author: Meyer, J.

text:
    Birdell Hill et al., Respondents, v St. Clare’s Hospital et al., Appellants, et al., Defendant.
    Argued January 8, 1986;
    decided February 19, 1986

      POINTS OF COUNSEL

      Stuart E. Kahan and Marshal S. Endick for St. Clare’s Hospital, appellant.
    The judgment rendered below should have been reduced by the settlement received by plaintiffs in their prior action. (Retzel v State of New York, 94 Misc 2d 562; Westwood Chem. Co. v Kulick, 570 F Supp 1032; Merrill v State of New York, 110 Misc 2d 260, 89 AD2d 802; Hagar v Hutchins, 91 Misc 2d 402; Milks v McIver, 264 NY 267; Zarcone v Perry, 78 AD2d 70; DeCosta v Williams, 119 Misc 2d 314.)

      Laurence M. McKenna for Rudolph F. Bono, appellant.
    It was error to submit the question of Dr. Bono’s vicarious liability to the jury. (Graddy v New York Med. Coll., 19 AD2d 426, 13 NY2d 1175; Rivera v Bronx-Lebanon Hosp. Center, 70 AD2d 794; Metropolitan Life Ins. Co. v Childs Co., 230 NY 285; Connell v Hayden, 83 AD2d 30; Ruane v Niagara Falls Mem. Med. Center, 60 NY2d 908.)

      Herman Schmertz for respondents.
    I. The issue of defendant Bono’s derivative liability, clearly factual in nature, was duly submitted to the jury under altogether objective and proper instructions on the law, the propriety of which is not challenged in this court. (Knobloch v Royal Globe Ins. Co., 38 NY2d 471; Hannon v Siegel-Cooper Co., 167 NY 244; Lanza v Parkeast Hosp., 102 AD2d 741; Mduba v Benedictine Hosp., 52 AD2d 450; Rivera v Bronx-Lebanon Hosp. Center, 70 AD2d 794; Felice v St. Agnes Hosp., 65 AD2d 388; Heinsohn v Putnam Community Hosp., 65 AD2d 767; Escobar v New York Hosp., 111 AD2d 128; Mertsaris v 73rd Corp., 105 AD2d 67.) II. As the Trial Justice and the court below recognized, there was never any warrant on the instant record for reducing by any amount the judgment in favor of plaintiff Birdell Hill. Defendants’ boldly persistent proposal, implicit in their present argument, that there exists a matter-of-law right in their favor to the bestowal of a $57,000 credit, is devoid of merit. (Hawkins v City of New York, 99 AD2d 481; Retzel v State of New York, 94 Misc 2d 562; Tate v Colabello, 58 NY2d 84; Zipprich v Smith Trucking Co., 2 NY2d 177.)
   OPINION OF THE COURT

Meyer, J.

Involved in this appeal are questions of vicarious liability of a physician operating a clinic and of the effect with respect to a successive tort-feasor of a release given to the original tort-feasor. As to the first, we conclude that a physician who owns a medical clinic which is held out to the public as offering medical services may be held vicariously liable for the malpractice of a treating doctor even though the owner-physician neither participates in nor controls the diagnosis made or treatment prescribed. As to the second, we hold that General Obligations Law § 15-108 (a) imposes upon the plaintiff who releases the original tort-feasor the burden of proving the extent to which his release reduces his claim against a hospital or physician who through malpractice aggravates the original injuries. The order of the Appellate Division should, therefore, be modified and the case remitted to Supreme Court, New York County, for a further hearing on the effect of plaintiff’s release of the original tort-feasors and, as so modified, should be affirmed, with costs to plaintiff against defendant Bono and costs to defendant St. Clare’s Hospital against plaintiff.

I

Plaintiff Birdell Hill was injured on June 30, 1972, when a sidewalk elevator plummeted some 18 feet into a subcellar, causing pain in his feet, shoulder and wrist. He was taken to St. Clare’s Hospital, where his feet were X-rayed, but was told by the hospital doctors that no bones were broken and that he had suffered "soft tissue injury.” His right ankle was wrapped in an ace bandage and he was given a cane and told to see a "company doctor.”

Some years before, Hill had been a patient at The Benjamin A. Gilbert Medical Clinic, an industrial medical practice then run by Dr. Gilbert, and he had also taken an injured coworker to that clinic for treatment. On the day following his own injury, Hill went to the Gilbert Clinic. The clinic had been run by Dr. Benjamin Gilbert for some 40 years on West 45th Street in Manhattan. Faced with the need for emergency surgery and concerned lest his patients turn to other physicians during his absence, Dr. Gilbert asked defendant Bono, a friend and practicing physician, to use the name Benjamin A. Gilbert Medical Clinic while he was incapacitated. Dr. Bono agreed and began to use the name of the clinic at a suite of offices leased by him on West 44th Street. He also arranged for two secretaries and two physicians (Carranza and De Nalfi) formerly with Dr. Gilbert to move into the West 44th Street offices, where all three physicians treated their own patients as well as those of Dr. Gilbert. Dr. Gilbert never practiced at the West 44th Street office, however, because the ailment which caused his hospitalization proved fatal.

Plaintiff knew none of the clinic doctors by name when he visited the clinic the day following his injury and it is undisputed that he was never seen professionally by Dr. Bono at the clinic or elsewhere. On his first visit he was seen by either Dr. Carranza or Dr. De Nalfi, who looked at his wrist and ankle and requested the hospital X rays. Several days later, after obtaining the hospital X rays and taking a second set of his own, Dr. Carranza applied a cast to plaintiff’s right foot. Plaintiff testified that in addition to the fact that his right foot "looked funny” and was "curved toward the right,” the large toe of his left foot was "sticking up a bit.” He visited the clinic on five or six other occasions through early August, when Dr. Carranza referred him to Dr. Selig Strax.

Dr. Strax testified that plaintiff suffered not only fractures of the second, third and fourth metatarsal bones of his right foot but also a complete dislocation of his left great toe which had not been diagnosed by St. Clare’s Hospital or by either Dr. Carranza or Dr. De Nalfi, that plaintiff’s having attempted to walk on the foot for six or seven weeks following the injury had necessitated surgery and had resulted in a permanent deformity, known as a "hammer toe,” as well as other complications.

Hill and his wife, Mamie, as derivative plaintiff, began lawsuits against the owner and operator of the building in which he was injured, the elevator manufacturer and the manufacturer of the elevator’s gears (hereafter original tortfeasors). Some time thereafter, the present action was separately begun by the same two plaintiffs against St. Clare’s Hospital and Drs. Bono and Carranza, doing business as The Benjamin A. Gilbert Medical Clinic. Prior to trial of the present action the action against the original tort-feasors was settled with respect to both plaintiffs for a total of $57,000. They executed a general release containing no reservation of rights or allocation of damages as between plaintiffs or as to injuries, although the amount paid by each of the contributing defendants was set forth in it. The defendants in the present action were permitted during trial to amend their answers to assert the release as an affirmative defense, and a hearing on the question was held by the Trial Judge pursuant to CPLR 4533-b at which plaintiff testified, the bills of particulars in the prior actions were introduced, and plaintiffs’ attorneys conceded that the claim made against the original tort-feasors included the aggravation of Birdell Hill’s injuries by the present defendants and that the release given was "a release of all claims asserted in the action against them.” The Trial Judge, concluding that the burden of proof was upon defendants to establish what portion of the prior settlement, if any, was for the derivative plaintiff, what portion was for injuries to portions of Birdell Hill’s body not involved in the present action, and what portion was for the present defendants’ aggravation of the original injuries to his left foot, denied any offset for the prior settlement.

At the close of plaintiffs’ case and at the close of the entire case, defendant Bono moved to dismiss on the ground that he had never seen Birdell Hill professionally and that Dr. Carranza was an independent contractor. The motion was denied and the case went to the jury under a charge, to which Dr. Bono excepted, that a clinic which furnishes an independent doctor to perform services at that clinic is responsible for the negligence of that doctor. The jury found in favor of Birdell Hill against both defendants in the amount of $200,000, apportioning liability of 30% to St. Clare’s Hospital and 70% to Dr. Bono, but found in favor of defendants on Mamie Hill’s derivative claim. The Trial Judge ordered a new trial on damages unless Birdell Hill agreed to accept $132,340, which he did, and set aside the defendants’ verdict against Mamie Hill as against the weight of the evidence.

On appeal by defendants to the Appellate Division, that court affirmed, holding unanimously (although by a 3 to 2 split as to the reasons) that denial of any offset for the settlement with the original tort-feasors was proper and, over the dissent of the two of its members, that sufficient evidence had been presented to require submission to the jury of the question of Dr. Bono’s liability for the negligent acts of Dr. Carranza. Defendant Bono both appealed as of right and moved before the Appellate Division for leave to appeal, apparently to obviate any finality question resulting from the stipulation deferring the new trial as to Mamie Hill. We granted St. Clare’s motion so that both defendants involved in the offset issue would be before us. For the reasons that follow, we conclude that the question of Dr. Bono’s liability was properly submitted to the jury but that the courts below erred in holding that defendants bore the burden of proving what was covered by the release given to the original tortfeasors. We, therefore, modify the order of the Appellate Division and remit the case to Supreme Court, New York County, for further hearing on the release issue pursuant to CPLR 4533-b and, as so modified, affirm.

II

A

Although a hospital or other medical facility is liable for the negligence or malpractice of its employees (Bing v Thunig, 2 NY2d 656), that rule does not apply when the treatment is provided by an independent physician, as when the physician is retained by the patient himself (Fiorentino v Wenger, 19 NY2d 407, 414; see, Topel v Long Is. Jewish Med. Center, 55 NY2d 682, 683), unless the hospital knows that the patient is unaware of the dangers and novelty of the medical procedure proposed to be performed (Fiorentino v Wenger, 19 NY2d, at p 417, supra; see, Ann., 12 ALR4th 57). Nor is affiliation of a doctor with a hospital or other medical facility, not amounting to employment, alone sufficient to impute the doctor’s negligent conduct to the hospital or facility (see, Ruane v Niagara Falls Mem. Med. Center, 60 NY2d 908; McDermott v Torre, 56 NY2d 399). Thus, a hospital may not be held for the acts of an anesthetist who was not an employee of the hospital, but one of a group of independent contractors (Holzberg v Flower & Fifth Ave. Hosps., 32 NY2d 716, affg 39 AD2d 526), and when physicians share office space and by agreement service each other’s patients for a shared fee, the malpractice of the treating physician will not be imputed to the absent physician, even though it is the latter who bills for the treatment (Graddy v New York Med. Coll., 19 AD2d 426, 430, mot to dismiss appeal denied 13 NY2d 1175). Likewise, that a physician is a shareholder, officer or employee of a professional service corporation does not make him vicariously liable for the malpractice of another doctor who is an officer, director and employee of the corporation (Connell v Hayden, 83 AD2d 30, 49-59; Business Corporation Law § 1505 [a]).

