author: Gabrielli, J.

text:
    In the Matter of Capital District Regional Off-Track Betting Corporation, Respondent, v New York State Racing and Wagering Board, Appellant.
    Argued October 12, 1981;
    decided November 19, 1981

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Joseph J. Micare and Shirley Adelson Siegel of counsel), for appellant.
    The directive issued by appellant board was a proper exercise of its authority and was neither arbitrary, capricious nor unreasonable. (Ronca v New York State Racing & Wagering Bd., 90 Misc 2d 324; Aliano v Westchester Racing Assn., 265 App Div 225; McBride v New York City Off-Track Betting Corp., 66 AD2d.770; Hochberg v New York City

      Off-Track Betting Corp., 74 Misc 2d 471, 43 AD2d 910; Matter of Ward v Nyquist, 43 NY2d 57; Matter of Bork v City School Dist. of City of North Tonawanda, 60 AD2d 13, 44 NY2d 647; Matter of Joseph Burstyn, Inc. v Wilson, 303 NY 242; Matter of International Ry. Co. v Public Serv. Comm., 264 App Div 506, 289 NY 830; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Finger Lakes Racing Assn. v New York State Off-Track Pari-Mutuel Betting Comm., 30 NY2d 207; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471.)

      Philip Stillman and Roger L. Dworsky for respondent.
    I. Appellant’s administrative response to respondent’s programming error of August 10, 1978 was not supported by appellant’s enabling statute and is contrary to the legislative intent which created both entities. II. Resolution of the disputed betting error of August 10, 1978 is a necessary power statutorily delegated to respondent. (Matter of City of New York v State of New York Comm. on Cable Tel., 47 NY2d 89; Ronca v New York State Racing & Wagering Bd., 90 Misc 2d 324; Hochberg v New York City Off-Track Betting Corp., 74 Misc 2d 471, 43 AD2d 910.) III. Appellant’s general jurisdiction does not extend to the resolution of respondent’s programming error of August 10, 1978. (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Matter of Consolidated Edison Co. of N. Y. v Public Serv. Comm, of State of N. Y., 47 NY2d 94; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269.) IV. Appellant’s jurisdictional grant is limited and not all encompassing. (Matter of D. M. K. Realty Corp. v Gabel, 40 Misc 2d 89.)
   OPINION OF THE COURT

Gabrielli, J.

The issue presented on this appeal involves the extent of the jurisdiction and regulatory powers of the New York State Racing and Wagering Board in exercising its statutory supervisory powers over Regional Off-Track Betting Corporations. On August 10, 1978, petitioner, Capital District Regional Off-Track Betting Corporation (CDROTB), discovered an error in the listing of entries for the second race at Saratoga Thoroughbred Race Track. The error was created by an employee of CDROTB who had mistakenly coupled horses on the daily entry sheets. By 10:00 A.M. that same day, the betting machines had been electronically corrected, and the information boards of each betting parlor were likewise updated to reflect the correct entries. However, the entry sheets were not so corrected and, quite naturally, the possibility remained that bets were placed after 10:00 A.M. on the basis of erroneous information.

CDROTB then determined to pay, in full, all patrons who purchased their tickets before 10:00 A.M. Those patrons who purchased tickets after that hour, however, were paid at 50% of the ticket value. CDROTB believed this was an equitable settlement, rationalizing that the latter patrons were obligated to check the information boards before placing a wager. As a result of a complaint concerning this method of payment, respondent, New York State Racing and Wagering Board, issued a directive that all such tickets be paid in full. Following a hearing before the board, at which CDROTB contested the board’s authority to act in this matter, the directive was confirmed.

CDROTB commenced this article 78 proceeding, seeking a judgment annulling the board’s directive and staying its enforcement. Special Term held that the board had not acted in excess of its jurisdiction, but the Appellate Division reversed, holding that, in the absence of the board’s promulgation of a rule or regulation giving it jurisdiction over betting disputes, the board’s intervention in the present dispute was arbitrary and capricious. There should be a reversal.

The board has general jurisdiction over all horse racing activity, all pari-mutuel betting activity, and all persons and entities engaged in those activities (Racing and Wagering Board Law, § 201, subd 1, L 1940, ch 254, added L 1973, ch 346, as amd by L 1976, ch 92, § 7). In particular, the board has broad powers to regulate off-track parimutuel betting facilities, including the power to issue rules and regulations (Off-Track Pari-Mutuel Betting Law, § 118, L 1940, ch 254, added L 1973, ch 346, as amd by L 1973, ch 414, § 4), to approve the plan of operation submitted by a regional corporation, such as petitioner (L 1973, ch 346, § 5), to approve the betting programs of those corporations (L 1978, ch 576, § 7), to oversee their accounting and record-keeping activities (L 1973, ch 346, §8), and to resolve certain disputes between racetrack and offtrack betting corporations (L 1973, ch 346, § 10). The legislative scheme demonstrates an intent to place ultimate supervisory and regulatory power in the State board. Given the broad discretion and power granted to this agency, we conclude that it possesses the power to intervene in petitioner’s efforts to resolve a betting error.

Petitioner argues, however, that the legislative scheme also delegates certain responsibilities to the regional corporations, citing the Regional Off-Track Betting Corporation Law. It is true that these corporations have certain powers (see Regional Off-Track Betting Corporation Law, § 4, L 1940, ch 254, as amd by L 1976, ch 593), but it is significant to note that all of those powers are “[sjubject to the general and specific limitations of this act and the authority of the state board” (id.). This condition delegation of power not only supports the conclusion that the State board’s action was proper, but also further evinces the legislative intent as to the balance of authority and responsibility between these two entities.

It is also urged that the board has delegated to CDROTB the responsibility to resolve betting errors. The State board approved the petitioner’s plan of operation, including rule 6.10, which provides, in pertinent part: “Determination by the Corporation as to disputed betting errors shall be final and not subject to further legal action” (Official Operating Procedures, Rules and Regulations of Capital District Regional Off-Track Betting Corporation). However, it should be noted that to the extent the approval of that rule might be construed to allow the board to abrogate its over-all responsibility to oversee the activities of the regional off-track betting corporations, it is an improper delegation of the State board’s authority. We thus conclude that, even if its provisions were to be interpreted to extend to the State board, the board is not precluded, by approval of this rule, from intervening in the resolution of betting errors where appropriate.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division for a review of the facts and consideration of the issues not reached by that court.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Wade Ponder, Appellant.
    Argued October 15, 1981;
    decided November 19, 1981

      POINTS OF COUNSEL

      Alfred P. Kremer for appellant. I.
    The present substantive and procedural rules governing standing should not be changed. This court, on the basis of an evolving policy of privacy should construe section 12 of article I of the New York State Constitution so as to deny to the prosecution, the fruits of this illegal search and seizure, the weapon and the confession upon which it was based. (Jones v United States, 362 US 257; Matter of Pink Fox Lounge v Roth,
      50 AD2d 856; United States v Jeffers, 342 US 48; Mancusi v De Forte, 392 US 364; Rakas v Illinois, 439 US 128; Stone v Powell, 428 US 465; Simmons v United States, 390 US 377; People v Hansen, 38 NY2d 17; Mapp v Ohio, 367 US 643; Ker v California, 374 US 23.) II. The court below has incorrectly interpreted section 125.25 of the Penal Law so as to deprive Wade Ponder of the equal protection of the laws and has also placed him in double jeopardy within the meaning of the New York State Constitution. (People v Perdue, 70 AD2d 477, 49 NY2d 805; People v Graham, 69 AD2d 544; People v De Gata, 64 AD2d 929, 45 NY2d 841; People v Berzups, 63 AD2d 718; People v MacDonald, 61 AD2d 1081; People v Barnes, 60 AD2d 654; People v Lytton, 257 NY 310; People ex rel. Tanner v Vincent, 44 AD2d 170, 36 NY2d 773; People v Mitchell, 64 AD2d 119.) III. Mr. Ponder’s arrest violated his right to be free from unreasonable search and seizure as guaranteed him by section 12 of article I of the New York State Constitution. (People v Cantor, 36 NY2d 106; People v Morales, 42 NY2d 129; People v De Bour, 40 NY2d 210.)

