author: Titone, J.

text:
    Robert Goldsmith et al., Appellants, v Howmedica, Inc., Defendant, and Chitranjan S. Ranawat, Respondent.
    Argued February 7, 1986;
    decided March 27, 1986

      POINTS OF COUNSEL

      Herman Schmertz for appellants.
    For Statute of Limitations purposes respecting defendant physician Chitranjan S. Ranawat, the date of injury does not at all coincide with the time of implantation. The contrary rulings by the courts below are plainly erroneous. (Martin v Edwards Labs., 60 NY2d 417; Reyes v Bertocchi, 92 AD2d 863; Murphy v St. Charles Hosp., 35 AD2d 64; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Zappone v Home Ins. Co., 55 NY2d 131; Davis v City of New York, 38 NY2d 257.)

      Kenneth Mauro for respondent.
    I. Relying upon Martin v Edwards Labs. (60 NY2d 417), plaintiff wishes this court to change the law of medical malpractice in direct contradiction to the statute and the decisional law. (Matter of Beary v City of Rye, 44 NY2d 398; Weber v Sheer, 58 AD2d 520; Murphy v St. Charles Hosp., 35 AD2d 64; Davis v City of New York, 38 NY2d 257; Thornton v Roosevelt Hosp., 47 NY2d 780; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008; Feigelson v Ryan, 108 Misc 2d 192; Kearney v Jewish Mem. Hosp., 65 AD2d 329; Cooper v Edinbergh, 75 AD2d 757.) II. Extensions to the Statute of Limitations are not freely granted. Manufacturers and insurers of products, and not physicians, are best able to manage the risk and uncertainty involved in product safety. (Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212; Thornton v Roosevelt Hosp., 47 NY2d 780; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008; Fleishman v Lilly & Co., 62 NY2d 888; Perlmutter v Beth David Hosp., 308 NY 100; Gobhai v KLM Royal Dutch Airlines, 85 AD2d 566, 57 NY2d 839; Probst v Albert Einstein Med. Center, 82 AD2d 739; Milau Assoc. v North Ave. Dev. Corp., 42 NY2d 482; Codling v Paglia, 32 NY2d 330.)
   OPINION OF THE COURT

Titone, J.

When a prosthetic device malfunctions, does a cause of action for medical malpractice accrue upon implantation of the prosthetic device or upon injury to the patient? That is the sole question before us. We conclude that the cause of action accrues upon implantation.

In 1973, plaintiff Robert Goldsmith received a total hip replacement in an operation performed by defendant Chitranjan S. Ranawat. The femoral component of the implant, manufactured by defendant Howmedica, Inc., broke in 1981. Goldsmith commenced this action in 1983 against the doctor for malpractice; Goldsmith’s wife brought suit for loss of consortium. Special Term granted Dr. Ranawat’s motion for summary judgment and dismissed the complaint as to him on the ground that the Statute of Limitations barred the malpractice action. The Appellate Division affirmed, but granted leave to appeal. We affirm.

The general rule is that an action accrues and the Statute of Limitations begins to run at the time of the commission of the alleged malpractice (e.g., Davis v City of New York, 38 NY2d 257, 259). We have, to date, recognized but two exceptions. First, in a case where the doctor continues to treat the plaintiff after the act of malpractice, the Statute of Limitations is tolled until after the plaintiff’s last treatment for the same injury or illness (McDermott v Torre, 56 NY2d 399, 407; Borgia v City of New York, 12 NY2d 151). Second, in circumstances in which the doctor leaves a "foreign object” in the plaintiff’s body, the action does not accrue until after the object is discovered by the plaintiff (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427).

Plaintiffs argue that Martin v Edwards Labs. (60 NY2d 417), represented a third exception because we allowed the assertion of a claim against the manufacturers of prosthetic devices within three years of injury even though the devices had been implanted years earlier. We do not agree.

Martin involved a products liability action against the manufacturers of a prosthetic device and its component parts. Products liability actions are vastly different from medical malpractice actions in this context, because until the device malfunctions, there is no cause to complain against, or privity to, the manufacturer of a prosthetic device.

Moreover, in analyzing the proper distribution of risks between manufacturers of prosthetic aids and patients in Martin, we did not attempt to apportion the risks between physician and patient, an issue involving substantially different policy considerations (60 NY2d, at p 428, n). In this regard, it is noteworthy that in response to the medical malpractice crisis, the Legislature has enacted CPLR 214-a, covering actions involving acts of medical malpractice committed on or after July 1, 1975, which expressly excludes chemical compounds, fixation devices and prosthetic aids from the embrace of the term "foreign object”. Although this case is not governed by CPLR 214-a and plaintiffs do not urge that a prosthetic device is a foreign object, we cannot ignore the clearly expressed legislative intent that the present exception to the general time of commission accrual rule not be broadened beyond its existing confines (Thornton v Roosevelt Hosp., 47 NY2d 780; Matter of Beary v City of Rye, 44 NY2d 398; Weber v Scheer, 58 AD2d 520; Report of Special Advisory Panel on Medical Malpractice, at 36, 176; Memorandum, Governor’s Program Bill in Bill Jacket to L 1975, ch 109).

Plaintiffs also claim that to require the bringing of an action within three years of the commission of the malpractice effectively forecloses an action against the doctor before any injury has been suffered. The argument is not new. We have carefully considered it on numerous occasions. In each, we weighed the detriments of such a result against the effect of potentially open-ended claims upon the repose of defendants and society, and held that the Statute of Limitations must run from the time of the act until the Legislature decrees otherwise (Fleishman v Lilly & Co., 62 NY2d 888; Thornton v Roosevelt Hosp., supra; Matter of Beary v City of Rye, supra; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, cert denied 374 US 808; Schmidt v Merchants Desp. Transp. Co., 270 NY 287, 302; see also, Malpractice — Commencement of Limitations, Ann., 70 ALR3d 7,12).

For these reasons, the action against Dr. Ranawat accrued in 1973 and, therefore, is barred by the three-year Statute of Limitations. Accordingly, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed, with costs. Question certified not answered as unnecessary.

      . The actions against the manufacturer are not the subject of this appeal.

      . Since the alleged malpractice occurred before July 1, 1975, the action is governed by a three-year Statute of Limitations (CPLR 214, 214-a; McDermott v Torre, 56 NY2d 399, 407; Farrell, Civil Practice, 28 Syracuse L Rev 379, 391).

      . Although some courts and commentators have urged that the factors mandating a date of discovery rule in "foreign object” cases are no less persuasive in malpractice cases involving implantation devices (Reyes v

        Bertocchi, 92 AD2d 863 [2d Dept]; Murphy v St. Charles Hosp., 35 AD2d 64 [2d Dept]; Samore and Tymann, Torts, 24 Syracuse L Rev 551, 560), others have reasoned that the causal connection between the surgeon and the plaintiifs’ injuries is weaker in a case concerning prosthetic aids than in the cases involving an object left in the body during surgery (Kearney v Jewish Mem. Hosp., 65 AD2d 329 [1st Dept]; Cooper v Edinbergh, 75 AD2d 757 [1st Dept] [wire sutures not "foreign object”]). We think that the latter decisions are more consistent with the policies behind the Statute of Limitations. In cases involving prosthetic devices, the plaintiffs’ injuries might have been caused by negligence of the attending physician, by the plaintiffs’ physiological condition or by defects in the prosthetic aids.


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Angel Nieves, Appellant.
    Argued February 3, 1986;
    decided March 25, 1986

      POINTS OF COUNSEL

      Robert S. Dean and Philip L. Weinstein for appellant.
    I. The court below correctly determined that the deceased’s statements were not admissible as dying declarations, since they were made when she neither believed she was dying nor had given up all hope of recovery. (People v Allen, 300 NY 222; People v Bartelini, 285 NY 433; People v Sarzano, 212 NY 231; Shepard v United States, 290 US 96; People v Ludkowitz, 266 NY 233; People v Falletto, 202 NY 494; People v Acomb, 87 AD2d 1; People v Mikulec, 207 App Div 505; People v Miller, 270 App Div 107; People v Gonzalez, 61 NY2d 633.) II. The People should have been barred from arguing on appeal that the deceased’s statements are admissible as "excited utterances,” since the trial assistant (a) expressly waived a ruling from the Bench on the statements’ admissibility as excited utterances and (b) expressly limited his pifer of proof to the "dying declarations” theory and gave counsel below neither notice nor opportunity to defend against admissibility on any other theory. (Matter of Byrnes v Windels, 265 NY 403; People v Prado, 81 Misc 2d 710; Telaro v Telaro, 25 NY2d 433; People v Shealy, 51 NY2d 933; People v Santarelli, 49 NY2d 241; People v Robinson, 284 NY 75; People v Morhouse, 21 NY2d 66; Farr v Newman, 14 NY2d 183; Sega v State of New York, 60 NY2d 183; Marvin v Universal Life Ins. Co., 85 NY 278.) III. The deceased’s responses to interviews conducted at the hospital during her "period of recovery” — when she was "lucid,” "alert,” "cooperative” and "appeared to know what she was doing” — were not uttered impulsively or instinctively while her reflective powers were in abeyance, and were thus not admissible as excited utterances. (People v Caviness, 38 NY2d 227; People v Edwards, 47 NY2d 493; People v Boodle, 47 NY2d 398, 444 US 969; People v O'Neall, 47 NY2d 952; People v Arnold, 41 AD2d 573, 34 NY2d 548; People v McCullough, 73 AD2d 310; People v Allen, 300 NY 222; People v Gonzalez, 61 NY2d 633; People v Mayo, 48 NY2d 245.)