While vicarious liability for medical malpractice generally turns, therefore, on agency or control in fact (see generally, Ann., 69 ALR2d 305), we have also, in Hannon v Siegel-Cooper Co. (167 NY 244), recognized as a predicate for malpractice liability apparent or ostensible agency (or, as it is sometimes called, agency by estoppel or by holding out). Hannon was an action against a New York City department store which represented and advertised itself as carrying on the practice of dentistry in one of its departments. The department was, in fact, leased to a Mr. Hayes, who employed Dr. Cooney to render professional service in the department. Plaintiff, claiming to have been injured by Dr. Cooney’s negligent and unskillful services, sued the department store and recovered a verdict. The Trial Judge had instructed the jury that: " 'If the defendants in this case made representation to the plaintiff, on which she relied, that they were conducting a dentist business in their store, and if she, because of those, representations, hired the workman in the store of the defendants, with no knowledge that the business was conducted by Mr. Hayes individually, you may find the defendants responsible for the acts of the dentist who treated the plaintiff, even though Mr. Hayes, as a matter of fact, was the real owner of that department of the defendants’ store.’ ” (167 NY, at p 246.) On appeal to us it was argued that apparent agency should not be applied, the action being in tort and not on contract. In affirming we held (167 NY, at p 247) that: "[Wjhenever the tort consists of a violation of a duty which springs from the contract between the parties, the ostensible principal should be liable to the same extent in an action ex delicto as in one ex contractu. It is urged that the representation that the operating dentists were the defendant’s servants did not mislead the plaintiff to her injury and, therefore, should not estop the defendant from asserting the truth. There is no force in this claim. If A contracts with the ostensible agent of B for the purchase of goods, he relies not only on the business reputation of B, as to the goods he manufactures or sells, but on the pecuniary responsibility of B to answer for any default in carrying out the contract. So here the plaintiff had a right to rely not only on the presumption that the defendant would employ a skillful dentist as its servant, but also on the fact that if that servant, whether skillful or not, was guilty of any malpractice, she had a responsible party to answer therefor in damages.”

The principle of the Hannon case is accepted in both the Restatement (Second) of Agency § 267, and the Restatement (Second) of Torts § 429. It has been applied to hold a hospital or clinic responsible to a patient who sought medical care at the hospital or clinic rather than from any particular physician although the physician whose malpractice caused injury to the patient was not an employee of the hospital or clinic, by both New York courts (Lanza v Parkeast Hosp., 102 AD2d 741; Rivera v Bronx-Lebanon Hosp. Center, 70 AD2d 794; Heinsohn v Putnam Community Hosp., 65 AD2d 767; Mduba v Benedictine Hosp., 52 AD2d 450; Magwood v Jewish Hosp. & Med. Center, 96 Misc 2d 251; see, Felice v St. Agnes Hosp., 65 AD2d 388; see also, 1 NY PJI2d 396 and PJI 2:255) and the courts of other States (see, e.g., Seneris v Haas, 45 Cal 2d 811, 291 P2d 915; Mehlman v Powell, 281 Md 269, 378 A2d 1121; Howard v Park, 37 Mich App 496, 195 NW2d 39; Stratso v Song, 17 Ohio App 3d 39, 477 NE2d 1176; Adamski v Tacoma Gen. Hosp., 20 Wash App 98, 579 P2d 970).

B

Applying those principles, we conclude that there was sufficient evidence to require submission to the jury of the questions, set forth in note 2 above, whether Dr. Bono was the owner of The Benjamin A. Gilbert Medical Clinic and held the clinic out as offering medical services to the public through any of the physicians practicing in it. As noted above, plaintiffs prior relationship was with the clinic rather than any of the three physicians, and he did not ask to see any particular physician. The report to the Workers’ Compensation Board was signed in Dr. Bono’s name individually, the bill submitted for the services rendered to plaintiff bore the name of the clinic, over which was typed Dr. Bono’s name, and payment was made to Dr. Bono. Dr. Bono testified that he owned the practice known as The Benjamin A. Gilbert Medical Clinic, that the clinic rendered medical services to patients in much the same way as a hospital clinic and that a patient would go "because you know you’re going to be rendered medical service” and because "there was a medical service available on 45th Street to go to.” There was a checking account in the name of the clinic on which only Dr. Bono had the right to draw checks and into which all payments for services rendered by Dr. Bono, or by either of the other doctors when the person served was not a "personal patient [of his] and had just come to the clinic,” were deposited. Dr. Bono would write weekly checks on that account of $400 to each of Drs. Carranza and De Nalfi as their "draw.” Fees for clinic patients, as distinct from personal patients of the other two doctors, were set by Dr. Bono. Office hours were divided among the three doctors whose names together with the name of the clinic were on its door. If a patient wished to see a particular doctor, he or she would have to make an appointment; if no specific doctor was requested, the patient would be seen by the physician in attendance when the patient came in.

There was, to be sure, contradictory evidence from Dr. Bono concerning his relationship with the other two doctors, the reason for his name on the report and the bill and the reason for the draw of the other two doctors, among other things, but in determining whether the evidence was sufficient to go to the jury we consider only whether on the evidence taken in the light most favorable to plaintiff a prima facie case has been made out, not the weight of the evidence (Alexander v Eldred, 63 NY2d 460, 464; Cohen v Hallmark Cards, 45 NY2d 493, 499). Here, unlike the situation in Graddy v New York Med. Coll, (supra), on which defendant Bono so heavily relies, there was evidence from which the jury could find that Dr. Bono owned the clinic and that plaintiff accepted Dr. Carranza’s services in reliance not upon Dr. Carranza’s skill or competence but upon the fact that his services, whatever in fact his relationship with the clinic, were offered by the clinic. On the question of Dr. Bono’s liability, therefore, we agree with the courts below.

Ill

As to the effect of plaintiffs’ release of the original tortfeasors, however, the courts below erred.

The original tort-feasors were liable not only for the injuries incurred by Birdell Hill as a result of the elevator’s fall but also for the aggravation of those injuries through the malpractice of St. Clare’s Hospital as well as the malpractice of Dr. Carranza for which Dr. Bono has been determined to be responsible (Milks v McIver, 264 NY 267; see, Matter of Parchefsky v Kroll Bros., 267 NY 410; PJI 2:305) and St. Clare’s Hospital is responsible not only for its aggravation of the original injuries but also for any aggravation of the injuries inflicted by it through the malpractice of Dr. Carranza (id.). Such liability is, however, successive rather than joint and the injured plaintiff cannot recover the same damages twice (id.; Derby v Prewitt, 12 NY2d 100, 105). It follows that an original wrongdoer held for all of the damages incurred by the person injured is subrogated to the latter’s right to recover from the physician for the damages caused by his or her malpractice (Matter of Parchefsky v Kroll Bros., supra; Matter of Roach v Hastings Plastics Corp., 57 NY2d 293, 297; see, Ann., 8 ALR3d 639) and that if the injured person recovers first from the physician, he may not thereafter recover from the original tort-feasor for the malpractice aggravation (Matter of Parchefsky v Kroll Bros., 267 NY, at p 414, supra).

The common-law rule was that release of the original wrongdoer barred an action against a hospital or physician for the additional injury or damages resulting from the latter’s unskillful treatment of the original injury (Malvica v Blumenfeld, 28 NY2d 851; Milks v McIver, 264 NY, at p 271, supra), except where the injured party was unaware of the malpractice aggravation at the time the release was signed (Derby v Prewitt, supra). That rule was abrogated, however, in 1972, when at the suggestion of the Law Revision Commission (1972 NY Legis Doc No. 65 [K], reprinted at 1972 McKinney’s Session Laws of NY, at 3237-3239) General Obligations Law § 15-108 enacted the rule that a release "given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death * * * does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors”. Under the present wording of General Obligations Law § 15-108 (a), such a release "reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor’s equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest.”

The reference to "two or more persons liable or claimed to be liable in tort for the same injury” covers successive as well as joint tort-feasors, as the Law Revision Commission report emphasizes by reference to Milks v McIver (supra; 1972 McKinney’s Session Laws of NY, at 3237) and as was held in Roma v Buffalo Gen. Hosp. (103 AD2d 606). Nothing in the General Obligations Law or in CPLR article 14 allocates the burden of proof, however, and while "release” and "payment” are affirmative defenses required by CPLR 3018 (b) to be pleaded by a successive tort-feasor seeking to take advantage of the reduction allowed by General Obligations Law § 15-108, the burden of proof is not a necessary concomitant of the burden of pleading (Lavine v Indemnity Ins. Co., 260 NY 399, 410; Glogvics v Preferred Acc. Ins. Co., 245 App Div 817; see, Rushing v Commercial Cas. Ins. Co., 251 NY 302). Thus the burden of proof as to the validity of a release is on the defendant who pleads it (Fleming v Ponziani, 24 NY2d 105), but a releasor who seeks to limit the effect of a release because of a claimed mutual mistake has the burden of proof on that issue (Mangini v McClurg, 24 NY2d 556, 563).