      Donald O. Chesworth, Jr., District Attorney (Melvin Bressler of counsel), for respondent.
    I. The court below correctly ruled that defendant had no standing to litigate alleged violations of another’s rights; in any event, there were exigent circumstances authorizing the search for the weapon. (People v Hansen, 38 NY2d 17; Jones v United States, 362 US 257; United States v Salvucci, 448 US 83; Rakas v Illinois, 439 US 128; People v Isaacson, 44 NY2d 511; Chapman v United States, 365 US 610; Warden v Hayden, 387 US 294; People v Vaccaro, 39 NY2d 468; People v Clements, 37 NY2d 675; Metzger v New York, 425 US 911.) II. A conviction for felony murder is consistent with a not guilty verdict on the underlying robbery charge where attempted robbery was not charged; in any event, the issue was not preserved for review. (Dunn v United States, 284 US 390; People v Mitchell, 64 AD2d 119; People v Murray, 40 NY2d 327; People v Berzups, 49 NY2d 417; People v Perez, 45 NY2d 204.) III. There was probable cause to arrest defendant based on identification by the eyewitness. (People v Alexander, 37 NY2d 202.)
   OPINION OF THE COURT

Wachtler, J.

The question presented on this appeal is whether the “automatic standing” rule in search and seizure cases should be retained as the law in this . State. That rule relieves a defendant charged with a possessory offense of the burden of establishing that he has an interest in the premises searched or the property seized in order to have standing to challenge the search or seizure. We agree with the Appellate Division’s determination that the rule should no longer be applied.

Joseph Salerno was shot on February 10, 1977 and later died of a wound he received during the robbery of his hardware store in Rochester, New York. Two police officers, Parks and Peck, arrived at the scene within five minutes of the shooting. Parks obtained a description of the assailant and an account of the robbery from the victim, Mr. Salerno. Detective Perticone and other police officers arrived shortly thereafter.

A bystander at the scene told Detective Perticone that while shoveling snow at her home, located close to the scene of the crime, she had seen defendant, with whom she was acquainted, running away from the hardware store a few minutes before the police arrived. She said she had noticed a black and silver object protruding from his jacket. Detective Perticone was familiar with defendant as a result of the latter’s prior criminal activity. Perticone also knew that defendant had been apprehended at the nearby residence of his grandmother, Louise Ponder, on previous occasions.

Perticone communicated this information to the other officers and the group proceeded to the Louise Ponder residence. Perticone and two of the other policemen stationed themselves on a street running behind the house. Parks and Peck approached the side door of the house and observed a .22 caliber bullet lying on the snow-covered ground near the door. They knocked on the side door which the defendant opened, although he was not then recognized by either officer. When asked whether “Wade” was inside, the defendant pointed upstairs. Parks and Peck continued into the house leaving the defendant unattended. The defendant was apprehended by Perticone as he fled from the house.

After arresting the defendant, Perticone joined Peck in the house intending to search for the weapon. The Appellate Division found that Louise Ponder, who was home at the time, did not consent to a search of the house. Believing that Mrs. Ponder had consented, the officers proceeded to search the premises without a warrant and Peck found a sawed-off .22 calibre rifle inside a covered washing machine in the basement. Later at the station house defendant gave a written statement in which he described the robbery and admitted the shooting.

At the Huntley hearing, Mrs. Ponder testified that defendant was one of 30 grandchildren and, like the rest, he did not live with her but occasionally spent the night. She further testified that no particular room had been assigned for defendant’s use, that he was not staying at her home on February 10, 1977, and that he never slept in the basement nor used or had any interest in the washing machine.

Defendant was indicted and after a jury trial was convicted of felony murder (Penal Law, § 125.25, subd 3), manslaughter in the first degree (Penal Law, § 125.20, subd 1) and criminal possession of a weapon in the third degree (Penal Law, § 265.02, subd 4).

On these facts it is clear that there was probable cause for defendant’s arrest. The only other issue raised on this appeal which requires our attention is whether defendant should be afforded “automatic standing” to contest the validity of the warrantless search of Mrs. Ponder’s home, which led to the seizure of the weapon.

The “automatic standing” rule has its genesis in the Supreme Court’s 1960 decision of Jones v United States (362 US 257), where it was held that the'standing of a defendant charged with a possessory offense to challenge the validity of a search was not to be conditioned upon a demonstration that he had an interest in the premises searched or the property seized. Our court retained the rule as part of New York State’s criminal jurisprudence in People v Hansen (38 NY2d 17), notwithstanding the Supreme Court’s apparent receptivity at that time to reconsideration of its “automatic standing” rule (Brown v United States, 411 US 223). Jones had not yet been expressly overruled by the Supreme Court and we felt constrained to continue to apply the rule in this State (38 NY2d, atp 23).

In 1980, and after our decision in Hansen, however, the Supreme Court unequivocally abrogated the “automatic standing” rule in United States v Salvucci (448 US 83). Defendant therefore has no automatic standing under the Fourth Amendment of the United States Constitution to challenge the warrantless search of his grandmother’s home, and the only remaining question is whether under section 12 of article I of the New York State Constitution our court would require continued application of the rule.

Analysis indicates that the “automatic standing” rule should be rejected. Even in Jones the Supreme Court made clear that as a general principle “it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he * * * establish, that he himself was the victim of an invasion of privacy” (362 US, at p 261). Additionally, section 12 of article I of the New York State Constitution conforms with the Fourth Amendment regarding the proscription against unreasonable searches and seizures, and this identity of language supports a policy of uniformity in both State and Federal courts. Finally, the constraint imposed by the decision in Jones, which we believed mandated our result in Hansen, has been removed by the Supreme Court’s decision in Salvucci. We are therefore now free to reevaluate the “automatic standing” rule and, seeing no reason at this time to diverge from the Supreme Court’s analysis in Salvucci, we likewise abrogate the rule as part of the law of this State.

Our recent decision in People v Henley (53 NY2d 403), although involving nonpossessory offenses, foreshadowed the conclusion we reach today. There, Jim Henley was taken into custody as a burglary suspect and transported to his apartment where he consented to a request by the police to enter. His brother Willie Norman Henley, who also lived at the apartment, was present inside at the time of the entry. The police seized merchandise found in the apartment which bore the name of the company reporting the burglary and the Henley brothers were subsequently indicted for burglary and grand larceny. We held that the evidence should have been suppressed as to Jim Henley because there was no probable cause to take him into custody and transport him to his abode. We refused to suppress the evidence as to Willie Norman Henley, however, finding that he had no standing to challenge the illegality of his brother’s custodial detention or transportation and, deprived of that premise, had no other basis to question the validity of the consent given by Jim Henley to the police to enter the Henley apartment.

