE2d 511, 614 NYS2d 972]
    Xavier Leon et al., Respondents, v Wilfredo Martinez, Defendant, and Pearlman, Apat & Futterman et al., Appellants.
    Argued May 3, 1994;
    decided July 7, 1994

      POINTS OF COUNSEL

      Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick and John M. Denby of counsel), for appellants.
    I. The complaint fails to state a cause of action based on the existence of an assignment. (Miller v Wells Fargo Bank Intl. Corp., 406 F Supp 452, 540 F2d 548; WFB Telecommunications v NYNEX Corp., 188 AD2d 257; Donovan v Middlebrook, 95 App Div 365; Matter of Link, 173 Misc 217; Coastal Commercial Corp. v Kosoff & Sons, 10 AD2d 372; Farmer’s Loan & Trust Co. v Winthrop, 207 App Div 356, 238 NY 477; McAvoy v Schramme, 219 App Div 604, 245 NY 575; James v Alderton Dock Yards, 256 NY 298, 681; Datlof v Turetsky, 111 AD2d 364.) II. Defendants cannot be liable to plaintiffs for paying over the purported assignment. (People v Keeffe, 50 NY2d 149; Matter of Kelly v Greason, 23 NY2d 368; Judson v Gray, 11 NY 408; Muscara v Lamberti, 133 AD2d 362; Aetna Cas. & Sur. Co. v Hambly Constr. Co., 65 AD2d 612; Perma Pave Contr. Corp. v Paerdegat Boat & Racquet Club, 156 AD2d 550; Crabtree v Tristar Automotive Group, 776 F Supp 155; Brink-man v Moskowitz, 34 Misc 2d 141, 38 Misc 2d 950; Rafiy v Davis, 104 Misc 2d 93; Aiello v Levine, 44 Misc 2d 1067.) III. Defendants are not liable to plaintiffs for Mr. Martinez’s alleged breach of contract. (Datlof v Turetsky, 111 AD2d 364; James v Alderton Dock Yards, 256 NY 298; Thorne Real Estate v Nezelek, 100 AD2d 651; Matter of City of New York [Triborough Bridge], 257 App Div 267; Macina v Macina, 94 AD2d 791, 60 NY2d 691; Bennett v John, 151 AD2d 711; Aetna Cas. & Sur. Co. v Hambly Constr. Co., 65 AD2d 612; People v Keeffe, 50 NY2d 149; Perma Pave Contr. Corp. v Paerdegat Boat & Racquet Club, 156 AD2d 550; Krasne v Gedell, 147 AD2d 616.)

      Razis & Ross, P. C., Long Island City (George J. Razis and Avery Friedman of counsel), for respondents.
    I. A motion to dismiss a complaint must be denied if a reading of the complaint, together with the affidavits submitted on the motian, reveals that plaintiff has a cause of action, even if the complaint is inartfully pleaded. (Guggenheimer v Ginzburg, 43 NY2d 268; Barrows v Rozansky, 111 AD2d 105; Kaufman v International Bus. Machs. Corp., 97 AD2d 925; Scarlett Letters v Compugraphic Corp., 61 AD2d 930; Hatlee v Owego-Apalachin School Dist., 100 Misc 2d 1103; Prudential Ins. Co. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377.) II. Both the firm and Futterman represented plaintiffs in connection with the May 12, 1983 agreement. As such, the firm and Futterman owed both a duty of loyalty and care to plaintiffs. (Howard v Murray, 43 NY2d 417; Guggenheimer v Ginzburg, 43 NY2d 268; Aiello v Levine, 44 Misc 2d 1067.) III. Attorneys who pay the proceeds of a personal injury settlement to their client, with knowledge that the client has assigned a portion of the fund, are liable to the assignee. (Matter of Neilson Realty Corp. v Motor Vehicle Acc. Indem. Corp., 47 Misc 2d 260; Williams v Ingersoll, 89 NY 508; Grossman v Schlosser, 19 AD2d 893; Healy v Brotman, 96 Misc 2d 386; Aiello v Levine, 44 Misc 2d 1067; Brinkman v Moskowitz, 34 Misc 2d 141, 38 Misc 2d 950; Continental Purch. Co. v Van Raalte Co., 251 App Div 151; Miller v Wells Fargo Bank Intl. Corp., 406 F Supp 452; Coastal Commercial Corp. v Kosoff & Sons, 10 AD2d 372.)
   OPINION OF THE COURT

Levine, J.

Plaintiffs brought this action against defendant Wilfredo Martinez and his attorneys to enforce plaintiffs’ claim of entitlement to a portion of the proceeds of the settlement of a personal injury action by Martinez against the Hertz Corporation. The complaint alleges that, before the settlement of Martinez v Hertz Corp., at the request of plaintiffs and in consideration for plaintiffs’ care of Martinez following his accident, defendant attorney Ira Futterman drafted an agreement between plaintiffs and Martinez which Martinez executed. The agreement, annexed to the complaint, provided as follows:

"(1) I give to Gina Leon 5% of any recovery that I may get after deducting all disbursements, ex-pensesand attorney’s fees from the case of wilfredo MARTINEZ V. HERTZ CORPORATION.
"(2) I give to Xavier Leon 5% of any recovery that I may get after deducting all disbursements, expenses and attorney’s fees from the case of wil-
FREDO MARTINEZ V. HERTZ CORPORATION.
"(3) I give to Maria Macia 15% of any recovery that I may get after deducting all disbursements, expenses and attorney’s fees from the case of wil-
FREDO MARTINEZ V. HERTZ CORPORATION.”

Plaintiffs alleged that the agreement constituted a "lien” upon the proceeds of the settlement. The complaint further alleged that, contrary to the agreement, when the personal injury action was settled, defendant Futterman disbursed the entire net proceeds to Martinez and in doing so had a conflict of interest and was guilty of professional misconduct.

Defendants Futterman and the law firm Pearlman, Apat & Futterman moved to dismiss the complaint as against them pursuant to CPLR 3211 (a) (1) as barred by documentary evidence (i.e., the agreement between plaintiffs and Martinez) and CPLR 3211 (a) (7) for failure to state a cause of action. Plaintiffs submitted an affidavit in opposition describing in greater detail the services rendered by them to Martinez, the circumstances under which Futterman was requested to prepare the agreement, and their ongoing professional relationship with Futterman and his firm.

Supreme Court granted defendants’ motion under CPLR 3211 (a) (1), concluding that Futterman’s preparation of the agreement did not create liability on the part of him and his law firm for Martinez’s failure to honor it. Plaintiffs appealed and the Appellate Division reversed, with one Justice dissenting (193 AD2d 788). The Court held that where attorneys have notice of an assignment of a portion of their client’s recovery, they may be held liable to the assignees for paying out that recovery in disregard of the assignment. The Appellate Division granted the defendants’ motion for leave to appeal to this Court and certified the following question: "Was the decision and order of this court dated May 24, 1993, properly made?” We now affirm.

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v Morone, 50 NY2d 481, 484; Rovello v Orofino Realty Co., 40 NY2d 633, 634). Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g., Heaney v Purdy, 29 NY2d 157). In assessing a motion under CPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (Rovello v Orofino Realty Co., supra, at 635) and "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275; Rovello v Orofino Realty Co., supra, at 636). In light of these principles, we agree with the majority at the Appellate Division that the instant complaint and supporting affidavit, although inartfully drafted, adequately alleged for pleading survival purposes that the instrument prepared by Futterman was intended by all parties to effectuate a present assignment to plaintiffs of interests in the future settlement.

No particular words are necessary to effect an assignment; it is only required that there be a perfected transaction between the assignor and assignee, intended by those parties to vest in the assignee a present right in the things assigned (see, 4 Corbin, Contracts § 879, at 528 [1951]; Hinkle Iron Co. v Kohn, 229 NY 179, 182-183; Coastal Commercial Corp. v Kosojf & Sons, 10 AD2d 372, 376). Thus, Professor Corbin illustrates, in a contingent fee arrangement between attorney and client, there is a difference in legal effect between the words " T will pay you a fee equal to one third of the amount collected from the defendant’ ” and the words " T now give you a one third interest in the claim as your fee’ ” or " 'You are entitled to one third of any amount that may be collected as your fee’ ” (4 Corbin, Contracts § 879, at 530 [emphasis supplied]). In the latter cases, Professor Corbin concludes, "the transaction seems to be an assignment and not a mere promise” (id., at 530). In accordance with these principles, in Speelman v Pascal (10 NY2d 313, 316, supra), we held that a document stating "I give you from my shares of profits * * * five per cent (5%) in England, and two per cent (2%) of my shares of profits in the United States” constituted a present assignment of the specified shares of future royalties to be received by the assignor (emphasis supplied). Thus, although there are other inconsistent phrases in the instrument executed by Martinez, the words "I give” in the instrument are sufficient to withstand a pleadings challenge as to whether the parties intended to effect a present transfer of the specified percentages of the personal injury recovery to plaintiffs.

Assuming that an enforceable assignment of the funds is proven, Futterman unquestionably had notice of the agreement he drafted and of the parties’ objectives in entering into that agreement. Accordingly, the allegation that Futterman paid the entirety of the funds to Martinez in disregard of the agreement is sufficient to state a cause of action (see, Sims v Brown, 6 Thomp & C 5, affd 64 NY 660; Brinkman v Moskowitz, 38 Misc 2d 950 [App Term, 2d Dept]; cf., Matter of Kelly, 23 NY2d 368, 382; see also, Tri City Roofers v Northeastern Indus. Park, 61 NY2d 779, 780-781; Continental Purch. Co. v Van Raalte Co., 251 App Div 151, 152). We of course express no opinion as to whether an enforceable assignment of the funds and its derivative claim against defendants will ultimately be established; we conclude only that there are sufficient allegations in the complaint and supporting affidavit to withstand defendants’ motion to dismiss.

