author: Wachtler, J. Jones, J. Fuchsberg, J.

text:
    In the Matter of John Storar. Charles S. Soper, as Director of Newark Developmental Center, et al., Appellants; Dorothy Storar, Respondent. In the Matter of Philip K. Eichner, On Behalf of Joseph C. Fox, Respondent, v Denis Dillon, as District Attorney of Nassau County, Appellant.
    Argued December 15, 1981;
    decided March 31, 1981

      POINTS OF COUNSEL

      Stephen R. Sirkin, District Attorney (John B. Nesbitt of counsel), for District Attorney of Wayne County, appellant in the first above-entitled proceeding.
    I. The patient’s right to life is sufficiently compelling to mandate the continuance of blood transfusions. (New York State Assn. for Retarded Children v Carey, 393 F Supp 715; Roe v Wade, 410 US 113; Matter of Eichner [Fox], 73 AD2d 431; Miranda v Arizona, 384 US 436.) II. The incompetent patient’s right to privacy does not empower the judiciary to decide that the repose of death outweighs the value of life. (Matter of Farmers’ Loan & Trust Co., 181 App Div 642, 225 NY 666; Matter of Turner v Turner, 61 Misc 2d 153; Mohrmann v Kob, 291 NY 181; Mainzer v Avril, 108 Misc 230; Matter of Weberlist, 79 Misc 2d 753; Becker v Schwartz, 46 NY2d 401; Eisenstadt v Baird, 405 US 438.) III. The treatment plan devised by the patient’s physicians realizes an acceptable goal of law and medicine — comforting the dying and preserving life to the extent it can be humanely accomplished. (Matter of Weberlist, 79 Misc 2d 753; Pike v Honsinger, 155 NY 201.)

      Robert Abrams, Attorney-General (Stanley Fishman, Shirley Adelson Siegel and Vincent M. Barone of counsel), for Charles S. Soper, appellant in the first above-entitled proceeding.
    Life support systems should be continued for a terminally ill, profoundly rétared person lacking the mental capacity to give consent where: (a) the patient is not in a vegetative coma but, on the contrary, retains his lifelong level of cognitive functioning and remains alert and ambulatory, and (b) notwithstanding the wishes of his committee, there is no evidence to support the conclusion that if competent, he would have refused such treatment. (Roe v Wade, 410 US 113; Matter of President & Directors of Georgetown Col., 331 F2d 1000, 377 US 978.)

      James I. De Point for respondent in the first above-entitled proceeding.
    Blood transfusions for an incompetent, terminally ill person, who has been a lifelong resident of a State institution, should be discontinued where: (a) there are no compelling State interests to override that decision, and (b) the discontinuance of treatment reflects the opinion of the incompetent’s committee and there is absolutely no proof that the incompetent wanted such treatment.

      Arlene A. Hughes, guardian ad litem for John Storar in the first above-entitled proceeding.
    I. The lower court did not err in concluding that Mr. Storar, despite his mental retardation, was entitled to the right to die with dignity guaranteed by the Fourteenth Amendment. (Union Pacific Ry. Co. v Botsford, 141 US 250; Griswold v Connecticut, 381 US 479; Roe v Wade, 410 US 113; Matter of Erickson v Dilgard, 44 Misc 2d 27; Matter of Melideo, 88 Misc 2d 974; Matter of President & Directors of Georgetown Coll., 331 F2d 1010, 377 US 978; Dunn v Blumstein, 405 US 330.) II. The lower courts did not err in concluding that they were empowered to protect Mr. Storar’s rights by exercising for him the power of informed consent which he is incompetent to exercise for himself. (Matter of Sampson, 37 AD2d 668, 29 NY2d 900; Matter of Weberlist, 79 Misc 2d 753; Matter of Eichner [Fox], 73 AD2d 431.) III. The lower court did not commit reversible error in finding, as a matter of fact, that Mr. Storar’s best interests were promoted by refusing painful, frightening, useless blood transfusions which may at best briefly prolong the process of dying. IV. The courts of New York are the appropriate forum for balancing the State and the individual interests, and for determining “substituted judgment” or “best interests” of the patient.

      Denis Dillon, District Attorney (William C. Donnino, Anthony J. Girese and Judith R. Sternberg of counsel), for appellant in the second above-entitled proceeding.
    In the absence of express legislative guidance, the courts below improvidently authorized the removal of a life support system from an incompetent person. (Roe v Wade, 410 US 113; Schloendorff v Society of N. Y. Hosp., 211 NY 125; Matter of Nemser, 51 Misc 2d 616; Matter of Erickson v Dilgard, 44 Misc 2d 27; Matter of Long Is. Jewish-Hillside Med. Center v Levitt, 73 Misc 2d 395; Matter of President & Directors of Georgetown Coll., 331 F2d 1000, cert den sub nom. Jones v President & Directors of Georgetown Coll, 377 US 978; Matter of Melideo, 88 Misc 2d 974; Matter of Collins v Davis, 44 Misc 2d 622; Matter of Sampson, 29 NY2d 900; People v Easley, 42 NY2d 50.)

      William F. Levine, Michael B. Grossman, Bertram B. Daiker and George Danzig Levine for respondent in the second above-entitled proceeding.
    I. Appellant’s brief is legally ineffectual to support his appeal. (Cleveland v Town of Lancaster, 239 App Div 263, 264 NY 568; Hagopian v Samuelson, 236 App Div 491; People v Velez, 88 Misc 2d 378; Schloendorff v Society of N. Y. Hosp., 211 NY 125; Roe v Wade, 410 US 113.) II. The order of the court below approving, on constitutional and common-law grounds, the discontinuance of the mechanical respirator treatment for Brother Fox should be affirmed. (Roe v Wade, 410 US 113; Katz v United States, 389 US 347; Schloendorff v Society of N. Y. Hosp., 211 NY 125; Matter of Erickson v Dilgard, 44 Misc 2d 27; Matter of Collins v Davis, 44 Misc 2d 622; United States v Guest, 383 US 745; Meyer v Nebraska, 262 US 390; Griswold v Connecticut, 381 US 479; National League of Cities v Usery, 426 US 833; United Public Workers v Mitchell, 330 US 75.) III. The portion of the opinion of the court below mandating in future cases prior judicial approval for the discontinuance of life sustaining treatment for a terminally ill, irreversibly comatose patient and ordaining procedural rules for such cases is dictum in the nature of an advisory opinion and need not be accepted by this court. (Schloendorff v Society of N. Y. Hosp., 211 NY 125.)

      Robert C. Minion, guardian ad litem pro se, and John F. Mulholland for guardian ad litem in the second above-entitled proceeding.
    The court below did not err in granting the petition. (Union Pacific Ry. Co. v Botsford, 141 US 250; Olmstead v United States, 277 US 438; Griswold v Connecticut, 381 US 479; Poe v Ullman, 367 US 497;
      Prince v Massachusetts, 321 US 158; Eisenstadt v Baird, 405 US 438; Roe v Wade, 410 US 113; Meyer v Nebraska, 262 US 390; Pierce v Society of Sisters, 268 US 510; Canterbury v Spence, 464 F2d 772.)

      Jacqueline Nolan-Haley for Americans United for Life, amicus curiae in the second above-entitled proceeding.
    I. This case should be resolved under the common law. (St. Clair v Yonkers Raceway, 13 NY2d 72.) II. The court below erred by establishing a constitutional right to refuse treatment through substituted judgment. (Roe v Wade, 410 US 113.)
   OPINION OF THE COURT

Wachtler, J.

In these two cases the guardians of incompetent patients objected to the continued use of medical treatments or measures to prolong the lives of the patients who were diagnosed as fatally ill with no reasonable chance of recovery. In Matter of Eichner, Brother Fox, an 83-year-old member of the Society of Mary, was being maintained by a respirator in a permanent vegetative state. The local director of the society applied to have the respirator removed on the ground that it was against the patient’s wishes as expressed prior to his becoming incompetent. In Matter of Storar, a State official applied for permission to administer blood transfusions to a profoundly retarded 52-year-old man with terminal cancer of the bladder. The patient’s mother, who was also his legal guardian, refused consent on the ground that the transfusions would only prolong his discomfort and would be against his wishes if he were competent. In each case the courts below have found that the measures should have been discontinued.

The orders of the lower courts were stayed and the treatments continued pending appeals to the Appellate Division and this court. Nevertheless both of the patients have died, thus rendering these particular controversies moot. However, the underlying issues are of public importance, are recurring in other courts throughout the State and, as these cases illustrate, are likely to escape full appellate review even when the appeals have been expedited. Under those circumstances we may, and often have, addressed the issues despite the mootness (see, e.g., Matter of Oliver v Postel, 30 NY2d 171, 177-178; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 436-437), particularly when, as here, the controlling principles have not been previously identified and discussed by this court (cf. Matter of Hearst Corp. v Clyne, 50 NY2d 707).

It should be emphasized though, that any guidance we may provide for future cases is necessarily limited. Unlike the Legislature, the courts are neither equipped nor . empowered to prescribe substantive or procedural rules for all, most, or even the more common contingencies. Our role, especially in matters as sensitive as these, is limited to resolving the issues raised by facts presented in particular cases.*

On the records we have concluded that the order should be reversed in the Storar case. In the Eichner case the order should be modified and resolved on a narrower ground than relied on by the Appellate Division.

THE EICHNER CASE

For over 66 years Brother Joseph Fox was a member of the Society of Mary, a Catholic religious order which, among other things, operates Chaminade High School in Mineóla. In 1970 Brother Fox retired to Chaminade where he resided with the religious members of the school’s staff and continued to perform limited duties. In late summer of 1979 he sustained a hernia while moving some flower tubs on a roof garden at the school. He was then 83 years old and, except for the hernia, was found to be in excellent health. His doctor recommended an operation to correct the condition and Brother Fox agreed.