      Mario Merola, District Attorney (Lisa E. Sarnoff, Steven R. Kartagener and Mark L. Freyberg of counsel), for respondent.
    I. Appellant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. (People v Johnson, 57 NY2d 969.) II. The statements of appellant’s fatally wounded victim uttered only minutes before her death while in a state of trauma identifying appellant, with whom she lived, as her assailant were plainly reliable and properly admitted into evidence at trial. (People v Harrell, 59 NY2d 620; People v Mayorga, 64 NY2d 864; People v Van Luven, 64 NY2d 625; People v Bell, 63 NY2d 796; People v Wilson, 64 NY2d 634; United States v Kearney, 420 F2d 170; People v Arnold, 34 NY2d 548; People v Shortridge, 65 NY2d 309; People v Kidd, 76 AD2d 665, 51 NY2d 882; People v Edwards, 47 NY2d 493.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Defendant, Angel Nieves, was convicted after a jury trial of manslaughter in the second degree (Penal Law § 125.15 [1]). The evidence at trial establishing his guilt consisted almost entirely of statements made by the victim of a stabbing shortly before she died. The issue on this appeal is whether these statements were admissible at trial pursuant to the "dying declarations” exception to the general rule prohibiting the use of hearsay evidence. We conclude that the statements do not qualify as dying declarations, and we also reject the attempt by the People to raise for the first time on appeal the alternative argument that the statements were admissible as "excited utterances.”

At approximately 8:30 p.m. on January 16, 1982, the defendant, Angel Nieves, and another male carried Josephine Gonzalez into the emergency room at Bronx Lebanon Hospital. In response to inquiries by a doctor and nurse, defendant and his companion stated that Miss Gonzalez had been stabbed and that they had brought her to the hospital in a taxicab for which they had to wait outdoors for approximately 20 minutes. Miss Gonzalez was wearing only light-weight clothing, and her body was wet and extremely cold. Although conscious when brought in, she was in shock due to her low body temperature, and was unable to speak.

The doctor’s initial examination of Miss Gonzalez revealed a small incision in the areola of her left breast, indicating the possibility of a heart wound. The doctor and the nurse commenced emergency procedures designed to warm the victim’s body and stabilize her vital signs. After 10 to 15 minutes of treatment, Miss Gonzalez’s condition improved and she became lucid.

At some point shortly after Miss Gonzalez came out of shock, the doctor and nurse began to question her. Miss Gonzalez first responded to questions as to her name and address. The nurse then asked her what had happened and she stated that she had been stabbed. When asked who had stabbed her, Miss Gonzalez pointed at the defendant, standing nearby in the emergency room, and said "Angel”. In response to further inquiry, she stated that she and the defendant had been at a party and that he had gotten jealous and had then stabbed her.

The nurse immediately called hospital security, and about 10 minutes later Police Officer Perez arrived at the emergency room. After being told by the doctor and nurse what Miss Gonzalez had said, Officer Perez located the defendant, who then was standing in a small anteroom next to the emergency room, and brought him to Miss Gonzalez. The police officer asked her whether the defendant was the person who had stabbed her, to which she replied "Yes,” and he then asked her what the defendant’s name was, to which she replied "Angel Nieves”. Officer Perez then took the defendant out of the emergency room, frisked him, and found a knife on his person. Although the knife had bloodstains on it, the amount of blood was insufficient to determine how long it had been there or whether it was from Miss Gonzalez.

During a period of approximately 20 to 25 minutes, Miss Gonzalez was alert and had no difficulty responding to the questions posed to her. She did complain, however, of strong chest pains. She stated several times that she did not want to die, although neither the doctor nor the nurse ever told her that she was dying or that her condition was critical.

Miss Gonzalez’s condition worsened when blood began to seep into the wound, which had punctured both the pericardium, the sac surrounding the heart, and the heart itself. As her vital signs stabilized, more and more blood became trapped in the pericardium, causing a slow strangulation of the heart. The doctor’s efforts to alleviate this pressure were unsuccessful and, after hand massaging her heart for 45 minutes, he pronounced her dead at 10:15 p.m.

Defendant was indicted for second degree murder (Penal Law § 125.25). He then moved for inspection of the Grand Jury minutes and to dismiss the indictment on the ground that the evidence before the Grand Jury was not legally sufficient (see, CPL 210.20, 210.30, 190.65). The court, after reviewing the minutes, denied the motion to dismiss, but ordered that a pretrial hearing be conducted to determine the admissibility of the statements made by Miss Gonzalez.

At the start of the hearing, the prosecutor stated, as to the admissibility of the statements, that they met the legal requirements of "dying declarations”. The doctor, the nurse and Police Officer Perez testified at the hearing as to the events at the hospital. At the close of the evidence, defense counsel reiterated that the issue before the court was whether the statements were "dying declarations”. He then noted the possible alternative argument that the statements were spontaneous exclamations, but added that the prosecutor had not made this contention. The prosecutor responded that he did not believe that Miss Gonzalez’s assertions could qualify as spontaneous statements, given the length of time between the stabbing incident and the making of the statements and that he therefore agreed that their admissibility turned on whether they were dying declarations.

The court concluded that Miss Gonzalez was "in extremis” at the time she made her statements and that the nature of the wound, together with the surrounding circumstances, supported an inference that she knew that she was dying. It thus ruled that the statements were admissible at trial as dying declarations.

The evidence at trial with respect to the events in the emergency room was largely identical to that adduced at the hearing, and the testimony recounting Miss Gonzalez’s statements was permitted in accordance with the pretrial ruling. The jury convicted defendant of second degree manslaughter, which was submitted to it as a lesser included offense of murder in the second degree.

The Appellate Division affirmed the judgment of conviction, though the majority of that court relied on a different ground for the admissibility of Miss Gonzalez’s statements. The majority first disagreed with the trial court’s ruling that the statements met the requirements of dying declarations, finding instead that the evidence did not show that Miss Gonzalez " ' "was under a sense of impending death, without any hope of recovery” ’ ” when she made them (108 AD2d 165, 168, quoting People v Allen, 300 NY 222, 227). The Appellate Division majority went on to find, however, that the statements were admissible as "excited utterances,” an argument made for the first time by the People in their brief to that court. The majority rejected the defendant’s contention that the People could not attempt to sustain the admissibility of evidence on a ground not raised before the trial court, concluding that such a bar applied only where an initial ruling of admissibility was made as a determination of a pretrial motion to suppress evidence (see, CPL art 710).

The concurring Justice at the Appellate Division concluded that the statements were properly received into evidence as dying declarations. Leave to appeal was granted by a Judge of this court.

Miss Gonzalez’s statements, of course, constituted hearsay evidence, as they were made out of court and were sought to be introduced for the truth of what she asserted (see, People v Edwards, 47 NY2d 493, 496; Richardson, Evidence § 200 [Prince 10th ed]). Accordingly, they were admissible only if the People demonstrated that they fell within one of the exceptions to the hearsay rule. Although the People now contend that the statements should be admissible as long as they are deemed "reliable”, without regard to whether they fit into any such exception, they made no such argument before the trial court. Furthermore, we are not prepared at this time to abandon the well-established reliance on specific categories of hearsay exceptions in favor of an amorphous "reliability” test, particularly in criminal cases where to do so could raise confrontation clause problems (US Const 6th Amend; NY Const, art I, § 6; see, California v Green, 399 US 149, 155-156; McCormick, Evidence § 252, at 752 [Cleary 3d ed]; cf. Ohio v Roberts, 448 US 56, 65-66, and n 8; United States v Barlow, 693 F2d 954, 964, cert denied 461 US 945).

Dying declarations have long been treated as an exception to the general rule excluding hearsay evidence. The notion that deathbed statements have some particular trustworthiness existed long before the hearsay rule itself gained general acceptance in the early 18th century, and thus, it is not surprising that formal recognition of a dying declarations exception occurred by the middle of that century (see, 5 Wigmore, Evidence § 1430 [Chadbourn ed]; McCormick, Evidence § 281 [Cleary 3d ed]).

Although originally the use of dying declarations was not limited to particular types of cases (see, 5 Wigmore, op. cit. § 1431; McCormick, op. cit. § 283, at 831), by the early 19th century common-law courts had begun to restrict their use to homicide prosecutions, and this limitation became firmly engrained in New York law (see, e.g., People v Becker, 215 NY 126, 145; Richardson, Evidence § 311 [Prince 10th ed]). Numerous cases have rationalized the exception for dying declarations in homicide cases as one of "necessity”, as in some cases murderers might escape punishment if statements by the dying victim were excluded (see, e.g., People v Bartelini, 285 NY 433, 439; People v Ludkowitz, 266 NY 233, 241; People v Liccione, 63 AD2d 305, 316 [Simons, J.], affd 50 NY2d 850).

Traditionally, deathbed statements were accepted as trustworthy on the theory that a person about to be judged by a Supreme Being was not likely to risk divine retribution by telling a lie (see, e.g., Rex v Woodcock, 1 Leach 500, 168 Eng Rep 352 [KB]; People v Kraft, 148 NY 631, 634; Fisch, New York Evidence § 916 [2d ed]). As early as 75 years ago, however, this court noted that "[t]he fear of punishment after death is not now regarded as so strong a safeguard against falsehood as it was when the rule admitting such declarations was first laid down” (People v Falletto, 202 NY 494, 499). Support for the exception is now generally based on the alleged psychological effect that awareness of impending death has on the declarant, as such knowledge is presumed to remove from the mind all motivation and inclination to lie (see, 5 Wigmore, op. cit. § 1443; Prince, Policy Considerations and Changes in the Hearsay Rule, 19 NY L Forum 761, 763; accord, People v Bartelini, 285 NY 433, 439, supra).

Under any justification for permitting the use of dying declarations, the crucial inquiry is directed toward the state of mind of the declarant. Thus, by the early part of this century it was established that for a statement to constitute a dying declaration, the declarant must not only have been in ex-tremis, but must also have spoken under a sense of impending death, with no hope of recovery (see, People v Ludkowitz, 266 NY 233, 239, supra; People v Sarzano, 212 NY 231, 235; People v Del Vermo, 192 NY 470). Belief by the declarant that death is possible, or even probable, is not sufficient (People v Sarzano, supra). Rather, "[tjhere must be 'a settled hopeless expectation’ * * * that death is near at hand” (Shepard v United States, 290 US 96,100 [Cardozo, J.]).

The last time we addressed the subject of dying declarations was in 1949 when we reaffirmed these traditional requirements (People v Allen, 300 NY 222, 227, supra), rejecting the suggestion that the rules for what would constitute a dying declaration should be loosened. The People now argue once again that the traditional requirements for the declarant’s state of mind are too strict, and essentially urge that any statement made by a seriously injured person be admissible where there are some indicia of trustworthiness. We again decline, however, to broaden the exception.