We reject the law firm defendants’ argument that compliance with the alleged assignment would have required them to violate their ethical duties to their client Martinez under Code of Professional Responsibility DR 9-102. Even if the sole attorney-client relationship that existed here was between defendants and Martinez (but see, infra, at 90), we conclude that defendants’ argument fails for two reasons. First, the cited Disciplinary Rule mandates only that an attorney pay to the client those funds in the possession of the attorney "which the client * * * is entitled to receive” (Code of Professional Responsibility DR 9-102 [C] [4] [emphasis supplied]), which is not the case to the extent that the client has conveyed a right to those funds by an enforceable assignment. Second, DR 9-102 explicitly creates ethical duties running to third parties as to funds in the possession of the attorney to which those third parties are entitled (see, DR 9-102 [C] [1], [2]). Assuming an enforceable assignment by Martinez to plaintiffs is proven, upon execution of that assignment, Martinez’s interest in that portion of the recovery vested in the plaintiffs as assignees, and Futterman was then ethically obligated not only to notify the plaintiffs upon his receipt of the funds (DR 9-102 [C] [1]) but also to pay the funds to plaintiffs as the persons then entitled to receive them (DR 9-102 [C] [4]). We hold, therefore, that under the circumstances alleged here, DR 9-102 does not preclude this cause of action.

Moreover, we conclude that the averments of the complaint and its supporting affidavit are sufficient, if believed, to support an inference of an attorney-client relationship between plaintiffs and the law firm defendants in the drafting of the agreement (see, Matter of Priest v Hennessy, 51 NY2d 62, 68-69), and that those defendants committed either legal malpractice or breached fiduciary obligations in drafting the instrument or by remitting the entire settlement proceeds to Martinez. The complaint alleges that Futterman was requested by both Martinez and plaintiffs to prepare the instrument. The affidavit of plaintiff Xavier Leon avers that the firm had previously represented the plaintiffs in unrelated matters, that Futterman "advised [plaintiffs] to obtain an affidavit in writing” from Martinez, that Futterman discussed the matter with both Martinez and plaintiffs before consenting to draft the agreement, that the firm continued to represent plaintiffs subsequent to Martinez’s execution of the agreement, and that "[Pearlman, Apat & Futterman] were Wilfredo Martinez’s attorneys and they were our attorneys”. Whether or not such a relationship and the claims derived therefrom are ultimately proven, we conclude that these allegations are also sufficient to withstand a motion to dismiss.

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

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

Order affirmed, etc.

      . An assignment may properly relate to a future or conditional right which is adequately identified, such as the personal injury action recovery here (Speelman v Pascal, 10 NY2d 313, 318-319; see also, 4 Corbin, Contracts § 874; Restatement [Second] of Contracts §§ 320, 321).

      . See also Fairbanks v Sargent (104 NY 108, 113) where this Court found a present assignment in the words of an instrument providing that a party "is to have one-sixth of whatever amount of money, securities, or property shall be received on account of such claims as shall be settled without suit, and one-third of whatever amount of money, securities or property shall be collected, or in any way be realized or received (whether on settlement or without settlement), on account of such of said claims as shall be put in suit”.


source: Caselaw Access Project

author: Levine, J. Titone, J. Bellacosa, J.

license: Public Domain

text:
    [638 NE2d 963, 615 NYS2d 318]
    In the Matter of Baby Boy C. and Another, Infants.
    Argued March 24, 1994;
    decided June 14, 1994

      POINTS OF COUNSEL

      Alan M. Dershowitz, Nathan Z. Dershowitz, Victoria B. Eiger, Amy Adelson, Michael R. Schneider, of the Massachusetts Bar, admitted pro hac vice, and Migdal, Pollack, Rosenkrantz & Sherman, New York City (Lawrence W. Pollack of
    counsel), for appellant.
    I. It was an erroneous and radical departure from existing law for the Court below to have applied the doctrine of equitable adoption to force an unwilling, infirm and unfit parent to proceed with the adoption of two children even though he manifested his refusal to proceed before a final order of adoption had been entered. (Wener v Wener, 35 AD2d 50; Matter of Karin T. v Michael T., 127 Misc 2d 14; Lewis v Lewis, 85 Misc 2d 610; Gursky v Gursky, 39 Misc 2d 1083; Matter of "Smith” v "Jones”, 43 Misc 2d 350; Matter of Cohen, 155 Misc 202; Bardorf v Talbot-Perkins Adoption Socy., 240 App Div 275; Matter of Harvey-Cook v Neill, 118 AD2d 109; Matter of Vinelli v Van Dorpe, 118 Misc 2d 719; Matter of Seaman, 78 NY2d 451.) II. The Domestic Relations Law article VII requirement that the Surrogate conduct a second-stage examination into the continuing suitability and willingness to proceed of a prospective adoptive parent after the minimum six-month investigation period and before an adoption may be finalized, may not be dispensed with because of an adoptive parent’s refusal and unfitness to proceed. (Matter of Baby Boy N, 150 Misc 2d 535; Matter of Anonymous, 60 Misc 2d 854; Matter of Musso v McAlpine, 36 AD2d 901; Matter of Cohen, 155 Misc 202; Matter of Van Allen, 9 Misc 2d 381; Matter of Sarah K., 66 NY2d 223; People ex rel. Anonymous v Anonymous, 139 AD2d 189; Matter of Tynetta Q. T., 152 Misc 2d 705, 185 AD2d 932; Matter of Freud, 69 Misc 2d 906.) III. Compelling a man to become the legal father of two young children because he initially signed an adoption petition, even though he has been found "not fit” and unwilling to assume the obligations of fatherhood, violates his State and Federal constitutional rights under article I, § 6 of the New York Constitution and under 9th and 14th Amendments of the United States Constitution. (Meyer v Nebraska, 262 US 390; Pierce v Society of Sisters, 268 US 510; Prince v Massachusetts, 321 US 158; Moore v East Cleveland, 431 US 494; Wisconsin v Yoder, 406 US 205; Stanley v Illinois, 405 US 645; Ginsberg v New York, 390 US 629; Griswold v Connecticut, 381 US 479; Loving v Virginia, 388 US 1; Skinner v Oklahoma, 316 US 535.)

      Morrison Cohen Singer & Weinstein, New York City (Mara T. Thorpe of counsel), for respondent.
    I. The Court below correctly determined that the authority in Domestic Relations Law § 115 (9) to dispense with the personal appearance of an adoptive parent for good cause shown encompasses the authority to determine whether an adoptive parent may revoke a duly executed and acknowledged agreement of adoption during stage two of an adoption proceeding. (Matter of Hipps, 39 AD2d 898; Matter of Baby Boy N, 150 Misc 2d 535; Matter of Male D., 137 Misc 2d 1016; Matter of Anonymous [G.], 89 Misc 2d 514.) II. Having agreed with his wife to adopt the children, taken substantial action in furtherance of that agreement, and voluntarily executed and duly acknowledged agreements of adoption filed in adoption proceedings commenced with his wife, appellant’s right to revoke those agreements is subject to the test of whether revocation would be in the children’s best interests. (Matter of Sarah K., 66 NY2d 223, cert denied sub nom. Kosher v Stamatis, 475 US 1108; Matter of Pell v Coveney, 37 NY2d 494; Matter of Robert Paul P., 63 NY2d 233; Matter of Malpica-Orsini, 36 NY2d 568, appeal dismissed sub nom. Orsini v Blasi, 423 US 1042; Matter of Margensey v Manitta, 156 AD2d 1026; Matter of Baby Girl W., 151 AD2d 968, 74 NY2d 613; Matter of Donald U, 105 AD2d 875, 64 NY2d 603; Matter of Robert O. v Russell K., 80 NY2d 254; Matter of Raquel Marie X., 76 NY2d 387, cert denied sub nom. Robert C. v Miguel T., 498 US 984; People ex rel Anonymous v Anonymous, 139 AD2d 189.) III. The Court below correctly held that the best interests of the children require that the adoptions be approved notwithstanding appellant’s opposition. (Michel DeL. v Martha P, 173 AD2d 308; Matter of John H. v Suffolk County Dept. of Social Servs., 174 AD2d 669; Matter of Jean C. v Andrew B., 86 AD2d 891; Matter of Baby Girl W., 151 AD2d 968; Matter of Gregory B., 74 NY2d 77; Matter of Joyce T., 65 NY2d 39; People ex rel. Teitler v Haironson, 38 AD2d 949, 31 NY2d 712.) IV. The Court below correctly held that appellant is equitably estopped from revoking his agreements to adopt the children. All of the requisites for an equitable estoppel are present, and appellant failed to meet his burden of establishing that adoption would not be in the children’s best interests. (Matter of Ettore I. v Angela D., 127 AD2d 6; Vito L. v Filomena L., 172 AD2d 648; Matter of Campbell v Campbell, 149 AD2d 866; Matter of Montelone v Antia, 60 AD2d 603; Matter of Sharon GG. v Duane HH., 95 AD2d 466, 63 NY2d 859; Matter of Boyles v Boyles, 95 AD2d 95; State of New York ex rel. H. v P., 90 AD2d 434; Purificati v Paricos, 154 AD2d 360; Wener v Wener, 35 AD2d 50; Lewis v Lewis, 85 Misc2d 610.) V. The constitutional issues have been raised for the first time in this Court and were not preserved for review. (Lichtman v Grossbard, 73 NY2d 792, 912; Tumolillo v Tumolillo, 51 NY2d 790; Di Bella v Di Bella, 47 NY2d 828; Matter of L. Pamela P. v Frank S., 59 NY2d 1.)