It is the latter concept which we applied in Derby v Prewitt in holding on "considerations of reason and basic fairness” (12 NY2d, at p 106, supra) that plaintiff had the burden of proving "whether the plaintiffs settlement with the taxicab driver did actually constitute satisfaction of all damages caused by his wrong or was intended as such. If it did, or was so intended, no claim remained against the doctor” (see also, Rask v County of Nassau, 24 AD2d 580; Retzel v State of New York, 94 Misc 2d 562; 1 NY PJI2d 658). The considerations of reason and fairness involved were recently expounded upon in an analogous context in Weinberg v Transamerica Ins. Co. (62 NY2d 379, 383). Paraphrased to fit the present situation, Weinberg’s explanation was that "the normal allocation of the burden of proof must give way in this instance, however, to the practicalities of the situation and to a realistic evaluation of the relative positions of the” parties, for it is the injured person "who participates in and can control the fashioning of the terms of the settlement” with the original wrongdoer, a procedure in which the successive wrongdoer has no part. Indeed, unless the injured party is required to bear that burden, the possibility of his or her double recovery for the same damages looms large.

There is, however, a material difference between what Derby required plaintiff to prove — what was intended — and what must be proved under General Obligations Law § 15-108. Under subdivision (a) of that section, the claim of the releasor is reduced by the greatest of (1) the amount stipulated by the release, (2) the amount of the consideration paid for it, or (3) the released tort-feasor’s equitable share of the damages. To the extent that the injured party and the original tort-feasor are permitted to stipulate the amount by which the liability of the successive tort-feasor is to be reduced by the original tortfeasor’s payment, intent remains a factor, but the amount stipulated must also be shown to have been arrived at in good faith (cf. General Obligations Law § 15-108 [b]). The reference in the subdivision to the amount paid for the release may have been inserted because releases so often recite only that they have been given "for one dollar and other good and valuable consideration.” But even if a substantial sum is recited, the consideration stated may be less than the amount paid in fact. Proof that it is not thus bears on good faith as well.

The third criterion — the released tort-feasor’s equitable share of the damages — involves a seeming contradiction, however. Under CPLR 1402 "equitable shares shall be determined in accordance with the relative culpability of each person liable” for contribution. But, as we have seen, the original tort-feasor’s right to recover from the successive malpracticing doctor or hospital arises by way to subrogation to the rights of the injured party, and is a right to complete indemnity, rather than contribution, for the aggravation damages. When the two statutes are read together in the light of their respective legislative histories, it is, however, clear that the equitable share of the released tort-feasor under General Obligations Law § 15-108 is to be determined not by assessing the wrongful acts committed by each but by assessing the damage inflicted by each (cf. Riviello v Waldron, 47 NY2d 297, 305-307; Roma v Buffalo Gen. Hosp., supra; and see, Rock v Reed-Prentice Div., 39 NY2d 34; Lasprogata v Qualls, 263 Pa Sup Ct 174, 397 A2d 803). Thus, for purposes of General Obligations Law § 15-108, "contribution” in CPLR 1402 must be read as including the released tort-feasor’s right as subrogee to complete indemnity.

A further hearing pursuant to CPLR 4533-b must, therefore, be held by the Trial Judge. The object of the hearing will be to determine what portion of the settlement payment by the original tort-feasors was for the original injuries and what portion was for the aggravation injuries. (In the present action, in which only the subsequent tort-feasors are defendants, damages have been awarded for the injuries they caused — the aggravation injuries.) Any portion of the settlement payment found to be attributable to the aggravation injuries must be offset against plaintiffs’ recovery against defendants on the principle that plaintiffs cannot recover for the same aggravation injuries both from the original tortfeasors and the defendants in this action and it will be plaintiffs’ burden to prove what portion of the settlement payment was for the aggravation injuries.

At the contemplated hearing, the trier of fact will first determine the amount paid to plaintiffs in settlement by the original tort-feasors, which may or may not be the amount recited in the release. Next, he will allocate that amount between the two plaintiffs, based upon the reasonable intent of the parties. Third, the fact finder should determine what portion, if any, of the settlement payment should be attributed to each plaintiff’s aggravation damages. In so doing he will consider the statement as to allocation, if any, between original and aggravated injuries contained in the settlement documents and the gravity of the respective injuries and determine whether the amount allocated by the parties was arrived at in good faith. Finally, if as to either plaintiff the fact finder allocates any portion of the settlement payment to the aggravation injuries, he should deduct that portion from the damages awarded that plaintiff and direct that judgment be entered for the difference. The resultant amount will then be apportioned, as found by the jury, 30% to St. Clare’s Hospital and 70% to Dr. Bono.

Accordingly, the order of the Appellate Division should be modified and the case remitted to Supreme Court, New York County, for a further hearing in accordance with this opinion and, as so modified, should be affirmed, with costs to plaintiff against defendant Bono and costs to defendant St. Clare’s against plaintiff. The certified question is not answered as unnecessary.

Chief Judge Wachtler and Judges Simons, Kaye and Ti-tone concur; Judges Alexander and Hancock, Jr., taking no part.

Order modified, etc.

      . Defendant Carranza defaulted but the action as to him was dismissed because plaintiffs waited until trial (more than a year after default) to move for entry of judgment (CPLR 3215 [a], [c]).

      . The jury was told that as to Dr. Bono the issues for its decision were: "Was Dr. Rudolph Bono the owner of the Benjamin Gilbert Medical Center? Did the Gilbert Medical Center furnish medical treatment to the plaintiff, as distinguished from Dr. Carranza and Dr. DeNalfi, individually, independent from Dr. Bono, treating the plaintiff? Did the Gilbert Medical Center commit negligence or medical malpractice? If so, was this medical malpractice, if any, a proximate contributing cause to any enhanced or aggravated injuries you find the plaintiff may have sustained?”

      . The ruling as to Mamie Hill is not before us, the parties having stipulated to defer trial of the damage issue as to her until determination of the present appeal.

      . The Appellate Division granted leave to Bono and certified the question whether the judgment of Supreme Court as affirmed by it was properly made. Birdell Hill having stipulated to the reduced damages, there is party finality. Accordingly, we do not answer the certified question because unnecessary.

      . That section provides: "One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.”

      . That section, adopted in reliance in part on the Hannon case (see, Reporter’s Notes, Restatement [Second] of Torts, Appendix §§ 402A to 503, at 91), states that: "One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.”

      . CPLR article 14 covers successive as well as joint tort-feasors (Twentieth Ann Report of NY Judicial Conference, 1975, at 214, 223).


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    Luis Suria, Respondent, v Felix Shiffman, Appellant, et al., Defendant, and Avtar S. Dhaliwal, Appellant.
    Argued January 9, 1986;
    decided February 19, 1986

      POINTS OF COUNSEL

      Norman H. Dachs and Bonnie S. Kurtz for Felix Shiftman, appellant.
    I. The Court of Appeals has the power to review the determination of the court below that the jury rejected the claim that plaintiff had received mineral oil injections. (Spier v Barker, 35 NY2d 444; Feinberg v Saks & Co., 56 NY2d 206.) II. The court below erred in holding that the jury rejected the claim that plaintiff had received mineral oil injections. III. The jury’s finding that plaintiff was contributorily negligent bars plaintiff’s recovery against defendant Dr. Shiftman.
      (Morse v Rapkin, 24 AD2d 24; Quinones v Public Administrator, 49 AD2d 889; Spier v. Barker, 35 NY2d 444; MacDougall v Cranker, 52 AD2d 990.) IV. The jury’s general verdict that plaintiff was guilty of negligence based upon two separate theories of liability requires a new trial. (Cady v City of New York, 35 AD2d 202; Jokelson v Allied Stores Corp., 31 AD2d 806; Greenberg v Schlanger, 229 NY 120; Atlantic Bank v Carnegie Hall Corp., 25 AD2d 301; Fein v Board of Educ., 305 NY 611; Clark v Board of Educ., 304 NY 488; Yeargans v Yeargans, 24 AD2d 280; Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995; Mertsaris v 73rd Corp., 105 AD2d 67.) V. The court below erred in failing to decide whether defendants, Shiffman and Dhaliwal were joint or successive tortfeasors. (Hawkes v Goll, 256 App Div 940, 281 NY 808; Hill v Edmonds, 26 AD2d 554; Zillman v Meadowbrook Hosp. Co., 45 AD2d 267; Bergan v Home for Incurables, 75 AD2d 762; Dubicki v Maresco, 64 AD2d 645; Caiazzo v Volkswagenwerk, AG., 468 F Supp 593, 647 F2d 241; Derby v Prewitt, 12 NY2d 100; Chipman v Palmer, 77 NY 51; Hull v County of Nassau, 28 AD2d 719.) VI. Failure to submit special interrogatories to the jury on the issue of plaintiff’s liability constituted fundamental error which is preserved for review. (Hutchinson v Petropoulos, 119 Misc 2d 1024; Bolm v Triumph Corp., 58 AD2d 1014; Zeffiro v Porfido, 265 App Div 185; Goodheart v American Airlines, 252 App Div 660; Rivera v Bronx-Lebanon Hosp. Center, 70 AD2d 794; Rodriguez v Cato, 63 AD2d 922; Caceres v New York City Health & Hosps. Corp., 74 AD2d 619.)

      Michael A. Ellenberg, Leon E. Roday and Lance A. Warrick for Avtar S. Dhaliwal, appellant.
    I. The evidence was insufficient to support the verdict against Dr. Dhaliwal. (Rochester Tel. Corp. v Green Is. Constr. Corp., 51 NY2d 788; People v Cosme, 48 NY2d 286; Austin Instrument v Loral Corp., 29 NY2d 124; Lipsius v White, 91 AD2d 271; Dries v Gregor, 72 AD2d 231; Zeleznik v Jewish Chronic Disease Hosp., 47 AD2d 199; Prooth v Wallsh, 105 Misc 2d 603; Schloendorff v Society of N. Y. Hosp., 211 NY 125; Fogal v Genesee Hosp., 41 AD2d 468; Crisher v Spak, 122 Misc 2d 355.) II. Plaintiff’s postsurgical negligence did not bar his recovery from Dr. Shiffman. (Carpenter v Blake, 75 NY 12; Du Bois v Decker, 130 NY 325; Morse v Rapkin, 24 AD2d 24; Quinones v Public Administrator, 49 AD2d 889; Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995; Fitzsimmons v Wilder Mfg. Co., 53 AD2d 743.) III. Dr. Dhaliwal was a successive and not a joint or concurrent tort-feasor. (Dubicki v Maresco, 64 AD2d 645; Zillman v Meadowbrook Hosp. Co., 45 AD2d 267; Pezella v Catholic Med. Center, 52 AD2d 596; Kucinski v Risk, 108 Misc 2d 188; Psakis v Jacobs, 89 AD2d 585; Bergan v Home for Incurables, 75 AD2d 762; Wiseman v 374 Realty Corp., 54 AD2d 119; Pagan v State of New York, 124 Misc 2d 366.)