This court has always regarded dying declarations with a degree of skepticism (see, e.g., People v Ludkowitz, 266 NY 233, 240, supra; People v Corey, 157 NY 332, 349). As was stated in People v Bartelini (285 NY 433, 440, supra), " 'Dying declarations are dangerous, because made with no fear of prosecution for perjury and without the test of cross-examinatian, which is the best method known to bring out the full and exact truth’ ” (quoting People v Falletto, 202 NY 494, 499, supra; see also, Fisch, op. cit. § 923; Prince, op. cit., 19 NY L Forum, at 765). It has long been the rule in this State that dying declarations are not of equal weight to in-court testimony (see, e.g., People v Kraft, 148 NY 631, 634), and, upon request, the jury must be so charged (see, People v Mleczko, 298 NY 153, 161; People v Bartelini, 285 NY 433, 442, supra).

The issue which defendant has raised is whether there was sufficient evidence that Miss Gonzalez made the statements "while under a sense of impending death with no hope of recovery” so that it was within the trial court’s discretion to admit them into evidence. The People correctly point out that a statement’s qualification as a dying declaration does not hinge upon the declarant having actually expressed a certainty of impending death. As we have already recognized, there is no standardized ritual spoken by all dying persons (People v Bartelini, 285 NY 433, 440, supra). There is also no unvarying requirement that the declarant had been told by a doctor that an imminent death was certain (People v Falletto, 202 NY 494, 500-501, supra; Fisch, op. cit. § 918, at 533).

Rather, the requisite state of mind of declarant may be found from all of the circumstances surrounding the statement sought to be admitted (see, e.g., People v Ludkowitz, 266 NY 233, 239, supra). Any statements made by the declarant as to his condition or his expectations, as well as any statements made by medical personnel to the declarant as to the severity of his injury, are, of course, highly relevant. Among the other factors to be considered by the trial court are the nature and severity of the wound, as apparent to the declarant; whether the person’s condition appeared to be improving or declining when the declaration was made; and, whether any actions normally associated with an expectation of imminent death, such as asking for last rites, disposing of property, or attempting to make arrangements for the care of family members were taken (see, People v Ludkowitz, supra; Richardson, op. cit. § 309, at 285).

Here, the circumstances were simply insufficient to infer the requisite state of mind. Miss Gonzalez’s own statements— complaining of chest pains and stating that she did not want to die — were, as found by the Appellate Division, equivocal, disclosing perhaps more a fear of death than an expectation of it. Neither the doctor nor the nurse ever told her that she was dying, or even informed her that death was possible. Although the wound turned out to be fatal, it was not of such nature that its severity would have been obvious to Miss Gonzalez (compare, People v Falletto, 202 NY 494, supra [declarant bleeding and choking from knife wound to throat]; People v Liccione, 63 AD2d 305, affd 50 NY2d 850, supra [declarant bleeding profusely from multiple stab wounds and under belief that she had also been shot]). The doctor testified that at the time Miss Gonzalez spoke, he did not think that she would die, and the record is clear that when she spoke her condition was improving, or at least stabilizing. Finally, she took no steps which would reveal an expectation of death, despite having had ample opportunity to do so. Consequently, the statements were not admissible as dying declarations.

The People alternatively seek affirmance of the Appellate Division order on the ground that the statements were admissible as "excited utterances,” an argument accepted by the Appellate Division despite the People having expressly declined to rely on this theory before the trial court.

Excited utterances, like dying declarations, have long been recognized as an exception to the hearsay rule (see, e.g., People v Del Vermo, 192 NY 470, 483, supra; see generally, People v Caviness, 38 NY2d 227, 230-231). Statements within this exception are generally made contemporaneously or immediately after a startling event which affected or was observed by the declarant, and relate to the event (see, People v Edwards, 47 NY2d 493, 496-497). The essential element of the exception is that the declarant spoke while under the stress or influence of the excitement caused by the event, so that his reflective capacity was stilled (see, People v Caviness, 38 NY2d 227, 230-231, supra; People v Marks, 6 NY2d 67, 71). An utterance made "as a direct result of sensory perception during that brief period when considerations of self-interest cannot be immediately brought to bear” is deemed sufficiently trustworthy to be admitted into evidence as an expression of the true belief of the declarant with respect to the facts observed (People v Edwards, 47 NY2d 493, 497, supra).

The spontaneity of a declarant’s statement is measured by the surrounding facts and cannot be determined simply by reference to the amount of time that transpired between the event and the statement. Thus, the condition of the declarant during any lapsed period of time, and the declarant’s activities during that period, must also be considered (People v Edwards, supra). Another factor in determining spontaneity would be whether a statement was made in response to interrogation.

It is apparent that a determination whether Miss Gonzalez’s statements qualified as excited utterances requires factual determinations dissimilar to those surrounding the issue of dying declarations. Little or no effort was made at the hearing before the trial court to establish, for example, the amount of time between the stabbing incident and the statements, Miss Gonzalez’s probable condition before going into hypothermie shock, how soon after she came out of shock the questioning began, and whether she appeared to be "excited” or under stress when she spoke.

We have recently reaffirmed the principle that the Appellate Division cannot uphold conduct of the police, and thereby affirm a trial court’s denial of suppression of evidence obtained pursuant to such conduct, on a factual theory not argued by the People before the trial court (see, People v Johnson, 64 NY2d 617, 629, n 2; People v Dodt, 61 NY2d 408, 416). The People attempt to distinguish these cases on the ground that they involved suppression motions under CPL article 710, for which a pretrial hearing is generally required (see, CPL 710.40), while the use of a pretrial hearing in the present case was discretionary, as the admissibility of the hearsay statements could have been resolved through the use of a hearing during the trial, outside the presence of the jury (see, People v Liccione, 63 AD2d 305, 316, affd 50 NY2d 850, supra).

In the present context, however, this is a distinction without a difference. If the Appellate Division’s determination were allowed to stand, the defendant would still be denied the opportunity to present evidence to counter a factual theory advanced by the People in support of the admissibility of evidence. The record does not conclusively demonstrate that Miss Gonzalez’s statements were excited utterances, and clearly the argument could have been countered by the defendant had the People raised it before the trial court. Accordingly, the Appellate Division improperly relied on the excited utterances exception in affirming the conviction (see, e.g., Sega v State of New York, 60 NY2d 183, 190, n 2; see also, Cover v Cohen, 61 NY2d 261, 274; Cohen and Karger, Powers of the New York Court of Appeals §§ 161, 162 [rev ed]).

The order of the Appellate Division must, therefore, be reversed. Additionally, because defendant was convicted only of a lesser included offense, for which he was not indicted, the indictment must be dismissed (see, People v Gonzalez, 61 NY2d 633, 634-635; People v Mayo, 48 NY2d 245, 253). The People, of course, are free to seek a new indictment for manslaughter in the second degree.

Should there be a second trial, we would note that there is a significant difference between an objection, as the one made in this case, to the admissibility of evidence based on an evidentiary principle such as the hearsay rule, and a motion to suppress evidence made pursuant to CPL article 710. In the former case, even if a ruling on the objection is, for convenience, made prior to trial, it is viewed as a trial ruling, and thus ordinarily will not be binding in a subsequent trial (see, e.g., People v Malizia, 62 NY2d 755, 758, cert denied — US —, 105 S Ct 327). Thus, there would be no basis for precluding the People from seeking to admit Miss Gonzalez’s statements as excited utterances at a second trial.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.

Judges Meyer, Simons, Kaye, Titone and Hancock, Jr., concur; Judge Alexander taking no part.

Order reversed, etc.

      . The statements, for purposes of the hearsay rules, include the nonverbal assertions made by Miss Gonzalez in pointing to the defendant when asked who had stabbed her (see, People v Caviness, 38 NY2d 227, 230; People v Modas, 201 NY 349, 354).

      . In contrast, it is well recognized that statements falling within "firmly rooted” exceptions to the hearsay rule do not ordinarily deny any confrontation rights (Ohio v Roberts, 448 US 56, 66; see, e.g., Mattox v United States, 156 US 237, 243-244 [dying declarations]; People v Corey, 157 NY 332, 347 [same]; United States v Nick, 604 F2d 1199 [excited utterances]).

      . In line with this limitation are the additional requirements that the prosecution is for the death of the declarant and that the statements concern the circumstances of his death (People v Becker, 215 NY 126, 145; Richardson, Evidence § 311 [Prince 10th ed]). Although the restrictions on the use of dying declarations have been attacked as arbitrary (see, e.g., 5 Wigmore, Evidence § 1436 [Chadbourn ed]; McCormick, Evidence § 283 [Cleary 3d ed]), we need not address such criticisms on this appeal.

      . During the brief discussion of this theory at the hearing (see, supra, p 130), the terms "spontaneous exclamations” and "spontaneous declarations” were used. These terms are synonymous, for purposes of hearsay rules, with the term "excited utterance” now used by the parties (see, People v Ed-wards, 47 NY2d 493, 496-497, n 1).