      Kevin C. Fogarty, guardian ad litem, Jamaica, for Baby Boy C. and another, infants.
    I. The court should exercise the power specifically granted to the court pursuant to Domestic Relations Law § 115 (9) to dispense with the appearance of the prospective adoptive father. (Matter of Baby Boy N, 150 Misc 2d 535.) II. Appellant’s constitutional rights will not be violated if his appearance pursuant to Domestic Relations Law § 115 (9) is dispensed with. (Matter of Sarah K, 66 NY2d 223; Matter of Ricky AA., 146 AD2d 433, 75 NY2d 885; Matter of Anonymous, 60 Misc 2d 854; Matter of Bruce [Atkins], 269 App Div 718, 295 NY 702; Matter of Baby Boy B., 163 AD2d 673; People ex rel. Anonymous v Anonymous, 139 AD2d 189.) III. The best interests of the children would be served by their adoption. (Matter of Sarah K, 66 NY2d 223, cert denied sub

      nom. Kosher v Stamatis, 475 US 1108; Matter of Anonymous [G.], 89 Misc 2d 514; Matter of H., 69 Misc 2d 304.)
   OPINION OF THE COURT

Levine, J.

On this appeal, we review an order of the Appellate Division granting joint adoption of two children by a married couple despite the refusal of one of the spouses to appear for examination before the Surrogate’s Court in accordance with statutory requirements and his attempt to withdraw from the proceeding and revoke his agreement and consent to the adoption.

Appellant and respondent are husband and wife. They initially married in 1969, divorced shortly thereafter but continued for a time to live together. A child was born of this union in 1972. A period of physical separation followed. After appellant suffered a debilitating stroke in 1983, the couple reconciled and then entered into a second marriage in August of that year. At the time of their remarriage, appellant was 72 years old and respondent was 40. Concededly, appellant is a highly successful entrepreneur and has amassed a considerable fortune.

Over the ensuing years appellant and respondent made various joint and individual efforts to find a child for them to adopt. In early 1988, respondent was able to obtain Baby Boy C., an abandoned child, from a child care agency in the Philippines. In order to facilitate Baby Boy C.’s immigration to the United States, appellant executed a petition to the United States Department of Justice to classify the child as an immediate relative, in which appellant certified that he would "care for the beneficiary of this petition properly if the beneficiary is admitted to the United States”.

During the same time frame that the parties were obtaining custody of Baby Boy C., respondent was put in contact with a pregnant woman in Philadelphia, Pennsylvania, who wished to place her baby for adoption at birth. The woman gave birth to Baby Girl O. in May 1988, appellant having paid the woman’s birth expenses, and respondent brought Baby Girl O. to New York City the following month.

In November 1988, appellant and respondent filed in Surrogate’s Court, New York County, joint petitions for the adoptions of Baby Boy C. and Baby Girl O. containing the parties’ consents to adopt the children. They also submitted duly executed and acknowledged agreements of adoption. About a month later, however, appellant and respondent again became estranged. During the months that followed, the remaining statutory requirements of stage one of the private-placement adoptions of the two children were essentially fulfilled (see, Domestic Relations Law § 116 [2]), including the appearance and consent of Baby Girl O.’s biological mother (Domestic Relations Law § 115 [3]), the investigation and report of a disinterested person regarding the adoptive parents’ history, physical and mental health and financial circumstances (Domestic Relations Law § 116 [3]) and the completion of the six-month waiting period from the filing of the petitions for adoption (Domestic Relations Law § 116 [1]).

Appellant, however, failed to appear before the Surrogate for examination in order to finalize the adoptions (see, Domestic Relations Law § 115 [3]) and he commenced an action against respondent for a divorce. Respondent moved pursuant to Domestic Relations Law § 115 (9) to dispense with appellant’s appearance for examination by the Surrogate’s Court in the adoption proceeding. Appellant appeared in response to the motion and signified his unwillingness to adopt the children. In November 1990, appellant formally moved to revoke his consents and agreements of adoption and to discontinue the proceedings.

After a trial on all outstanding factual issues, Surrogate’s Court rendered a decision dismissing the joint adoption petitions without prejudice to the right of respondent to commence an adoption proceeding in the future (153 Misc 2d 916). The court found that, despite appellant’s protestations to the contrary, he had knowingly and willingly participated in the procurement of Baby Boy C. and Baby Girl O. for purposes of their adoption (in accordance with representations he made to respondent to induce her to remarry him) and that he competently and intentionally executed the consents and agreements of adoption of the two children. The Surrogate also found that the children were emotionally bonded to respondent as their mother and that she was completely fit to fulfill the parental role and should retain custody in the children’s best interests.

The Surrogate also found that the children would likely be prejudiced if appellant were permitted to revoke his consents and agreements of adoption in that, under Domestic Relations Law § 110 as then in effect, respondent, as an adult married person, could only adopt the children independently of her spouse if she were living apart pursuant to a judgment of separation or a formally executed separation agreement (Domestic Relations Law former § 110). Thus, the permanent status of Baby Boy C. and Baby Girl O. as legal children of respondent would have remained contingent upon appellant’s obtaining a divorce in the contested matrimonial action pending between the parties or the parties’ entering into a separation agreement. The Surrogate expressed her regret that, thus, "these children are apparently being used as bargaining chips in the pending matrimonial action” (153 Misc 2d, at 922).

Nonetheless, the Surrogate felt compelled to dismiss the joint petitions. The court reasoned that, because adoption is solely a creature of statute, express statutory authorization would be required before a court could decree specific performance of an agreement of adoption against the will of a prospective adoptive parent who had a change of heart before the finalization of the adoption. The court was unable to discern any such statutory authorization for a forced adoption in Domestic Relations Law § 115 (9), authorizing the court to dispense with the statutory requirement of the appearance of an adoptive parent for examination based upon a showing of good cause. The court concluded that this rather innocuous provision could not have been intended by the Legislature to cover such a momentous result as permitting a court to confer the full range of parental rights upon someone unwilling to accept, and, in this case, clearly unfit to exercise, them.

The Appellate Division reversed (189 AD2d 382). It held, first, that appellant could not effectively exercise an absolute veto over the finalization of the adoptions of Baby Boy C. and Baby Girl O. by the simple expedient of refusing to make the requisite appearance before the adoption court pursuant to Domestic Relations Law § 115 (3). The Appellate Division pointed to the authority granted the court under Domestic Relations Law § 115 (9) to dispense with an adoptive parent’s appearance "for good cause shown”. The Court reasoned that whether good cause had been shown here was a factual determination in which appellant’s unwillingness to proceed with the adoption was only one factor to be considered. Accordingly, the Court identified the dispositive issue here as whether an adoption court under the New York statutory scheme has the power to prevent an adoptive parent from revoking consent under the circumstances presented.

The Appellate Division found that authority to proceed with the adoptions under the foregoing circumstances exists, and should be exercised in the instant case, for two reasons. The Court found that the finalization of the adoptions would be in the children’s best interests, irrespective of appellant’s unwillingness to assume a parental role, because appellant’s age and physical disabilities would have limited his role in any event largely to that of providing financial support. Finally, the Appellate Division concluded that appellant should be equitably estopped from revoking his consent because his words and actions resulted in irreversible changes in the positions of respondent and the children, so that "[withdrawal of his commitments at this stage would redound to the detriment of both [respondent] and the children” (189 AD2d, at 387). Accordingly, the Appellate Division reversed and granted the joint petitions for the adoption of both children.

We granted leave to appellant to consider this case of first impression. We now reverse the order of the Appellate Division and reinstate the order of the Surrogate’s Court, although on different reasoning.

Initially, we note our agreement with the Appellate Division that the refusal of appellant to appear for examination pursuant to Domestic Relations Law § 115 (3) was not fatal to the granting of the adoptions. Contrary to the arguments of appellant, there is nothing in the language of the statute or its legislative history to suggest that one of the purposes of the statutory requirement for the appearance of an adoptive parent for "examination” by the adoption court was to protect the rights of that person by insuring his or her continued willingness to finalize the adoption at the second stage of the private placement adoption proceeding. The statute clearly permits the requisite appearance by an adoptive parent or, for that matter, a biological parent or other person whose consent to the adoption is necessary, to occur before the second stage and during, even at an early point of, the first stage of the proceeding (see, Domestic Relations Law § 115 [3]). The authority of the court to dispense with such appearance for good cause shown is also inconsistent with any such purpose protective of the adoptive parents. As demonstrated here, an adoptive parent who decides not to proceed with finalization of a private placement adoption at the second stage has a ready alternative means to convey to the court that change of position, i.e., a motion to revoke the consent and agreement of adoption. Moreover, in the trial in this case, at which appellant and respondent appeared and testified, there was a full exploration of whether appellant competently, knowingly and voluntarily executed the agreements of adoption and consent, and whether granting the adoptions would serve the best interests of the children. Therefore, all of the purposes of the statutory appearance of the adoptive parents for examination before the court were completely fulfilled in this case.

We also conclude, with the Appellate Division, that Surrogate’s Court erred in requiring specific statutory authorization before an adoption court can proceed to finalization and override an adoptive parent’s revocation of consent and attempted withdrawal from the adoption proceeding. Courts have inherent power to deny a party the right to discontinue a proceeding if prejudice or injustice to another party will result (see, Tucker v Tucker, 55 NY2d 378, 383-384; Schultz v Kobus, 15 AD2d 382, 383). Moreover, the doctrine of equitable estoppel may and has been applied in statutory proceedings by courts of limited jurisdiction (see, Matter of Sharon GG. v Duane HH., 95 AD2d 466, 468, affd 63 NY2d 859 [paternity proceeding, Family Court]). The Surrogate’s Court has full equity powers in matters over which it has jurisdiction (see, SCPA 201 [2]; Siegel and Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 201, at 50-51).

Thus, an adoption court is not powerless, in an appropriate case, to dispense with an adoptive parent’s appearance and, if all the other statutory requirements have been met, grant an adoption over an adoptive parent’s objection and attempt to revoke consent and discontinue the proceeding. In our view, however, that power should be exercised only in the rarest and most exceptional of circumstances where, due to the conduct of the adoptive parent in taking custody and processing the adoption, the child’s interests would be severely and unavoidably prejudiced as a result of being deprived of status as the legal child of the adoptive parent.