While the operation was being performed on October 1, 1979 he suffered cardiac arrest, with resulting loss of oxygen to the brain and substantial brain damage. He lost the ability to breathe spontaneously and was placed on a respirator which maintained him in a vegetative state. The attending physicians informed Father Philip Eichner, who was the president of Chaminade and the director of the society at the school, that there was no reasonable chance of recovery and that Brother Fox would die in that state.

After retaining two neurosurgeons who confirmed the diagnosis, Father Eichner requested the hospital to remove the respirator. The hospital, however, refused to do so without court authorization. Father Eichner then applied, pursuant to article 78 of the Mental Hygiene Law, to be appointed committee of the person and property of Brother Fox, with authority to direct removal of the respirator. The application was supported by the patient’s 10 nieces and nephews, his only surviving relatives. The court appointed a guardian ad litem and directed that notice be served on various parties, including the District Attorney.

At the hearing the District Attorney opposed the application and called medical experts to show that there might be some improvement in the patient’s condition. All the experts agreed, however, that there was no reasonable likelihood that Brother Fox would ever emerge from the vegetative coma or recover his cognitive powers.

There was also evidence, submitted by the petitioner, that before the operation rendered him incompetent the patient had made it known that under these circumstances he would want a respirator removed. Brother Fox had first expressed this view in 1976 when the Chaminade community discussed the moral implications of the celebrated Karen Ann Quinlan case, in which the parents of a 19-year-old New Jersey girl who was in a vegetative coma requested the hospital to remove the respirator (see Matter of Quinlan, 137 NJ Super 227, revd 70 NJ 10, cert den sub nom. Garger v New Jersey, 429 US 922). These were formal discussions prompted by Chaminade’s mission to teach and promulgate Catholic moral principles. At that-time it was noted that the Pope had stated that Catholic principles permitted the termination of extraordinary life support systems when there is no reasonable hope for the patient’s recovery and that church officials in New Jersey had concluded that use of the respirator in the Quinlan case constituted an extraordinary measure under the circumstances. Brother Fox expressed agreement with those views and stated that he would not want any of this “extraordinary business” done for him under those circumstances. Several years later, and only a couple of months before his final hospitalization, Brother Fox again stated that he would not want his life prolonged by such measures if his condition were hopeless.

In a thoughtful and comprehensive opinion, Mr. Justice Robert C. Meade at the Supreme Court held that under the circumstances Brother Fox would have a common-law right to decline treatment and that his wishes, expressed prior to becoming incompetent, should be honored. The court noted that the evidence of his stated opposition to use of a respirator to maintain him in a vegetative state was “unchallenged at every turn and unimpeachable in its sincerity.”

The Appellate Division modified in an exhaustive and wide-ranging opinion by Presiding Justice Milton A. Mollen. The court held that the patient’s right to decline treatment was not only guaranteed by the common law but by the Constitution as well. It also found that this right should not be lost when a patient becomes incompetent and, if a patient has not made his wishes known while competent as Brother Fox had done, an appropriate person should be appointed to express the right on his behalf by use of “substituted judgment”. The court went on to establish an elaborate set of procedures to be followed by doctors, hospitals, family members, parties and the courts before future applications of this nature may be entertained or granted.

THE STORAR CASE

John Storar was profoundly retarded with a mental age of about 18 months. At the time of this proceeding he was 52 years old and a resident of the Newark Development Center, a State facility, which had been his home since the age of 5. His closest relative was his mother, a 77-year-old widow who resided near the facility. He was her only child and she visited him almost daily.

In 1979 physicians at the center noticed blood in his urine and asked his mother for permission to conduct diagnostic tests. She initially refused but after discussions with the center’s staff gave her consent. The tests, completed in July, 1979, revealed that he had cancer of the bladder. It was recommended that he receive radiation therapy at a hospital in Rochester. When the hospital refused to administer the treatment without the consent of a legal gqardian, Mrs. Storar applied to the court and was appointed guardian of her son’s person and property in August, 1979. With her consent he received radiation therapy for six weeks, after which the disease was found to be in remission.

However in March, 1980 blood was again observed in his urine. The lesions in his bladder were cauterized in an unsuccessful effort to stop the bleeding. At that point his physician diagnosed the cancer as terminal, concluding that after using all medical and surgical means then available, the patient would nevertheless die from the disease.

In May the physicians at the center asked his mother for permission to administer blood transfusions. She initially refused but the following day withdrew her objection. For several weeks John Storar received blood transfusions when needed. However, on June 19 his mother requested that the transfusions be discontinued.

The director of the center then brought this proceeding, pursuant to section 33.03 of the-Mental Hygiene Law, seeking authorization to continue the transfusions, claiming that without them “death would occur within weeks”. Mrs. Storar cross-petitioned for an order prohibiting the transfusions, and named the District Attorney as a party. The court appointed a guardian ad litem and signed an order temporarily permitting the transfusions to continue, pending the determination of the proceeding.

At the hearing in September the court heard testimony from various witnesses including Mrs. Storar, several employees at the center, and seven medical experts. All the experts concurred that John Storar had irreversible cancer of the bladder, which by then had spread to his lungs and perhaps other organs, with a very limited life span, generally estimated to be between 3 and 6 months. They also agreed that he had an infant’s mentality and was unable to comprehend his predicament or to make a reasoned choice of treatment. In addition, there was no dispute over the fact that he was continuously losing blood.

The medical records show that at the time of the hearing, he required two units of blood every 8 to 15 days. The staff physicians explained that the transfusions were necessary to replace the blood lost. Without them there would be insufficient oxygen in the patient’s blood stream. To compensate for this loss, his heart would have to work harder and he would breathe more rapidly, which created a strain and was very tiresome. He became lethargic and they feared he would eventually bleed to death. They observed that after the transfusions he had more energy. He was able to resume most of his usual activities — feeding himself, showering, taking walks and running — including some mischievous ones, such as stealing cigarette butts and attempting to eat them.

It was conceded that John Storar found the transfusions disagreeable. He was also distressed by the blood and blood clots in his urine which apparently increased immediately after a transfusion. He could not comprehend the purpose of the transfusions and on one or two occasions had displayed some initial resistance. To eliminate his apprehension he was given a sedative approximately one hour before a transfusion. He also received regular doses of narcotics to alleviate the pain associated with the disease.

On the other hand several experts testified that there was support in the medical community for the view that, at this stage, transfusions may only prolong suffering and that treatment could properly be limited to administering pain killers. Mrs. Storar testified that she wanted the transfusions discontinued because she only wanted her son to be comfortable. She admitted that no one had ever explained to her what might happen to him if the transfusions were stopped. She also stated that she was not “sure” whether he might die sooner if the blood was not replaced and was unable to determine whether he wanted to live. However, in view of the fact that he obviously disliked the transfusions and tried to avoid them, she believed that he would want them discontinued.

The court held that the center’s application for permission to continue the transfusions should be denied. It was noted that John Storar’s fatal illness had not affected his limited mental ability. He remained alert* ** and carried on many of his usual activities. However, the court emphasized that the transfusions' could not cure the disease, involved some pain and that the patient submitted to them reluctantly. The court held that a person has a right to determine what will be done with his own body and, when he is incompetent, this right may be exercised by another on his behalf. In this case, the court found that John Storar’s mother was the person in the best position to determine what he would want and that she “wants his suffering to stop and believes that he would want this also.”

The Appellate Division affirmed in a brief memorandum.

I

In the Eichner case the Supreme Court properly granted the petition. At common law, as Cardozo noted, every person “of adult years and sound mind has a right to determine what should be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages * * *. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained” (Schloendorff v Society of N. Y. Hosp., 211 NY 125, 129-130; see, also, Pearl v Lesnick, 20 AD2d 761, affd 19 NY2d 590; Garzione v Vassar Bros. Hosp., 36 AD2d 390, affd 30 NY2d 857; 2 Harper and James, Law of Torts, 61 [1968 Supp]; Patient’s Right to Refuse Treatment Allegedly Necessary to Sustain Life, Ann., 93 ALR 3d 67). Even in emergencies, however, it is held that consent will not be implied if the patient has previously stated that he would not consent (Restatement, Torts 2d, § 62, Illustration 5; Powell, Consent to Operative Procedures, 21 Md L Rev 189, 199; Bryn, Compulsory Life Saving Treatment for the Competent Adult, 44 Fordham L Rev 1, 15, n 64). The basic right of a patient to control the course of his medical treatment has been recognized by the Legislature (see Public Health Law, §§ 2504, 2805-d; CPLR 4401-a).

Father Eichner urges that this right is also guaranteed by the Constitution, as an aspect of the right to privacy. Although several courts have so held (see, e.g., Matter of Quinlan, 70 NJ 10, supra; Superintendent of Belchertown State School v Saikewicz, 373 Mass 728), this is a disputed question (see, e.g., Bryn, op. cit., pp 5-9), which the Supreme Court has repeatedly declined to consider (see Note, The “Living Will”: The Right to Death With Dignity?, 26 Case Western Reserve L Rev 485, 501, n 76; see, also, Garger v New Jersey, 429 US 922, supra). Neither do we reach that question in this case because the relief granted to the petitioner, Eichner, is adequately supported by common-law principles.