Turning again to the case now before us, with the rejection of the automatic standing rule we conclude that defendant may challenge the validity of the warrantless search which led to the seizure of the weapon only if he can demonstrate a reasonable expectation of privacy in his grandmother’s home. From his grandmother’s testimony at the suppression hearing we can only conclude that defendant had no reasonable expectation of privacy in her home, nor, more specifically, in the particular area searched. The weapon was therefore properly received into evidence.

We have reviewed the other contentions raised by defendant on this appeal and find them to be without merit. The order of the Appellate Division should, therefore, be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur.

Order affirmed.


text:
    Food Pageant, Inc., Respondent, v Consolidated Edison Co., Inc., Appellant.
    Argued October 21, 1981;
    decided November 19, 1981

      POINTS OF COUNSEL

      William E. Hegarty, Thomas J. Kavaler, Ernest J. Williams, Joseph D. Ahearn and Michael Majewski for appellant.
    I. The evidence was insufficient to go to the jury on Pageant’s theories of gross negligence. (Weld v Postal Telegraph-Cable Co., 199 NY 88, 210 NY 59; Hamilton Employment Serv. v New York Tel. Co., 253 NY 468; Seagroatt Floral Co. v New York Tel. Co., 76 AD2d 1038; Santoro v Central N. Y. Power Corp., 189 Misc 567; Krivitsky & Cohen v Western Union Tel. Co., 129 Misc 431; Warren v New York Tel. Co., 67 Misc 2d 348, 70 Misc 2d 794; Long Is. Cent. Sta. v New York Tel. Co., 54 AD2d 893.) II. Pageant’s expert testimony was insufficient because it simply employed hindsight, “but for” analysis and never identified any standard of care from which Con Edison departed. (Selkowitz v County of Nassau, 45 NY2d 97; Matatt v Ward, 48 NY2d 455; Babitt v New York Tel. Co.., 63 Misc 2d 883.) III. The general verdict cannot stand because at the least, several of Pageant’s theories were premised on nothing more than causes beyond Con Edison’s control or ordinary negligence. (Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995; Fein v Board of Educ., 305 NY 611; Carhart v Relmar Operating Corp., 66 AD2d 680; Atlantic Bank of N. Y. v Carnegie Hall

      Corp., 25 AD2d 301; Finkle v Zimmerman, 26 AD2d 179; Thomas v Central Greyhound Lines of N. Y., 6 AD2d 649; Smulczeski v City Center of Music & Drama, 3 NY2d 498; Forman v Davidson, 74 AD2d 505; Killeen v Reinhardt, 71 AD2d 851; Dreyer v Tishman Realty & Constr. Co., 41 AD2d 628.)

      Frederic Lewis for respondent.
    I. The jury properly found that Con Edison’s operations during the blackout constituted gross negligence. This finding was fully supported by the evidence. (Matter of Karp v Hults, 12 AD2d 718, 9 NY2d 857; Seagroatt Floral Co. v New York Tel. Co., 76 AD2d 1038; Matter of Kelley v Kelly, 5 AD2d 913; Lane v New York Tel. Co., 7 AD2d 702; People v Haney, 30 NY2d 328; People v Decina, 2 NY2d 133; Weld v Postal Telegraph-Cable Co., 199 NY 88, 210 NY 59; People v Weidmann, 281 App Div 1003; Tug Ocean Prince v United States, 584 F2d 1151, 440 US 959.) II. There is no rule of law that experts must testify as to a “standard of care”. Plaintiffs’ expert’s testimony was properly admissible. The weight given such expert testimony was a matter for the jury. (Selkowitz v County of Nassau, 45 NY2d 97; Gonzalez v Concourse Plaza Syndicates, 31 AD2d 401; McGee v Adams Paper & Twine Co., 26 AD2d 186, 20 NY2d 921; O’Conner v 595 Realty Assoc., 23 AD2d 69; Shannahan v Empire Eng. Corp., 204 NY 543; Dougherty v Milliken, 163 NY 527; Finn v Cassidy, 165 NY 584.) III. The jury was not given any legally untenable theories of liability — each of Pageant’s contentions gave rise to a question of fact as to whether singly or in combination the evidence supporting them demonstrated gross negligence on the part of Con Edison. (People v Decina, 2 NY2d 133; Schumann v Matturro, 57 AD2d 948; Anchor Motor Frgt. v Shapiro, 56 AD2d 573; Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995; Fein v Board of Educ., 305 NY 611; Carhart v Relmar Operating Corp., 66 AD2d 680; Atlantic Bank of N. Y. v Carnegie Hall Corp., 25 AD2d 301; Finkle v Zimmerman, 26 AD2d 179; Thomas v Central Greyhound Lines of N. Y., 6 AD2d 649; Smulczeski v City Center of Music & Drama, 3 NY2d 498.) IV. Responding to the brief amici curiae — respondent’s reliance on criminal cases, among others, is not inappropriate in determining the nature of gross negligence in a civil matter. (Matter of Jenson v Fletcher, 277 App Div 454, 303 NY 639; People v Haney, 30 NY2d 328; Weld v Postal Telegraph-Cable Co., 210 NY 59; People v Eckert, 2 NY2d 126; People v Decina, 2 NY2d 133.)

      Peter J. Mastaglio and Steven E. Grill for The Brooklyn Union Gas Company and others, amici curiae.

    I. Liability for losses resulting from service interruptions may be imposed only when the utility has failed to exercise even slight care. (Hamilton Employment Serv. v New York Tel. Co., 253 NY 468; Weld v Postal Telegraph-Cable Co., 210 NY 59.) II. The evidence presented below was insufficient to warrant submission of plaintiff’s case to the jury. (Seagroatt Floral Co. v New York Tel Co., 76 AD2d 1038; Matter of Jenson v Fletcher, 277 App Div 454; Warren v New York, Tel. Co., 70 Misc 2d 794; Lo Vico v Con Edison Co., 99 Misc 2d 897; Cruz v Register, 54 AD2d 969; MacKendrick v Newport News Shipbuilding & Dry Dock Co., 40 AD2d 798, 35 NY2d 681; Abbott v St. Luke’s Mem. Hosp. Center, 38 AD2d 176.) III. The courts below erred in allowing a verdict of gross negligence to stand when the evidence at most supported only a finding of separate acts of ordinary negligence. (Hazzard v Chase Nat. Bank of N. Y., 159 Misc 57, 257 App Div 950, 282 NY 652, 311 US 708; Weld v Postal Telegraph-Cable Co., 210 NY 59; People v Haney, 30 NY2d 328; People v Strong, 45 AD2d 18, 37 NY2d 568; People v Cruciani, 70 Misc 2d 528; People v Buffington, 35 A.D2d 1063; People v Weidman, 281 App Div 1003; Tug Ocean Prince v United States, 584 F2d 1151, 440 US 959.)
   OPINION OF THE COURT

Gabrielli, J.

The case and appeal submitted for our review arises from the 1977 New York City blackout, which left approximately three million customers of Consolidated Edison of New York located in New York City and Westchester County without electrical power. Plaintiff, a grocery store chain, brought suit seeking damages for food spoilage and loss of business. Presented for our consideration is whether a jury verdict finding defendant to have been grossly negligent may stand.