      . In contrast, the findings made pursuant to a hearing on an article 710 motion are ordinarily binding at any retrials of the same case, and where an appellate court concludes that the record of the hearing reveals that evidence must be suppressed, the People are not entitled to a new hearing to try to sustain a theory which they could have, but failed to raise at the first trial (see, e.g., People v Wilkins, 65 NY2d 172, 180; cf. People v Havelka, 45 NY2d 636).


author: Per Curiam.

text:
    Eugene Di Lorenzo, Inc., Respondent, v A. C. Dutton Lumber Co., Inc., Also Known as A. C. Dutton Lumber Company, Defendant, and Phil-Mar Lumber Corporation, Appellant.
    Argued February 11,1986;
    decided March 27, 1986

      POINTS OF COUNSEL

      J. Scott Greer and Lou Lewis for appellant.
    I. When defen-' dont moves to vacate a default judgment without specifying the statutory authority for vacatur, the default judgment may be vacated pursuant to CPLR 317. (Epstein v Abalene Pest Control Serv., 98 AD2d 832; H.K.A. Realty Co. v United Steel & Strip Corp., 88 AD2d 612; National Bank of N. N. Y. v Grosso, 79 AD2d 871; Meyer v Fisher & Sons Dental Lab., 90 AD2d 889; Cecelia v Colonial Sand & Stone Co., 85 AD2d 56.) II. When a person knows the business address or whereabouts of a corporate defendant which has neglected to update its address with the Secretary of State, but chooses to serve the Secretary of State anyway, a default caused by lack of actual notice is excusable under CPLR 5015 (a) (1). (H.K.A. Realty Co. v United Steel & Strip Corp., 88 AD2d 612; Mintz v Astoria Holding Corp., 56 AD2d 595; Brae Constr. Corp. v Di-Corn Corp., 51 AD2d 740; Cristo Bros, v M. Cristo, Inc., 91 AD2d 807, 59 NY2d 760.) III. When a motion to vacate a default judgment is submitted under CPLR 5015, the court may consider the motion as if submitted under CPLR 317. (Zuppa v Bison Drywall & Insulation Co., 93 AD2d 997; Barazani v New Line Cinema Corp., 52 AD2d 543; Brac Constr. Corp. v Di-Com Corp., 51 AD2d 740; Epstein v Abalene Pest Control Serv., 98 AD2d 832; Cecelia v Colonial Sand & Stone Co., 85 AD2d 56; Eugene Di Lorenzo, Inc. v Dutton Lbr. Corp., 108 AD2d 1004; Cristo Bros. v M. Cristo, Inc., 91 AD2d 807, 59 NY2d 760; Vogel v Agrow Manderville Co., 74 AD2d 940, 50 NY2d 894, 55 NY2d 675; Mullane v Central Hanover Trust Co., 339 US 306; Matter of Quinton A., 49 NY2d 328.)

      Peter Case Graham for respondent.
    When a corporation moves to vacate a default judgment pursuant to CPLR 5015 (a) (1) as its sole ground, the failure to keep a current address with the Secretary of State is not a "reasonable excuse”. (Cristo Bros. v M. Cristo, Inc., 91 AD2d 807, 60 NY2d 554; Cecelia v Colonial Sand & Stone Co., 85 AD2d 56; Epstein v Abalene Pest Control Serv., 98 AD2d 832.)
   OPINION OF THE COURT

Per Curiam.

The issue on this appeal is whether the trial court abused its discretion as a matter of law in granting defendant Phil-Mar Lumber Corporation’s motion to vacate a default judgment entered against it. We conclude that it did not, and remit the case to the Appellate Division for the exercise of discretion by that court.

Plaintiff brought a breach of contract action in Supreme Court against Phil-Mar Lumber Corporation (Phil-Mar) and A. C. Dutton Lumber Company, Inc. (Dutton). It served Phil-Mar, a New York corporation, by delivering two copies of the summons and complaint to the Secretary of State on June 29, 1983 (see, CPLR 311 [1]; Business Corporation Law § 306). The Secretary of State promptly sent one of these copies by certified mail to the address listed by Phil-Mar with the Department of State for this purpose. This copy was returned to the Secretary of State by the post office with the notation "Moved, Not Forwardable.” Phil-Mar had apparently move its place of business, but had not updated the address on file with the Department of State.

While Phil-Mar failed to answer, plaintiff applied for a default judgment. Judgment was entered against Phil-Mar on August 2, 1983 and the action against Dutton was severed. On August 18, plaintiff sent a restraining notice to Phil-Mar’s bank as garnishee.

By order to show cause dated August 26, 1983, Phil-Mar moved to vacate the default judgment and set aside the restraining notice issued thereunder. Its motion papers alleged that it first received notice of the action on August 23, when it learned of the restraint on its bank account. Phil-Mar also asserted that plaintiff knew the location of its place of business through the business dealings between them, yet never attempted to serve it personally at that office. The motion papers also proffered a defense to plaintiff's claim.

Plaintiff, in opposition to the motion, did not deny knowledge of Phil-Mar’s place of business. It asserted, however, that Phil-Mar had deliberately failed to update its address with the Department of State in an attempt to defraud creditors, and that its default was therefore willful. Plaintiff submitted evidence showing that process sent by the Secretary of State in several other actions to Phil-Mar’s address on file had been returned, and that in one of these other actions a default judgment had been entered on June 17, 1983. Phil-Mar, in reply, asserted that it had not realized that an improper address was on file until July 6,1983.

Phil-Mar’s order to show cause did not recite the statutory provision upon which it relied for vacating the default judgment. The attorney’s affirmation in support of the motion asserted that the moving papers set forth entitlement to relief under CPLR 5015 (a), and this provision was again referred to in the reply papers. CPLR 5015 (a) provides that a party may be relieved from a judgment on the ground of, among others, "excusable default” (CPLR 5015 [a] [1]). A defendant seeking to vacate a default under this provision must demonstrate a reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action (see, e.g., Gray v B. R. Trucking Co., 59 NY2d 649, 650; Blake v City of New York, 90 AD2d 531).

A second provision for obtaining relief from a default judgment is found in CPLR 317. That section states, in part, that "[a] person served with a summons other than by personal delivery to him or to his agent for service under [CPLR] 318 * * * may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment * * * upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense.” As has been emphasized in numerous cases, there is no necessity for a defendant moving pursuant to CPLR 317 to show a "reasonable excuse” for its delay (see, e.g., Simon & Schuster v Howe Plastics & Chems. Co., 105 AD2d 604, 605; Zuppa v Bison Drywall & Insulation Co., 93 AD2d 997). It is also well established that service on a corporation through delivery of process to the Secretary of State is not "personal delivery” to the corporation or to an agent designated under CPLR 318 (see, e.g., Taieb v Hilton Hotels Corp., 60 NY2d 725; Cecelia v Colonial Sand & Stone Co., 85 AD2d 56, 57). Thus, corporate defendants served under Business Corporation Law § 306 have frequently obtained relief from default judgments where they had a wrong address on file with the Secretary of State, and consequently, did not receive actual notice of the action in time to defend (see, e.g., Union Indent. Ins. Co. v 10-01 50th Ave. Realty Corp., 102 AD2d 727; Meyer v Fisher & Sons Dental Lab., 90 AD2d 889).

Special Term, although acknowledging that Phil-Mar had not cited to CPLR 317, granting relief pursuant to that section, finding that Phil-Mar had not personally received notice of the summons in time to defend the action and that the affidavits in support of the motion raised questions of fact supporting a meritorious defense. The court also concluded that Phil-Mar was entitled to relief under CPLR 5015 (a). It found that plaintiff knew Phil-Mar’s business address and had, in fact, served Dutton at that address, and held that under such circumstances the default was "excusable”.

The Appellate Division, Third Department, reversed Special Term’s order on the law and reinstated the default judgment against Phil-Mar. The court did not consider CPLR 317, and, with respect to CPLR 5015 (a), held that a corporation’s default is not "excusable” where its lack of actual notice was due to its own failure to keep a current address on file with the Secretary of State.

The court also noted the other default judgment which had been entered against Phil-Mar prior to the service here, though it did not make any findings as to when Phil-Mar received notice of that judgment.

The Third Department’s failure to consider CPLR 317 was apparently based upon its prior holding that where a defendant cites to only CPLR 5015 (a) in support of a motion to vacate a default judgment, the court may not grant such relief pursuant to CPLR 317 (see, Cristo Bros. v M. Cristo, Inc., 91 AD2d 807, appeal dismissed 59 NY2d 760; see also, Epstein v Abalene Pest Control Serv., 98 AD2d 832). Other courts, however, have held that a defendant’s specification of only CPLR 5015 does not preclude the court from considering CPLR 317 as a basis for vacating a default (see, Rifenburg v Liffiton Homes, 107 AD2d 1015; Brac Constr. v Di-Com Corp., 51 AD2d 740; Royal Athletic Surfacing Co. v Crossfield Prods. Corp., 120 Misc 2d 184). Particularly in view of the provision in CPLR 2001 for disregarding a "mistake, omission, defect or irregularity”, we agree with the latter decisions that a court has the discretion to treat a CPLR 5015 (a) motion as having been made as well pursuant to CPLR 317.

Accordingly, the decision by Special Term to consider CPLR 317 was not an abuse of discretion, and reversal by the Appellate Division "on the law” was improper. Nor can we conclude, on the factual findings before us, that vacatur of the default under CPLR 317 was in any event an abuse of discretion. A defendant who meets the requirements of that section normally will be entitled to relief, although relief is not automatic, as the section states that a person meeting its requirements "may be allowed to defend the action” (emphasis added; see also, 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 317.08). Thus, denial of relief under CPLR 317 might be appropriate where, for example, a defendant’s failure to personally receive notice of the summons was a result of a deliberate attempt to avoid such notice (see, Rifenburg v Liffiton Homes, 107 AD2d 105, supra; Cascione v Acme Equip. Corp., 23 AD2d 49).

We would also note that even under CPLR 5015, there is no per se rule that a corporation served through the Secretary of State, and which failed to update its address on file there, cannot demonstrate an "excusable default”. Rather, a court should consider, among other factors, the length of time for which the address had not been kept current.

Accordingly, the order of the Appellate Division should be reversed, and the matter remitted to that court for the exercise of discretion.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur in Per Curiam opinion.