      Emilio Nunez and Alexander J. Wulwick for respondent.
    I. In view of (i) Shiftman's complete denial that he injected plaintiff with silicone and his claim that plaintiff’s condition was due, instead, to the alleged mineral oil injections and (ii) the jury’s finding that Shiffman committed malpractice by injecting the silicone, there was sufficient in the record for the court below to have concluded that the jury rejected the mineral oil claim in finding plaintiff contributorily negligent. (Lundgren v McColgin, 96 AD2d 706; Fitzsimmons v Wilder Mfg. Co., 53 AD2d 743; Stevenson v News Syndicate Co., 302 NY 81; Leopold v Britt, 58 AD2d 856; Borgia v City of New York, 12 NY2d 151; Connell v Hayden, 83 AD2d 30; Martin v Edwards Labs., 60 NY2d 417; Chodos v Flanzer, 90 AD2d 838.) II. The evidence was sufficient for the jury to have found that Dhaliwal failed to obtain plaintiff’s informed consent to the surgery performed. (Tiernan v Heinzen, 104 AD2d 645; Martin v Herzog, 228 NY 164; Davis v Caldwell, 54 NY2d 176; Ogden v Bhatti, 92 AD2d 658; Lipsius v White, 91 AD2d 271; Proce v Franklin Gen. Hosp., 83 AD2d 903; Fogal v Genesee Hosp., 41 AD2d 468; Dries v Gregor, 72 AD2d 231; Zeleznik v Jewish Chronic Disease Hosp., 47 AD2d 199; Flores v Flushing Hosp. & Med. Center, 109 AD2d 198.) III. Defendants Shiffman and Dhaliwal are joint tort-feasors and, as such, each is jointly and severally liable to plaintiff for the full amount of the judgment in his favor. (Dole v Dow Chem. Co., 30 NY2d 143; Kelly v M. C. Elec. Co., 68 AD2d 657; Wiseman v 374 Realty Corp., 54 AD2d 119; Derby v Prewitt, 12 NY2d 100; Feldman v New York City Health & Hosps. Corp. 84 AD2d 166, 56 NY2d 1011; Kucinski v Rish, 108 Misc 2d 188; Mosher v State of New York, 103 AD2d 1018.)
   OPINION OF THE COURT

Chief Judge Wachtler.

This action arises from a course of medical treatment initiated by plaintiff, a transsexual, who sought to have his breasts augmented. He testified that, in July and again in December 1974, defendant Shiffman injected silicone into both his breasts. By March 1975, his breasts became sore and red, and in December 1975, plaintiff returned to Shiffman for treatment of symptoms including severe pain, discoloration and lumps. Although Shiftman's treatments continued for approximately six months, they were unsuccessful.

Shiffman testified that plaintiff did not first consult him until December 1975, at which time his breasts had already been injured, and that he came only seeking treatment, not augmentation. Shiffman claimed he treated plaintiff until July 1976, but denied ever administering silicone injections. In September 1976, according to Shiffman, plaintiff revealed for the first time that his symptoms were caused by injections of mineral oil administered by a transsexual friend. Shiffman concluded there was nothing more he could do, and referred plaintiff to Dhaliwal, a plastic surgeon, who performed a bilateral subcutaneous mastectomy. Plaintiff testified he thought Dhaliwal was to perform only an "incision and drainage” and he did not consent to a mastectomy. Dhaliwal testified that he had fully explained the proposed procedure, its risks and consequences before obtaining plaintiff’s consent.

On September 20, 1976, plaintiff, recovering in the hospital from the surgery and, according to his testimony, still unaware he had undergone a mastectomy, talked an attendant into unwrapping his bandages. Shocked by the severity of his wounds, he checked out of the hospital against medical advice, and later developed a wound site infection which required another operation.

At the close of proof, plaintiff argued that Shiffman committed malpractice when he injected silicone into his breasts in July and December 1974, that Dhaliwal committed malpractice in the performance of the mastectomy, and that Dhaliwal had improperly failed to obtain informed consent for the procedure.

The court’s charge contained the following instruction on the issue of plaintiff’s culpability:

"The defendants claim that the plaintiff was guilty of negligence, that is, the failure to use ordinary care in permitting some third party to inject mineral oil into his breasts. And in leaving the Boulevard Hospital shortly after the surgery performed by Dr. Dhaliwal against medical advice.

"Mr. Suria denies anyone injected him with mineral oil. The burden is on the defendants to prove that the plaintiff was negligent and that such negligence caused or contributed to plaintiffs injuries.

"Mr. Suria, as I say, was required to exercise reasonable care for his own health and safety. If you find that Mr. Suria failed to exercise such reasonable care either in having someone other than a licensed medical doctor inject a substance into his breast, or in failing to heed medical advice concerning the treatment to be followed, following surgery at Boulevard Hospital, then you may find that he was guilty of negligence.

"But, of course, if you find that the plaintiff did not permit some non-medical person to inject him with mineral oil, or if you find that a reasonable prudent person would have left Boulevard Hospital on the 20th of September under the same circumstances then, of course, you may find that Mr. Suria was not guilty of any contributory or comparative negligence, as we use that term.

"Negligence on Mr. Suria’s part would not prevent his recovering damages in this lawsuit. But it would result in a reduction in the amount to which he would otherwise be entitled to recover.”

The court then indicated he would be submitting special interrogatories which included the following questions:

"Did the Plaintiff [sic], Felix Shiftman, commit medical malpractice which malpractice was a proximate cause of the injuries sustained by the plaintiff, Luis Suria?” "Did the defendant, Avtar Dhaliwal, commit medical malpractice, which malpractice was a proximate cause of injuries sustained by plaintiff Luis Suria?”

"Did the defendant, Avtar Dhaliwal, fail to adequately advise plaintiff, Luis Suria, of the surgery that Dr. Dhaliwal intended to perform, which failure was a proximate cause of injury to the plaintiff?”

"Was plaintiff, Luis Suria, guilty of any negligence which was a proximate cause of the injuries he has sustained?”

"What is the percentage of fault chargeable to:

"(a) Defendant Felix Shiftman?

"(b) Defendant Avtar Dhaliwal?

"(c) Plaintiff Luis Suria?”

"What are the total damages sustained by plaintiff, Luis Suria, without deductions for his negligence, if any?”

After the jury had been discharged to commence deliberations, Shiffman’s counsel stated: "I take exception to the comparative negligence charge to the extent the offense of this case proceeded in 1975 and more properly fell into the control of the contributory negligence rule.” The court responded, "We do have a problem”, but took no further action.

The jury found that in July and December 1974 Shiffman committed malpractice that was a proximate cause of plaintiff’s injuries, that Dhaliwal did not commit malpractice but did fail to obtain plaintiff’s informed consent, which failure was a cause of plaintiff’s injuries, that plaintiff was guilty of negligence that was a cause of his injuries, that Shiffman was 60% at fault, Dhaliwal 15% and plaintiff 25%, and that plaintiff’s total damages were $2,000,000. The trial court dismissed the claim against Shiffman on the ground that plaintiff’s contributory negligence barred recovery and, reducing the amount of the verdict by 25%, the proportionate share of plaintiff’s fault, entered judgment in the principal amount of $1,500,000 against Dhaliwal alone.

On cross appeals by plaintiff and Dhaliwal, the Appellate Division modified, on the law and facts, by reinstating the verdict against Shiffman, denying his motion for a directed verdict, and ordering a new trial on the issue of damages unless plaintiff stipulated to reduce the verdict to $800,000, in which event a judgment, as so modified, was to be entered in favor of plaintiff and against Shiffman and Dhaliwal in accordance with the jury’s findings as to the relative responsibility and fault of the respective parties, and otherwise affirmed. In its decision, the Appellate Division noted that the record supported the jury’s finding that Shiffman committed malpractice, and concluded the trial court erred in directing a verdict in his favor. Further, the court stated, it need not reach the issue whether Dhaliwal was a successive, joint or concurrent tort-feasor, in light of its reinstatement of the verdict against Shiffman (107 AD2d 309).

The plaintiff stipulated to reduce the verdict pursuant to the Appellate Division’s conditional grant of a new trial, and a judgment was entered thereon. Shiffman filed a notice of appeal to our court, based on the substantial and, as to him, adverse modification by the Appellate Division (former CPLR 5601 [a] [iii]). Dhaliwal sought leave to appeal, which our court granted (65 NY2d 605). We now modify.

The jury found that Shiffman committed his last act of malpractice in December 1974 and plaintiff, by his own admission, noticed the alleged after effects by March 1975. Thus, plaintiff’s cause of action against Shiffman accrued before September 1, 1975, and the principles of contributory rather than comparative negligence applied (CPLR 1413). Although Shiffman may have continued to treat plaintiff after his last act of malpractice, that later treatment did not delay accrual of the cause of action but merely tolled the running of the Statute of Limitations (see, Glamm v Allen, 57 NY2d 87, 93-94; McDermott v Torre, 56 NY2d 399, 407).

Thus, under the law of this case as submitted to the jury, if plaintiff acted negligently in permitting mineral oil injections before Shiffman’s malpractice, and that negligence was a proximate cause of his injuries, his claim against Shiffman should have been dismissed. However, if plaintiff’s postsurgical culpable conduct merely aggravated injuries already caused by Shiffman’s malpractice, his recovery would not be barred (see, Spier v Barker, 35 NY2d 444, 451). Similarly, negligent conduct of plaintiff would not have barred plaintiff’s recovery for Dhaliwal’s negligence, even if it had occurred before the effective date of the comparative negligence statute (CPLR 1413; see, e.g., Carpenter v Blake, 75 NY 12).