On July 13, 1977, Con Edison’s entire electrical power system blacked out. The apparent initiating event was the combination of two lightning strokes, occurring within 18 minutes of each other, causing two double circuit outages of transmission lines linking Con Edison’s system with the other electrical utilities in the New York Power Pool. At trial, plaintiff alleged several careless acts by Con Edison which precipitated the eventual power outage. First, plaintiff urged that several power sources were unjustifiably out of service on the evening of the blackout. It was alleged that the Hudson-Farragut tie, a power line which linked Con Edison’s system with that of the Public Service Electric and Gas Company of New Jersey, and the Indian Point 2 power plant were out of operation. Con Edison apparently maintained certain gas turbines for use during hours of peak power demand which were also inoperable at the time of the blackout because the technicians who manned the turbines had been sent home earlier. In addition, it was alleged that Con Edison failed to properly maintain and inspect certain relays and circuit breakers, and failed to secure proper protection against lightning for its towers and transmission lines. Finally, plaintiff alleged that the person placed in charge of the Con Edison system on the evening of July 13, 1977, William Jurith, reacted improperly to the crisis and, further, that Con Edison was grossly negligent in placing Jurith in such a critical position while lacking the necessary experience, knowledge and expertise to completely perform the functions of his job.

In response, Con Edison maintained that the Hudson-Farragut tie was out of operation because of the prior failure of a complex piece of machinery, that the Indian Point 2 plant was also justifiably out of service for repairs, and that the gas turbines were not in operation at the time of the incident because the anticipated period of peak power demand, during which the turbines were normally used, had expired earlier in the evening. Con Edison also maintained that its inspection program for circuits and relays conformed to the appropriate engineering standards and that the lightning protection on the Con Edison towers and lines was adequate and properly designed. In respect to its employee, Con Edison maintained that Jurith had acted properly and did not, in any event, act with gross negligence.

Before submitting the case to the jury, the trial court instructed its members that they could return a verdict for the plaintiff only if they found that defendant had been grossly negligent. As Trial Term recognized, under the terms of Con Edison’s rate schedule, the utility cannot be held liable for interruption of service due to the ordinary negligence of its agents and employees. It does, however, remain liable for gross negligence. In Weld v Postal Telegraph-Cable Co (199 NY 88, 98), this court recognized that the liability of a public utility should be limited to damages arising from the utility’s willful misconduct or gross negligence. Later, after a retrial, the court further addressed the meaning of this standard (Weld v Postal Telegraph-Cable Co., 210 NY 59). Briefly, gross negligence had been termed as the failure to exercise even slight care. In the present case, following the charge to the jury which incorporated the standard of gross negligence, the jury returned a verdict finding that the defendant had indeed been grossly negligent; that this gross negligence was the proximate cause of the plaintiff’s damage; and that plaintiff was entitled to compensation in the amount of $40,500. The Appellate Division affirmed the judgment, without opinion, and granted leave to appeal to this court.

Defendant now argues, initially, that the evidence was insufficient to warrant submission of plaintiff’s case to the jury. Our review of the record indicates, however, that there was sufficient evidence of the defendant’s gross'negligence to present this issue for jury determination. It is also urged that although plaintiff attempted to detail the manner in which the blackout occurred, it never identified any standard of care from which Con Edison departed. Specifically, defendant maintains that a fatal defect in plaintiff’s case was its failure to demonstrate, by expert testimony, the sound engineering and other practices which Con Edison failed to follow.

Generally, the particular standard of care which a defendant is judged against in a given case is a factual matter for the jury (Prosser, Torts [4th ed], p 207). In the ordinary negligence action, the question is what a reasonable person would have done under the circumstances. Where the inquiry is to the existence or nonexistence of gross negligence, the ultimate standard of care is different, but the question nevertheless remains a matter for jury determination. In this instance, however, defendant asserts that the jury is incompetent, because of its lack of technical expertise, to discern the appropriate standard of care from the facts alone, unaided by expert testimony.

It is clear that certain issues, because of their scientific or technical complexity, require the special expertise of an expert witness (see 7 Wigmore, Evidence [Chadbourn rev, 1978], § 2090). However, even assuming that the scientific or technical complexity of certain cases may necessitate the introduction of expert testimony relating to the appropriate standard of care, the alleged failure to introduce such testimony in this case is not fatal because there was ample evidence upon which the jury could have based its determination of gross negligence unaided by the guidance of expert testimony concerning the appropriate standard of behavior. Thus, by analogy, although expert testimony is ordinarily called for in medical malpractice actions, “when common sense and ordinary experience suggest that the condition [for which suit is brought] is incompatible with skillful or successful treatment”, expert testimony may not be necessary (1 NY PJI2d 393) and, indeed, where the facts can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them, then there is no occasion to resort to expert or opinion evidence.

In support of its contention that defendant had acted with gross negligence, plaintiff alleged and proved the existence of several circumstances under defendant’s control which could have contributed to the eventual blackout. It was well within the competence of the jury to evaluate defendant’s actions based upon the factual presentation alone. Chief among these actions was the behavior or lack of action of Con Edison’s system operator on the night of the blackout. Within seven minutes of the initial lightning bolt which struck the Con Edison system at 8:37 P.M., the New York Power Pool was in communication with Con. Edison’s employee, William Jurith. Under the agreement between the power pool and Con Edison, during times of major emergency the utility was to put into effect the directions of the senior pool dispatcher. Following the second lightning bolt the pool directed Jurith to reduce voltage by “shedding load”. Prior to the blackout, which occurred at approximately 9:30 P.M., several similar requests were made by the power pool to Con Edison to shed load. It was charged, with support in the record, that these directions were not complied with. The actions of Con Edison’s employees on the night of the blackout, and Con Edison’s staffing decisions, could properly be judged by the members of the jury unaided by expert testimony to clarify the standard of care.

Defendant’s final contention concerns the use of a general verdict in this case. Defendant argues that the several alleged shortcomings in its procedures which plaintiff sought to prove, including Con Edison’s failure to have sufficient power sources on the night of the blackout and its ultimate handling of the evolving emergency situation, were each discrete theories of liability presented to the jury. Because not all of these discrete “theories of liability” were, according to defendant, supported by legally sufficient evidence, the rendering of a general verdict requires a new trial because it is impossible from this verdict to determine if the jury based its judgment on a theory supported by the evidence. In Davis v Caldwell (54 NY2d 176, 178 [decided herewith] ), we noted that “ [w] hen multiple theories of liability have been submitted to a jury which is instructed to return a general verdict only, a judgment entered on such a verdict in favor of the plaintiff must be reversed when the proof was insufficient for submission as to one or more of those theories.” There, the court presented the jury with five separate theories of liability and instructed the jury that although it was to decide all five of plaintiff’s claims, it was to return only one general verdict. The court further instructed the jury that if it found in favor of plaintiff on any one claim, it would award a dollar amount but would not make known on which of the claims it had found for plaintiff.

In the present case, in contrast, the trial court did not present the jury with separate theories of liability for individual determination, but instead merely presented the alleged shortcomings in Con Edison’s procedures as a summary of plaintiff’s evidentiary contentions. The court then instructed the jury to determine if defendant had been grossly negligent. This presentation of plaintiff’s evidentiary contentions was effectively equivalent to a marshaling of the evidence, and we may not now disturb the jury’s determination, made on the basis of the evidence before it, that .the defendant’s gross negligence led to the damages sustained by plaintiff. Since we perceive no error in the presentation of this case to the jury, we must conclude that there should be an affirmance.