Order reversed, with costs, and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein. Question certified answered in the affirmative.


author: Alexander, J.

text:
    The People of the State of New York, Appellant, v Jeffrey A. Schulz, Respondent.
    Argued February 11, 1986;
    decided March 27, 1986

      POINTS OF COUNSEL

      Larry M. Himelein, District Attorney, for appellant.
    I. CPL 700.70 is strictly a procedural mechanism to facilitate proceedings under CPL article 255. (Berger v New York, 388 US 41; Katz v United States, 389 US 347; People v Basilicato, 64 NY2d 103; People v Gallina, 66 NY2d 52.) II. Respondent’s actual knowledge of the existence of the wiretap evidence constitutes good cause for the noncompliance with CPL 700.70. (People v Basilicato, 64 NY2d 103; People v Greer, 42 NY2d 170; People v Briggs, 38 NY2d 319; People v Michel, 56 NY2d 1014, 57 NY2d 775; People v Costello, 101 AD2d 244; People v Wilson, 86 AD2d 957; People v Thornton, 87 AD2d 991; Matter of Jorge R., 120 Misc 2d 348.) III. Actual knowledge aside, the People sustained a finding of good cause. (People v Spruill, 47 NY2d 869; People v Eisenoff, 121 Misc 2d 222.) IV. Noncompliance with CPL 700.70 or 710.30 can be excused when the goals of the statute have otherwise been met. (People v Mark, 68 AD2d 315; People v Anderson, 80 AD2d 33; People v Taylor, 102 AD2d 944; People v Brown, 83 AD2d 699; People v Brown,
      92 AD2d 939; People v Magazine, 106 AD2d 473; People v Swanton, 107 AD2d 829; People v Merced, 119 Misc 2d 238; People v Huntley, 15 NY2d 72.) V. The defense motion to suppress was untimely and no good cause for the tardiness was alleged or shown. (People v Coleman, 114 Misc 2d 685; People v Key, 45 NY2d 111; People v Selby, 53 AD2d 878, 43 NY2d 791.) VI. The issue was not properly preserved for appeal. (People v Rivera, 53 NY2d 1005; People v Clark, 41 NY2d 612; People v Ross, 21 NY2d 258; People v Rullo, 31 NY2d 894; People v Weis, 32 AD2d 856; People v Clayborn, 50 AD2d 952; People v Webb, 97 AD2d 779.)

      J. Kevin Laumer for respondent.
    I. Law office failure and confusion do not establish good cause to excuse untimely compliance with GPL 700.70 when suppression is otherwise mandated. (People v Basilicato, 64 NY2d 103; People v Gallina, 66 NY2d 52; People v Washington, 46 NY2d 116; People v Sher, 38 NY2d 600; People v Briggs, 38 NY2d 319; People v Spruill, 47 NY2d 869; People v Greer, 42 NY2d 170.) II. The conduct of the prosecutor in arguing in summation, absent evidence, that defendant had fled from the jurisdiction; the blatant attempt to vouch for the credibility of the People’s witness; and the comments about losing an argument of law on a critical issue were prejudicial errors which denied defendant a fair trial. (People v Libbett, 101 AD2d 705, 63 NY2d 763; People v Connette, 101 AD2d 699; People v Grice, 100 AD2d 419; People v Mott, 94 AD2d 415; People v Teiper, 186 App Div 830; People v La Cava, 75 AD2d 997, appeal dismissed sub nom. Matter of La Cava, 57 NY2d 670; People v Fielding, 158 NY 542; People v Arce, 42 NY2d 179; People v Ashwal, 39 NY2d 105; People v Alicea, 37 NY2d 601.) III. The proof at trial was insufficient to convict as a matter of law and fact. (People v Hudson, 51 NY2d 233; People v Daniels, 37 NY2d 624; People v Kress, 284 NY 452; People v Crimmins, 36 NY2d 230.) IV. It was error to allow the District Attorney to impeach his own witness by using the witness’s Grand Jury testimony and out-of-court statements. (People v Fitzpatrick, 40 NY2d 44; People v Gilbert, 99 AD2d 657; People v Dann, 100 AD2d 909; People v Burke, 96 AD2d 971.) V. The trial court should have suppressed the evidence secured through the phonetap. (People v Brenes, 53 AD2d 78, 42 NY2d 41; United States v Hinton, 543 F2d 1002; United States v Martinez, 588 F2d 1227; United States v DiMuro, 540 F2d 503; United States v Lilia, 699 F2d 99; People v Romney, 77 AD2d 482.) VI. The phonetap tape recordings should not have been admitted absent a proper legal foundation. (People v Arena, 65 AD2d 182, 48 NY2d 944; People v McGee, 49 NY2d 48; People v Rodriguez, 78 AD2d 769; Epstein v Epstein, 285 App Div 593; People v Rogers, 48 NY2d 167.) VII. The pen register evidence should not have been admitted because of a lack of foundation, especially in light of the pen register breakdown. (United States v Fuentes, 563 F2d 527, cert denied sub nom. Sansone v United States, 434 US 959; People v McGee, 49 NY2d 48; People v Donaldson, 36 AD2d 37.) VIII. The sentence imposed in this case was unduly harsh and severe and, therefore, should be modified in the interest of justice. (People v Farrar, 52 NY2d 302; People v McConnell, 49 NY2d 340; People v Notey, 72 AD2d 279; People v Burghardt, 17 AD2d 912; People v Cotter, 25 AD2d 609; People v Mosher, 24 AD2d 47; Williams v New York, 337 US 241; People v Silver, 10 AD2d 274.)
   OPINION OF THE COURT

Alexander, J.

Evidence derived from an intercepted communication must be suppressed where there has been a failure to comply with the notice provision of CPL 700.70, and where there has been neither an application for an extension of time within the 15 days provided in that statute nor a showing of good cause for noncompliance and lack of prejudice to defendant.

In March of 1981, the Chautauqua County Drug Task Force began investigating the drug trafficking activities of Gary Hemphill and in connection therewith an undercover police officer made two purchases of LSD from Hemphill. In an effort to gain access to Hemphill’s supplier, the undercover police officer made arrangements with Hemphill to purchase a large quantity of drugs.

In furtherance of the investigation, the Chautauqua County District Attorney applied for and was issued an eavesdropping warrant on Hemphill’s telephone. Conversations between Hemphill and defendant pertaining to drugs were recorded and on September 18, 1981, Hemphill sold the undercover police officer 10,000 "hits” of LSD that he had purchased from defendant in Cattaraugus County. Hemphill was arrested, and as part of a plea agreement gave testimony before a Cattaraugus County Grand Jury that implicated defendant.

Defendant was subsequently indicted by the Cattaraugus County Grand Jury for criminal sale of a controlled substance in the second degree (Penal Law §220.41 [4]) and was arraigned on September 22, 1982. Copies of the eavesdropping application and warrant were not served on defendant until November 23, 1982, 61 days after defendant was arraigned. On February 8, 1983, defendant moved to suppress the tapes, for, among other things, failure to comply with CPL 700.70. In opposing the motion the People contended that there was “good cause” for the delay in that they had been erroneously informed by the Chautauqua County Task Force that the application and warrant had been served on defendant and when the error was discovered, service was promptly made. Moreover, they argued that defendant was not prejudiced by the delay because he had been aware at all times of the existence of the tapes and knew that the wiretap evidence would be introduced against him. The motion to suppress was denied following a hearing and defendant was thereafter convicted, upon a jury verdict, and sentenced.

On appeal from the judgment of conviction, the Appellate Division reversed the conviction on the law, granted the motion to suppress and ordered a new trial. The People have appealed by leave of a judge of this court.

I

We begin our discussion by reaffirming that there must be strict compliance with the provisions of New York’s eavesdropping statute (CPL art 700) and that the burden of establishing such compliance rests with the prosecution (People v Gallina, 66 NY2d 52, 57; People v Basilicato, 64 NY2d 103; People v Washington, 46 NY2d 116, 121-122; People v Sher, 38 NY2d 600, 603-605; People v Mark, 68 AD2d 315, 318). As we observed in People v Washington (46 NY2d, at pp 121-122, supra) ”[o]ur interpretation of article 700 must be sensitive to the constitutional guarantees against search and seizure that the statute seeks to protect. The insidiousness of electronic surveillance threatens the right to be free from unjustifiable governmental intrusion into one’s individual privacy to a far greater extent than the writs of assistance and general warrants so dreaded by those who successfully battled for the adoption of the Bill of Rights (Olmstead v United States, 277 US 438, 476, 478 [Brandeis, J., dissenting])”. It is imperative, therefore, that "article 700 and all its integral parts [not] be treated lightly or with cavalier disregard” (People v Mark, 68 AD2d 315, 318, supra) and that law enforcement officials be sensitive to the fact that there must be meticulous adherence to the terms of the warrant and the statute pursuant to which it issued (see, People v Washington, 46 NY2d, at p 124, supra). In sum, "the requirements of article 700 * * * must be strictly complied with [and i]n the absence of compliance, the State officials lack authority to wiretap, and any interceptions they make are unlawful, and any evidence derived from the wiretap is inadmissible” (People v Sher, 38 NY2d, at p 604, supra). The failure of the People here to comply with CPL 700.70 requires suppression of the evidence obtained through the wiretap. Therefore, there should be an affirmance of the Appellate Division order.

II

CPL 700.70 prohibits the receipt in evidence or the disclosure otherwise upon the trial of a defendant of the "contents of any intercepted communication, or evidence derived therefrom * * * unless the people, within fifteen days after arraignment and before the commencement of the trial, furnish the defendant with a copy of the eavesdropping warrant, and accompanying application, under which interception was authorized or approved.”

It is undisputed that defendant was not furnished with a copy of the eavesdropping warrant and application until 61 days following his arraignment. Nevertheless, the People contend that there was "substantial” compliance with the statute, and in reliance upon the last sentence of CPL 700.70, which provides that the "fifteen day period may be extended by the trial court upon good cause shown if it finds that the defendant will not be prejudiced by the delay in receiving such papers”, argue that they have made a sufficient demonstration of “good cause” to warrant extension of the 15-day period. They argue moreover, that since the purpose of CPL 700.70 is to notify a defendant that his conversations obtained pursuant to an eavesdropping warrant are to be used against him and to afford him an opportunity to move to suppress them, here, where defendant clearly was aware of the taped conversations and had ample opportunity to move for their suppression, he was not prejudiced by the delay and therefore, exclusion is not warranted. The People urge that the "good cause” requirement of CPL 700.70 should be analogized to the "good cause” requirement of CPL 710.30, where it has been held that the defendant’s actual knowledge of the information that is the subject of the notice requirement constitutes good cause to excuse untimely service. They offer as the reason for the delay here the fact that the police agency of another jurisdiction which had conducted the investigation erroneously advised that the documents had been served. We reject these arguments.