Given the court’s charge, which allowed the jury to find that plaintiff failed to exercise reasonable care in having someone other than a licensed medical doctor inject a substance into his breast, or in leaving the hospital against medical advice after his surgery, or both, the verdict is ambiguous. The answer to the interrogatory establishes only that plaintiff failed to exercise reasonable care, and that such failure is responsible for 25% of his injuries. It does not indicate which of the contentions the jury accepted. Defendant Shiffman claims the jury’s "general verdict” that plaintiff was guilty of negligence in some unspecified respect requires a new trial, though he concedes he did not request that a more detailed interrogatory be submitted to the jury on this issue.

This is not a case like Davis v Caldwell (54 NY2d 176), in which multiple theories of liability were submitted to a jury which was instructed to render a general verdict only. There, we reversed an Appellate Division order affirming a judgment in favor of the plaintiff entered upon the verdict, even though the defendant had not requested special interrogatories. We held that, there being insufficient proof of some but not all of the theories, it was impossible to conclude that the verdict did not rest on a finding in the plaintiff’s favor on one of the theories that should not have been submitted to it for lack of proof at trial.

In Davis (supra), and in similar cases, the defendant had "preserved [her] rights” by moving to dismiss the causes of action alleged not to have been proven at trial (Phillipson v Ninno, 233 NY 223, 225). If the motion had been granted, and the causes of action as to which legally sufficient evidence had not been adduced at trial had been dismissed, the verdict would have been based on legally sufficient evidence and would have been sustained. Similarly, if the motion had no merit and was properly denied, all the causes of action or theories would properly have been submitted to the jury, and the verdict also would have been sustained. In these situations, we have noted: "It was not necessary for the defendant’s counsel to except[] to the judge’s charge in order to preserve the force and effect of his exception taken to the denial of his motion made at the end of the case. That was the time and place for the judge to have made the ruling which the law says he should have made. Having excepted to the ruling, the defendant lost none of his rights because the judge subsequently expressed the same views more at length .in his charge to the jury. One exception upon the same ruling was as good as two.” (Elenkrieg v Siebrecht, 238 NY 254, 263.)

In the present case, whether either of the two theories of plaintiff’s comparative fault should have been submitted to the jury was not at issue. All parties agreed that sufficient proof of both had been adduced at the trial. The resulting inability to determine which theory the jury accepted was caused not by the trial court’s erroneous submission of one of the theories, but by the parties’ failure to request a special interrogatory to elicit that information.

It is undisputed that the only protest registered to the court’s special interrogatory was Shiffman’s counsel’s post-charge exception "to the comparative negligence charge to the extent the offense of this case proceeded in 1975 and more properly fell into the control of the contributory negligence rule.” In no way can this request (if timely, though it was made after the jury retired to consider its verdict [CPLR 4110-b]) be considered a request for a special interrogatory. Absent a proper request for the interrogatory the omission of which is now claimed to be error, no question of law is presented for our review (CPLR 4017, 5501 [a] [3]; Hunt v Bankers & Shippers Ins. Co., 50 NY2d 938, 940).

The question then becomes whether the courts below had the power to determine to which theory of plaintiff’s fault the jury’s general finding applied. Under prior law, the inadvertent omission of a material issue of fact from the special verdict submission could invalidate a judgment entered on it (4 Weinstein-Korn-Miller, NY Civ Prac ¶ 4111.06; cf. Manning v Monaghan, 23 NY 539). However, CPLR 4111 (b) now provides, in pertinent part: "If the court omits [in the interrogatories submitted to the jury] any issue of fact raised by the pleadings or evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without demand, the court may make an express finding or shall be deemed to have made a finding in accordance with the judgment.”

After the jury rendered its verdict, finding plaintiff guilty of culpable conduct, the court directed a verdict in Shiffman’s favor, concluding that "the plaintiff was guilty of contributory negligence”, and reduced the verdict as to Dhaliwal by the 25% culpability the jury attributed to plaintiff. This finding was clearly in accordance with the judgment later entered, and could well have stood. However, the Appellate Division viewed the jury’s determination as a rejection of the mineral oil theory and an adoption of the contention that all of plaintiff’s culpable conduct consisted of his premature postoperative departure from the hospital. In accordance with CPLR 4111 (b), we deem this conclusion a contrary finding on that issue. When confronted with an Appellate Division order of modification which, as here, "has expressly or impliedly found new facts and a final judgment pursuant thereto is entered”, this court may also review questions of fact (CPLR 5501 [b]), in which case we will determine which of the findings more nearly comports with the weight of the evidence (Oelsner v State of New York, 66 NY2d 636, 637; Miller v Merrell, 53 NY2d 881, 883; Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556, 563). Having reviewed the transcripts of the trial testimony, we conclude that the findings of the Appellate Division more closely comport with the weight of the evidence.

We agree with defendant Dhaliwal’s contention that he was a successive, rather than joint or concurrent, tort-feasor, and that he was prejudiced by the Appellate Division’s refusal to reach this issue because if his liability was joint plaintiff could seek the full amount of the judgment against him. The jury specifically found that Dhaliwal was not negligent in his treatment of plaintiff, which did not occur until over a year after the injections had been completed; his liability was predicated on a failure to adequately advise plaintiff of the scope and risks of the surgery he performed.

When two tort-feasors neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Although the original wrongdoer is liable for all the proximate results of his own tortious act, including aggravation of injuries by a successive tort-feasor, the successive tort-feasor is liable only for the aggravation caused by his own conduct (Derby v Prewitt, 12 NY2d 100; Dubicki v Maresco, 64 AD2d 645; Musco v Conte, 22 AD2d 121 [Hopkins, J.]).

Dhaliwal’s contention that the verdict against him is not supported by the evidence is without merit. Plaintiff testified that Dhaliwal told him that the purpose of the operation was to drain the infection from his right breast, that he would "see what he could do for the left breast” and that there would be just a small scar. In addition, plaintiff testified that the consent form he signed described the operation as "incision of the right breast”. Dhaliwal admitted that he changed the consent form, although he claimed to have done so in plaintiff’s presence. The record is not "devoid of proof’ (Davis v Caldwell, 54 NY2d 176, 180, supra) to support the jury finding that, but for lack of adequate information, a reasonable person in plaintiff’s position would not have undergone the surgery. In addition, there was plainly sufficient evidence to permit the jury to conclude that plaintiff incurred additional physical injuries in the form of scarring as a direct and proximate result of the procedure (Public Health Law § 2805-d [3]).

However, the courts below erred in not holding Dhaliwal a successive tort-feasor. His liability should therefore be limited to the proportionate share of plaintiff’s damages attributable only to the aggravating effect of Dhaliwal’s own tortious act.

Accordingly, the order of the Appellate Division should be modified to provide that plaintiff is entitled to judgment against defendant Dhaliwal in the principal amount of $120,000, that being 15% of the verdict reduced by stipulation and against Shiffman in the principal amount of $480,000, without any right to contribution or indemnification. If plaintiff compels Shiffman, as the original tort-feasor, to pay more than $480,000 Shiffman will be entitled to recover the excess from Dhaliwal (CPLR 1402; see, Hill v St. Clare’s Hosp., 67 NY2d 72 [decided herewith]). As so modified, the order of the Appellate Division should be affirmed, with costs to Dhaliwal payable jointly by plaintiff and defendant Shiffman.

Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to defendant Dhaliwal payable jointly by plaintiff and defendant Shiffman.

      . A further interrogatory sought the approximate dates of Shiffman’s malpractice, if any, primarily because he had two successive carriers during the relevant period.

      . Exceptions, of course, are no longer necessary (CPLR 4017).

      . In his brief to our court, Shiffman concedes he took no exception to the court’s failure to submit a special interrogatory on this issue. However, he seeks review in the interest of justice, which we are without power to provide, the scope of our review being limited to questions of law (CPLR 5501 [b]; Cohen and Karger, Powers of the New York Court of Appeals § 115 [rev ed]).


text:
    The People of the State of New York, Respondent, v Zain Cooks, Appellant.
    Decided March 20, 1986

      APPEARANCES OF COUNSEL

      Keith G. Ingber for appellant.

      Stephen F. Lungen, District Attorney (Frank J. Labuda of counsel), for respondent.
   OPINION OF THE COURT

Meyer, J.

If the plea proceeding record is sufficient to permit review of the issue on direct appeal, the sufficiency of the allocution cannot be collaterally reviewed in a CPL 440.10 proceeding. The order of the Appellate Division should, therefore, be affirmed.

I

On March 31, 1983, defendant pleaded guilty to one count of robbery in the second degree. Thereafter he wrote a letter to the County Court Judge who had taken the plea stating his desire to withdraw it and on April 21, 1983 appeared before the Judge. At both the plea and the subsequent hearing he was represented by a Legal Aid Society attorney.

At the April 21, 1983 proceeding defendant stated that he had been coerced, had not read the papers he signed (a waiver of indictment), and did not understand "the part about taking all my rights away.” No mention was made of the ground presently urged: that he did not commit the crime to which he had pleaded guilty and that he had not admitted the elements of robbery, second degree, during the plea proceeding. The Judge refused to allow the plea to be withdrawn, pointing out that both the waiver and defendant’s rights had been discussed with defendant and explained to him fully, and that he had simply changed his mind. Defendant was sentenced to a term of 2Vi to IV2 years. A pro se notice of appeal to the Appellate Division was filed by defendant on the same day, April 21, 1983, but nothing further was done to perfect the appeal.

In April 1984, now represented by assigned counsel, defendant moved pursuant to CPL 440.10 and 440.20 to vacate the conviction on the new ground set forth above. The attorney’s affidavit, citing People v Pascale (48 NY2d 997); People v Warren (47 NY2d 740); and People v Ebron (87 AD2d 653), stated that the motion was made in order to preserve defendant’s right to appeal from the judgment of conviction.

The County Judge who took the plea having died, the motion came on before another Judge who, initially, set the matter for hearing but, after the People moved for reargument and defendant’s counsel, in his answering affidavit, agreed that the matter could be decided on the plea minutes without a hearing, granted the motion to vacate. He found that defendant had consistently maintained that he had no idea that his companion intended to rob the business establishment until the act was in progress and that, therefore, the element of intent had not been established through defendant’s own recital during the allocution (People v Serrano, 15 NY2d 304).