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

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.


author: Jones, J.

text:
    Joan R. Davis et al., Respondents, v Elethea H. Caldwell et al., Appellants.
    Argued October 14, 1981;
    decided November 19, 1981

      POINTS OF COUNSEL

      John B. McCrory for appellants.
    I. The trial court erred in submitting to the jury, over defendants’ motion to dismiss, causes of action based upon an erroneous diagnosis and for performance of an unnecessary operation. (Schreiber v Cestari, 40 AD2d 1025; Hamilton v Presbyterian Hosp. of City of N. Y., 25 AD2d 431; Ward v Kovacs, 55 AD2d 391; Ferrara v Leventhal, 56 AD2d 490; O’Boyle v Avis Rent-A-Car System, 78 AD2d 431; Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995.) II. The trial court committed fundamental error in submitting to the jury the cause of action based upon informed consent, in light of the' absence of expert medical testimony attacking the qualitative sufficiency of the consent obtained by Dr. Chandler and Dr. Caldwell. III. The trial court’s instructions to the jury were so hopelessly vague and inadequate as to constitute fundamental error. (Di Grazia v Castro-nova, 48 AD 2d 249; Titlebaum v Loblaws, Inc., 64 AD2d 822.)

      Sanford Robert Shapiro for respondents.
    I. A Trial Justice’s denial of a motion made pursuant to CPLR 4404 (subd a) should be affirmed where it is not unreasonable. (Blum v Fresh Grown Preserve Corp., 292 NY 241; Kimberly-Clark Corp. v Power Auth. of State of N. Y., 35 AD2d 330; Mann v Hunt, 283 App Div 140; Zera v City of New York, 35 AD2d 519; Lawrence v Walsh, 8 AD2d 917; Hussey v Oneida Motor Frgt., 30 AD2d 741; Brown v Du Frey, 1 NY2d 190; Cornwell v Safeco Ins. Co. of Amer., 42 AD2d 127; Martinez v Kaufman-Kane Realty Co., 34 NY2d 819; Dries v Gregor, 72 AD2d 231; Noce v Kaufman, 2 NY2d 347.) III. Based upon the expert testimony adduced, the factual issues were properly framed by the court’s charge, and the jury’s verdict was consistent with the evidence. IV. A surgeon’s removal of a patient’s breasts, without a biopsy to confirm a diagnosis of cancer, is legally and medically unjustifiable. (Jeanes v Milner, 428 F2d 598.)
   OPINION OF THE COURT

Jones, J.

When multiple theories of liability have been submitted to a jury which is instructed to return a general verdict only, a judgment entered on such a verdict in favor of the plaintiff must be reversed when the proof was insufficient for submission as to one or more of those theories. In this medical malpractice action, because plaintiffs failed to introduce evidence sufficient to sustain a verdict in their favor on two of the theories submitted, the order of the court below affirming plaintiffs’ judgment must be reversed and a new trial ordered with respect to the theories of liability for which the proof was sufficient.

On June 17, 1976 plaintiff Joan Davis underwent a bilateral subcutaneous mastectomy, resulting in the removal of substantial portions of both breasts, accompanied by breast reconstruction with silicone implants. Although the patient’s prior medical history had given rise to suspicion that a cancerous condition might be present, pathological and X-ray studies of segments of the tissue removed disclosed no malignancy. The present action by Mr. and Mrs. Davis was subsequently instituted to recover money damages, for what they term an unnecessary operation, from Dr. Elethea Caldwell, the physician by whom the surgery was performed, and from Strong Memorial Hospital, Dr. Caldwell’s employer and in whose facilities the operation was performed. At the conclusion of the trial at which medical witnesses were called by both sides the court charged the jury that plaintiffs were proceeding on five theories of liability which he described as follows: (1) erroneous diagnosis of Mrs. Davis’ condition by Dr. Caldwell; (2) failure to have performed a biopsy prior to the surgery; (3) performance of an unnecessary operation on Mrs. Davis; (4) failure to have followed accepted standards of medical care in the community; (5) failure, prior to the surgery, to have obtained an informed consent from Mrs. Davis. The jury was instructed that it was required to decide all five of plaintiffs’ claims but should return only one, general verdict; that if it found in favor of plaintiffs on any one of the claims the jury would award a dollar amount but that it would not make known on which of the claims it had found for the plaintiffs. Following extended deliberation the. jury returned a substantial verdict against both defendants, which was affirmed by a divided court at the Appellate Division. The case is now before us by reason of the dissent on a question of law in that court, the dissenting Justice being of the opinion that the judgment for plaintiffs could not stand because there was insufficient evidence to warrant submission to the jury of the first and third theories of liability articulated by the trial court.

We agree with the view thus expressed and accordingly reverse the order of the Appellate Division. Because it is impossible from the general verdict returned by the jury in accordance with the trial court’s instructions to determine that the verdict was not predicated on a finding in plaintiffs’ favor on one of the claims which, for lack of supporting proof, should not have been submitted to it, the verdict must be set aside and a new trial ordered. At the new trial the jury may not consider the two theories of liability for which the evidence was insufficient on the first trial but may consider those theories as to which sufficient evidence was introduced at the previous trial to have warranted a verdict favorable to plaintiffs (Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995).

With respect to the first theory of liability placed before the jury — erroneous diagnosis of Mrs. Davis’ condition by defendant Caldwell — the record is devoid of proof (and plaintiffs point to none) that the operating surgeon ever made a diagnosis or was ever called on to do so. Although plaintiffs’ contention is that before Mrs. Davis agreed to undergo substantial breast surgery they had been informed, in error, that there was cancerous tissue present, Mrs. Davis herself testified that at no time did Dr. Caldwell make the statement that she had cancer. The evidence was uncontradicted that the preoperative diagnosis, which appeared on the hospital records as “Bilateral mastopathy with calcification suspicious of carcinoma on mammogram [performed May 3, 1976]”, had been made by Dr. Wende Logan, a physician whose practice was limited to diagnosis of breast cancer (not a party to this action), and accepted by the patient’s general surgeon, Dr. Kenneth Chandler (also not a party), by whom cancerous tissue had been removed from Mrs. Davis’ right breast in a biopsy performed in April, 1974, some two years earlier: It was as a result of referral by Dr. Chandler that the Davises met with defendant Caldwell to arrange for the bilateral subcutaneous mastectomy. The record lacks any evidence that Dr. Caldwell participated in the diagnosis which preceded, and had been completed by the time of, her engagement. That being so, it was error for the jury to have been permitted to consider as a basis for an award to plaintiffs an error in diagnosis of Mrs. Davis’ condition by Dr. Caldwell.

In like vein, and again without demonstration by plaintiffs to the contrary, no proof was offered to support a claim that the operation performed on Mrs. Davis was unnecessary, which the court submitted to the jury as the third theory of liability. There was no controversy that cancerous tissue had been found to be present in one of the patient’s breasts about two years earlier at which time she had refused to submit to a mastectomy despite a recommendation of combined treatment by radiation and mastectomy made by both Dr. Chandler, her then attending surgeon, and by the board of the hospital where she was a patient, meeting at its weekly cancer conference. It was also uncontroverted that the mammogram performed by Dr. Logan on May 3, 1976, as part of a program of annual mammograms of Mrs. Davis initiated following the removal of cancerous tissue during the April, 1974 biopsy, disclosed the existence of new calcifications in the right breast suspicious of carcinoma as well as the continued existence of disease previously seen in the left breast. Finally, it was unquestioned that the surgery performed on June 17, 1976 was the least comprehensive and least extensive of the four types of mastectomy employed in cases of cancer or suspected cancer. Absent medical expert evidence offered by plaintiffs, of which there was none, that the surgery was unnecessary in the circumstances present, the claim predicated on such a contention should have been dismissed when defendants moved for such relief at the close of the evidence.