We reject the contention that good cause, such as would warrant an extension of the 15-day period, has been demonstrated. We note that the People did not move for an extension of time prior to the expiration of the 15-day period, nor did they affirmatively seek to excuse their failure to comply with the statute. It has been suggested that "[t]he better procedure, where compliance cannot be satisfied, is for the prosecutor to seek an extension of time prior to the expiration of the statutorily authorized fifteen days” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 700.70). The language of CPL 700.70 provides that the "fifteen day period may be extended” (emphasis supplied) and thus contemplates that an application be made prior to the expiration of the statutory period. This is made clear when that language is compared to the different language used in CPL 710.30 (2), where the court is authorized to "permit the people to serve such notice thereafter” (emphasis supplied). The fact that the Legislature has seen fit to use markedly different language in the two provisions clearly indicates an intent that the two statutes be interpreted differently. And while it may be "that the notice requirements of CPL 700.70 and CPL 710.30 serve the same purpose of alerting criminal defendants to the existence of evidence that could be introduced against them at trial so that a timely decision may be made about whether to file a motion to suppress such evidence [that fact does not] warrant altering the plain language of CPL 700.70” (People v Basilicato, 64 NY2d 103, 118, supra). Indeed, to import the provisions of 710.30 wholesale into 700.70 would render the 15-day "timeliness requirement a nullity, in violation of accepted canons of statutory construction” (People v Gallina, 66 NY2d 52, 56, supra; see, McKinney’s Cons Laws of NY, Book 1, Statutes § 231).

The justification belatedly offered by the People for their delay in serving the documents is insufficient as a matter of law to excuse their noncompliance with the provisions of CPL 700.70. The fact that the documents were in the custody of law enforcement officials in another county and that those officials had incorrectly advised the People that the wiretap documentation had been timely served upon defendant cannot constitute "good cause” for failure to comply with CPL 700.70. A "prosecutor’s office * * * is the spokesman for the Government” (Giglio v United States, 405 US 150, 154) and the left hand should be aware of what the right hand has or has not done (Santobello v New York, 404 US 257, 262). What was served upon defendant by the Chautauqua County District Attorney apparently was the notice required by CPL 700.50 and since more than a year had elapsed between the discontinuance of the wiretap on Hemphill’s phone and defendant’s indictment and arraignment, there was more than ample time for the People to ascertain the accurate facts had they made diligent inquiry. Thus, the misinformation conveyed by the officials of a neighboring county cannot reasonably be held to excuse the People’s noncompliance with CPL 700.70.

Finally, the fact that defendant had actual knowledge of the wiretap, standing alone, is insufficient to excuse noncomplianee with the unambiguous requirements of CPL 700.70. As we recently noted in People v Basilicato (64 NY2d 103, 117, supra), "[CPL 700.70] require[s] a showing oí both lack of prejudice and good cause for the delay”. Even if defendant’s knowledge could establish lack of prejudice, it does not satisfy the "good cause” requirement.

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

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

Order affirmed.

      . CPL 700.70 provides: "The contents of any intercepted communication, or evidence derived therefrom, may not be received in evidence or otherwise disclosed upon a trial of a defendant unless the people, within fifteen days after arraignment and before the commencement of the trial, furnish the defendant with a copy of the eavesdropping warrant, and accompanying application, under which interception was authorized or approved. This fifteen day period may be extended by the trial court upon good cause shown if it finds that the defendant will not be prejudiced by the delay in receiving such papers.”

      . CPL 710.30 provides for notice within 15 days of arraignment of statements or identification evidence that the People intend to offer at trial. Subdivision 2 states: "Such notice must be served within fifteen days after arraignment and before trial, and upon such service the defendant must be accorded reasonable opportunity to move before trial, pursuant to subdivision one of section 710.40, to suppress the specified evidence. For good cause shown, however, the court may permit the people to serve such notice thereafter and in such case it must accord the defendant reasonable opportunity thereafter to make a suppression motion.”

      . We note that both statutes were amended contemporaneously by the Legislature in 1976 (L 1976, ch 194, §§ 2, 3) and conclude that the use of different language was purposeful.

      . The People’s argument that defendant’s suppression motion was untimely pursuant to CPL 255.20 is without merit. That section provides that pretrial motions in an action in which an eavesdropping warrant and application have been furnished shall be served or filed within 45 days after the date of service of the eavesdropping documentation. In the instant case, the People expressly agreed to defendant’s request for an adjournment, and thereby waived any objection.

      . We note that the prosecutor has conceded that several of his remarks in summation were better left unsaid. We trust therefore that they will not be repeated, should there be a retrial.


text:
    In the Matter of Wesley R. Edwards, a Justice of the Stephentown Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued March 19, 1986;
    decided April 3, 1986

      POINTS OF COUNSEL

      Henry F. Zwack for petitioner.
    I. The determination of the Commission is arbitrary and capricious. II. The court should reject the determination of the Commission that petitioner sought special consideration in another court on behalf of his son. (Matter of Cunningham, 57 NY2d 270.) III. The Commission’s determination imposing the sanction of removal is unwarranted and excessive considering the record and under the circumstances. (Matter of Reedy, 64 NY2d 299; Matter of Cunningham, 57 NY2d 270; Matter of Dixon v State Commn. on Judicial Conduct, 47 NY2d 523.)

      Gerald Stern and Jean M. Savanyu for respondent.
    Petitioner’s conduct violated established ethical standards and warrants removal from office. (Matter of Dier v State Commn. on Judicial Conduct, 48 NY2d 874; Matter of Byrne, 47 NY2d [b]; Matter of Dixon v State Commn. on Judicial Conduct, 47 NY2d 523; Matter of Bulger v State Commn. on Judicial Conduct, 48 NY2d 32; Matter of Reedy, 64 NY2d 299.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Justice of the Stephentown Town Court, Rensselaer County, instituted this proceeding, pursuant to NY Constitution, article VI, § 22 and Judiciary Law § 44 to review a determination of the State Commission on Judicial Conduct removing him from office. Three members of the Commission dissented only as to sanctions. While petitioner’s conduct was improper, we do not find, given his otherwise 21-year unblemished record of service, that it was so egregious as to warrant his removal from the Bench. We, therefore, reject the Commission’s determination and hereby censure the petitioner.

The complaint charged that petitioner had sought special consideration for his son in connection with a traffic citation returnable in another Town Court. The credible evidence established that petitioner had made ex parte contacts with a Justice of the Schuyler Town Court, identifying himself as a Judge and inquiring about the procedures to be followed in resolving his son’s case. Such actions were improper, as petitioner acknowledged in oral argument before the Commission. Ex parte communications of this sort violate sections 100.1 and 100.2 of the Rules Governing Judicial Conduct (22 NYCRR 100.1, 100.2) and canons 1 and 2 of the Code of Judicial Conduct. The absence of a specific request for favorable treatment or special consideration is irrelevant, and petitioner’s "paternal instincts” do not justify a departure from the standards expected of the judiciary (see, Matter of Lonschein, 50 NY2d 569, 572).

The dictum in Matter of Reedy (64 NY2d 299, 302) — "Ticket-fixing is misconduct of such gravity as to warrant removal, even if this matter were [the Judge’s] only transgression”— should not, however, be read as establishing a per se rule of removal in all cases, precluding consideration of mitigating factors and prior conduct, though, as a general rule, intervention in a proceeding in another court should result in removal. In Reedy (supra), there had, in fact, been a prior censure. Several factors here indicate that censure is the appropriate sanction. First, it must be recognized that petitioner has served as a Town Justice for 21 years and his conduct has never been previously called in question. Second, it is evident that petitioner’s judgment was somewhat clouded by his son’s involvement. Finally, petitioner cooperated with the Commission and has forthrightly admitted the impropriety of his conduct. After a careful review of the facts, we conclude that this single incident, which was fueled by extremely poor judgment, was an aberration, and that petitioner should be censured rather than removed from office.

Accordingly, the determined sanction should be rejected, without costs, and the sanction of censure imposed.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Titone and Hancock, Jr., concur in Per Curiam opinion; Judge Alexander taking no part.

Determined sanction rejected, etc.


author: Simons, J.

text:
    Metropolitan Transportation Authority et al., Appellants, v Bruken Realty Corporation et al., Respondents.
    Argued February 12, 1986;
    decided April 1, 1986

      POINTS OF COUNSEL

      Max R. Shulman and Robert N. Feltoon for appellants.
    I. The validity of the option is governed by the decision in Buffalo Seminary v McCarthy (86 AD2d 435, affd 58 NY2d 867); under that decision, the option is void as violative of the rule against perpetuities. (Fitchie v Brown, 211 US 321; Matter of Shaul, 58 Misc 2d 967.) II. The court below erred in ruling both that the option at issue is a right of preemption and that rights of preemption are not subject to the rule. (Anasae Realty Corp. v Firestone, 103 AD2d 707.) III. The court below erred in ruling that the option is valid because the Legislature and Governor did not "intend” the rule to apply to the option. (Buffalo Seminary v McCarthy, 86 AD2d 435; Matter of Gallagher v Regan, 42 NY2d 230; Matter of Moran v La Guardia, 270 NY 450; Matter of Grace, 232 App Div 76, 261 NY 502; Matter of County of Oneida v Berle, 49 NY2d 515; Matter of Walker, 64 NY2d 354; Loch Sheldrake Assoc. v Evans, 306 NY 297; Matter of Kellogg, 35 AD2d 145.) IV. The court below erred in ruling that the option is valid by operation of the rules of construction set out in the EPTL. (Matter of Shaul, 58 Misc 2d 967.) V. The court below erred in ruling that the actions of the parties commencing in April 1982 created a new contract of conveyance not subject to the rule. (Schneider v Greater M. & S. Circuit, 144 Misc 534.) VI. The court below erred in considering the validity of the tunnel options and its own personal view of what would be the "fair” result in this case. (Matter of Kellogg, 35 AD2d 145.)