The Appellate Division reversed, on the law, denied defendant’s motion to vacate and reinstated the conviction. It held CPL 440.20 inapplicable because there was no issue concerning the propriety of the sentence. With respect to CPL 440.10, it held that the motion should have been denied because insufficiency of the allocution was not a ground set forth in CPL 440.10. The correct method for raising an issue concerning a claimed defect apparent from the record, it held, was by direct appeal from the judgment of conviction "which, in this instance, defendant chose not to perfect.” (113 AD2d, at p 976.)

In his submission to us, defendant’s attorney, citing the holding in People v Claudio (64 NY2d 858) that the sufficiency of a guilty plea was "not preserved for appellate review because defendant neither moved to withdraw the plea before sentencing nor raised the issue by a motion to vacate the judgment of conviction,” argues that had his CPL 440.10 motion been denied, his direct appeal would have been perfected and the sufficiency issue reviewed. Ironically, only because defendant prevailed on that motion could the Appellate Division "consider him to have failed to perfect his appeal, refuse to consider the merits of this case, and reinstate his judgment of conviction.”

II

We need not on the present record attempt to reconcile the language of the cases to which Criminal Term and defendant’s attorney allude, nor need we determine that insufficiency of the plea allocution can never be raised in a CPL 440.10 proceeding as the Appellate Division memorandum suggests. For purposes of the present proceeding it is sufficient to note that dismissal of a CPL 440.10 motion is mandated by paragraphs (b) and (c) of subdivision (2) of that section when:

"(b) The judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal; or

"(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant’s unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him”. The purpose of those provisions is to prevent CPL 440.10 from being employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal (CPL 440.10 [2] [b]) or could readily have raised it on appeal but failed to do so (CPL 440.10 [2] [c]; see, People ex rel. Gibbs v Vincent, 39 NY2d 918; Bellacosa, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 440.10, p 320).

Here defendant’s answering affidavit on the People’s motion for reargument conceded that no hearing was required because sufficient facts appeared on the record to establish, as he argued, the insufficiency of the plea allocution. In the face of that concession, dismissal of the motion was required, notwithstanding that by failing to perfect his pro se direct appeal defendant had lost that avenue of review. Indeed, dismissal was mandated by that failure or by defendant’s failure to preserve the issue, otherwise available on direct appeal, for such review (CPL 440.10 [2] [c]).

When, as will usually be the case, sufficient facts appear on the record to permit the question to be reviewed, sufficiency of the plea allocution can be reviewed only by direct appeal (CPL 400.10 [2] [b], [c]). Only in the unusual situation that sufficient facts with respect to the issue do not appear on the record is a CPL 440.10 motion to vacate available as a means of review. A defendant who is not sure that the record will ultimately be found to contain sufficient facts may protect himself against a holding that direct review is not warranted on the record presented by making a CPL 440.10 motion, but even if he wins that motion must preserve his direct appeal so that it can be consolidated with the People’s appeal from the nisi prius ruling on the motion. Here that was not done.

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

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed.

      . People v Francis (38 NY2d 150); People v Beasley (25 NY2d 483); and People v Serrano (15 NY2d 304) all hold that where defendant’s responses alert the court to the insufficiency of his guilty plea defendant’s failure to move to withdraw the plea does not foreclose consideration of the issue on appeal. Under those cases defendant’s failure in his withdrawal motion to specify the ground presently urged would have been no bar to consideration of it on defendant’s direct appeal. If, however, Claudio’s broader statement (People v Claudio, 64 NY2d 858) be deemed to bar direct appeal because the issue was not preserved collateral review is, nonetheless, barred, as hereafter explained, by defendant’s unjustifiable failure to preserve the issue for direct appeal and to perfect that appeal.

      . A CPL 440.10 motion can be based on improper conduct not appearing in the record (440.10 [1] [f]) or on a violation of defendant’s rights under the State or Federal Constitution (440.10 [1] [h]).

      . That reading of the section is in accord with prior decisions concerning common-law coram nobis relief which is now subsumed within CPL 440.10 (see, e.g., People v Sadness, 300 NY 69 [where error of law appears on the face of the record coram nobis is not available; proper procedure is normal appeal, motion in arrest of judgment or motion to withdraw the plea]; People v Mcguire, 13 AD2d 794, cert denied 368 US 866 [plea of guilty made through counsel may not be challenged by remedy of coram nobis]; see also, People v Donovon, 107 AD2d 433; People v Reese, 100 Misc 2d 951).


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v Dwight Corley, Appellant.
    Argued February 6, 1986;
    decided March 25, 1986

      POINTS OF COUNSEL

      Barry D. Leiwant and Philip L. Weinstein for appellant.
    I. Appellant was denied his rights under the confrontation clauses of the Federal and State Constitutions by the admission at trial of the preliminary hearing testimony of the complaining witness. (Ohio v Roberts, 448 US 56; People v Arroyo, 54 NY2d 567, 456 US 979; Lyon v United States, 413 F2d 186; United States v Wingate, 520 F2d 309; People v Berzups, 49 NY2d 417; People v Mayo, 36 AD2d 798, 31 NY2d 707; People v Steeps, 52 AD2d 887; Mattox v United States, 156 US 237.) II. By sentencing appellant in absentia even though he had not waived or forfeited his right to be present, the court deprived him of his constitutional and statutory privilege to attend and participate in his own sentencing. (People v Stroman, 36 NY2d 939; People v Sanchez, 65 NY2d 436; Schwab v Berggren, 143 US 442; United States v Brown, 456 F2d 1112; Cureton v United States, 396 F2d 671; People v Smith, 106 AD2d 670; Matter of Whitley v Cioffi, 74 AD2d 230; Taylor v United States, 414 US 17; People v Selikoff, 35 NY2d 227, 419 US 1122; People v Trendell, 61 NY2d 728.)

      Mario Merola, District Attorney (Lee S. Gayer and Mark L. Freyberg of counsel), for respondent.
    I. The People proved appellant’s guilt beyond a reasonable doubt. II. The admission into evidence of the complainant’s preliminary hearing testimony pursuant to CPL article 670 did not violate appellant’s right to confront his accusers, where appellant had an unrestricted opportunity to cross-examine the witness at the preliminary hearing and where appellant took full advantage of that opportunity. (Ohio v Roberts, 448 US 56; People v Arroyo, 54 NY2d 567, 456 US 979; People v Sanchez, 65 NY2d 436; Matter of Crescenzi, 64 NY2d 774; People ex rel. Baumgart v Martin, 9 NY2d 351, 368 US 962; People v Di Raffaele, 55 NY2d 234; People v McLaine, 64 NY2d 934; People v Hodge, 53 NY2d 313; California v Green, 399 US 149; People v Harding, 37 NY2d 130.) III. Appellant, by voluntarily absenting himself from the proceedings following the reinstatement of his conviction by the court below, forfeited his statutory right to be present at sentencing. (People v Stroman, 36 NY2d 939; Matter of Root v Kapelman, 67 AD2d 131, 47 NY2d 706; People v Colon, 89 AD2d 552; People v Smith, 106 AD2d 670; People v Sanchez, 65 NY2d 436; People v Parker, 57 NY2d 136; Schwab v Berggren, 143 US 442; People v McClain, 35 NY2d 483; Matter of Whitley v Ciofii, 74 AD2d 230; Taylor v United States, 414 US 17.)
   OPINION OF THE COURT

Kaye, J.

This appeal presents two discrete issues: first, does our dismissal of defendant’s appeal for failure to prosecute bar his subsequent appeal of the same issue? Second, is defendant properly sentenced in absentia where, after reinstatement of his conviction on appeal and with sentencing as the inevitable next step in the prosecution, he willfully absconds on the day scheduled for his appearance before the Trial Judge? Answering both questions in the affirmative, we affirm the order of the Appellate Division.

Following defendant’s conviction of robbery in the second degree, the trial court set aside the jury verdict and dismissed the indictment, on the ground that admission at trial of the complaining witness’s preliminary hearing testimony violated defendant’s right to confrontation, and the evidence was otherwise insufficient to support the verdict (99 Mise 2d 853). Nearly 15 months later, on August 14, 1980, the Appellate Division (one Justice dissenting) reversed and reinstated the verdict, remanding the matter to the trial court for further proceedings (77 AD2d 835). By letter dated September 4, 1980, defendant was advised that his conviction had been reinstated and ordered to appear September 10 in Part 40 of the Bronx County Supreme Court. The letter concluded with the warning: "Failure to appear may result in a bench warrant being ordered for your arrest.” Defendant immediately contacted trial counsel, who explained to him (in her words) "the full potential consequences of what has happened on this case,” and told him to be in court the morning of September 10. Defendant assured her that he would be there and face whatever was to be.

On the appointed morning, defendant indeed appeared with his counsel, but the Judge was engaged in other matters. Defendant was to return at 2 p.m. At approximately 2:30 p.m., the clerk called "Number one on the sentence calendar, People against Dwight Corley,” but defendant was not present. A colloquy ensued before the Trial Judge. As the prosecutor later reported, defense counsel "said to the court that her client was supposed to come back in the afternoon for purposes of fixing bail or not.” The prosecutor sought a bench warrant, pointing out that defendant had not been seen since 9:30 a.m., that he was a predicate felon with a prior bench warrant issued for his appearance, and that "if the defendant had been thinking that Your Honor was going to set some bail earlier this morning, there would be all the more reason for him not to be here.” The court issued a bench warrant but stayed execution, allowing defense counsel eight days to locate her client.

On September 18, counsel having been unsuccessful in locating her client, the warrant was executed. The court at a hearing October 23, 1980 found that the People had made diligent efforts to locate defendant, and that he had willfully absented himself from the court for the purpose of frustrating the proceedings. Noting defendant’s very extensive prior criminal record, the court sentenced him in absentia to a prison term of 5 to 10 years.