The power to impose an adoption should not be exercised merely because, upon a balancing of factors, the adoption might serve the immediate best interests of the child, the standard suggested by respondent, and perhaps applied by the Appellate Division in emphasizing the financial advantages that would inure to the children from their adoption by appellant. The right of a child and corresponding obligation of a parent regarding support is only one — and far from the most vital — of the bundle of reciprocal rights and responsibilities in the intimate parent-child relationship created by a legal adoption as envisaged under our statute. "Our adoption statute embodies the fundamental social concept that the relationship of parent and child may be established by operation of law. * * * Despite the absence of any blood ties, in the eyes of the law an adopted child becomes 'the natural child of the adoptive parent’ with all the attendant personal and proprietary incidents to that relationship” (Matter of Robert Paul P, 63 NY2d 233, 236 [citations omitted]).

Regardless of any agreement or understanding between appellant and respondent as to their respective roles in rearing Baby Boy C. and Baby Girl O., the creation of the parent-child relationship finalizing the joint adoptions of these children would impose the full range of State-sanctioned responsibilities upon appellant to provide for the proper care and protection of their physical, emotional and mental well-being (see, Family Ct Act § 1012 [f]).

In severely restricting the use of a court’s equitable power to direct the finalization of an adoption by an unwilling adoptive parent, we act consistently with long-standing equity doctrine. Thus, courts will rarely if ever grant specific performance of a contract for personal services. "It has long been a principle of equity that the performance of contracts for personal services depends upon the skill, volition and fidelity of the person who [was] engaged to perform such services and that it is impracticable, if not impossible, for a court to supervise or secure the proper and faithful performance of such contracts” (American Broadcasting Cos. v Wolf, 76 AD2d 162, 173-174, affd 52 NY2d 394 [emphasis supplied]). One scholar has concluded that the underlying basis for the equitable principle denying specific performance of personal service contracts is the rightful reluctance of courts in a society valuing freedom of association to impose a personal relationship upon an unwilling party:

"The most persuasive reason against routine specific performance in job cases are those that recognize the human elements of the situation. In some jobs the cooperation of the parties and the best efforts of the plaintiff are required to make the job work. In all situations, judges recognize the importance of free association in a free society and rightly hesitate to use the power of the state to force a relationship one of the parties finds unacceptable” (3 Dobbs, Remedies § 12.22 [1], at 492 [2d ed]).

The foregoing considerations apply with even greater force with respect to the power of the State to force a parent-child relationship. Undoubtedly, it explains why, in fashioning the doctrine of equitable adoption to provide a remedy for a default in performing a promise to adopt, the courts have strictly limited the relief to the economic aspects of parenthood, imposing a duty of support upon the promisor-foster parent (see, Wener v Wener, 35 AD2d 50, 53; see also, Frye v Frye, 103 Nev 301, 302-303, 738 P2d 505, 506), or conferring rights of intestate succession in the promisor-foster parent’s estate (see, Gavin v Aitken, 258 NY 595; Middleworth v Ordway, 191 NY 404; Matter of Mazzeo, 95 AD2d 91, 93; see also, Annotation, Modem Status of Law as to Equitable Adoption or Adoption by Estoppel, 97 ALR3d 347). In granting equitable adoption, the courts have expressly eschewed any purpose or effect to create a full-fledged parent-child status among the parties, or the equivalent of legal adoption (see, Matter of Mazzeo, supra; Frye v Frye, supra; Note, Equitable Adoption: They Took Him Into Their Home and Called Him Fred, 58 Va L Rev 727, 730, 738-739; see also, Erlanger v Erlanger, 102 Misc 236, 237, affd 185 App Div 888; Matter of Bomber, 147 Misc 712, 714).

This case does not present the exceptional circumstances that would require the drastic and hitherto unprecedented remedy of imposing a legal adoption of Baby Boy C. and Baby Girl O. upon appellant against his will. First, under present Domestic Relations Law § 110, respondent, as "an adult married person who has been living separate and apart from * * * her spouse for at least three years” (Domestic Relations Law § 110 [L 1991, ch 254]) may adopt the children in her own right. Thus, respondent is able to achieve permanency for the children without submitting to a divorce or entering into a separation agreement upon appellant’s terms. Second, under the equitable principles previously discussed, denial of the adoptions by appellant will not leave the children or respondent as their guardian without recourse to an appropriate economic remedy for appellant’s default, either in the pending divorce action (see, Wener v Wener, 35 AD2d 50, supra) or in a separate plenary action (see, Weinberger v Van Hessen, 260 NY 294).

Despite respondent’s apprehensions to the contrary, we do not consider that affording equitable relief to the children and respondent for appellant’s default will be barred by the provision in Domestic Relations Law § 110 that a child adopted by a separated, married adult "shall not be deemed the child or step-child of the non-adopting spouse for the purposes of inheritance or support rights”. As previously discussed, equitable adoption is not based upon the notion that the beneficiary of that relief is deemed to be the child of the foster parent. It is based at least in part on estopping the foster (or here, prospective adoptive) parent from denying the child’s rights because of the absence of that formal legal relationship.

It follows from the foregoing that remedies are available to respondent and the children to take the children out of legal limbo and legitimize their parent-child relationship, and also to provide for their economic security by imposing financial obligations upon appellant. The children’s lack of permanent status and financial prejudice were the only detriments identified by the courts below that would have resulted from appellant’s refusal to finalize this adoption, and they are the only possible harms supportable by the record. Because both detriments may be overcome short of forcing appellant to complete the adoption of the children, this case is not one where that drastic remedy should be imposed.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the order of the Surrogate’s Court, New York County, entered March 26,1992 reinstated.

Titone, J.

(concurring). I agree with the majority’s conclusion that the order of the Appellate Division granting the petition for joint adoption should be reversed. However, I cannot agree with the majority’s choice to recognize the potential existence of a court’s equitable powers to grant an adoption outside of the framework of the adoption statutes and over an adoptive parent’s objection. More critically, because I wholeheartedly believe that, as a matter of law, a child’s best interests are never served by forcing an unwilling and unfit person to assume the intimacy and responsibility of becoming a parent, I cannot join in an analysis such as the majority’s, which holds open that possibility.

Adoption is a . creature of statute (Matter of Seaman, 78 NY2d 451, 455), governed solely by the provisions of Domestic Relations Law article VII. Thus, in this State, the only recognized means of creating the legal relationship of parent and child is to follow the procedures outlined in the adoption statutes (Matter of Robert Paul P., 63 NY2d 233, 236-238). Indeed, given the "delicate and definitive nature of the adoption proceeding, which fundamentally touches and radically alters the lives of all concerned,” adoption courts will require "[p]recise and exacting compliance” with those statutory mandates before granting an adoption (Dennis T. v Joseph C., 82 AD2d 125, 129).

As the majority recognizes (majority opn, at 102), the doctrine of equitable adoption has heretofore never been applied by the courts of this State to create more than a financial obligation upon a party who, for any one of a number of reasons, fails to complete the statutory adoptive process (see, Gavin v Aitken, 258 NY 595; Middleworth v Ordway, 191 NY 404; Matter of Mazzeo, 95 AD2d 91, 93; Wener v Wener, 35 AD2d 50; see also, Annotation, Modern Status of Law as to Equitable Adoption or Adoption by Estoppel, 97 ALR3d 347). Such restrictive application of the courts’ equitable powers in the adoption context has been followed for good reason. "[A]doption imitates nature” and there is nothing more unnatural than to compel an unwilling person to accept the intimacy of parenthood "with all the attendant personal and proprietary incidents to that relationship” (Matter of Robert Paul P., 63 NY2d 233, 236, supra).

Notwithstanding that fact, the majority here suggests that in the "rarest and most exceptional of circumstances” an adoption court has the equitable power, when the preliminary statutory prerequisites to adoption are satisfied, to "grant [a full] adoption over an adoptive parent’s objection” (majority opn, at 100). This conclusion constitutes an unwarranted departure from the time-honored "general rule [that] equity will not enforce a contract involving a personal relationship such as that created by adoption” (Erlanger v Erlanger, 102 Misc 236, 237, affd 185 App Div 888).

Manifestly, these are the least persuasive circumstances in which to recognize a departure from that rule. Beyond the facts of this case, the problems associated with forcing the creation of that permanent legal bond between a child and a prospective adoptive parent who is judicially found "not fit” and "unwilling” to proceed with an adoption are monumental and numerous. For example, the possibility exists that the "fit” adoptive parent who was intended to be the primary caregiver will predecease the "unfit” adoptive parent who is left to assume the children’s daily care. In that tragic scenario, the adoption court will have placed the child directly into the hands of a person who is not equipped to "establish[ ] a real home for a child” (Matter of Malpica-Orsini, 36 NY2d 568, 572) or able to appropriately provide for the child’s emotional or physical needs.

Recognizing the "drastic and hitherto unprecedented” nature of imposing an equitable adoption upon an unwilling party (majority opn, at 102), the majority has declined to impose an equitable adoption in this case. Yet, as the dissent in this case well appreciates, it is hard to imagine a case with facts more rare and extraordinary than these, where the prospective adoptive father, well able to improve the children’s welfare through his wealth and status, has, by his acts and promises, caused two children and his spouse to cross the globe in furtherance of creating a parent-child relationship (see, dissenting opn, at 111). If this is not a "rare and exceptional” circumstance, it is difficult to imagine what facts would warrant invoking equitable powers as the majority now sanctions.