      Patricia M. Hynes and Jeremy Heisler for Bruken Realty Corporation, respondent.
    I. The general standards applicable on appeal from denial of a summary judgment motion require affirmance of the denial of plaintiffs’ motion for summary judgment. (Andre v Pomeroy, 35 NY2d 361; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Egan Real Estate v McGraw, 40 AD2d 299; Zuckerman v City of New York, 49 NY2d 557; Neuman v Greenstein, 99 AD2d 1018; Lopez v

      Senatore, 97 AD2d 787; Peoples Sav. Bank v County Dollar Corp., 43 AD2d 327, 35 NY2d 836; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106.) II. The rule against perpetuities does not apply to Bruken’s option. (Anderson v 50 E. 72nd St. Condominium, 129 Misc 2d 295; Camerlo v Howard Johnson Co., 545 F Supp 395; Buffalo Seminary v McCarthy, 86 AD2d 435, 58 NY2d 867; Matter of City of New York [Upper N. Y. Bay], 246 NY 1; Landmark Capital Co. v Bowery Sav. Bank, 119 Misc 2d 445; Todd v Citizens’ Gas Co., 46 F2d 855, 283 US 852.) III. The instant option is a right of preemption which is not subject to the rule against perpetuities. (Mayor of City of N. Y. v Hart, 95 NY 443; City of Rye v Metropolitan Transp. Auth., 58 Misc 2d 932, 24 NY2d 627; Matter of Rubinstein, 109 AD2d 885; Matter of Abbondondolo, 10 Misc 2d 418; Jackson ex dem. Lewis v Schutz, 18 Johns 174; Van Rensselaer v Jones, 2 Barb 643; De Peyster v Michael, 6 NY 467; Garcia v Callender, 125 NY 307; Anderson v 50 E. 72nd St. Condominium, 129 Misc 2d 295; Carrier v Carrier, 226 NY 114.) IV. The option is appendant to air rights and easements. It is not subject to the rule against perpetuities. (Camerlo v 0Howard Johnson Co., 545 F Supp 395; Chicago, Wilmington & Franklin Coal Co. v Minier, 127 F2d 1006; Weber v Texas Co., 83 F2d 807, 299 US 561; Matter of Carroll, 274 NY 288.) V. The court below was correct in concluding that the parties entered into a new contract to convey the property which was not subject to the rule against perpetuities. (Crabtree v Elizabeth Arden Sales Corp., 305 NY 48; Beacon Term. Corp. v Chemprene, Inc., 75 AD2d 350; Becker v Faber, 280 NY 146; Lockwood v Embalmers Supply Co., 233 App Div 189; Walker v Millard, 29 NY 375; Carrier v Carrier, 226 NY 114.) VI. The court below reached the proper result in employing EPTL 9-1.3 (d)’s rules of construction to sustain the option.
   OPINION OF THE COURT

Simons, J.

In 1966 the State of New York, acting through the Metropolitan Commuter Transportation Authority (now plaintiff Metropolitan Transportation Authority [MTA]) bought all the capital stock of plaintiff Long Island Railroad from the Pennsylvania Railroad for $65 million. Included among the assets acquired were 65 acres of real property in Queens which had been used by the Long Island Railroad as a freight yard. As part of the consideration, to reduce the purchase price, the State conveyed air rights above this property to Delbay Corporation, a subsidiary of Pennsylvania, together with an easement permitting it to erect columns, piers or foundations and to install utility services necessary to support and service improvements within the air rights. It also executed an "option agreement” granting Delbay the right to purchase 12 lots in the freight yard at market value if MTA subsequently determined that the property was "no longer necessary for [its] transportation operations”. The option expired if Delbay, or its successors or assigns, did not exercise it within 99 years. The issue presented on this appeal is whether that option agreement violated the prohibition against remote vesting stated in New York’s Rule against Perpetuities (see, EPTL 9-1.1 M).

On April 16, 1982 MTA notified Delbay that it no longer required six of the lots and that Delbay could acquire them. Delbay thereafter assigned its right to two of the lots to a real estate developer, defendant Bruken Realty Corporation, and Bruken, by letter dated July 13, 1982, notified MTA of its election to purchase them. Although the original agreement provided for arbitration of the market value, the parties agreed to attempt to negotiate the price after obtaining separate appraisals. The air rights conveyed to Delbay had since been acquired by the City of New York in a tax foreclosure proceeding, however, and, with the air rights and the ground rights in separate ownership, the parties were unable to reach agreement. Accordingly, they selected arbitrators and submitted the determination of market value to them. Before hearings could start, plaintiffs instituted this action requesting that the court enjoin the arbitration proceeding and declare that the conveyance to Delbay of the right to acquire the freight yard lots was void. Plaintiffs subsequently moved for summary judgment and Supreme Court denied the motion on alternative legal grounds (125 Misc 2d 497). The Appellate Division affirmed, without opinion, and the matter is before us on a certified question by its leave. We now affirm.

I

The rules limiting the right of owners to indefinitely control title to property developed because of the natural antagonism between society’s interest in promoting the free and ready transfer of property and the desire of property owners to control the future disposition of their holdings. Originally intended to restrict family dispositions, usually dispositions by royalty or the landed gentry, the rules have antecedents as old as any known to the common law. Their purpose is to ensure the productive use and development of property by its current beneficial owners by simplifying ownership, facilitating exchange and freeing property from unknown or embarrassing impediments to alienability (see, De Peyster v Michael, 6 NY 467, 494). The rules are legal prohibitions, based on the public policy of the State. They may not be waived, as could rules enacted for the benefit of the parties alone. When an owner attempts to exert control over the transferability of his property for too long a time, the courts will step in, invalidate the restricting provisions, and permit transfer to take effect uninhibited by the restraint.

In New York an owner’s power to dispose of property is limited by three rules. The first two, known as the Rule against Perpetuities, are found in subdivisions (a) and (b) of EPTL 9-1.1. The rule declares that no estate in property shall be valid (1) if the instrument conveying it suspends the power of alienation for a period longer than lives in being at the creation of the estate plus 21 years and (2) unless it must vest, if at all, before expiration of the same period. Although the statutory period is lives in being plus 21 years, in this case the* parties to the agreement were corporations and, inasmuch as no measuring life or lives were stated in the instruments, the permissible period is 21 years (see, Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 9-1.1, 1986 Cum Ann Pocket Part, p 213; see also, Matter of Griffin, 45 App Div 102, 107, revd on other grounds 167 NY 71). The third rule regulating dispositions is established by common law and invalidates conveyances which impose unreasonable restraints on alienation.

The statutory rule prohibiting remote vesting and the common-law rule against unreasonable restraints serve the same general purpose by limiting the power of an owner to create uncertain future estates. The statutory rule does so indirectly by limiting the time when future interests must vest. The rule against unreasonable restraints on alienation does so directly by forbidding owners to impose conditions on conveyances which block the grantee from freely disposing of the property. While the statutory rule is inflexible, measured solely by the passage of time, the common-law rule is applied by considering the reasonableness of the restraint. Whether a restraint on the disposition of property is unreasonable is a question of fact depending upon its purpose, duration and, where applicable, the designated method for fixing the purchase price (see, Allen v Biltmore Tissue Corp., 2 NY2d 534; see also, Ann., 40 ALR3d 920, 926). It is generally said that the reason for the common-law rule is that ownership of property cannot exist in one person and the right of alienation in another (De Peyster v Michael, 6 NY 467, 492-494, supra; Witt v Disque, 79 AD2d 419, 425), but the same general policy concerns underlying the rule against perpetuities also favor a rule against unreasonable restraints.

II

Plaintiff contends that the State’s agreement gave Delbay an option to buy the freight yard lots, that options are subject to the rule against remote vesting under the holding of Buffalo Seminary v McCarthy (86 AD2d 435, affd on opn below 58 NY2d 867) and that since Delbay’s option might not be exercised within the statutory period, it is void. Whether the provision is void or not requires a determination first of the nature of the interest created — whether it is an option or, as Bruken claims, a preemptive right — and, second, if it is a preemptive right, whether the rule applies to it.

Preliminarily, it is clear that before enactment of EPTL 9-1.1 in 1965 Bruken’s right to acquire the lots, whatever its nature, would not be invalid under the New York laws governing perpetuities. We so held in Matter of City of New York (Upper N Y. Bay) (246 NY 1, 29-30; see also, Buffalo Seminary v McCarthy, supra, pp 440-443; 5A Powell, Real Property ¶ 792 [6], at 704-705). In 1965, however, the New York Legislature revised the statute, intending by the amendment to incorporate into New York law the American common-law rules governing perpetuities (see, 1965 NY Legis Ann, at 206-207; Buffalo Seminary v McCarthy, supra, p 442). Although American jurisdictions were divided on the question (see, 5A Powell, Real Property ¶ 792 [6], at 704-705; Pre-emptive Rights to Realty as Violation of Rule against Perpetuities or Rule Concerning Restraints on Alienation, Ann., 40 ALR3d 920), we affirmed the Appellate Division’s decision in Buffalo Seminary (supra) on the opinion of Justice Hancock, as he then was, and held that an unlimited option in gross, i.e., an option to buy another’s property not joined with any other interest in the property, violated the rule against remote vesting and was therefore void. Preemptive rights differ significantly from options, however, and we have not yet decided whether they are subject to that rule.

A

The right acquired by Delbay, though called an option by the parties, was a preemptive right to buy the freight yard property. An option grants to the holder the power to compel the owner of property to sell it whether the owner is willing to part with ownership or not. A preemptive right, or right of first refusal, does not give its holder the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the party holding the preemptive right so that he may meet a third-party offer or buy the property at some other price set by a previously stipulated method (see, Garcia v Callender, 125 NY 307, 311; 5A Powell, Real Property ¶ 771 [1], at 72-68). Once the owner decides to sell the property, the holder of the preemptive right may choose to buy it or not, but the choice exists only after he receives an offer from the owner. If the holder decides not to buy, then the owner may sell to anyone (see generally, 6 American Law of Property § 26.64, at 507 [Casner ed 1952]; 1A Corbin, Contracts § 261; Ann., 40 ALR3d 920 924).

The instrument invalidated in Buffalo Seminary (supra) was an option. It granted the holder an unlimited right to buy the owner’s land at any time. It was void for remoteness because it created an interest which could vest after passage of the statutory period if the holder or his successors or assigns chose to delay exercising the option that long. Under the terms of this instrument, however, the decision to sell remained with MTA and Delbay was granted the right to purchase only if MTA first decided to sell because it had no further need for the property. MTA seeks to bring the case within the rule of Buffalo Seminary (supra) by contending that Delbay could compel a sale if MTA ceased to use the property for transportation purposes. Whether the property was necessary to MTA in fulfilling its statutory powers was obviously a discretionary decision to be made by it, however, and not one Delbay could compel. The validity of the provision must be judged by the circumstances existing at the time of the grant but, in hindsight, it is manifest that MTA was not forced to sell but, rather, that it activated Delbay’s rights in April 1982 by notifying Delbay that the property was available for purchase.