Defendant had on September 19, 1980 been granted leave to appeal the Appellate Division order reinstating his conviction, but on December 18, 1980 that appeal was dismissed on the ground that defendant was "not presently available to obey the mandate of the Court of Appeals in the event of an affirmance” (52 NY2d 783). In 1982 defendant was apprehended on other charges and the sentence executed. By order dated October 12, 1982, this court granted his motion to vacate the order of dismissal and reinstated his appeal (57 NY2d 861), but four months later his appeal was again dismissed, this time for failure to prosecute (58 NY2d 972).

Defendant now urges that his conviction should be reversed because of the erroneous admission at trial of the complaining witness’s preliminary hearing testimony — the very same issue that prompted the trial court’s postverdict dismissal of the indictment and the Appellate Division’s reversal.

We decline to reach the merits of this claim, on the ground that dismissal of defendant’s prior appeal for want of prosecution acted as an adjudication "on the merits of all claims which could have been litigated had the appeal been timely argued or submitted” (Bray v Cox, 38 NY2d 350, 355; see also, Matter of Crescenzi, 64 NY2d 774; Siegel, NY Prac § 542). The rationale of Bray applies with equal force here. Once having dismissed an appeal for failure to prosecute, we foster disrespect and indifference toward our rules and orders, encourage laxity and extend the already lengthy litigation process if we simply ignore our own order and proceed to a consideration of the issue tendered by the dismissed appeal. (Contrast, People v Green, 56 NY2d 427, where defendant withdrew his interlocutory appeal, 53 NY2d 704, and the court later addressed the merits.) We are unwilling to invite these consequences in genéral, and particularly unwilling to do so here, where defendant secured permission to appeal (which was dismissed when he absconded), then was granted permission to reinstate the appeal, and then allowed four months to pass without taking the prescribed steps to prosecute the appeal.

Nor does defendant fare better with his contention that he was improperly sentenced in absentia.

Any right defendant may have had to be present at sentencing can be waived (see, People v Stroman, 36 NY2d 939, 940; Matter of Root v Kapelman, 67 AD2d 131, 136, lv denied 47 NY2d 706), or lost as a matter of public policy when the evidence unambiguously indicates "a defiance of the processes of law sufficient to effect a forfeiture” (People v Sanchez, 65 NY2d 436, 444). Just as a defendant forfeits any right to be present at sentencing by absconding during trial (see, People v Sanchez, supra), so for the same policy reasons does a defendont lose that right by absconding to frustrate scheduled proceedings before the Trial Judge in connection with sentencing.

Whereas waiver results from a knowing, voluntary and intelligent decision, forfeiture occurs by operation of law, based on objective facts and circumstances and without regard to defendant’s actual state of mind (People v Sanchez, supra, pp 443-444, n; People v Parker, 57 NY2d 136, 140). Here, there was ample basis in the objective facts and circumstances for the undisturbed finding that defendant willfully absented himself from court for the purpose of frustrating the sentencing process. Defendant was informed that his robbery conviction had been reinstated, and told the full potential consequences of this fact. He arrived in court on the scheduled day to face whatever was to be. All efforts to secure his presence failed. It is of no moment that, as defendant argues, sentence likely would not have been imposed that day. With the reinstatement of his conviction, sentencing was all that remained in the prosecution.

Defendant’s reliance on People v Stroman (36 NY2d 939, supra) is misplaced. Defendant there left the courtroom after a colloquy with the court, and was in a detention pen immediately adjacent to the courtroom when he was sentenced in absentia; no effort was made to return him to the courtroom for sentencing, and he was not informed of any right to be present. While no relinquishment of any right to be present could be implied from defendant’s absence in those circumstances, the facts before us are materially different. Defendant here must have known that the scheduled proceeding concerned sentencing and he acted deliberately to frustrate the process. In these circumstances, he forfeited any right to be present at sentencing.

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

Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur.

Order affirmed.


text:
    The People of the State of New York, Respondent, v Lester Irving Crandall, Appellant.
    Argued January 10, 1986;
    decided March 25, 1986

      POINTS OF COUNSEL

      Terence L. Kindlon for appellant.
    I. The trial court erred in allowing introduction of alleged uncharged cocaine sales and drug-related activities by appellant during cross-examination and rebuttal. (People v Molineux, 168 NY 264; United States v O’Connor, 580 F2d 38; People v Robinson, 36 NY2d 224; People v Henson, 33 NY2d 63; People v Caprio, 47 AD2d 1; People v Fiore, 34 NY2d 81; People v McKinney, 24 NY2d 180; People v Beam, 57 NY2d 241; People v Aponte, 69 AD2d 204; People v Pavao, 59 NY2d 282.) II. The trial court erred in allowing testimony concerning appellant’s alleged uncharged cocaine sales occurring prior to and subsequent to the charged sale since such testimony was not inextricably intertwined with testimony pertaining to the charged sale. (People v Ventimiglia, 52 NY2d 350; People v Jones, 62 AD2d 356; People v Bronte, 47 AD2d 561; People v Sossa, 70 AD2d 814.) III. The trial court erred in eliciting testimony regarding alleged uncharged cocaine sales and other drug-related activities by appellant. (People v Yut Wai Tom, 53 NY2d 44; People v Moulton, 43 NY2d 944; People v Cooper, 96 AD2d 866; People v Iskandar, 74 AD2d 880; People v McCann, 90 AD2d 554.) IV. The trial court erred in its Sandoval ruling because it failed to properly balance the prejudicial impact against the probative value. (People v Williams, 56 NY2d 236; People v Sandoval, 34 NY2d 371; People v Coe, 95 AD2d 685; People v Patterson, 88 AD2d 694.) V. The trial court erred in failing to give the jury cautionary instructions limiting the use of evidence relating to appellant’s prior convictions and alleged uncharged cocaine sales and other drug-related activities to the issue of credibility. (People v Moorer, 77 AD2d 575; People v Reyes, 64 AD2d 657; People v Boone, 56 AD2d 892; People v Harris, 52 AD2d 560; People v Range, 49 AD2d 832.) VI. The People’s failure to make timely disclosure of materials requested by appellant in his pretrial discovery motion, and the trial court’s failure to request their disclosure, denied appellant his right to due process and a fair trial and constitutes reversible error. (People v Jones, 85 AD2d 50; People v Andre W., 44 NY2d 179; People v Geaslen, 54 NY2d 510; People v Rosario, 9 NY2d 286; People v Copicotto, 50 NY2d 222; People v Simmons, 36 NY2d 126; Giglio v United States, 405 US 150;
      People v Di Matteo, 80 Misc 2d 1029; People v Testa, 40 NY2d 1018; People v Poole, 48 NY2d 144.) VII. The trial court erred in charging the jury that appellant was an interested witness and in not charging that the police were interested witnesses. (People v Brabham, 77 AD2d 626.) VIII. The trial court erred in allowing the jury to consider bolstering testimony pertaining to the photographs. (People v Harris, 52 AD2d 560; People v Kenny, 36 AD2d 477; People v Mann, 43 Misc 2d 786; People v Williams, 29 AD2d 780.) IX. Appellant was improperly sentenced because the trial court based sentencing on uncharged crimes. (People v Hall, 46 NY2d 873.) X. The conviction must be reversed because appellant was denied his right to a fair trial and because the errors committed were harmful. (People v Crimmins, 36 NY2d 230.)

      Sol Greenberg, District Attorney (John P. M. Wappett of counsel), for respondent.
    I. The evidence in the People’s direct case of an uncharged drug sale was inextricably intertwined with the crime charged. (People v Vails, 43 NY2d 364; People v Mitchell, 40 AD2d 117; People v Ventimiglia, 52 NY2d 350; People v Ward, 62 NY2d 816; People v Robinson, 36 NY2d 224.) II. The uncharged crimes introduced on rebuttal were properly admitted and cautionary instructions were not required. (People v Lam Lek Chong, 45 NY2d 64; People v Roche, 45 NY2d 78; People v McCann, 90 AD2d 554; People v Molineux, 168 NY 264; People v Ricchiuti, 93 AD2d 842; People v Calvano, 30 NY2d 199; People v Mann, 31 NY2d 253; People v Harris, 57 NY2d 335; People v Ventimiglia, 52 NY2d 350; People v Landor, 92 AD2d 625.) III. The trial court’s involvement in questioning witnesses was not reversible error. (People v Yut Wai Tom, 53 NY2d 44; People v Melendez, 55 NY2d 445; People v Buchanan, 145 NY 1; People v Hinton, 31 NY2d 71; People v Crimmins, 36 NY2d 230; People v Jamison, 47 NY2d 882.) IV. The trial court’s Sandoval ruling was not error. (People v Sandoval, 34 NY2d 371; People v Santarelli, 49 NY2d 241; People v Shields, 46 NY2d 764; People v Duffy, 36 NY2d 258, 423 US 861; People v Bennette, 56 NY2d 142; People v Mackey, 49 NY2d 274; People v Mayrant, 43 NY2d 236; People v Wood, 94 AD2d 814; People v Rawlins, 105 AD2d 552; People v Moore, 42 AD2d 268.) V. Defendant’s claims of nondisclosure are meritless. (People v Tutt, 38 NY2d 1011.) VI. There was no error in charging that defendant was an interested witness. (People v Barr, 75 AD2d 14; People v Bell, 38 NY2d 116; People v Gadsden, 80 AD2d 508; People v Brabham,
      77 AD2d 626; People v Sbru, 51 AD2d 978.) VII. There was no improper bolstering in this case. VIII. Defendant’s sentence was based upon the conviction for the crime charged. (People v Hall, 46 NY2d 873.) IX. Defendant received a fair trial. (People v Arce, 42 NY2d 179; People v Brown, 48 NY2d 921; People v Kennedy, 47 NY2d 196; People v Benzinger, 36 NY2d 29; People v Cummings, 90 AD2d 622; People v Barnes, 50 NY2d 375; People v Bracey, 41 NY2d 296.)
   OPINION OF THE COURT

Meyer, J.