The District Attorney urges that the patient’s right to decline medical treatment is outweighed by important State interests when the treatment is necessary to preserve the patient’s life. We recognize that under certain circumstances the common-law right may have to yield to superior State interests, as it would even if it were constitutionally based (Roe v Wade, 410 US 113, 154-155 ; Doe v Bolton, 410 US 179). The State has a legitimate interest in protecting the lives of its citizens. It may require that they submit to medical procedures in order to eliminate a health threat to the community (see, e.g., Jacobson v Massachusetts, 197 US 11). It may, by statute, prohibit them from engaging in specified activities, including medical procedures which are inherently hazardous to their lives (Roe v Wade, supra, pp 150, 154). In this State, however, there is no statute which prohibits a patient from declining necessary medical treatment or a doctor from honoring the patient’s decision. To the extent that existing statutory and decisional law manifests the State’s interest on this subject, they consistently support the right of the competent adult to make his own decision by imposing civil liability on those who perform medical treatment without consent, although the treatment may be beneficial or even necessary to preserve the patient’s life (see, e.g., Schloendorff v Society of N. Y. Hosp., 211 NY 125, supra; Matter of Erickson v Dilgard, 44 Misc 2d 27; Matter of Melideo, 88 Misc 2d 974; Public Health Law, §§ 2504, 2805-d; CPLR 4401-a). The current law identifies the patient’s right to determine the course of his own medical treatment as paramount to what might otherwise be the doctor’s obligation to provide needed medical care. A State which imposes civil liability on a doctor if he violates the patient’s right cannot also hold him criminally responsible if he respects that right. Thus a doctor cannot be held to have violated his legal or professional responsibilities when he honors the right of a competent adult patient to decline medical treatment.

The District Attorney also urges that whatever right the patient may have is entirely personal and may not be exercised by any third party once the patient becomes incompetent. He notes that although a court may appoint a guardian to manage an incompetent’s financial affairs and to supervise his person, some rights have been held to be too personal to be exercised by an incompetent’s representative (see, e.g., Mainzer v Avril, 108 Misc 230, 232; Matter of Barletta, 2 Misc 2 135, 139; Matter of Rasmussen, 147 Misc 564, 566; cf. Matter of Buttonow, 23 NY2d 385, 394; Matter of Hills, 264 NY 349, 354; 44 CJS, Insane Persons, § 49; 27 NY Jur, Incompetent Persons, § 81). He argues that a right to decline lifesaving treatment conflicts with the patient’s fundamental and constitutionally guaranteed right to life (US Const, 14th Arndt) and to permit a third party to choose between the two means, in effect, that the right to life is lost once the patient becomes incompetent. Finally he urges that if a patient’s right to decline medical treatment survives his incompetency, it must yield to the State’s overriding interest in prohibiting one person from causing the death of another, as is evidenced by the homicide laws.

The District Attorney’s arguments underscore the very sensitive nature of the question as to whether, in case of incompetency, a decision to discontinue life sustaining medical treatment may be made by some one other than the patient (see, also, Kamisar, Some Non-Religious Views Against Proposed “Mercy-Killing” Legislation, 42 Minn L Rev 969; Collester, Death, Dying and the Law: A Prosecutorial View of the Quinlan Case, 30 Rutgers L Rev 304). However, that issue is not presented in this case because here Brother Fox made the decision for himself before he became incompetent. The Supreme Court and the Appellate Division found that the evidence on this point, as well as proof of the patient’s subsequent incompetency and chances of recovery was “clear and convincing”. We agree that this is the appropriate burden of proof and that the evidence in the record satisfies this standard.

Although this is a civil case in which a preponderance of the evidence is generally deemed sufficient, the District Attorney urges that the highest burden of proof beyond a reasonable doubt should be required when granting the relief may result in the patient’s death. But that burden, traditionally reserved for criminal cases where involuntary loss of liberty and possible stigmatization are at issue (Addington v Texas, 441 US 418, 428), is inappropriate in cases where the purpose of granting the relief is to give effect to an individual’s right by carrying out his stated intentions. However, we agree with the courts below that the highest standard applicable to civil cases should be required. There is more involved here than a typical dispute between private litigants over a sum of money. Where particularly important personal interests are at stake, clear and convincing evidence should be required (Addington v Texas, supra, p 424). It is constitutionally required in cases of involuntary civil commitments (Addington v Texas, supra) and we have recognized the need for the higher standard in exceptional civil matters (see, e.g., Ross v Food Specialties, 6 NY2d 336; Amend v Hurley, 293 NY 587; Porter v Commercial Cas. Ins. Co., 292 NY 176). Clear and convincing proof should also be required in cases where it is claimed that a person, now incompetent, left instructions to terminate life sustaining procedures when there is no hope of recovery. This standard serves to “impress the factfinder with the importance of the decision” (Addington v Texas, 441 US 418, 427, supra) and it “ ‘forbids relief whenever the evidence is loose, equivocal or contradictory’ ” (Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 220).

In this case the proof was compelling. There was no suggestion that the witnesses who testified for the petitioner had any motive other than to see that Brother Fox’ stated wishes were respected. The finding that he carefully reflected on the subject, expressed his views and concluded not to have his life prolonged by medical means if there were no hope of recovery is supported by his religious beliefs and is not inconsistent with his life of unselfish religious devotion. These were obviously solemn pronouncements and not casual remarks made at some social gathering, nor can it be said that he was too young to realize or feel the consequences of his statements (cf. Matter of Quinlan, 70 NJ 10, swpra). That this was a persistent commitment is evidenced by the fact that he reiterated the decision but two months before his final hospitalization. There was, of course, no need to speculate as to whether he would want this particular medical procedure to be discontinued under these circumstances. What occurred to him was identical to what happened in the Karen Ann Quinlan case, which had originally prompted his decision. In sum, the evidence clearly and convincingly shows that Brother Fox did not want to be maintained in a vegetative coma by use of a respirator.

II

In the Storar case, of course, we do not have any proof of that nature. John Storar was never competent at any time in his life. He was always totally incapable of understanding or making a reasoned decision about medical treatment. Thus it is unrealistic to attempt to determine whether he would want to continue potentially life prolonging treatment if he were competent. As one of the experts testified at the hearing, that would be similar to asking whether “if it snowed all summer would it then be winter?” Mentally John Storar was an infant and that is the only realistic way to assess his rights in this litigation (see Bryn, op. cit., p 24, n 107). Thus this case bears only superficial similarities to Eichner and the determination must proceed from different principles.

A parent or guardian has a right to consent to medical treatment on behalf of an infant (Public Health Law, § 2504, subd 2). The parent, however, may not deprive a child of lifesaving treatment, however well intentioned (Matter of Sampson, 29 NY2d 900; Matter of Vasko, 238 App Div 128; Matter of Santos v Goldstein, 16 AD2d 755, mot for lv to app dsmd 12 NY2d 642; cf. Matter of Hofbauer, 47 NY2d 648). Even when the parents’ decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the State’s interests, as parens patriae, in protecting the health and welfare of the child (Matter of Sampson, supra; Jehovah’s Witnesses v King County Hosp. Unit, 390 US 598, affg 278 F Supp 488; People ex rel. Wallace v Labrenz, 411 Ill 618, cert den 344 US 824; Power of Public Authorities to Order Medical Care for A Child Over Objection of Parent or Guardian, Ann., 30 ALR 2d 1138; cf. Prince v Massachusetts, 321 US 158). Of course it is not for the courts to determine the most “effective” treatment when the parents have chosen among reasonable alternatives (Matter of Hofbauer, 47 NY2d 648, supra). But the courts may not permit a parent to deny a child all treatment for a condition which threatens his life (compare Custody of A Minor, 375 Mass 733, with Matter of Hofbauer, supra, p 656). The case of a child who may bleed to death because of the parents’ refusal to authorize a blood transfusion presents the classic example (Jehovah’s Witnesses v King County Hosp., supra; Matter of Sampson, supra).

In the Storar case there is the additional complication of two threats to his life. There was cancer of the bladder which was incurable and would in all probability claim his life. There was also the related loss of blood which posed the risk of an earlier death, but which, at least at the time of the hearing, could be replaced by transfusions. Thus, as one of the experts noted, the transfusions were analogous to food — they would not cure the cancer, but they could eliminate the risk of death from another treatable cause. Of course, John Storar did not like them, as might be expected of one with an infant’s mentality. But the evidence convincingly shows that the transfusions did not involve excessive pain and that without them his mental and physical abilities would not be maintained at the usual level. With the transfusions on the other hand, he was essentially the same as he was before except of course he had a fatal illness which would ultimately claim his life. Thus, on the record, we have concluded that the application for permission to continue the transfusions should have been granted. Although we understand and respect his mother’s despair, as we respect the beliefs of those who oppose transfusions on religious grounds, a court should not in the circumstances of this case allow an incompetent patient to bleed to death because someone, even someone as close as a parent or sibling, feels that this is best for one with an incurable disease.

In conclusion we note that it has been suggested by the District Attorney in the Eichner case that these applications do not present a justifiable controversy; that they call for innovations in the law, both substantive and procedural, which should be left to the Legislature, subject only to review by the courts for compliance with constitutional requirements (see, also, Matter of President & Directors of Georgetown Coll., 3 F2d 1000, 1010, 1015 [Burger, J., dissenting]; Sharpe & Hargest, Lifesaving Treatment for Unwilling Patients, 36 Fordham L Rev 695; Note, 77 Harv L Rev 1539). We, of course, cannot alter statutory responsibility but we can declare the rights and obligations of the parties under existing law. In fact the District Attorney does not contend that the courts can never rule upon the legality of such activities but suggests that the courts should wait for the parties to act before considering whether there is any civil or criminal liability. However, responsible parties who wish to comply with the law, in cases where the legal consequences of the contemplated action is uncertain, need not act at their peril (New York Public Interest Research Group v Carey, 42 NY2d 527, 530). Nor is it inappropriate for those charged with the care of incompetent persons to apply to the courts for a ruling on the propriety of conduct which might seriously affect their charges.