Rather than leaving the door open to some unexplored and heretofore unknown equitable power to force an unwanted parental relationship, I would hold that the statutory scheme forecloses that possibility. The statutory adoption scheme imposes on the adoption court the task of determining whether the proposed adoption is within the best interests of the children before formalizing the relationship (Domestic Relations Law § 116 [4]). In my view, the child’s best interests can never be served by forcing an unfit and unwilling person to fully adopt a child and assume — by operation of law — the legal, moral and financial responsibilities that parenthood involves (see, Matter of Robert Paul P., supra, at 236). The creation of an artificial legal relationship with a person who rejects the child and will avowedly not take steps to provide nurture contravenes one of the fundamental purposes of the best interests inquiry — to ensure that the child is placed in a stable home environment. Accordingly, as a matter of law, the indispensable best interests test cannot be met in these circumstances.

To the extent that concerns are raised about the children’s economic well-being, other viable alternatives to full adoption exist, as even the majority notes (majority opn, at 102-103). In this situation, for example, it is conceivable that appellant’s promises to support the children in the adoption agreements and immigration petition may well provide the basis for an order of financial support sought in a separate proceeding, or in conjunction with the presently pending divorce proceeding. Those options render the majority’s recognition of a potential equitable remedy of full legal adoption unwarranted here.

Under the unprecedented standard adopted by the majority, every adoption court will now be faced with determining whether the rare and exceptional circumstances warranting the imposition of legal parenthood exist on the facts before it. Manifestly, whether to create the adoptive parent-child relationship over an adoptive parent’s objection is a policy decision best left for the Legislature — the body which " 'has supreme control of the subject’ ” of adoption (Carpenter v Buffalo Gen. Elec. Co., 213 NY 101, 107, quoting Matter of Cook, 187 NY 253, 260), and which is best equipped to study the long-term, and assuredly detrimental, effects of that forced relationship upon the welfare of children.

Bellacosa, J.

(dissenting). I agree with Judge Levine’s majority articulation of the applicable principles of the law, including that judicial imposition of parentage by adoption on an objecting individual is a "drastic” and "unprecedented” matter. However, I disagree with the application of the governing principles to this exceptional case in which that extraordinary equitable relief should be upheld. I would affirm the order of the Appellate Division.

L

This case is about judicial completion of a joint adoption application set in motion by appellant and his wife in Surrogate’s Court affecting the status and well-being of two children, now aged six, who are the subjects of this proceeding and appeal. Baby Boy C., born in the Philippines in July 1987, lived under the custody and care of appellant initially jointly with the wife after being admitted into the United States in February 1988. Baby Girl O., born in Philadelphia, Pennsylvania, was placed in the physical custody of the putative adoptive parents on May 13, 1988, just two days after her birth. The appellant, putative adoptive father, was described by a nurse’s aid as having significant contact with Baby Boy C. in his home for approximately nine months.

Seven months after Baby Boy C. arrived in this country and five months after custody of Baby Girl O. was given to the adoptive parents, they filed their 1988 joint adoption petition in Surrogate’s Court, New York County. The husband and wife, though more lately engaged in a bitter public divorce action, have remained jointly responsible for the care, welfare, maintenance and education of the children. The duty and responsibility to support the children sprang not only from filing the joint adoption petition, but also, in the case of Baby Boy C., from the citizen naturalization petition in which appellant certified under penalty of perjury that, 'T will care for the beneficiary of this petition properly if the beneficiary is admitted to the United States”. Neither child has known anyone but these two people as their parents.

In 1990, appellant commenced a divorce action against the putative adoptive mother in whose sole custody the youngsters have been after appellant separated from the family. Appellant did not make a formal motion in Surrogate’s Court to revoke his consent to the adoption or to discontinue the adoption proceeding until November 1990.

At the adoption hearing in 1991, Surrogate Roth rejected appellant’s claim that he did not understand the adoption petition and found that "[t]he record [was] devoid of any showing of fraud or misrepresentation” (153 Misc 2d 916, 920). She relieved appellant, however, of adoption responsibility under prevailing principles of law. The Appellate Division agreed with the Surrogate’s essential factual findings, but held that it was in the best interest of the children for the joint adoption to be finalized. That Court found that appellant made "firm commitments and [took] deliberate steps in furtherance of these adoptions” (189 AD2d 382, 387). The findings of both courts have evidentiary support in the record, but the result reflected in the Appellate Division decision is legally warranted and correct.

In the effort to adopt Baby Boy C., appellant caused that infant to be moved halfway around the world to enter appellant’s home by reason of his inducements. Appellant made a conceded, formal promise to his wife, to the child, to the Surrogate’s Court, and to the United States Government that he would care for Baby Boy C. if the child were admitted to the United States, ultimately for adoption by him. With Baby Girl O., appellant paid the birth mother’s medical expenses and caused the infant to be placed in his own and his wife’s joint custody, just two days after birth. In reliance on appellant’s promise to adopt, Baby Girl O.’s biological mother executed an irrevocable consent, surrendering her parental bond and rights.

The majority, nevertheless, concludes that this is not an "exceptional” case qualifying for the invocation of equitable relief. Two reasons are advanced for declining to exercise equitable remedies (majority opn, at 102, 102-103). First, significant weight is given to the fact that the putative adoptive mother, as "an adult married person who has been living separate and apart from * * * her spouse [appellant] for at least three years,” may adopt alone (Domestic Relations Law § 110). Second, the children, regardless of adoption, are found to enjoy potential legal recourse against appellant for economic support. These factors may be relevant, but they are not dispositive in this case. Flexible judicial Chancellor’s powers emerged as the historical outgrowth in Anglo-American jurisprudence against the rigidity of the "at law” forms of relief (see, 1 Holdsworth, History of English Law, at 395-476 [6th ed]; Adams, The Origin of English Equity, 16 Colum L Rev 87 [1916]). The words of this Court’s premiere jurist and instructor in law and equity, Chief Judge Benjamin N. Cardozo, captures the essence of a Chancellor’s role in adjudicating a case such as this: "[l]et the hardship be strong enough, and equity will find a way, though many a formula of inaction may seem to bar the path” (Graf v Hope Bldg. Corp., 254 NY 1, 13 [dissenting opn]). I would thus affirm the Appellate Division’s direction for joint adoption and then let nature and still pending related judicial proceedings take their course.

IL

The paramount concern of the courts in any adoption proceeding is the welfare of the child (see, Matter of Robert Paul P, 63 NY2d 233, 237; Domestic Relations Law § 116). Undeniably, irreversible actions were triggered by appellant and undertaken by others directly affecting these children, their welfare and their right to a promised parental bond. The infants were transported as to place and transformed as to custodianship. There was inducement, promise and detrimental reliance of the most profound nature. Appellant is directly responsible for the irreversible changes of position which has kept these children dangling at extreme risk and disadvantage socially, psychologically, as well as financially. Indeed, nearly six years have passed since appellant extended his welcoming hand. His about-face and rejection has put these two children into an extended parental limbo. As apparent pawns in the marital rupture between this appellant husband and his wife, the children have been already irretrievably deprived of a substantial portion of the promised parental relationship. The clock ticks and years pass as their finite childhood unfolds. Detrimental reliance and irretrievable change of position should, at the very least, foreclose appellant’s withdrawal from the pending adoption proceeding he jointly started (see, Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175,184).

Equity should be the forum for remedying the unique harm inflicted by appellant on these children, because money damages at law would be inadequate (see, Matter of Burke v Bowen, 40 NY2d 264, 267; 3 Pomeroy, Equity Jurisprudence §§ 1401, 1402, 1407 [1st ed]). No money damages can compensate for the deprivation of the promised parental nurturing all these years and now permanently. Divesting the infants of their natural parental ties forever in return for a seductive promise to substitute a new family tie should have proportionate consequences. That irrevocable change in the children’s parent-child status leaves them without family security, lineage or pedigree. Appellant’s evidently mean-spirited change of mind reflects the quintessential change in position meriting equitable judicial intervention because there is no possibility of return to status quo ante. In this case, no secure status quo in futuro is even possible.

The acceptance of an obligation intuitively, instinctively and freely rooted in one’s own acts, is the soul of equity (see, Wood v Lucy, Lady Duff-Gordon, 222 NY 88, 90-91). Reinforcing the need for equitable intervention is appellant’s formalized actions by part and substantial performance, in solemnly starting a joint judicial proceeding to adopt. We have said that "[c]ourts do not arbitrarily refuse specific performance of an agreement * * * when equity seems to demand that the parties be compelled to carry out such agreement * * *. Especially is this the rule, almost of right, where one of the parties has partly performed or changed * * * position in reliance on the contract, and common justice forbids that the other party should, on some technicality” (Harris v Shorall, 230 NY 343, 347-348 [emphasis added]).

The mere fact that appellant’s spouse may singly pursue and qualify for adoption does not change the legal linkage which has always existed between the rights and responsibilities of the appellant promisor to the directly affected children (see, Domestic Relations Law § 110 ["(a)doption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent”]). This statute does not speak only to financial support or security, but to parental relationship, expectations and, in this case, entitlement to special relief tailored to the detrimental reliance and irreversible changes of position wrought by appellant. In these extraordinary circumstances, this Court must be concerned not only with the material maintenance of the children, but also with their physical, mental, moral and civic development.

Additionally, this case is not simply a matter of money. The potentiality of child support squeezed ultimately out of appellant is not an adequate remedy at law or a just solution for this double disaster examined in its full human dimension. Nor is this case about remedying lost intimacy. I fully recognize that equity cannot command love or filial feelings. But it can redress a betrayal of promised parentage which deprives these children of their familial identity and mooring in the now and their full dimensional security in the future. The remedy I propose, as found by the Appellate Division, seeks to correct deficits that are more than money, yet less than intimacy, which are nevertheless tangible and remediable within the prudential and flexible range of equity’s traditional beneficial reach.