Evidence concerning sales of narcotics other than that for which defendant is on trial is improperly admitted as "inextricably intertwined” when it can be readily redacted and is not essential to proof of the crime in issue. Nor does a defendant "open the door” to admission of other crime evidence in rebuttal by his testimony that he made no sale of narcotics, that he knew the person to whom he is alleged to have made the sale for which he is on trial to be an undercover officer and had assisted him until asked to engage in an illegal act, after which the officer and several of his colleagues threatened him with arrest, such rebuttal testimony being relevant only to defendant’s criminal character and not to any element of the crime charged or in refutation of any affirmative fact proved by defendant. The order of the Appellate Division should, therefore, be reversed and a new trial ordered.

I

Defendant was charged with the criminal sale of a controlled substance to an undercover officer on September 26, 1983. Prior to commencement of the trial defendant’s attorney sought a ruling (see, People v Ventimiglia, 52 NY2d 350, 362) that the undercover officer not be permitted to testify, because suggestive of a prior sale, that at the time of the September 26th transaction, the officer handed defendant $300, after which defendant put the cocaine which was the subject of the indictment on the seat of the officer’s car and said, "Here’s another seven for you. It’s on the front seat. Don’t let it melt. That’s $650. See you later” (emphasis added). Notwithstanding defense counsel’s argument that mention of the $300 was probative of nothing except to suggest an earlier transaction, the Trial Judge, although excluding earlier conversation concerning whether defendant was owed $250 or $300, ruled the quoted conversation admissible because "[t]hese are the actual words of the parties” and because "to take it out * * * would one, confuse the witness and two, confuse the jury.”

A further preliminary ruling was requested by defense counsel during trial in order to exclude testimony covering a later meeting of defendant and the undercover officer on the same afternoon, September 26, 1983, at a bar. Told by the officer that he had "$650 for you,” defendant, according to the officer, directed that they meet in the men’s room, where, according to the officer, the following conversation occurred: "He [defendant] said, T got another quarter.’ He said, 'This is good-quality rock.’ He says, T got to get 700 for it,’ he says, 'but it’s really good rock.’ I said, 'I only got about 700 on me. I already owe you 650 from the earlier deal today.’ He said, 'Well,’ he said, 'give me the 700. I’ll give you the rock and you can owe me the 650,’ ” after which defendant gave the officer seven grams of cocaine. Once again the Trial Judge ruled the testimony admissible because "for him to testify he paid him $650 is for the witness to lie.”

Thereafter defendant took the stand and denied ever giving or selling any narcotics to the undercover officer. His version of their relationship was that he had known the officer for about six weeks prior to September 26th so as to call him friend and had seen him around for about a year before that; that after the officer said he would lose his job with the State Police if he was convicted of driving while intoxicated and reckless driving charges for which he had been given summonses, defendant loaned the officer $500 and introduced him to an attorney; that the officer had thereafter asked him to plant a bug in the attorney’s office and to steal some papers from the attorney’s office concerning the State Police, had become incensed when defendant refused to do so and with several of his fellow officers had threatened defendant with imprisonment if he went to the FBI. On cross-examination, defendant was asked about his sale of drugs to the officer on September 8th, 16th, 20th, 21st, 22nd, 23rd and the second sale on the 26th, all of which were ruled admissible under People v Molineux (168 NY 264), and all of which defendant denied ever occurred.

On rebuttal, the People were permitted, based upon the Trial Judge’s ruling that the defense was "that of a setup, which in my judgment, comes under that [Molineux] category of accident and/or mistake,” to introduce the testimony of the undercover officer and three other such officers concerning the seven sales defendant had been cross-examined about as well as the laboratory test reports of the drugs allegedly sold by him in those transactions and the evidence receipt log showing when the substances received had been taken to the State Crime Laboratory for testing. Because the judge’s charge to the jury made no specific reference to the other crimes proof, defendant’s attorney requested that the jury be instructed that the proof of uncharged crimes could be considered only as to defendant’s credibility and not as evidence of the crime charged. That request was denied, the Trial Judge offering instead to charge that the proof went to rebuttal of the claim of conspiracy and/or frameup, an offer which defendant’s attorney declined.

Convicted and sentenced to 8 Vs to 25 years, defendant appealed to the Appellate Division, which, with one Justice dissenting, modified by remitting to the trial court for resentencing, but otherwise affirmed. The dissenting Justice did not disagree with admission of the evidence of uncharged crimes, but would have reversed for denial of the requested charge that that evidence could be considered only on defendant’s credibility. We conclude that the other crimes evidence presented on the People’s direct case and on rebuttal was inadmissible and that although cross-examination as to other sales was permissible for purposes of impeachment, cross-examinatian as to the number of transactions allowed was excessive and improper. We, therefore, reverse.

II

A.

As we were at pains to point out in People v Ventimiglia (supra), the "inextricably interwoven” exception for other crimes evidence recognized in People v Vails (43 NY2d 364) "does not make evidence admissible simply because it is part of conversation other parts of which are admissible. To be inextricably interwoven in the Vails sense the evidence must be explanatory of the acts done or words used in the otherwise admissible part of the evidence” (52 NY2d, at p 361). As Vails put it, it must be "evidence relating directly to the crime charged” such that "the value of the evidence clearly outweighs any possible prejudice” (43 NY2d, at p 369).

Here, the payment of $300 for a prior transaction was not necessary to comprehension of defendant’s statement with respect to the sale covered by the indictment (People v Ward, 62 NY2d 816, 818), and the prejudicial word "another” in the conversation which occurred as that sale was being made could have been redacted "without distortion of its meaning” (People v Ventimiglia, 52 NY2d, at p 362, supra). Nor was the men’s room conversation concerning the second September 26th sale probative of anything with respect to the earlier sale, except the fact that the $650 due from the earlier sale had been paid. To establish that fact, however, required nothing more than a question concerning whether the $650 referred to in the earlier conversation had been paid to defendant and the response that it had in fact been paid to him later the same afternoon.

It was, therefore, error to deny defendant’s attorney’s request for the exclusionary rulings he sought.

B.

It was also error to allow cross-examination and rebuttal testimony concerning the seven other transactions listed above. Here, as in People v Rahming (26 NY2d 411), defendant confined his direct testimony to a denial that he had sold any drugs to the undercover officer and his version of his relationship with the officer. Nothing in that testimony involved the seven sales concerning which defendant was cross-examined. "Thus, it was error for the prosecutor on cross-examination to have ranged beyond the defendant’s direct examination 'in order to lay a foundation for the tainted evidence on rebuttal’ ” (People v Rahming, 26 NY2d, at p 418, supra, quoting People v Miles, 23 NY2d 527, 543). Nor can cross-examination to the extent permitted be justified as impeachment by evidence of specific acts tending to impair credibility. Although such cross-examination is not precluded by the fact that the acts inquired into are similar to the crime charged (People v Pavao, 59 NY2d 282, 292), the overwhelming prejudice resulting from the number of transactions inquired into (see, People v Santarelli, 49 NY2d 241) proscribed allowance of cross-examination on all of them (see, People v Ventimiglia, supra).

In any event, an impeachment purpose could not have justified introduction of the mass of rebuttal evidence introduced, for the cross-examiner is bound by the witness’ answers on such collateral matters (People v Pavao, 59 NY2d, at p 288, supra) and, as already noted, defendant denied that any sales had occurred. The other crimes evidence was improper rebuttal for the further reasons that it was neither relevant to an element of the crime with which defendant was charged nor " 'in denial of some affirmative fact which the answering party ha[d] endeavored to prove’ ” (People v Harris, 57 NY2d 335, 345, quoting Marshall v Davies, 78 NY 414, 420). Such evidence becomes admissible when a defendant concedes that an illegal transaction occurred but denies legal capacity (People v Santarelli, 49 NY2d 241, supra) or criminal intent (People v Calvano, 30 NY2d 199; People v Schwartzman, 24 NY2d 241, cert denied 396 US 846; People v Dales, 309 NY 97), or when a defendant who has previously committed the same crime using a unique modus operandi puts the People to their proof as to identity with respect to the case on trial (People v Allweiss, 48 NY2d 40). But such evidence is not admissible when it "has no bearing other than to show that defendant is of a criminal bent or character” (People v Dales, 309 NY, at p 101, supra; see, Proposed New York Code of Evidence § 404 M).

Here, defendant flatly denies ever having sold narcotics to the undercover officer and there is neither any issue concerning his identity nor anything unique involved in the procedure followed in the other seven sales. Moreover, this is not, as the People argue, a situation like the agency defense involved in People v Lam Lek Chong (45 NY2d 64), where defendant, by his claim that he was acting only as agent rather than seller, himself put in issue his own prior dealings with the purchaser, or like the entrapment defense involved in People v Mann (31 NY2d 253), where defendant’s claim that he was enticed into committing the crime made evidence of his criminal predisposition relevant.

The affirmative facts which defendant sought to prove had nothing to do with the selling of drugs. His claim was that he had rejected the undercover officer’s request that he spy upon the attorney to whom he had sent the officer and that he had been apprehended and threatened by the officer and his colleagues as a result. The refutation of that claim lay in proof that defendant’s story was untrue; in proof, if you will, that the officers’ actions, intent and motives were proper, not of defendant’s criminal predisposition to sell drugs.

Nor, defendant having denied all involvement with drug sales, was there, as the Trial Judge suggested, any claim of accident or mistake on defendant’s part to be negated (cf. People v Henson, 33 NY2d 63). To the contrary, here, as in People v Molineux (168 NY 264, 300-305, supra), there being no issue concerning defendant’s intent, mistake or accident cannot furnish a pretext for the admission of evidence of other crimes.

Because defendant’s testimony put in issue not his own character or intent but the character and intent of the undercover officers, it was error to allow the cross-examination as to all seven other sales and to allow rebuttal testimony as to any of them.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

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

Order reversed, etc.

      . He was also indicted for criminal possession on September 30, 1983, but the two counts were severed and the sale count was tried first.

      . Defendant’s attorney argues correctly that because Penal Law § 220.00 (1) defines "sell” to include "give or dispose of to another” it was not necessary to prove payment (see, People v Lam Lek Chong, 45 NY2d 64, 72), but payment having in fact been made, the People were entitled to prove the payment as a fact directly related to the sale for which defendant was on trial.

      . The People’s direct case took 139 pages of transcript; its rebuttal, 294.