We emphasize, however, that any such procedure is optional. Neither the common law nor existing statutes require persons generally to seek prior court assessment of conduct which may subject them to civil and criminal liability. If it is desirable to enlarge the role of the courts in cases involving discontinuance of life sustaining treatment for incompetents by establishing, as the Appellate Division suggested in the Eichner case, a mandatory procedure of successive approvals by physicians, hospital personnel, relatives and the courts, the change should come from the Legislature.

Accordingly, the order of the Appellate Division should be reversed, without costs, in the Storar case and modified, without costs, in the Eichner case by deleting everything but the authorization to the petitioner to discontinue use of the respirator.

Jones, J.

(dissenting in part). I agree, and for the reasons stated by the majority, that these two cases should be addressed on their merits, notwithstanding that the deaths of the two patients have rendered moot the specific legal issues tendered. Similarly, I agree with the conclusion reached by the majority in Matter of Eichner. I find the address of the majority in Matter of Storar, however, inadequate to what 1 conceive to be the jurisprudential responsibility of our court in this case; I also differ with the result they reach.

I.

I do not question that Judge Wachtler’s opinion constitutes an accurate and clear statement of the highest common factors on which all members of the court are in agreement. In the normal case, if such an exposition were sufficient to dispose of the particular appeal, I would be reluctant to add a separate writing which would serve only to reflect an individual preference as to analysis or expression. These are not run-of-the-mill cases, however; they pose issues for judicial resolution in a field of the most far-reaching and solemn implications concerning which we do not yet have the benefit of any legislative enactment in New York or the guidance of any extensive body of decisional law. At the same time, while there is compelling reason to believe that the problems of the nature presented in these two cases have been of significant incidence in our society for many years, only relatively recently have they been identified for judicial attention. There are, however, abundant manifestations of both the breadth and depth of interest and concern on the part of the medical profession, theologians, ethicists, moralists, sociologists and criminologists, as well as of the public at large. In this circumstance I am persuaded that we have a special responsibility to express our views with respect to judicial participation in the resolution of individual cases, even if to do so results in unveiling differences in points of view among us or reveals doubt as to the extent of the authority or role of our courts in such cases. Either may provide the initiative for or underscore the desirability of legislative address and action.

The generic issue presented is not of broad scope. We all recognize the right Of a competent adult to make decisions with respect to his own medical or surgical care even if the consequence of the particular decision be to hasten death. The question before us is whether, and under what circumstances, a surrogate decision can be made on behalf of the patient when he is incompetent to make it himself, where he has been diagnosed as incurably ill, and where the decision relates to the withholding or withdrawal of extraordinary life support medical procedures. The question poses the problem of judicial involvement in passive euthanasia (sometimes called “dysthanasia”) — the deliberate withholding or withdrawal of available clinical means for the prolongation of the life of a patient for whom there is little or no hope of recovery or survival. Treating as the subject does with irreversible decisions affecting life and death, we approach, and even may be thought by some to trespass on, the domain of Providence. Few areas of judicial activity present such awesome questions or demand greater judicial wisdom and restraint.

I identify two aspects of the problem so fundamental as to call for exposition by this court, neither of which receives express attention in the writing of the majority. The first is explicit acknowledgment that the problem is one which the judicial system is unsuited and ill-equipped to solve and which should not usually be made the subject of judicial attention. The lapse of time necessarily consumed in appellate review before there can be a final judicial determination will almost always be unacceptable and makes recourse to judicial proceedings impractical. The methodology and the techniques of our classic adversary system are not best suited to the resolution of the issues presented. The courts can claim no particular competence to reach the difficult ultimate decision, depending as it necessarily must not only on medical data, but on theological tenets and perceptions of human values which defy classification and calibration.

There is reliable information that for many years physicians and members of patients’ families, often in consultation with religious counselors, have in actuality been making decisions to withhold or to withdraw life support procedures from incurably ill patients incapable of making the critical decisions for themselves. While, of course, there can be no categorical assurance that there have been no erroneous decisions thus reached, or even that in isolated instances death has not been unjustifiably hastened for unacceptable motives, at the same time there is no empirical evidence that either society or its individual members have suffered significantly in consequence of the absence of active judicial oversight. There is no indication that the medical profession whose members are most closely aware of current practices senses the need for or desires judicial intervention.

For all the foregoing reasons I would explicitly affirm the proposition that judicial approval is not required for discontinuance of life support procedures in situations such as those now before us and that neither civil nor criminal liability attaches simply by reason of the absence of a court order of authorization.

As to the second aspect, I nevertheless recognize that there will be occasions in which the courts will have thrust on them cases such as the two now before us. It is not difficult to anticipate instances in which for one or more of a variety of reasons a member of the patient’s family or a close friend might desire to seek formal judicial approval of a proposal to withhold or to withdraw a particular extraordinary life support procedure. I would therefore explicitly affirm the authority of our courts, in proper cases and in proceedings appropriately instituted, to grant authorization for withholding or withdrawal of extraordinary life support medical procedures, notwithstanding the absence of evidence of an anticipatory expression of the attitude or wishes of the particular patient (as was present and the critical factor in the Eichner case).

Thus I would have hoped that our court in the appeals now before us, would expressly have recognized the availability of, but not the necessity for, judicial approval of surrogate decisions in cases such as these. The fact that there is no such recognition serves to underscore the high desirability, here and elsewhere expressed, of legislative attention and action.

Similarly, to the extent that an impelling reason for continuing to entertain cases which have become individually moot is to identify and discuss controlling principles and to set standards and provide guidance, not only for the lower courts which can be expected to confront similar cases, but also (and of greater practical significance) to the medical care providers who nearly daily are confronted with individual instances in which consideration is being given to withdrawal of life support procedures, our writings in these cases must fall short of what surely would have been desirable had it been possible to reach a broader consensus. Other than indicating an unreadiness to approve the detailed procedures laid down by the Appellate Division in Matter of Eichner the court will have provided little if any procedural guidance either to the lower courts in our State — for instance, as to who has standing to bring such proceedings and what must be shown to warrant judicial authorization for the relief sought — or to the medical care providers as to how or whether they may properly and safely proceed in the absence of express judicial authorization. I would much have preferred writings that would have provided more constructive direction both for the courts, to which will surely be presented, and perhaps in increasing volume, applications of the character now before us, and for hospitals and physicians, on whom the burden of responsibility for daily decisions so often falls. Absent such enabling consensus however, I perceive no useful purpose to be served by one member of the court presuming to express his views on what are procedural matters (as distinguished from the expression which I have felt compelled to make on two substantive issues).

II.

With respect to the disposition of the appeals in these two cases: as stated, I would concur in result in Matter of Eichner; in Storar I would modify the order of the Appellate Division to the extent of dismissing the petition of Charles S. Soper as Acting Director of the Newark Developmental Center, and, as so modified, affirm. The dismissal would be premised on lack of standing of the hospital (or its director on behalf of the hospital) as a medical care provider to have instituted the proceeding seeking judicial authorization to continue blood transfusions against the wishes of Dorothy Storar, the patient’s mother, guardian and committee. Medical care providers have at best only-a tangential interest in the outcome of the litigation and can have no legitimate individual stake in the institution (or continuation) or the discontinuance of the medical procedure. Cases may arise in which it is appropriate to name the provider as a party defendant for the purpose of giving practical effect to the court’s decision. In matters such as these it has been the practice in the . past to recognize the standing of a public or quasi-public official to institute judicial proceedings (e.g., see cases cited majority opn, pp 380-381). Until today, however, this court has never recognized the standing of a medical care provider to seek authorization to continue medical care against the wishes of the patient or one who stands in his stead. Additionally I am apprehensive that to accord standing to medical care providers to seek authorization for continuation of extraordinary life support procedures in cases such as this might foster a perception that obtaining judicial approval should be the normal expectation (rather than a procedure to be resorted to only in extraordinary circumstances) and thus lead to an increase in the institution of such proceedings, in some instances as anticipatory defensive strategy with respect to possible future claims for malpractice. Nor would I know what significance, if any, to ascribe to the circumstance that extraordinary medical procedures in particular now often involve a very heavy economic cost which might, at least in some instances, have a bearing on the provider’s incentive to institute or continue such care (as well, on the other side of the equation, as possibly to lead dependent family members to oppose expensive treatment). I would, however, recognize the standing of a member of the family such as John Storar’s mother, or a close friend as in Eichner, to institute a judicial proceeding for authorization to withhold or to withdraw life support measures.

As to the merits in Storar, I find no sufficient ground, as a matter of law, to reverse the determination made by Supreme Court, now affirmed at the Appellate Division, and I perceive no other predicate on which the court can disturb the order of the Appellate Division; it cannot consider the matter de novo or make new determinations of fact except where the evidence in the record is so overwhelming as to require a particular determination as a matter of law.