Weinberger v Van Hessen (260 NY 294) is instructive. There, the defendant induced an infant’s mother to transport her child to America and surrender custody, care and control based on a promise to support the child and direct his education and control his religious and moral upbringing. Two years after accepting custody of the child, the caregiver changed his mind. The Court affirmed the determination of the Appellate Division — as I propose we do here — which then denied the care-promisor’s motion to dismiss the infant’s claim in equity for specific performance. The Court noted that the agreement concerned not only the child’s custody, "but also * * * the mental, moral and religious training of the child” (id., at 298). While the agreement there did not deal directly with formalized adoption, the essence of the arrangement did not differ essentially from the transformation effected on the two infants in the instant case. Here, the Court is presented with a modern variation of the Weinberger dilemma. The wisdom found in that case provides guidance here to a prudent and supportable result — affirmance of the Appellate Division’s direction for a grant of the joint adoption petition.

IIL

Equity and the New York Surrogate’s Court — the forum renowned as the special haven of orphans and surviving spouses — are not bereft of the parens patriae power to shape the remedy for appellant’s wrongs (see, SCPA 201, 202, 209; NY Const, art VI, § 12 [d], [e]). Appellant’s misconduct under the unique circumstances of this extraordinary case need not be excused because of fretting over open-ended precedential implications and potentialities. Pomeroy proclaimed that "Equitable remedies * * * are distinguished by their flexibility, their unlimited variety, [and] their adaptability to circumstances. * * * [T]he court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties” (1 Pomeroy, Equity Jurisprudence § 109 [1st ed]; see also, Matter of Lipschutz [Gutwirth] 304 NY 58, 63). Individualized judicial discretion and prudence are the proper limits and checks against overgeneralized remedies that would flow from threatened floodgated repercussions.

While I fully appreciate the concerns expressed by my colleagues that the legal and judicial imputation of parentage, over objection, represents a grave step, this case qualifies, in my view, for Pomeroy’s and Cardozo’s most delicate, refined and exceptionally exercised implementation of the equitable writ. Appellant’s conduct and the children’s well-being, in all dimensions of their fragile existence, are what equity’s promise is designed to correct. Thus, I would affirm the Appellate Division’s prudent and correct resolution of this profoundly wrenching controversy.

Chief Judge Kaye and Judges Simons and Ciparick concur with Judge Levine; Judge Titone concurs in result in a separate opinion; Judge Bellacosa dissents and votes to affirm in another opinion; Judge Smith taking no part.

Order reversed, etc.

       For self-evident reasons, courts will be more inclined to impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship (see, Matter of Sharon GG. v Duane HH., supra; Michel DeL. v Martha P., 173 AD2d 308; Matter of Boyles v Boyles, 95 AD2d 95; see also, Harper v Lindsey, 162 Ga 44, 132 SE 639).


author: Chief Judge Kaye.

text:
    [638 NE2d 973, 615 NYS2d 328]
    The People of the State of New York, Appellant, v Charles Sprowal, Respondent.
    Argued April 28, 1994;
    decided June 16, 1994

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer and Deborah L. Morse of counsel), for appellant.
    The jury selection process in this case provides no basis for reversal. (People v Antommarchi, 80 NY2d 247; People v Mitchell, 80 NY2d 519; People v Fleming, 70 NY2d 947; People v Bonaparte, 78 NY2d 26; People v Sloan, 79 NY2d 386; Snyder v Massachusetts, 291 US 97; United States v Washington, 705 F2d 489; United States v Alessandrello, 637 F2d 131; United States v Gagnon, 470 US 522; People v Hannigan, 193 AD2d 8.)

      Jonathan Garelick, New York City, and Philip L. Weinstein for respondent.
    I. Respondent was deprived of his right, recognized in People v Sloan (79 NY2d 386 [1992]), to be present for sidebar discussions with prospective jurors regarding the very facts and persons at issue in this case. (People v Sloan, 79 NY2d 386; People v Mitchell, 60 NY2d 519; People v Antommarchi, 80 NY2d 247; People v Velasco, 77 NY2d 469; United States v Gordon, 829 F2d 119; United States v Alessandrello, 637 F2d 131, 451 US 949; People v Dokes, 79 NY2d 656; Snyder v Massachusetts, 291 US 97; United States v Santiago, 977 F2d 517; People v Favor, 82 NY2d 254.) II. Respondent was deprived of his right to select a jury when, in open court at the moment identified as the time for the actual exercise of peremptory challenges, he explicitly disapproved of the challenges preliminarily identified by his counsel at sidebar, and the court nevertheless swore in those jurors. (People v Velasco, 77 NY2d 469; People v Page, 72 NY2d 69; People v Sloan, 79 NY2d 386; People v Antommarchi, 80 NY2d 247; People v Aguilera, 82 NY2d 23; People v Ferguson, 67 NY2d 383; People v Mirenda, 57 NY2d 261; Jones v Barnes, 463 US 745.) III. Appellant, by protesting his limited involvement in the jury selection process, preserved his rights under People v Antommarchi (80 NY2d 247 [1992]) and that case should therefore be applied retroactively to this case. (People v Mitchell, 80 NY2d 519; People v Pepper, 53 NY2d 213, 454 US 967.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Steven J. Chananie and Robin A. Forshaw of counsel), pro se, amicus curiae.

    A criminal defendant’s presence at the questioning of prospective jurors is mandated by State law, regardless of the subject matter of that questioning. State law also requires that People v Sloan (79 NY2d 386 [1992]) be applied prospectively only, because potential jurors have, until recently, been routinely questioned outside the presence of defendants about both their general qualifications to serve and about matters relating to the case on trial. (People v Antommarchi, 80 NY2d 247; People v Pepper, 53 NY2d 213; Griffith v Kentucky, 479 US 314; People v Mitchell, 80 NY2d 519; Snyder v Massachusetts, 291 US 97; United States v Gagnon, 470 US 522; United States v Washington, 705 F2d 489; People v Dokes, 79 NY2d 656; People v Favor, 82 NY2d 254.)

      Kevin Dillon, District Attorney of Erie County, Buffalo, and James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Michael J. Miller of counsel), for New York State District Attorney’s Association, amicus curiae.

    I. The holding of People v Hannigan (193 AD2d 8 [2d Dept 1993]) should be applied to prevent the retroactive application of the rule of People v Sloan (79 NY2d 386 [1992]). (People v Mitchell, 80 NY2d 519; Griffith v Kentucky, 479 US 314; People v Pepper, 53 NY2d 213; People v Taylor, 76 NY2d 873; People v Bolling, 79 NY2d 317; United States v Washington, 705 F2d 489; People v Morales, 37 NY2d 262; People v Mullen, 44 NY2d 1.) II. Even if Sloan is the progeny of Federal constitutional law, reversal is not mandated because harmless error analysis should apply. (Snyder v Massachusetts, 291 US 97; People v Cain, 76 NY2d 119; People v Mehmedi, 69 NY2d 759; People v Mullen, 44 NY2d 1; People ex rel. Lupo v Fay, 13 NY2d 253; People v Mitchell, 80 NY2d 519; People v Antommarchi, 80 NY2d 247; People v Velasco, 77 NY2d 469; United States v Gagnon, 470 US 522.)
   OPINION OF THE COURT

Chief Judge Kaye.

On this appeal we revisit the subject of a criminal defendant’s right to be present during sidebar discussions with prospective jurors.

Defendant was tried in May 1989 for sale of cocaine to an undercover officer. During voir dire, three prospective jurors stated in sidebars with the court that they might know the defendant, his family or the location of the crime. Several other venirepersons indicated general bias or personal obstacles that prevented them from offering jury service. Each was excused. Although the prosecutor and defense counsel participated in the sidebar discussions, these took place outside defendant’s hearing. Defendant objected to the racial composition of the jury after it was impaneled, but did not offer a timely protest to the conduct of sidebars in his absence.

In a memorandum dated December 1, 1992, the Appellate Division reversed the conviction, finding on the basis of People v Antommarchi (80 NY2d 247) — decided October 27, 1992— that defendant’s right to be present at the sidebar conferences had been violated. On December 17, 1992, however, we held in People v Mitchell (80 NY2d 519) that the Antommarchi rule was prospective only. The People’s motion for reargument in light of Mitchell was denied, without opinion.

Defendant contends that his case is distinguishable from Antommarchi because here the voir dire questioning concerned "specific bias” — possible familiarity with him or some aspect of his case. In Antommarchi, by contrast, inquiry concerned general bias, such as whether the venireperson had been the victim of a crime. Where questioning concerns specific bias, defendant argues, the right to be present is constitutional in nature under People v Sloan (79 NY2d 386; see, Mitchell, 80 NY2d, at 527), and should be given retroactive effect (see, Griffith v Kentucky, 479 US 314). Concluding that the right to be present at voir dire sidebars is statutory — not constitutional — in nature, whether inquiry concerns "specific” or "general” bias, we reverse the decision of the Appellate Division overturning defendant’s conviction for lack of presence at the sidebars.

Analysis

Unquestionably, a defendant’s right to be present at material stages of trial stems from the Due Process Clauses of the State and Federal Constitutions as well as State statute (People v Rosen, 81 NY2d 237, 243; People v Morales, 80 NY2d 450, 453-457). As a constitutional matter, a defendant has a right to be present pursuant to the Confrontation Clause at any stage of trial where witnesses or evidence against him are being presented to the trier of fact (Kentucky v Stincer, 482 US 730, 739). Beyond this, a defendant has a due process right to be present if that presence "might bear a substantial relationship to a defendant’s opportunity better to defend himself at trial” and the stage of the criminal proceeding is "critical” to its outcome (Kentucky v Stincer, 482 US, at 745-746; see also, United States v Gagnon, 470 US 522, 526; Snyder v Massachusetts, 291 US 97, 105; People v Mitchell, 80 NY2d, at 526-527). Our Court has identified these constitutionally significant stages of trial as "core” proceedings (Morales, 80 NY2d 450, 455-457, supra).