We reach a contrary conclusion with respect to plaintiffs’ claims that liability on the part of defendants might be found to exist (1) by reason of their having failed to conform to the standard of medical care extant in the community when Dr. Caldwell proceeded with Mrs. Davis’ subcutaneous mastectomy without a biopsy of the patient’s breast having first been performed and the results obtained, and (2) by reason of their failing accurately to have advised Mrs. Davis of her condition prior to the operation so that her consent to the surgery might be an informed consent. As to the first of these alleged predicates for liability, plaintiffs produced testimony by the director of breast cancer surgery at one of the Nation’s foremost cancer hospitals that, on the basis of Mrs. Davis’ medical record, in June, 1976 it was not generally accepted medical practice in this State to perform a bilateral subcutaneous mastectomy without first securing a biopsy and that the performance of such an operation on plaintiff without a prior biopsy was a departure from accepted medical practice. In face of such proof the claim based on the omission of a biopsy was properly one for consideration by the jury.

A similar conclusion is warranted with respect to the claim founded on an. alleged failure to have secured an informed consent to the surgery from Mrs. Davis, as to which defendants assert there is a fatal defect in the absence of expert medical testimony attacking the qualitative sufficiency of the consent to the bilateral mastectomy given by Mrs. Davis. In making this assertion defendants rely on CPLR 4401-a, which provides: “A motion for judgment at the end of the plaintiff’s case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent if the plaintiff has failed to adduce expert medical testimony in support of the alleged qualitative insufficiency of the consent.”

Plaintiffs’ theory of liability based on lack of informed consent to Mrs. Davis’ surgery was supported by proof that following the mammogram taken on May 3, 1976 Dr. Chandler informed them that a cancer was present in Mrs. Davis’ right breast, by testimony of Mr. Davis that Dr. Logan (the breast cancer diagnostician) had told them immediately after completion of the mammogram that “there was a very high chance, ninety percent, that the cancer had returned” without mention of a biopsy as a desirable further diagnostic procedure, and by testimony of both plaintiffs that defendant Caldwell had told them that “the cancerous tissue” would be removed during the subcutaneous mastectomy. Additionally, plaintiffs produced evidence to the effect that, prior to Mrs. Davis’ execution of the form provided by defendant hospital on which she signified her consent to the operation, they were not advised that the procedure was to be employed as a preventative measure to alleviate a precancerous — as contrasted with a cancerous — condition, or that the effectiveness of the procedure as a prophylactic measure to forestall the development of carcinoma was a subject as to which there were significant differences of opinion within the medical profession. Neither were they informed that an alternative to the performance of the mastectomy following interpretation of the mammogram of May 3, 1976, which revealed changes in the breast tissue, was the performance of a biopsy to assist in the determination of the nature of the tissue — whether cancerous or noncancerous. Testimony adequate to meet the requirement in CPLR 4401-a of “expert medical testimony in support of the alleged qualitative insufficiency of the consent” was provided by the evidence given by a plastic surgeon experienced in the performance of subcutaneous mastectomies, called by defendants, that a consent to such an operation not preceded by disclosure of the doubtfulness of benefit from the procedure, could not be based on adequate information — thus would not be be an informed consent. The expert who was chief of breast cancer surgery at a cancer hospital, called by plaintiffs, testified that it would be improper medical practice to obtain a patient’s consent to surgery on the basis of advice to her that she had cancer of the breast when in fact she did not have such cancer. On such a record, defendants’ contention that the evidence required by CPLR 4401-a was lacking cannot be sustained.

It follows that the judgment in favor of plaintiffs must be reversed and the case remitted for a new trial. On any such new trial plaintiffs will be precluded, of course, from introducing evidence in support of liability on any theory either that Dr. Caldwell made an erroneous diagnosis or that an unnecessary operation was performed on Mrs. Davis. Plaintiffs will be entitled however again to offer proof to establish that defendants are liable for damages resulting from the surgery performed on Mrs; Davis on June 17, 1976 either by reason of Dr. Caldwell’s having failed to exercise permissible medical judgment and having departed from then accepted medical practice by performing the subcutaneous mastectomy without first performing a biopsy or by reason of the surgery’s having been performed without an informed consent having first been given by the patient, or on any other theory of liability allowable under the pleadings.

For the reasons stated, the order of the Appellate Division should be reversed, with costs to abide the event, the judgment for plaintiffs set aside, and the case remitted to Supreme Court for a new trial in accordance with this opinion.

Chief Judge Cooke, and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.

      . A mastectomy is surgical removal of part or all of the breast. Subcutaneous means beneath the skin.

      . Precisely stated, the trial court termed them five “causes of action”. Such description, however, bore no correlation to what by happenstance were five causes of action alleged in the complaint. From the context in which the language was used it is apparent that “theories of liability” would have been more accurate terminology.

      . A biopsy is surgical removal of tissue for diagnostic examination.

      . Significantly different legal consequences attend an instruction of the jury as to the plaintiffs’ evidentiary contentions, in effect the equivalent of a marshaling of the evidence (cf. Food Pageant v Consolidated Edison Co., 54 NY2d 167 [decided herewith]).

      . Mastopathy is any disease of the breasts. Calcification is a calcium deposit in tissue which may be indicative of a cancerous process. Carcinoma is a medical term for cancer. A mammogram is a diagnostic X-ray examination of the breasts employed to determine the presence of cancerous tissue.

      . Plaintiffs’ versions of the conversations with all three of the physicians named were controverted in significant part by the latter. The conflict however simply presented a question of credibility and has no bearing on the issue whether plaintiffs had made out a case for submission to the jury on the claim of lack of informed consent.

      . The fourth so-called “cause of action”, described by the trial court as alleging “that the defendants failed to follow accepted standards of medical care in the community in connection with problems of this sort”, in our view stated nothing not already included in the other four “causes of action” and did not constitute an independent theory of liability.


author: Fuchsberg, J.

text:
    Russell J. Smith, Appellant, v Russell Sage College, Respondent.
    Argued August 31, 1981;
    decided November 19, 1981

      POINTS OF COUNSEL

      Russell, J. Smith, appellant pro se.

    I. Plaintiff did not testify in an examination before trial that plaintiff knew that a statement made by defendant’s president was a “baiting” statement when stated in 1972. (Lanzi v Brooks, 54 AD2d 1057, 43 NY2d 778.) II. The issue of justifiable reliance involves issues of fact. (Fisher v Bishop, 108 NY 25; Doody v Sexton & Co., 411 F2d 1119; Haviland v Willets, 141 NY 35.)