While there was evidence, to which the majority refers, that the discontinuation of blood transfusions would have “eventually” led to John Storar’s death (and inferentially perhaps before death would otherwise have been caused by his cancer of the bladder), no finding was made as to what extension of life would attend the continuation of transfusions. Supreme Court made the ambiguous finding, undisturbed by the Appellate Division, that “Storar has a life expectancy of from two to six months regardless of whether the blood transfusions are continued or not”. Similarly, although evidence was introduced that following transfusions Storar had more energy and was able to resume most of his usual, limited activities, the courts below made no finding that continued transfusions would improve the quality of his life or, if so, in what respects or to what extent. In the absence of factual determintations with respect to these matters (and in my view the evidence in the record is not sufficient to justify this court’s now supplying such findings as a matter of law), I cannot conclude as a matter of law that the courts below erred in authorizing discontinuance of the blood transfusions in the light of the factual determinations which the courts did make, to wit:

That John had cancer of the bladder which was both inoperable and incurable, with a life expectancy of from two to six months; that one who has cancer of the bladder suffers severe pain and the need for medication increases as the cancer spreads; that John had been in frequent pain and as his pain had increased his need for medication had also increased;

That the blood transfusions were painful although not excessively so; that because of John’s apprehension and manifest dislike of the procedure the nurse had been giving him a shot approximately one hour before the transfusion; that he submitted to the blood transfusions reluctantly and because of the force that compelled him to submit; that recently he had had to be physically restrained and to have his arm tied down to prevent him from pulling out the needle used for the transfusion; that in contrast to his behavior prior to the commencement of the transfusions, he thereafter ventured outside his room infrequently; that he had appeared to be progressively more uncomfortable during the procedures; that as a result of the transfusions there was frequent clotting in his urine which made urination more painful; that the blood contributed to increased levels of sensitivity to the pain he was experiencing and contributed to his discomfort;

That the transfusions did not serve to reduce John’s pain or to make him more comfortable; that the blood forced on him did not serve a curative purpose or offer a reasonable hope of benefit;

That if the transfusions were stopped John would suffer no additional pain, his discomfort would not increase, and indeed cessation might serve to make him less aware of the physical sensations he was experiencing and even lead to a subsiding of the bleeding from his bladder lesions;

That in the circumstances the blood transfusions were extraordinary treatments;

That because of his lifelong profound mental retardation John was incompetent to refuse or consent to the continuation of the blood transfusions or to make a reasoned choice as to his own wishes or best interests;

That his mother over his lifetime had come to know and sense his wants and needs and was acutely sensitive to his best interests; that she had provided more love, personal care, and affection for John than any other person or institution, and was closer to feeling what John was feeling than anyone else; that his best interests were of crucial importance to her;

That in his mother’s opinion it would have been in John’s best interests to discontinue the transfusions, and she believed that he would wish to have them stopped.

No one suggests that there is not sufficient evidence in this record to support each of these factual findings.

I would hold that the courts below had power to authorize the withdrawal of extraordinary life support measures and that, in the circumstances of this case, there was no error of law when the courts below exercised that power to grant Mrs. Storar’s cross application to discontinue blood transfusions for her son, John.

Fuchsberg, J.

(dissenting). Brother Fox and John Storar having each passed away, whether, had each one lived, it would have been more appropriate to prolong his life, hasten his death, or neither, is now moot. In this posture, two of my colleagues, incanting the need for judicial restraint, nevertheless have chosen to plunge into what in the end must be recognized for no more than an academic legal debate. In my view, that is a mistake. Far better would it be if we accepted the conclusion nature has wrought and left the cases where they were.

I do not question the power of courts to decide such questions. In open cases, when there is disagreement among those in whom reside the practical and primary responsibility to make such agonizing moral choices, when the disputants reach an impasse, the judiciary, the arm of our society trained to decide controversies between persons or between persons and the State, cannot shirk its obligation. But the cases before us now are already irrevocably concluded.

True, on rare occasions, we entertain causes that are abstract. But, never ones so deeply affected by so many nonlegal disciplines — theology, philosophy, sociology, psychology, biology, to name but a few. For the ultimate and forbidding issues are no less than the right to live or, if you will, the right to die (see, e.g., Veatch, Death, Dying and the Biological Revolution [Yale U Press] ; Downing, Euthanasia and the Right to Die [Peter Own Limited, Lond]; Sefer Chasidism [Frankfurt ed, No. 315-318]; and see, generally, authorities cited in ns 1, 3 of Judge Jones’ dissenting-in-part opn on this appeal).

It also goes without saying that the unavoidably complex interplay of the principles emanating from these competing specialities has grown with abounding medical and technological changes. These have dramatically enlarged the potential for prolonging the process of dying, pain-racked though it may be.

Consequently, it can come as no surprise that decisions on this subject — and today there is no dearth of them (e.g., Matter of Quinlan, 70 NJ 10; Superintendent of Belchertown State School v Saikewicz, 373 Mass 728; Matter of Eichner [Fox], 73 AD2d 431 [Mollen, P. J.]) — all were handed down to meet the demands of ongoing controversies.

In this extraordinarily sensitive area of litigation, each new case is bound to present its own peculiar circumstances. Judicial freedom to react to its factual refinements, if need be quickly and, to a considerable degree, on a largely ad hoc basis, is essential. Given the precedential strictures of stare decisis (see, e.g., Thornton v Roosevelt Hosp., 47 NY2d 780), to lay down law, then, is needlessly to tie our hands against the time when we are confronted by an appeal we have to decide. To reach out to do so prematurely is not to adjudicate, but legislate. Worse, I respectfully suggest, it is unwise to undercut a great strength of the common-law process, the evolution of law step by step as it moves from case to case.

I, therefore would dismiss each case for mootness.

In Matter of Storar: Order reversed, without costs, cross petition denied and petition granted.

Chief Judge Cooke and Judges Jasen, Gabrielli and Meyer concur with Judge Wachtler; Judge Jones dissents in part and votes to modify in an opinion; Judge Meyer votes to reverse, agrees with the reasoning in Part I of opinion by Judge Jones ; Judge Fuchsberg dissents and votes to reverse and remit the matter to Supreme Court, Monroe County, with directions to dismiss the proceeding for mootness in a separate opinion.

In Matter of Eichner: Order modified, without costs,' in accordance with the opinion herein, and, as so modified, affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli and Meyer concur with Judge Wachtler; Judge Jones concurs in result in an opinion in Part I of which Judge Meyer also concurs; Judge Fuchsberg dissents and votes to reverse and remit the matter to Supreme Court, Nassau County, with directions to dismiss the proceeding for mootness in a separate opinion.

      . Brother Fox died after the case had been argued at the Appellate Division but before the decision had been handed down. John Storar died after the case had been argued in this court. We also note that certain types of actions abate upon the death of a party (1 Am Jur 2d, Abatement Survival and Revival, § 75). The reason for the rule is lost in antiquity (1935 Report of NY Law Rev Comm, pp 157, 159, 176-179) and in modern times the rule itself has been abrogated by statute, except in a few cases (see, e.g., EPTL 11-3.2, 11-3.3; People v Mintz, 20 NY2d 753). In the absence of any reason or controlling precedent to the contrary we have concluded that the problems posed by the death of the patients in these particular cases are properly resolved by consideration of the principles applicable to moot controversies (cf. People v Smith, 44 NY2d 613, 617).

      . The need for judicial restraint in this area is illustrated by the dissent which has abstractly endorsed the right of third parties, at least family members, to adopt a course of “passive euthanasia” with respect to fatally ill incompetent patients, although it is not necessary to reach that issue, on the facts of these cases. Presumably this right could only be exercised by family members, thus imposing a “restriction” which itself is open-ended, reaching to the limits of the family tree. We also assume that despite the blanket indorsement, the dissenter realizes the potential abuses involved in that concept and that because of that danger, the propriety of applying that concept can only be assessed in the context of a particular case.

      .  In response to the dissent we note that as a matter of public policy a medical facility generally has no responsibility or right to supervise or interfere with the course of treatments recommended by the patient’s private physician, even when the patient is incapable of consent due to age (Florentino

        v Wenger, 19 NY2d 407). That would be a matter to be decided by the private physician with the patient’s family and the hospital would have no power to intervene or standing to sue.
      In this respect this case is unusual because John Storar did not have a personal physician. His medical care was provided by various physicians assigned by the State facility where he resided. Thus under the peculiar facts of this case the center’s concern for potential liability was real, at least insofar as it related to its role as treating physician. In other words here the center’s status was more than that of a hospital which generally would lack sufficient interest to warrant any court relief.

      . The attending physicians recognized that it was possible that at some point the rate of blood loss might increase to such an extent that transfusions would be completely ineffective. At the time of the hearing, however, the rate had remained relatively constant.

      . The court observed that “He remains alert to his environment, and he apparently recognizes the presence of others * * * He recognizes his attending day nurse, and pulls down his pajama bottoms when it is time for administration of his medicine.”

      . In other cases the State may be able to assert additional interests, such as, prevention of suicide or, perhaps, protection of minor children or dependents. Those concerns are inapplicable here. Brother Pox’ condition was not self-inflicted (see, e.g., Bryn, op. dt., pp 16-24) and he has no children or dependents.

      . Whether the presence or absence of excessive pain would be determinative with respect to the continuation of a life sustaining measure need not be reached under the facts of this case.

      . (See, e.g., Kutner, Euthanasia: Due Process For Death with Dignity; The Living Will, 54 Ind LJ 201; Ufford, Brain Death/Termination of Heroic Efforts to Save Life — Who Decides?, 19 Washburn LJ 225; Note, Informed Consent and the Dying Patient, 83 Yale LJ 1632; Survey, Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations, 48 Notre Dame Lawyer 1202; Fletcher, Ethics and Euthanasia, 73 Am J Nursing 670; Williamson, Prolongation of Life or Prolonging the Act of Dying?, 202 JAMA 162; 3 Houts, Courtroom Medicine, § 1.06, p 1-53; Pope Pius XII, Prolongation of Life, 4 AM Q Papel Doctrine 393; Burt, Taking Care of Strangers: The Rule of Law in Doctor-Patient Relations.)

      . Because “euthanasia” can have two meanings, to avoid any possible misunderstanding I explicitly disclaim any intention, expressly or by implication, to invite consideration of “active” euthanasia — the deliberate use of a life shortening agent for the termination of life.