CPL 260.20 confers upon a defendant the broader right to be "personally present” during the trial of an indictment. Trial, as a matter of State law, includes not only "core” proceedings such as the taking of testimony but also a myriad of "ancillary” proceedings (see, People v Morales, 80 NY2d 450, 453, 456, supra). Because our State statute confers protection beyond the guarantees of the Federal Constitution (80 NY2d 450, 456, supra), we have not found it necessary to identify the root source of the right to be present at ancillary proceedings unless called upon to consider questions of retroactivity. In that circumstance, however, we have consistently characterized the right as statutory (People v Favor, 82 NY2d 254, 262; People v Mitchell, 80 NY2d 519, supra). In particular, the right to be present at voir dire sidebars — an ancillary proceeding — is conferred solely by CPL 260.20 (People v Favor, 82 NY2d, at 262, supra; People v Antommarchi, 80 NY2d 247, 250, supra).

Sidebar conferences most often relate to one of two subjects: availability to serve, or ability to remain objective in light of a juror’s personal experience. Where sidebar inquiry is directed only to ministerial matters — such as availability for jury service — not even the statutory right is triggered. Presence of counsel alone is sufficient to protect a defendant’s interests (People v Velasco, 77 NY2d 469).

In People v Sloan (79 NY2d 386), by contrast, we explained that where sidebar questions concern a venireperson’s ability to remain objective, through exploration of bias, hostility or predisposition to believe or discredit the testimony of potential witnesses, a defendant’s presence would permit assessment of a juror’s "facial expressions, demeanor and other subliminal responses.” Distinguishing Velasco, we concluded that where bias is at issue, a defendant’s presence could have a substantial effect on the ability to defend against the charges (79 NY2d, at 392). Similarly, in Antommarchi, we again acknowledged a right to be present under CPL 260.20 whenever bias is explored, citing Sloan — without distinguishing between "general” and "specific” bias (80 NY2d, at 250).

Although rooted in due process concerns, Velasco and Sloan were not directed to the distinction now urged by defendant between a constitutional and statutory right to be present. Rather, the distinction drawn was between the statutory right (Sloan/Antommarchi) and no right at all (Velasco).

Defendant correctly points out that we have cited Snyder v Massachusetts (291 US 97, 108, supra) — a case construing the scope of the Federal due process right to be present — as supporting a due process right to be present at voir dire sidebars (People v Sloan, 79 NY2d, at 391-392; People v Velasco, 77 NY2d, at 472), but misreads the significance of that citation. Reliance on Snyder in the context of our State statutory right to be present can be traced to People ex rel. Lupo v Fay (13 NY2d 253, 256), where we first borrowed Snyder’s language as the starting point for construing the scope of the statutory right to be present under section 356 of the Code of Criminal Procedure, the predecessor to CPL 260.20. Under our own body of State law, we now look to the effect that defendant’s absence might have on the opportunity to defend as measure of whether the statutory right to be present at an ancillary trial proceeding is triggered (Morales, 80 NY2d, at 456; see also, People v Aguilera, 82 NY2d 23, 34).

A defendant’s right to attend ancillary proceedings may be qualified as a Federal constitutional matter because these proceedings are not always critical to the outcome of the criminal proceedings. But under our State statute — conferring broader protection — presence is generally required even at these ancillary proceedings so long as the defendant can potentially contribute to the proceeding. Such a stage of the proceeding is material under our State law. An ancillary proceeding may be material for purposes of the statutory right to be present, even though it is not a core proceeding for purposes of the Federal constitutional right to be present (Morales, 80 NY2d, at 456-457).

In People v Dokes (79 NY2d 656), for example, we took note of the potential for meaningful participation by the defendant during the determination of the merits of a Sandoval hearing, but ultimately determined the right to presence as statutory in nature (People v Favor, 82 NY2d 254, 262, supra). Likewise, our emphasis in Sloan on New York’s long recognition of a fundamental right to be present with counsel at all material stages of trial (79 NY2d, at 391), particularly when that opinion is read in conjunction with Velasco and Antommarchi, establishes the doctrinal underpinning of the right to be present at voir dire sidebars as one of State, not Federal, law.

Defendant’s claim thus is determined by Mitchell and cannot be given retroactive effect. We likewise reject defendant’s contention that in People v Velasco (77 NY2d 469, supra) we implicitly recognized a defendant’s right to be present at voir dire as including the right to veto his counsel’s choices in selecting a jury (see, People v Mirenda, 57 NY2d 261, 265-266, n).

Accordingly, the Appellate Division order should be reversed and the case remitted to the Appellate Division, First Department, for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

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

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

       Alternatively, he argues that relief under Antommarchi should be granted retroactively where the defendant protested the manner in which voir dire was conducted. Defendant’s objection to the racial composition of the impaneled jury was, however, insufficient to alert the court to his present contention that he should have been present at sidebar discussions (CPL 470.05 [2]; People v Bonaparte, 78 NY2d 26, 31-32; People v Fleming, 70 NY2d 947, 948).


text:
    [638 NE2d 977, 615 NYS2d 332]
    Donald Z. Scheiber, Appellant, v St. John’s University, Respondent.
    Argued May 4, 1994;
    decided June 21, 1994

      POINTS OF COUNSEL

      Jessel Rothman, P. C., Mineóla (Jessel Rothman, Steven D.

      Baum and Allen J. Rothman of counsel) for appellant.
    I. Respondent University, an equal opportunity employer, is estopped from claiming that it has the statutory right (Executive Law § 296 [11]) to discriminate against Jews. (Federation of Labor v McAdory, 325 US 450; Rosenberg v Fleuti, 374 US 449; Peters v Hobby, 349 US 332; Holme v C.M.P. Sheet Metal, 89 AD2d 229; Baron v Lombard, 71 AD2d 823, 50 NY2d 896; Robinson v City of New York, 24 AD2d 260; Matter of City of New York v New York State Dept, of Envtl. Conservation, 89 AD2d 274; United States v Bedford Assocs., 491 F Supp 851; Matter of Huntington TV Cable Corp. v State of New York Commn. on Cable Tel., 94 AD2d 816, 61 NY2d 926; Amrep Corp. v American Home Assur. Co., 81 AD2d 325.) II. Defendont violated New York State Executive Law § 296 (1) and section 703 of the Civil Rights Act of 1964, as amended (42 USC § 2000e-2 [a]), by discharging plaintiff because he is Jewish. (Matter of State Div. of Human Rights v Gorton, 32 AD2d 933, 25 NY2d 680; Matter of American Jewish Congress v Carter, 23 Misc 2d 446, 9 NY2d 223.) III. Executive Law § 296 (11) was never intended by the Legislature to allow the University to discriminate against and discharge Donald Scheiber on the basis he is a Jew. (North Shore Univ. Hosp. v State Human Rights Appeal Bd., 82 AD2d 799; Matter of Watson, 171 NY 256; Matter of Basilio Scientific Spiritist Cult Assn., 9 Misc 2d 389; Matter of Lueken [Our Lady of Roses], 97 Misc 2d 201; Selkir v Klein, 50 Misc 194; Matter of Taylor v Day Star Baptist Church, 196 Misc 449; Pime v Loyola Univ. of Chicago, 585 F Supp 435, 803 F2d 351.) IV. Applying section 296 (11) to the University’s discriminating activities violates equal protection principles. (Larson v Valente, 456 US 228; King’s Garden v Federal Communications Commn., 498 F2d 55; Larkin v Grendel’s Den, 459 US 116; Widmar v Vincent, 454 US 263; Dorsey v Stuyvesant Town Corp., 299 NY 512, 339 US 981; Takahashi v Fish & Game Commn., 334 US 410; Truax v Corrigan, 257 US 312; Buchanan v Warley, 245 US 60; Kentucky v Powers, 201 US 1; Civil Rights Cases, 109 US 3.) V. Section 296 (11) of the Executive Law violates the Establishment Clause. (Gillette v United States, 401 US 437; Walz v Tax Commn., 397 US 664; Grand Rapids School Dist. v Ball, 473 US 373; Bob Jones Univ. v United States, 461 US 574; Federation of Labor v McAdory, 325 US 450; Screws v United States, 325 US 91; National Labor Relations Bd. v Catholic Bishop of Chicago, 440 US 490.) VI. Plaintiff pleaded a proper cause of action for abusive discharge on the ground of unlawful discrimination. (Chin v American Tel. & Tel. Co., 96 Misc 2d 1070, 70 AD2d 791, 48 NY2d 603.) VII. The complaint properly set forth a completely separate and distinct valid cause of action for prima facie tort. (Morrison v National Broadcasting Co., 24 AD2d 284, 19 NY2d 453; Fisher v Queens Park Realty Corp., 41 AD2d 547; Board of Educ. v Farmingdale Classroom Teachers Assn., 38 NY2d 397; Fox v Issler, 77 AD2d 860; Halperin v Salvan, 117 AD2d 544.)