B

We turn then to whether the rule against remote vesting applies to preemptive rights.

The New York courts which have considered the question have reached different results (see, e.g., Witt v Disque, 79 AD2d 419, supra; Anderson v 50 E. 72nd St. Condominium, 129 Misc 2d 295; Izzo v Brooks, 106 Misc 2d 743; Kowalsky v Familia, 71 Misc 2d 287 [all holding the preemptive right valid]; cf. Smith v Smith, 116 AD2d 810; Schippers v Baron, Sup Ct, Kings County, Feb. 15, 1983, Morton, J. [all holding the preemptive right invalid]) as have courts from other jurisdictions (see, e.g., Robroy Land Co. v Prather, 95 Wn 2d 66, 622 P2d 367; Lawson v Redmoor Corp., 37 Wn App 351, 679 P2d 972; Shiver v Benton, 251 Ga 284, 304 SE2d 903; Hartnett v Jones, 629 P2d 1357 [Wyo]; Weber v Texas Co., 83 F2d 807, cert denied 299 US 561; see also, Windiate v Leland, 246 Mich 659, 225 NW 620 [dicta]; Terrell v Messenger, 428 So 2d 1241 [La App] [all holding the preemptive right valid]; Lewis Oyster Co. v West, 93 Conn 518, 107 A 138; Atchison v City of Englewood, 170 Col 295, 463 P2d 297 [but see, Oliner v City of Engelwood, 42 Col App 106, 593 P2d 977]; Melcher v Camp, 435 P2d 107 [Okla]; Anderson v Riegel, 229 Wis 200, 281 NW 915 [all holding the right invalid]).

The courts which have declined to apply the rule have tried to distinguish preemptive rights from other interests in property by determining either (1) that the holder of a preemptive right has an interest which vests immediately, not remotely (see, e.g., Izzo v Brooks, supra) or (2) that the holder acquires only a contract right exercisable at some future date, not an interest in property (see, e.g., Robroy Land Co. v Prather, supra). Commentators, and this court as well (see, Buffalo Seminary v McCarthy, 86 AD2d 435, 442, n 6, affd 58 NY2d 867, supra), have criticized both analyses as contrary to established principles of law and have urged that the courts might better concede that although preemptive rights offend the basic policy of the rule against remote vesting, the offense is properly offset by their utility in modern legal transactions and that usefulness justifies excepting them from the operation of the rule (see, 5A Powell, op. cit. ¶ 771 [1], at 72-68, 72-70; Simes and Smith, Future Interests § 1154, at 64 [2d ed 1956]; Leach, Perpetuities: New Absurdity, Judicial and Statutory Correctives, 73 Harv L Rev 1318, 1320).

The courts have reached this conclusion in a number of circumstances involving options and preemptive rights, e.g., for options appurtenant to leases (see, Buffalo Seminary v McCarthy, 86 AD2d 435, 441, n 5, supra), or to mineral rights (Weber v Texas Co., 83 F2d 807, supra), or to franchise rights (Todd v Citizens’ Gas Co., 46 F2d 855, cert denied 283 US 852 [dicta]), or for options to expand an easement (Caruthers v Peoples Natural Gas Co., 155 Pa Super Ct 332, 38 A2d 713) or to acquire an interest in a party wall if the optionee decided to build adjacent to the optionor’s land (Beloit Bldg. Co. v Quinn, 145 Kan 507, 66 P2d 549). The holder’s rights have been recognized because enforcement did not violate the underlying purposes of the rule against remote vesting. Quite the contrary, enforcement of the preemptive right in such cases encouraged the holder to develop the property by insuring his opportunity to benefit from development and to recapture his investment in it. For similar reasons recent decisions have held that, because the management of condominium developments has a valid interest not only in securing the occupancy of the units but also in protecting the ownership of the common areas and the underlying fee, its preemptive rights to repurchase units before sale to third parties should be excepted from the operation of the rule (see, e.g., Cambridge Co. v East Slope Inv. Corp., 700 P2d 537 [Col]; Anderson v 50 E. 72nd St. Condominium, 129 Misc 2d 295, supra; see generally, Note, Condominiums and the Right of First Refusal, 48 St John’s L Rev 1146, 1149 et seq.). Finally, Bruken claims that there is a "public interest” exception to the rule prohibiting remote vesting and it urges us to adopt that exception and apply it here (see, Southeastern Pa. Transp. Auth. v Philadelphia Transp. Co., 426 Pa 377, 233 A2d 15). In the Southeastern Pa. Transp. Auth. case, the court enforced an otherwise invalid option to permit a municipal agency to acquire facilities to insure continued mass transportation services in the Philadelphia area. The holding is said to rest upon the rationale that government is similar to a charity and thus not subject to the rule against remote vesting (see, Note, Southeastern Pennsylvania Transportation Authority v Philadelphia Transportation Co., The Rule Against Perpetuities — Does the Rule Apply to an Option to Purchase Held by a Municipality, 72 Dick L Rev 651, 660, 661).

Implicit in these decisions is a recognition that although preemptive rights unlimited in duration violate the rule against remote vesting they do so only marginally and that application of the rule, because of its inflexibility, may operate to invalidate legitimate transactions. This is so particularly in commercial and governmental activities because neither "lives in being” nor "twenty one years” are periods which are relevant to business or governmental affairs. In such cases the need to insure free alienability is served more effectively if the validity of the preemptive right is assessed by applying the common-law rule prohibiting unreasonable restraints (see, Leach, Perpetuities in a Nutshell, 51 Harv L Rev 638, 660-661; Leach, op. cit., 73 Harv L Rev, at 1320; Berg, Long-Term Options and the Rule Against Perpetuities, 37 Cal L Rev 1, 21-22; Simes and Smith, op. cit. § 1154, at 64).

This case illustrates the point. Application of the rule against remote vesting here would defeat the policies underlying the rule because it would invalidate an agreement which promoted the use and development of the property while, at the same time, imposing only a minor impediment to free transferability. Through its agreement with Pennsylvania Railroad, the State advanced its objective, to obtain a substantial reduction in the price it paid to acquire the assets of the Long Island Railroad property, assets the State needed to maintain commuter service to the approximately 260,000 passengers of the New York City and Long Island area who used the transportation facilities of the Long Island Railroad daily. It had no long-term interest in the freight yard property or in the air rights conveyed to Pennsylvania Railroad; it was confronted with the possibility that the Long Island Railroad, previously bankrupt, subsequently reorganized, and in serious financial condition in 1966, might shortly be dissolved. The State’s interest was preservation of the passenger transportation facility and it intended to keep the freight yard property only long enough to evaluate the need for the lots in conjunction with operating the commuter service. This agreement gave MTA the opportunity to do so. In the meantime the State conveyed the air rights to Pennsylvania, granting it the necessary easements to develop those rights, and a preemptive right for the future acquisition of the ground rights, so that the interests in air and ground rights could eventually be reunited. The transfer permitted the parties to put both properties, the railroad and the freight yard, to their maximum productive use, a benefit which far outweighed any public interest served by automatic invalidation of the preemptive right to the lots solely because of remote vesting of Delbay’s interest. Moreover, because the parties were a State authority and a national transportation corporation engaged in a widely publicized transaction — not private citizens whose interest might never be discovered with the passage of time — it did so without unknown limitations on the title which could inhibit future property transfers. Manifestly whatever obstacles there are to the disposition of property by restrictions such as this are best regulated by the rule against unreasonable restraints on alienation so that the utility of the restriction may be considered, rather than by the inflexible rule against remote vesting.

Ill

Under the rule prohibiting unreasonable restraints on alienation, the validity of the preemptive right rests on its reasonableness, judged by its duration, price and purpose. The duration of the restraint is not measured by the life of the preemptive right. The rule does not condemn restrictions on transfer, i.e., provisions which postpone sale during the option period: it condemns only the "effective prohibition against transferability itself’ (Allen v Biltmore Tissue Corp., 2 NY2d 534, 542, supra [emphasis in original]; and see, Buffalo Seminary v McCarthy, 86 AD2d 435, 448, supra; Tramontano v Catalano, 23 AD2d 894). Indeed, dusty New York authority holds that preemptive rights may be perpetual (see, De Peyster v Michael, 6 NY 467, supra; Jackson ex dem. Lewis v Schutz, 18 Johns 174 [Spencer, Ch. J., concurring]; Overbagh v Patrie, 8 Barb 28, affd 6 NY 510; see also, Schnebly, Restraints Upon the Alienation of Legal Interests: III, 44 Yale LJ 1380, 1392-1394). Thus, the reasonableness of Delbay’s preemptive right must be determined not by considering the 99-year term, but by considering the 90-day period during which the right could be exercised after the MTA decided to sell.

Reasonableness also depends on price, for the method by which the price is set can be critical in determining whether a preemptive right unlawfully restrains transfers. When the holder has a right to purchase at a fixed price, or at a price less than that offered in the market, it is likely to involve a sacrifice by the owner if he wishes to transfer the property, thus becoming a far more serious interference with alienability (see, Simes and Smith, op. cit. § 1154, at 62-63; and see, e.g., Kowalsky v Familia, 71 Misc 2d 287, supra). A preemptive right, however, usually will not be unlawful when conditioned on payment of market value or a sum equal to a third-party offer (see, Restatement of Property § 413 [1944]; and see generally, Ann., 40 ALR3d 920 § 4). Market value, in some instances, may be less than sale price, but a market value fixed by arbitrators compelled to consider the price a willing seller would accept from a willing buyer at the time of sale can hardly be unreasonable, as a matter of law, notwithstanding the separate ownership of air and ground rights.

Finally, as we have stated, the preemptive right in this case clearly served a beneficial purpose and given its reasonableness in terms of duration and price, it should be enforced.

In sum, we hold that the rule against remote vesting does not apply to preemptive rights in commercial and governmental transactions, that their validity is to be judged by applying the rule against unreasonable restraints and that the preemptive right granted Delbay by the State was under all the circumstances a reasonable restriction on the alienability of the freight yard lots.

Accordingly, the order of the Appellate Division should be affirmed. Question certified answered in the affirmative.

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

Order affirmed, with costs. Question certified answered in the affirmative.