      . (Levisohn, Voluntary Mercy Deaths, 8 J For Med 57, 68 [Levisohn conducted a survey of the Chicago Medical Convention which revealed that 61% of the physicians present believed that euthanasia was being practiced by members of the profession] ; Euthanasia Questions Stir New Debate, Med World News, Sept. 14, 1973, p 75 [87% of respondents to a poll of the Association of American Physicians reported they approved of passive euthanasia] ; see, also, e.g., Harrison’s Principles of Internal Medicine [9th ed], pp 6-7; Survey, Euthanasia: Criminal, Tort, Constitutional and Legislative Considerations, 48 Notre Dame Lawyer 1202, 1213; Wilkes, When Do We Have The Right To Die?, Life, Jan. 14, 1972, p 48; Medical Ethics: The Right To Survival, Hearings Before The Subcommittee On Health Of The Committee On Labor & Public Welfare, 93 Cong, 2d Sess 9 [1979].)
      Luis Kutner, Chief Justice of the World Court of Human Rights, has recently written that doctors’ attitudes toward euthanasia have changed: “Suprisingly, in a survey reported in mid-1974, 79% of physicians responding expressed some belief in the right of the patient to have a say about his death. The subject of death has also become an important part of medical school curriculum, whereas in the past there was a tendency to neglect it in other than a strictly clinical sense. Moreover, at its annual conference, the austere American Medical Association formally adopted the following policy statement: ‘The cessation of the employment of extraordinary means to prolong the life of the body where there is irrefutable evidence that biological death is imminent is the decision of the patient and-or his immediate family * * This provided doctors with a sanction for what many had actually been doing for some time, since the practice of turning off machines, for example, to allow death to come to a patient whom only the machine is keeping alive is a fairly common practice for hospitals. As a matter of fact, doctors at the Yale University School of Medicine willingly acknowledged that they had quietly allowed 43 severly deformed infants to die by withholding treatment after the parents agreed there was little chance for ‘meaningful life.’ The doctors disclosed this in hopes of breaking down ‘a major social taboo.’ ” (Kutner, Euthanasia: Due Process For Death With Dignity; The Living Will, 54 Ind LJ 201, 223.)

      . Nothing in article 33 of the Mental Hygiene Law or in the administrative regulations of the commissioner (14 NYCRR 27.9 [c]) (assuming the power of the commissioner by promulgation of regulation to confer standing) conferred standing on the acting director of the developmental center to institute the present proceeding.

      . Indeed, in one perspective this case might be said to fall in a classification quite distinct from that in Eichner, namely, one concerning the authority of the courts to authorize a surrogate determination on behalf of an incompetent adult who is incurably ill, but lacks capacity to make such a determination himself, to discontinue an extraordinary life support medical procedure which is not necessarily prolonging his life, i.e., a decision relating to the quality but not the duration of life of a patient facing inescapably accelerated death. The courts below, and now the majority in our court, however, have analogized this case to that of Eichner, posing the question of extending (“at best * * * only a short extension of life”, as the Appellate Division stated it [78 AD2d 1013]) the life of an incurably ill patient.


source: Caselaw Access Project

author: Chief Judge Cooke. Fuchsberg, J.

license: Public Domain

text:
    American Broadcasting Companies, Inc., Appellant, v Warner Wolf et al., Respondents.
    Argued March 18, 1981;
    decided April 2, 1981

      POINTS OF COUNSEL

      Philip R. Forlenza, Laura V. Jones and Philip R. Hoffman for appellant.
    I. ABC has no adequate remedy at law for this clear breach of valuable contract rights and flagrant inducement of that breach. (Riggs v Palmer, 115 NY 506; Reiner v North Amer. Newspaper Alliance, 259 NY 250; Metropolitan Opera Assn. v Wagner-Nichols Recorder Corp., 199 Misc 786, 279 App Div 632; Hastings Attractions v Howard, 119 Misc 326; King Records v Brown, 21 AD2d 593; Rogers Theatrical Enterprises v Comstock, 225 App Div 34; Dailey v City of New York, 170 App Div 267, 218 NY 665; Columbus Cosmetic Corp. v Shoppers Fair of South Bend, 26 AD2d 391; Lesron Jr. v Feinberg, 13 AD2d 90.) II. Enforcement of a negative covenant by granting injunctive relief is necessary to protect ABC’s contractual rights and would not be unreasonable. (Goldberg Co. v Stern, 53 AD2d 246; Horne v Radiological Health Servs., 83 Misc 2d 446, 51 AD2d 544; Rogers Theatrical Enterprises v Comstock, 225 App Div 34; Kirke La Shelle Co. v Armstrong Co., 263 NY 79; Cortese v Connors, 1 NY2d 265; Colonie Motors v Heritage Corp. of N. Y., 61 AD2d 1105; Demetres v Schulman, 3 AD2d 673; Garelik v Rennard, 116 Misc 352; Bloomingdale v Bloomingdale, 107 Misc 646; Piper v Hoard, 107 NY 73.)

      Robert M. Callagy and Barbara L. Wartelle for CBS Inc., respondent, and Ivan J. Shefferman, of the Maryland Bar, admitted on motion pro hac vice, for Warner Wolf, respondent.
    I. The February 22 agreement released Wolf to join the station of his choice on June 4. (Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Janos v Peck, 21 AD2d 529; Bethlehem Eng. Export Co. v Christie, 105 F2d 933; Shubert Theatrical Co. v Gallagher, 200 App Div 596.) II. The court below correctly denied ABC’s request for an injunction. (King Records v Brown, 21 AD2d 593; Rogers Theatrical Enterprises v Comstock, 225 App Div 34; Shubert Theatrical Co. v Gallagher, 206 App Div 514; Hastings Attractions v Howard, 119 Misc 326; Evening News Assn. v Peterson, 477 F Supp 77; Purchasing Assoc. v Weitz, 13 NY2d 267; Reed, Roberts Assoc. v Strauman, 40 NY2d 303; Legal Recording & Research

      Bur. v Wicka, 62 AD2d 486; Goldberg Co. v Stern, 53 AD2d 246.) III. Because the dissenting opinion of Justice Murphy does not concern a question of law, this court should dismiss ABC’s appeal. (East 63rd St. Assn. v Coleman, 414 F Supp 1318; James v Board of Educ., 42 NY2d 357; Connecticut Professional Sports Corp. v Heyman, 276 F Supp 618; Sybron Corp. v Wetzel, 46 NY2d 197; Guggenheimer v Ginzburg, 43 NY2d 268; Karpinski v Ingrasci, 28 NY2d 45; Arena Athletic Club of McPortland, 41 App Div 352.)
   OPINION OF THE COURT

Chief Judge Cooke.

This case provides an interesting insight into the fierce competition in the television industry for popular performers and favorable ratings.- It requires legal resolution of a rather novel employment imbroglio.

The issue is whether plaintiff American Broadcasting Companies, Incorporated (ABC), is entitled to equitable relief against defendant Warner Wolf, a New York City sportscaster, because of Wolf’s breach of a good faith negotiation provision of a now expired broadcasting contract with ABC. In the present circumstances, it is concluded that the equitable relief sought by plaintiff — which would have the effect of forcing Wolf off the air — may not be granted.

I.

Warner Wolf, a sportscaster who has developed a rather colorful and unique on-the-air personality, had been employed by ABC since 1976. In February, 1978, ABC and Wolf entered into an employment agreement which, following exercise of a renewal option, was to terminate on March 5, 1980. The contract contained a clause, known as a good-faith negotiation and first-refusal provision, that is at the crux of this litigation: “You agree, if we so elect, during the last ninety (90) days prior to the expiration of the extended term of this agreement, to enter into good faith negotiations with us for the extension of this agreement on mutually agreeable terms. You further agree that for the first forty-five (45) days of this renegotiation period, you will not negotiate for your services with any other person or company other than WABC-TV or ABC. In the event we are unable to reach an agreement for an extension by the expiration of the extended term hereof, you agree that you will not accept, in any market for a period of three (3) months following expiration of the extended term of this agreement, any offer of employment as a sportscaster, sports news reporter, commentator, program host, Or analyst in broadcasting (including television, cable television, pay television and radio) without first giving us, in writing, an opportunity to employ you on substantially similar terms and you agree to enter into an agreement with us on such terms.” Under this provision, Wolf was bound to negotiate in good faith with ABC for the 90-day period from December 6, 1979 through March 4, 1980. For the first 45 days, December 6 through January 19, the negotiation with ABC was to be exclusive. Following expiration of the 90-day negotiating period and the contract on March 5, 1980, Wolf was required, before accepting any other offer, to afford ABC a right of first refusal; he could comply with this provision either by refraining from accepting another offer or by first tendering the offer to ABC. The first-refusal period expired on June 3, 1980 and on June 4 Wolf was free to accept any job opportunity, without obligation to ABC.

Wolf first met with ABC executives in September, 1979 to discuss the terms of a renewal contract. Counterproposals were exchanged, and the parties agreed to finalize the matter by October 15. Meanwhile, unbeknownst to ABC, Wolf met with representatives of CBS in early October. Wolf related his employment requirements and also discussed the first refusal-good faith negotiation clause of his ABC contract. Wolf furnished CBS a copy of that portion of the ABC agreement. On October 12, ABC officials and Wolf met, but were unable to reach agreement on a renewal contract. A few days later, on October 16 Wolf again discussed employment possibilities with CBS.

Not until January 2, 1980 did ABC again contact Wolf. At that time, ABC expressed its willingness to meet substantially all of his demands. Wolf rejected the offer, however, citing ABC’s delay in communicating with him and his desire to explore his options in light of the impending expiration of the 45-day exclusive negotiation period.

On February 1,1980, after termination of that exclusive period, Wolf and CBS orally agreed oh the terms of Wolf’s employment as sportscaster for WCBS-TV, a CBS-owned affiliate in New York. During the next two days, CBS informed Wolf that it had prepared two agreements and divided his annual compensation between the two: one covered his services as an on-the-air sportscaster, and the other was an off-the-air production agreement for sports specials Wolf was to produce. The production agreement contained an exclusivity clause which barred Wolf from performing “services of any nature for” or permitting the use of his “name, likeness, voice or endorsement by, any person, firm or corporation” during the term of the agreement, unless CBS consented. The contract had an effective date of March 6, 1980.