      Herbert D. Schwartzman, Jamaica, and James F. Niehoff for respondent. I.
    The protections afforded by section 296 (11) of the Executive Law are applicable to St. John’s University. (Matter of Herzog v Joy, 74 AD2d 372, 53 NY2d 821; Matter of

      Carr v St. John’s Univ., 17 AD2d 632, 12 NY2d 802.) II. Once the Legislature declared that "nothing contained in this section” shall prohibit religiously motivated employment decisions by religious organizations, general policy statements by the University cannot expand the statute’s scope. (Estro Chem. Co. v Falk, 303 NY 83; Brooklyn Bank v O’Neil, 324 US 697; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350; Matter of Klein [Hartnett], 78 NY2d 662; Murphy v American Home Prods. Corp., 58 NY2d 293; Sabetay v Sterling Drug, 69 NY2d 329; Finger Lakes Racing Assn, v New York State Racing & Wagering Bd., 45 NY2d 471.) III. The protections afforded to St. John’s University by section 296 (11) do not violate the Constitutions or laws of the United States or of the State of New York. Such protection is in furtherance of St. John’s free exercise of religion. (Matter of Klein [Hartnett] 78 NY2d 662; Elmwood-Utica Houses v Buffalo Sewer Auth., 65 NY2d 489; Maresca v Cuomo, 64 NY2d 242; Abington School Dist. v Schempp, 374 US 203; Walz v Tax Commn., 397 US 664; Corporation of Presiding Bishop v Amos, 483 US 327; Under 21 v City of New York, 65 NY2d 344; Bob Jones University v United States, 461 US 574; Love v Pullman Co., 404 US 522; Alexander v Gardner-Denver Co., 415 US 36.) IV. Appellant has failed to establish a cause of action in tort for intentional infliction of emotional distress, prima facie tort or abusive discharge. (Murphy v American Home Prods. Corp., 58 NY2d 293; Ingle v Glamore Motor Sales, 73 NY2d 183; Sabetay v Sterling Drug, 69 NY2d 329; Leibowitz v Bank Leumi Trust Co., 152 AD2d 169; Howell v New York Post Co., 81 NY2d 115.)
   OPINION OF THE COURT

Chief Judge Kaye.

Donald Scheiber, Vice-President of Student Life at St. John’s University (SJU), was fired from his position after 20 years of service. He commenced this action alleging, in part, that SJU terminated him because of his religious beliefs, in violation of State and Federal antidiscrimination laws, and contrary to SJU’s public assertions that it was an "equal opportunity employer.”

Plaintiff asserted that complaints about his job performance, and the announcement by SJU’s new President that he would prefer members of the Congregation of the Mission (Vincentians) as Vice-Presidents were pretextual, aimed at driving him out of the University because he was Jewish. Plaintiff contended that, as SJU’s only Jewish Vice-President, he was singled out for increased scrutiny by the new administration. SJU denied engaging in discrimination against plaintiff, insisting that he was terminated because of poor job performance. As an affirmative defense SJU claimed that, even assuming the truth of plaintiff’s allegations, its preference for a Roman Catholic would be constitutionally protected as free exercise of religion.

According to University publications, SJU was incorporated under New York’s Membership Corporations Law in 1871 by the Vincentian Fathers, founded in 1625 by St. Vincent de Paul. The order sponsors St. John’s, Niagara and De Paul Universities, as well as high schools, seminaries, parishes and mission centers. At its groundbreaking in 1868, SJU was described as a "college for the education of youth without distinction of religious belief, political opinion, or social condition,” with the objective of offering "men and women, in a Catholic atmosphere, the opportunity to achieve for themselves a higher education in the liberal arts and sciences and to prepare for certain professions.” (Objectives of St. John’s University, 1989-91 St. John’s University Undergraduate Bulletin, at iv.) While "committed to a Christian vision of reality,” SJU also claims to be "an urban institution of higher learning,” and "aims to contribute to the cultural, commercial, industrial, and professional needs and desires of the community, and in turn, to draw upon the cultural richness that a metropolitan area affords” (ibid.).

Under SJU’s bylaws, the President, Vice-President for Campus Ministry and Dean of St. John’s College must be Vincentians. Nonelected Vice-Presidents are appointed by the President — subject to approval by the Board of Trustees — and serve until the President appoints a successor. No other limitation on hiring is expressed in the bylaws.

Prior to completion of discovery, Supreme Court granted SJU’s motion for summary judgment under Executive Law § 296 (11) — the provision of the Human Rights Law that permits religious institutions to exercise a preference for employment of persons of the same religion. Supreme Court found persuasive a "rhetorical question” posed by SJU: "In light of the strong religious position taken by the Catholic church on such matters as abortion, contraception, marriage and divorce, would it be unlawful for a Catholic University to prefer that its Vice President of Student Life have the same religious convictions as that of the Catholic church?” A divided Appellate Division affirmed the grant of summary judgment to SJU dismissing plaintiff’s complaint under Executive Law § 296 (11).

In its argument to this Court, SJU frames the issue by posing the same question that persuaded the trial court to dismiss the complaint. We conclude, however, that even an affirmative answer to that hypothetical issue does not entitle SJU to summary judgment against plaintiff in this case.

Analysis

The Human Rights Law (Executive Law art 15) effects this State’s fundamental public policy against discrimination by establishing equality of opportunity as a civil right (Executive Law § 291). The law prohibits discrimination in hiring or firing based on the "age, race, creed, color, national origin, sex, or disability, or marital status” of any individual (Executive Law § 296 [1] [a]).

An exemption for religious institutions appears at Executive Law § 296 (11):

"Nothing contained in this section shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or education purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting employment or sales or rental of housing accommodations or admission to or giving preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.” (Emphasis supplied.)

We reject plaintiffs threshold argument that SJU is not a "religious institution or organization” entitled to claim the exemption.

Plaintiff contends that only an entity organized pursuant to the Religious Corporations Law can claim status as a religious organization under the Human Rights Law, but our statutory exemption, broadly drafted, contains no such limitation. As an educational organization operated in connection with the Vincentian order — a religious institution or organization— SJU is itself a "religious institution” within the language of Executive Law § 296 (11). Although conceived with the intent of fulfilling a secular educational role, SJU has not abandoned its religious heritage and plainly falls within the exemption for entities that are "operated, supervised or controlled by or in connection with a religious organization” (Executive Law § 296 [ll]).

Having determined that SJU is a religious institution within Executive Law § 296 (11), we next consider what the exemption allows.

Matter of Klein (Hartnett) (78 NY2d 662, 667) provides an analytical framework for determining the scope of our statutory exemption. As noted in that case, we view an exemption for a religious employer in its statutory context in order to ascertain the intent of the Legislature. We are mandated to read the Human Rights Law in a manner that will accomplish its strong antidiscriminatory purpose. To that end, the Legislature repealed a blanket exemption for religious, educational and charitable institutions, and those organizations are now prohibited from engaging in discrimination (see, Sponsor’s Mem, 1965 NY Legis Ann, at 215-216). Section 296 (11) carved out a narrow exception for "preference ** * * in employment, housing, and admissions in order to promote the religious principles of such institutions” (see, Louis J. Lefkowitz, Mem for Governor, in Bill Jacket, L 1965, ch 851).

The exemption does not license a religious employer to engage in wholesale discrimination. Discrimination is unlawful, whether committed by a religious or any other employer. Nor does Executive Law § 296 (11) empower a religious organization simply to discriminate against persons on the basis of religion. Rather, the exemption operates to exclude from the definition of "discrimination” exercise of a preference in hiring for persons of the same faith where that action is calculated by the institution to effectuate its religious mission. A religious employer may not discriminate against an individual for reasons having nothing to do with the free exercise of religion and then invoke the exemption as a shield against its unlawful conduct.

While the exemption afforded by Executive Law § 296 (11) might permit an institution such as SJU to exercise a preference for a Catholic Vice-President of Student Life in the promotion of its religious principles, the record does not establish that this is what actually transpired in the present case. Significantly, SJU did not assert that it had, in fact, terminated plaintiff’s long employment as Dean and Vice-President of Student Life in order that it might limit his position to a Roman Catholic, or that it consciously sought and hired a Roman Catholic as his permanent replacement. To the contrary, in its verified answer SJU denied plaintiff’s allegation that the University engaged in preferential hiring, and its advertisement for a Dean of Student Life did not specify any religious limitation but noted that the University was an equal opportunity employer.

While denying that it had fired plaintiff based on his religion, SJU asserted as an affirmative defense that preferential hiring of a Roman Catholic would fall within the exemption from Federal and State antidiscrimination laws. In seeking summary judgment, SJU claimed that accelerating consideration of that affirmative defense would avoid the waste of a trial, because even a finding of discrimination as alleged would be permitted conduct. In the record before us, however, there are disputed issues of fact as to whether, in firing plaintiff, the University was actually exercising the preference allowed by statute or engaging in the unlawful discrimination alleged by plaintiff. Thus, SJU did not establish a basis for summary judgment.

Issues concerning a hiring decision calculated to promote religious principles of a religious institution highlight the tension between constitutional Free Exercise and Establishment Clauses, as well as the potential for excessive entanglement in religious affairs (see, e.g., Brant, "Our Shield Belongs to the Lord”: Religious Employers and a Constitutional Right to Discriminate, 21 Hastings Const LQ 275 [1994]). In its present posture, this case does not draw us into those, or other, absorbing matters, for the simple reason that an undisputed factual predicate is lacking. Our resolution, therefore, properly rests on the narrower evidentiary ground.

Accordingly, the Appellate Division order should be modified, without costs, by denying defendant’s motion for summary judgment as to the third cause of action and, as so modified, affirmed.

Judges Simons, Smith, Levine and Mercure concur; Judges Titone, Bellacosa and Ciparick taking no part.

Order modified, etc.

      . [1] Plaintiffs first and second causes of action, breach of contract and prima facie tort, were properly dismissed on summary judgment for the reasons stated by Supreme Court and the Appellate Division. We therefore address only his third cause of action, for abusive discharge predicated on religious discrimination.

      . Likewise, article I, § 11 of the New York Constitution, guarantees that "[n]o person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.” No exemption for religious institutions appears in the Constitution itself.

      . While this Court has not previously construed the term "religious * * * institution” in Executive Law §296 (11), other jurisdictions have considered the status of religiously affiliated educational institutions that serve a secular community (see, e.g., Gay Rights Coalition of Georgetown Univ. Law Ctr. v Georgetown Univ., 536 A2d 1, 8 [DC App]; Pime v Loyola Univ. of Chicago, 803 F2d 351, 357 [concurring opn of Posner, J.]; see also, Matter of Carr v St. John’s Univ., 17 AD2d 632, affd 12 NY2d 802).

       Designated pursuant to NY Constitution, article VI, § 2.