      Gerald H. Katzman for respondent.
    I. The court below correctly determined that plaintiff could not justifably rely on a representation that he had a contract of employment for life. (Lanzi v Brooks, 54 AD2d 1057, 43 NY2d 778.) II. The determination of fact by the court below is supported by the record. (Blaustein v Pan Amer. Petroleum & Transp. Co., 293 NY 281; Roberts v Fulmer, 301 NY 277; Chamberlain v Fedlam, 300 NY 135; Pocket Books v Meyers, 292 NY 58; Exchange Bakery & Rest, v Rifkin, 245 NY 260; Matter of Ray A. M., 37 NY2d 619; Matter of Darlene T., 28 NY2d 391.) III. Smith is estopped from asserting the contrary to facts determined in a prior action. (Hinchey v Sellers, 7 NY2d 287; Evergreens v Nunan, 141 F2d 927, cert den sub nom. Evergreens v Commissioner of Internal Revenue, 323 US 720; People ex rel. McCanliss v McCanliss, 255 NY 456; Matter of Reilly v Reid, 45 NY2d 24.) IV. The court below erred in determining that the action was not barred by the doctrine of res judicata. (Bell v Merrifield, 109 NY 202; Matter of Reilly v Reid, 45 NY2d 24; McLearn v Cowen & Co., 48 NY2d 696; Matter of Gowan v Tully, 45 NY2d 32; Stoner v Culligan, Inc., 32 AD2d 170; Rose v Spa Realty Assoc., 42 NY2d 338.) V. The doctrine of res judicata precludes the maintenance of the instant action. VI. The instant action is barred by the Statute of Frauds. (Rose v Spa Realty Assoc., 42 NY2d 338.) VII. The court below correctly disregarded Fisher v Bishop. (Roller v Stanly, 277 App Div 1147, 302 NY 736; Levin v Levin, 253 App Div 758; Magalnick v Empire State Mut. Life Ins. Co., 13 Misc 2d 468.) VIII. Plaintiff-appellant has failed to raise issues sufficient to warrant reversal. (Marocco v Marocco, 53 AD2d 707; Christian v Christian, 55 AD2d 613.) IX. Special Term erred in determining that it was a question of fact as to whether a relationship of trust and confidence existed between Smith and President Walker. (Haviland v Willets, 141 NY 35.) X. Under the facts present, Smith was required to ascertain independently whether his alleged agreement was enforceable. (Danann Realty Corp. v Harris, 5 NY2d 31.7; Wittenberg v Robinov, 9 NY2d 261.)
   OPINION OF THE COURT

Fuchsberg, J.

In the end, testing the applicability of res judicata by transactional analysis of the claims presented in plaintiff’s two successive suits against the defendant, the question here is whether dismissal of the initial one on Statute of Frauds and Statute of Limitations grounds must be said to have extinguished the subsequent one as well. We hold that it must.

The issue comes to us in a contextually attenuated legal and factual framework. As culled from the miscellany of pleadings and motion papers which constitute the record before us, the genesis of the controversy between the parties was plaintiff Russell J. Smith’s appointment in June, 1967, first as assistant to the dean and shortly thereafter as assistant dean, at defendant Russell Sage College’s Junior College of Albany. The arrangements for his engagement were negotiated orally between Smith and the then president of Russell Sage, Lewis A. Froman. Not without dispute, Smith claims that, as part of their agreement, President Froman promised that, if the time ever came when the institution no longer could support a full-time assistant dean, a teaching position would always be open to him. However, though plaintiff’s faculty appointments from 1971 on would be memorialized by annual letters, none of these referred in any way to the existence of tenure in general or the claimed undertaking in particular.

After Smith joined Russell Sage, so far as relevant here, things appear to have remained static until July 1, 1973, a date when Charles U. Walker, who had succeeded Froman as president some three years earlier, put into effect an administrative plan which called for the abolition of the assistant deanship post. This was no surprise to Smith. Both sides agree that, in February, 1972, Walker informed him that this was in the offing, and that Smith thereupon advised Walker of the oral job security stipulation he claims to have entered into with Froman. To this, according to Smith’s examination before trial, Walker is said to have rejoined, “in essence, then you have a lifetime agreement”, a comment to which Smith, who in his deposition was to characterize it as “baiting”, chose not to reply. Whatever the accuracy of this opinion, the fact is that, before the 1973-1974 college year was underway, Walker wrote to Froman to inquire as to the latter’s “understanding of the agreement”, to which Froman wrote back to say, “What I probably said was something to the effect that if he made good (a common expression of mine), there might be the opportunity to teach if the administrative position didn’t work out.” (Emphasis in the original.) In any event, as Smith was to describe it, defendant’s failure to tender him a teaching assignment caused him “to accept employment [with the college], under duress ** * * as a librarian and administrative assistant” for the ensuing year, only to be terminated entirely at its conclusion on June 30, 1974.

Against this background, Smith initially brought suit against the college in August, 1975. Spread discursively over eight causes of action, the allegations of his complaint, read liberally, may be said to have fallen into but two categories. The first of these, centering on the Walker-Froman letter exchange, was tortious in character; it charged that Walker’s letter to Froman had “falsely and fraudulently” misrepresented Smith’s conversation with Walker in stating that Walker had told Smith that he would abide only by a written agreement, that Walker had been negligent in accepting Froman’s letter at face value, that Walker had refused to give Smith access to Froman’s letter for six months, and that these had all been part of a design by Walker to “maliciously, deliberately, intentionally and deceitfully induce” the college’s board of trustees to relieve Smith of his position. The gist of the second category, sounding essentially in contract, was that the college was estopped from resisting enforcement of the oral agreement because Smith, expecting that it would be honored, had resigned his previous position as a high school teacher, had taken graduate courses towards a master’s degree and had foregone any attempt to obtain other employment in the favorable job market which he alleges prevailed during the years preceding his severance from Russell Sage. All of this, plaintiff further pleaded, damaged his professional reputation, impaired his ability to obtain other employment and, therefore, entitled him to a declaration that the oral agreement was in force, to an order reinstating him and to a recovery for wages lost starting with July 1, 1974, the last presumably as part of a demand for $150,000 as special damages and $350,000 as punitive damages.

After a litigation course whose other details are not pertinent for present purposes, Special Term, treating the college’s motion to dismiss as one for summary judgment (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:44, p 48), concluded that so much of the suit as was predicated on the oral agreement was rendered unenforceable by the Statute of Frauds (General Obligations Law, § 5-701, subd a, par 1) and that the balance was barred by the one-year Statute of Limitations prescribed by CPLR 215 (subd 3). This decision was handed down in December, 1977. Though plaintiff moved unsuccessfully to vacate the formal order of dismissal which followed, no appeal was ever taken.

Instead, plaintiff commenced the present action in December, 1978. Designating it one “for fraud perpetrated upon plaintiff by Charles U. Walker in his capacity of president”, his complaint now focused on two scanty excerpts from utterances claimed to have issued from Walker during conversations with Smith. One is the already noted “then you have a contract for lifetime employment”, the other a newly reported expression, “then that is better than tenure”, attributed by Smith to a later conversation in December, 1972. These fragments, the pleading tells us, were not only knowingly false but recklessly made representations “of the legal effect or consequences of an oral agreement”, to wit, the one allegedly made with Froman. The complaint also indicates that the falsity first came to light while the earlier action was pending. The result, it continues, was that Smith, further influenced by a supposed “relationship of trust and confidence” between Walker and himself, was “induced to enter into the continued employment with the Junior College in Albany and induced * * * not to seek other employment opportunities during the year of 1972 and during about eleven months of 1973”, for which it demands judgment in the sum of $42,000 for loss of income and $18,-000 in punitive damages. Defendant’s answer included not only the defenses it had relied on the first time around but a newly interposed defense of res judicata.