Wolf signed the CBS production agreement on February 4, 1980. At the same time, CBS agreed in writing, in consideration of $100 received from Wolf, to hold open an offer of employment to Wolf as sportscaster until June 4, 1980, the date on which Wolf became free from ABC’s right of first refusal. The next day, February 5, Wolf submitted a letter of resignation to ABC.

Representatives of ABC met with Wolf on February 6 and made various offers and promises that Wolf rejected. Wolf informed ABC that they had delayed negotiations with him and downgraded his worth. He stated he had no future with the company. He told the officials he had made a “gentlemen’s agreement” and would leave ABC on March 5. Later in February, Wolf and ABC agreed that Wolf would continue to appear on the air during a portion of the first-refusal period, from March 6 until May 28.

ABC commenced this action on May 6, 1980, by which time Wolf’s move to CBS had become public knowledge. The complaint alleged that Wolf, induced by CBS, breached both the good-faith negotiation and first-refusal provisions of his contract with ABC. ABC sought specific enforcement of its right of first refusal and an injunction against Wolf’s employment as a sportscaster with CBS.

After a trial, Supreme Court found no breach of the contract, and went on to note that, in any event, equitable relief would be inappropriate. A divided Appellate Division, while concluding that Wolf had breached both the good-faith negotiation and first-refusal provisions, nonetheless affirmed on the ground that equitable intervention was unwarranted. There should be an affirmance.

II.

Initially, we agree with the Appellate Division that defendant Wolf breached his obligation to negotiate in good faith with ABC from December, 1979 through March, 1980. When Wolf signed the production agreement with CBS on February 4, 1980, he obligated himself not to render services “of any nature” to any person, firm or corporation on and after March 6, 1980. Quite simply, then, beginning on February 4 Wolf was unable to extend his contract with ABC; his contract with CBS precluded him from legally serving ABC in any capacity after March 5. Given Wolf’s existing obligation to CBS, any negotiations he engaged in with ABC, without the consent of CBS, after February 4 were meaningless and could not have been in good faith.

At the same time, there is no basis in the record for the Appellate Division’s conclusion that Wolf violated the first-refusal provision by entering into an oral sportscasting contract with CBS on February 4. The first-refusal provision required Wolf, for a period of 90 days after termination of the ABC agreement, either to refrain from accepting an offer of employment or to first submit the offer to ABC for its consideration. By its own terms, the right of first refusal did not apply to offers accepted by Wolf prior to the March 5 termination of the ABC employment contract. It is apparent, therefore, that Wolf could not have breached the right of first refusal by accepting an offer during the term of his employment with ABC. Rather, his conduct violates only the good-faith negotiation clause of the contract. The question is whether this breach entitled ABC to injunctive relief that would bar Wolf from continued employment at CBS. To resolve this issue, it is necessary to trace the principles of specific performance applicable to personal service contracts.

III.

-A-

Courts of equity historically have refused to order an individual to perform a contract for personal services (e.g., 4 Pomeroy, Equity Jurisprudence [5th ed], § 1343, at pp 943-944; 5A Corbin, Contracts, § 1204; see Haight v Badgeley, 15 Barb 499; Willard, Equity Jurisprudence, at pp 276-279). Originally this rule evolved because of the inherent difficulties courts would encounter in supervising the performance of uniquely personal efforts (e.g., 4 Pomeroy, Equity Jurisprudence, § 1343; 5A Corbin, Contracts, § 1204; see, also, De Rivafinoli v Corsetti, 4 Paige Ch 264, 270). During the Civil War era, there emerged a more compelling reason for not directing the performance of personal services: the Thirteenth Amendment’s prohibition of involuntary servitude. It has been strongly suggested that judicial compulsion of services would violate the express command of that amendment (Arthur v Oakes, 63 F 310, 317; Stevens, Involuntary Servitude by Injunction, 6 Corn LQ 235; Calamari & Perillo, The Law of Contracts [2d ed], § 16-5). For practical, policy and constitutional reasons, therefore, courts continue to decline to affirmatively enforce employment contracts.

Over the years, however, in certain narrowly tailored situations, the law fashioned other remedies for failure to perform an employment agreement. Thus, where an employee refuses to render services to an employér in violation of an existing contract, and the services are unique or extraordinary, an injunction may issue to prevent the employee from furnishing those services to another person for the duration of the contract (see, e.g., Shubert Theatrical Co. v Gallagher, 206 App Div 514). Such “negative enforcement” was initially available only when the employee had expressly stipulated not to compete with the employer for the term of the engagement (see, e.g., Lumley v Wagner, 1 DeG M & G 604, 42 Eng Rep 687; Shubert Theatrical Co. v Rath, 271 F 827, 830-883; 4 Pomeroy, Equity Jurisprudence [5th ed], § 1343, at p 944). Later cases permitted injunctive relief where the circumstances justified implication of a negative covenant (see, e.g., Montague v Flockton, LR 16 Eq 189 [1873], 4 Pomeroy, Equity Jurisprudence [5th ed], § 1343; 5A Corbin, Contracts, § 1205). In these situations, an injunction is warranted because the employee either expressly or by clear implication agreed not to work elsewhere for the period of his contract. And, since the services must be unique before negative enforcement will be granted, irreparable harm will befall the employer should the employee be permitted to labor for a competitor (see 5A Corbin, Contracts, § 1206, at p 412).

-B-

After a personal service contract terminates, the availability of equitable relief against the former employee diminishes appreciably. Since the period of service has expired, it is impossible to decree affirmative or negative specific performance. Only if the employee has expressly agreed not to compete with the employer following the term of the contract, or is threatening to disclose trade secrets or commit another tortious act, is injunctive relief generally available at the behest of the employer (see, e.g., Reed, Roberts Assoc. v Strauman, 40 NY2d 303; Purchasing Assoc. v Weitz, 13 NY2d 267; Town & Country House & Home Serv. v Newbery, 3 NY2d 554). Even where there is an express anticompetitive covenant, however, it will be rigorously examined and specifically enforced only if it satisfies certain established requirements (see, e.g., Reed, Roberts Assoc. v Strauman, supra, at pp 307-308; Purchasing Assoc. v Weitz, supra, at pp 272-273; see, generally, Calamar! & Perillo, The Law of Contracts [2d ed], §16-19, at pp 601-602). Indeed, a court normally will not decree specific enforcement of an employee’s anticompetitive covenant unless necessary to protect the trade secrets, customer lists or good will of the employer’s business, or perhaps when the employer is exposed to special harm because of the unique nature of the employee’s services (see, e.g., Reed, Roberts Assoc. v Strauman, supra, at p 308; Purchasing Assoc. v Weitz, supra, at pp 272-273; Lepel High Frequency Labs. v Capita, 278 NY 661, affg 253 App Div 799; 6A Corbin, Contracts, § 1394). And, an otherwise valid covenant will not be enforced if it is unreasonable in time, space or scope or would operate in a harsh or oppressive manner (e.g., Reed, Roberts Assoc. v Strauman, 40 NY2d, at p 307, supra; Clark Paper & Mfg. Co. v Stenacher, 236 NY 312; 6A Corbin, Contracts, § 1394). There is, in short, general judicial disfavor of anticompetitive covenants contained in employment contracts (e.g., Reed, Roberts Assoc. v Strauman, supra, at p 307).

Underlying the strict approach to enforcement of these covenants is the notion that, once the term of an employment agreement has expired, the general public policy favoring robust and uninhibited competition should not give way merely because a particular employer wishes to insulate himself from competition (e.g., Clark Paper & Mfg. Co. v Stenacher, 236 NY 312, 319-320, supra; 6A Corbin, Contracts, § 1394, at p 100). Important, too, are the “powerful considerations of public policy which militate against sanctioning the loss of a man’s livelihood” (Purchasing Assoc. v Weitz, 13 NY2d, at p 272, supra). At the same time, the employer is entitled to protection from unfair or illegal conduct that causes economic injury. The rules governing enforcement of anticompetitive covenants and the availability of equitable relief after termination of employment are designed to foster these interests of the employer without impairing the employee’s ability to earn a living or the general competitive mold of society.

-C-

Specific enforcement of personal service contracts thus turns initially upon whether the term of employment has expired. If the employee refuses to perform during the period of employment, was furnishing unique services, has expressly or by clear implication agreed not to compete for the duration of the contract and the employer is exposed to irreparable injury, it may be appropriate to restrain the employee from competing until the agreement expires. Once the employment contract has terminated, by contrast, equitable relief is potentially available only to prevent injury from unfair competition or similar tortious behavior or to enforce an express and valid anticompetitive covenant. In the absence of such circumstances, the general policy of unfettered competition should prevail.

IV.

Applying these principles, it is apparent that ABC’s request for injunctive relief must fail. There is no existing employment agreement between the parties; the original contract terminated in March, 1980. Thus, the negative enforcement that might be appropriate during the term of employment is unwarranted here. Nor is there an express anticompetitive covenant that defendant Wolf is violating, or any claim of special injury from tortious conduct such as exploitation of trade secrets. In short, ABC seeks to premise equitable relief after termination of the employment upon a simple, albeit serious, breach of a general contract negotiation clause. To grant an injunction in that situation would be to unduly interfere with an individual's livelihood and to inhibit free competition where there is no corresponding injury to the employer other than the loss of a competitive edge. Indeed, if relief were granted here, any breach of an employment contract provision relating to renewal negotiations logically would serve as the basis for an open-ended restraint upon the employee’s ability to earn a living should he ultimately choose not to extend his employment. Our public policy, which favors the free exchange of goods and services through established market mechanisms, dictates otherwise.

Equally unavailing is ABC’s request that the court create a noncompetitive covenant by implication. Although in a proper case an impliecl-in-fact covenant not to compete for the term of employment may be found to exist, anticompetitive covenants covering the postemployment period will not be implied. Indeed, even an express covenant will be scrutinized and enforced only in accordance with established principles.

This is not to say that ABC has not been damaged in some fashion or that Wolf should escape responsibility for the breach of his good-faith negotiation obligation. Rather, we merely conclude that ABC is not entitled to equitable relief. Because of the unique circumstances presented, however, this decision is without prejudice to ABC’s right to pursue relief in the form of monetary damages, if it be so advised.

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

Fuchsberg, J.

(dissenting). I agree with all the members of this court, as had all the Justices at the Appellate Division, that the defendant Wolf breached his undisputed obligation to negotiate in good faith for renewal of his contract with ABC. Where we part company is in the majority’s unwillingness to mold an equitable decree, even one more limited than the harsh one the plaintiff proposed, to right the wrong.

Central to the disposition of this case is the first-refusal provision. Its terms are worth recounting. They plainly provide that, in the 90-day period immediately succeeding the termination of his ABC contract, before Wolf could accept a position as sportscaster with another company, he first had to afford ABC the opportunity to engage him on like terms. True, he was not required to entertain offers, whether from ABC or anyone else, during that period. In that event he, of course, would be off the air for that 90 days, during which ABC could attempt to orient its listeners from Wolf to his successor. On the other hand, if Wolf wished to continue to broadcast actively during the 90 days, ABC’s right of first refusal put it in a position to make sure that Wolf was not doing so for a competitior. One way or the other, however labeled, the total effect of the first refusal agreement was that of an express conditional covenant under which Wolf could be restricted from appearing on the air other than for ABC for the 90-day posttermination period.

One need not be in the broadcasting business to understand that the restriction ABC bargained for, and Wolf granted, when they entered into the original employment contract was not inconsequential. The earnings of broadcasting companies are directly related to the “ratings” they receive. This, in turn, is at least in part dependent on the popularity of personalities like Wolf. It therefore was to ABC’s advantage, once Wolf came into its employ, especially since he was new to the New York market, that it enhance his popularity by feáturing, advertising and otherwise promoting him. This meant that the loyalty of at least part of the station’s listening audience would become identified with Wolf, thus enhancing his potential value to competitors, as witness the fact that, in place of the $250,-000 he was receiving during his last year with ABC, he was able to command $400,000 to $450,000 per annum in his CBS “deal”. A reasonable opportunity during which ABC could cope with such an assault on its good will had to be behind the clause in question.

Moreover, it is undisputed that, when in late February Wolf executed the contract for an extension of employment during the 90-day hiatus for which the parties had bargained, ABC had every right to expect that Wolf had not already committed himself to an exclusivity provision in a producer’s contract with CBS in violation of the good-faith negotiation clause (see majority opn at pp 397-398). Surely, had ABC been aware of this gross breach, had it not been duped into giving an uninformed consent, it would not have agreed to serve as a self-destructive vehicle for the further enhancement of Wolf’s potential for taking his ABC-earned following with him.

In the face of these considerations, the majority rationalizes its position of powerlessness to grant equitable relief by choosing to interpret the contract as though there were no restrictive covenant, express or implied. However, as demonstrated, there is, in 'fact, an express three-month negative covenant which, because of Wolf’s misconduct, ABC was effectively denied the opportunity to exercise. Enforcement of this covenant, by enjoining Wolf from broadcasting for a three-month period, would depart from no entrenched legal precedent. Rather, it would accord with equity’s boasted flexibility (see 11 Williston, Contracts [3d ed], § 1450, at pp 1043-1044; 6A Corbin, Contracts, § 1394, at p 100; see, generally, 20 NY Jur [rev], Equity, §§ 79, 83, 84).

That said, a few words are in order regarding the majority’s insistence that Wolf did not breach the first-refusal clause. It is remarkable that, to this end, it has to ignore its own crediting of the Appellate Division’s express finding that, as far back as February 1, 1980, fully a month before the ABC contract was to terminate, “Wolf and CBS orally agreed on the terms of Wolf’s employment as sportscaster for WCBS-TV” (majority opn, at p 399; see American Broadcasting Cos. v Wolf, 76 AD2d 162, 166, 170-171). It follows that the overt written CBS-Wolf option contract, which permitted Wolf to formally accept the CBS sportscasting offer at the end of the first-refusal period, was nothing but a charade.

Further, on this score, the majority’s premise that Wolf could not have breached the first-refusal clause when he accepted the producer’s agreement, exclusivity provision and all, during the term of his ABC contract, does not withstand analysis. So precious a reading of the arrangement with ABC frustrates the very purpose for which it had to have been made. Such a classical exaltation of form over substance is hardly to be countenanced by equity (see Washer v Seager, 272 App Div 297, affd 297 NY 918).

For all these reasons, in my view, literal as well as proverbial justice should have brought a modification of the order of the Appellate Division to include a 90-day injunction — no more and no less than the relatively short and certainly not unreasonable transitional period for which ABC and Wolf struck their bargain.

Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur with Chief Judge Cooke; Judge Fuchsberg dissents in part and votes to modify in a separate opinion.

Order affirmed, with costs.

      . The agreement also provided that on or after June 4, 1980 Wolf was free to “accept an offer of employment with anyone of [his] choosing and immediately begin performing on-air services.” The parties agreed that their rights and obligations under the original employment contract were in no way affected by the extension of employment.

      . In any event, the carefully tailored written agreement between Wolf and CBS consisted only of an option prior to June 4, 1979. Acceptance of CBS’s offer of employment as a sportscaster did not occur until after the expiration of the first-refusal period on June 4, 1979.

      . In its complaint, ABC originally sought specific enforcement of the right of first refusal. ABC now suggests that Wolf be enjoined from performing services for CBS’for a two-year period. Alternatively, ABC requests this court to “turn the clock back to February 1, 1980” by: (1) setting aside Wolf’s agreement with CBS and enjoining CBS from enforcing the agreement; (2) ordering Wolf to enter into good-faith negotiations with ABC for at least the period remaining under the negotiation clause when Wolf breached it; (3) ordering Wolf to honor the 90-day first-refusal period should the parties fail to reach agreement; and (4) enjoining CBS from negotiating with Wolf “for a period sufficient to render meaningful the above-described relief”.

      . The New York Court of Chancery in De Rivafinoli v Corsetti (4 Paige Ch 264, 270) eloquently articulated the traditional rationale for refusing affirmative enforcement of personal service contracts: “I am not aware that any officer of this court has that perfect knowledge of the Italian language, or possesses that exquisite sensibility in the auricular nerve which is necessary to understand, and to enjoy with a proper zest, the peculiar beauties of the Italian opera, so fascinating to the fashionable world. There might be some difficulty, therefore, even if the defendant was compelled to sing under the direction and in the presence of a master in chancery, in ascertaining whether he performed his engagement according to its spirit and intent. It would also be very difficult for the master to determine what effect coercion might produce upon the defendant’s singing, especially in the livelier airs; although the fear of imprisonment would unquestionably deepen his seriousness in the graver parts of the drama. But one thing at least is certain; his songs will be neither comic, or even semi-serious, while he remains confined in that dismal cage, the debtor’s prison of New York.”

      . It is well established that legislative enactments may not coerce performance of services by penalizing nonperformance (e.g., People v Lavender, 48 NY2d 334, 338-339).

      . Although an employee’s anticompetitive covenant may be enforceable where the employee’s services were special or unique (Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 308, supra; Purchasing Assoc. v Weitz, 13 NY2d 267, 272-273, supra), no New York case has been found where enforcement has been granted, following termination of the employment contract, solely on the basis of the uniqueness of the services.

      . Even if Wolf had breached the first-refusal provision, it does not necessarily follow that injunctive relief would be available. Outside the personal service area, the usual equitable remedy for breach of a first-refusal clause is to order the breaching party to perform the contract with the person possessing the first-refusal right (e.g., 5A Corbin, Contracts, § 1197, at pp 377-378). When personal services are involved, this would result in an affirmative injunction ordering the employee to perform services for plaintiff. Such relief, as discussed, cannot be granted.

      . Interestingly, the negative enforcement ABC seeks — an injunction barring Wolf from broadcasting for CBS — is for a two-year period. ABC’s request is premised upon the fact that Wolf and CBS entered into a two-year agreement. Had the agreement been for 10 years, presumably ABC would have requested a 10-year restraint. In short, since it lacks an express anticompetitive clause to enforce, plaintiff seeks to measure its relief in a manner unrelated to the breach or the injury. This well illustrates one of the reasons why the law requires an express anticompetitive clause before it will restrain an employee from competing after termination of the employment.

      . Of course, as discussed, tortious interference with the employer’s business by a former employee may sometimes be enjoined absent a noncompetitive covenant.

      . It should be noted that the dissenter would ground relief upon the first-refusal clause, a provision of the contract that defendant did not breach. The dissenting opinion fails to specify why the first-refusal clause — or for that matter any other provision of the contract that defendant did not breach — is relevant in determining the availability of equitable relief. And, while the dissent correctly noted the flexibility of equitable remedies, this does not mean that courts of equity totally dispense with governing rules. Our analysis of the relevant principles, guided by important underlying policy considerations, reveals that this case falls well beyond the realm where equitable intervention would be permissible.
      The dissenting opinion would now create a new agreement for the parties, and apply the first-refusal clause backwards into the period of the ABC employment, under the guise of equitable interpretation. Although the reach of equity may be broad, so far as we are aware equitable principles have never sanctioned the creation of a new and different contract between sophisticated parties merely to condemn conduct which was permissible under an actual written agreement.

       This figure is taken from the ABC-Wolf agreement, as reproduced in the record, rather than the $150,000 figure mentioned in the officially reported Appellate Division opinion (76 AD2d 162, 165).