The issue thus joined, the defendant, again by way of a CPLR 3211 motion properly expanded into one for summary judgment, sought dismissal once more. Special Term, reasoning that the successive suits were “essentially different”, that the fraud could be deemed “a recent discovery” and that the so-called “splitting doctrine” was not applicable, rejected defendant’s res judicata contentions. Because, in its perception, the time of discovery and the degree and effect of the confidential relationship the plaintiff asserted were issues warranting a trial, it then proceeded to deny the motion.

However, the order entered on this decision did not end Special Term’s procedural role. Before defendant could perfect an appeal it had taken, the plaintiff served an amended complaint, which, as Special Term was to observe, was “substantially the same” as the one it superseded. Defendant thereupon repeated its motion, which now came up before a Judge other than the original one, who, under the court’s assignment system, was no longer sitting at Special Term. The second Judge, other than to remark on the similarity of the papers, simply denied the motion with the comment that he was adopting the reasons of his predecessor. In this posture, defendant elected to preserve its position by pursuing appeals from the separate orders which disposed of the two motions.

For its part, the Appellate Division, which permitted both appeals to be prosecuted and heard together, in a single order dismissed the appeal from Special Term’s first order as moot, but, on the appeal from the second order, unanimously reversed and dismissed the amended complaint. Explaining that a close examination of all the papers submitted on the motion to dismiss made it “plain that plaintiff neither relied upon nor was deceived” by what Walker had said to him, “but had attempted to convince Walker of the existence of a continuing employment relationship”, it held that, in any event, Smith “could not justifiably rely on a representation that he had a contract of employment for life”. As to res judicata, however, among other obiter dicta, it opined that no such bar was applicable since “the prior dismissals were not on the merits or involved causes of action other than fraud”.

Though, in turn, we now affirm the order of the Appellate Division, it is unnecessary for us to consider or pass on the other issues raised by the parties, for, unlike the courts below, we find res judicata bars this action. Our reasons follow.

We begin our analysis with the observation that, in deciding res judicata issues, we have moved to a more pragmatic test, which sees a claim or cause of action as “coterminous with the transaction regardless of the number of substantive theories or variant forms of relief * * * available to the plaintiff” (Restatement, Judgments 2d [Tent Draft No. 4, 1978], § 61, Comment a). Thus, in Matter of Reilly v Reid (45 NY2d 24, 29), we announced that, from the perspective of claim preclusion “[a] ‘cause of action’ may denote one of several separately stated claims in a pleading based on the same congeries of facts but related to different legal theories of recovery. A ‘cause of action’ may also denote a separately stated claim on the same congeries of facts, but for different legal relief. But even if there are variations in the facts alleged, or different relief is sought, the separately stated ‘causes of action’ may nevertheless be grounded on the same gravamen of the wrong upon which the action is brought”. This holds true even when “several legal theories depend on different shadings of the facts, or would emphasize different elements of the facts or would call for different measures of liability or different kinds of relief” (Restatement, Judgments 2d [Tent Draft No. 5], .§ 61, Comment c). For, what “factual grouping” constitutes a “transaction” or “series of transactions” depends on how “the facts are related in time, space, origin, or motivation, whether they form a convenient, trial unit, and whether * * * their treatment as a unit conforms to the parties’ expectations or business understanding or usage” (Restatement, Judgments 2d [Tent Draft No. 1], § 61, cited as in accord with New York law in Matter of Reilly v Reid, supra, p 30; Restatement, Judgments 2d [Tent Draft No. 5], § 61.1 [exemplification of general rule concerning splitting]).

Applying these principles to the case at bar, the 1975 action and the one before us now are part of the saipe “factual grouping”. Though embellished by later events, both originate from the identical agreement. Each spans the period between the initiation and termination of Smith’s career at Russell Sage. The chief participants in the relevant events are the same: Smith, Froman and Walker. Though the legal theories differ in some respects, the motivation, vindication of Smith’s claim that the discharge was wrongful, is the same. The alleged confidentiality of the Smith-Walker relationship, though advanced in the one suit to support a claim of estoppel and in the other to establish fraud, is common to both. So is Smith’s concentration on his 1972 conversations with Walker, albeit in the original action he only emphasized the one which occurred in February of that year, while in the present one he stresses both the one in February and the one in December; indeed, since the quotations from both occasions are of similar import, it is hard to believe that reliance on one would not have led to the unveiling of the other. Under these circumstances, it is almost impossible to resist the conclusion that the over-all “transaction” here formed “a convenient trial unit” and that this view conforms to reasonable expectations.

Nor may the plaintiff elude claim preclusion because the present case was brought under the rubric of fraud. To be sure, “A defendant cannot justly object to being sued on a part or phase of'a claim that the plaintiff fails to include in any earlier action because of the defendant’s own fraud” (Restatement, Judgments 2d [Tent Draft No. 5], § 61.2, Comment j). But this is not such a case. The fraud alleged here could not have been the cause of the plaintiff’s failure to press such a theory earlier. There was no late discovery. As noted earlier, the Walker-Froman correspondence became available to Smith during the original suit; yet, the plaintiff, who was not reluctant to move to amend in other respects, did not do so in this regard. Furthermore, both of the Smith-Walker oral confrontations in 1972 had to have been known to the plaintiff in detail from the time they are supposed to have taken place. And, while Walker’s state of mind, i.e., his fraudulent intent, might be thought to be a new issue, since no newly discovered facts had come to the fore, it would have to be proved circumstantially out of the same skein of known facts underlying the initial suit. Put another way, this theory of recovery was as available to the plaintiff then as it is now (see Hyman v Hillelson, 55 NY2d 624).

Finally, comment is in order on whether the dismissal of the plaintiff’s prior action on Statute of Limitations and Statute of Frauds grounds was “on the merits” for claim preclusion purposes. Professor Corbin sagely notes that, since “legal rights and duties are incapable of definition without reference to societal remedies”, the effect of the Statute of Frauds on the legal relations of the contracting parties brings it to the level of a rule of substantive law (2 Corbin, Contracts, § 279). Similarly, the impact of the Statute of Limitations, though often denominated as procedural, in a practical sense may also be said to be substantive; as we have had occasion to observe, “while a time bar is usually said to affect the remedy * * * its interposition is at least as often the difference between life or death for the right as well” as the remedy (Matter of Sheerin v New York Fire Dept. Arts 1 & 1 B Pension Funds, 46 NY2d 488, 497; see Siegel, New York Practice, § 34). Suffice it to say that a dismissal on these grounds is at least sufficiently close to the merits for claim preclusion purposes to bar a second action, especially where the motion to dismiss the first action was treated as one for summary judgment on which the court considered submissions of the parties dehors the pleadings.

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

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

Order affirmed.

      . The transcript shows that Smith’s exact testimony in this regard was, “He [Walker] stated that he — he made the statement to the effect that in essence, then yon have a lifetime employment agreement, and before I had a chance to even reply to it, Frederick J. Murphy stated, ‘I wish I had that type of contract.’ And as I looked back on that conversation, I am of the opinion that * * * particular statement of Charles U. Walker, that in effect you have a lifetime employment agreement, was a baiting statement, that he intended that I answer that as ‘Yes,’ which I did not answer.”

      . In the interim, two other actions brought by plaintiff against Russell Sage and two individuals were dismissed for failure to serve a complaint (CPLR 3012, subd [b]).

      . It is pertinent that the Restatement, 2d, has completely abandoned the term “on the merits”. Thus, sections 47 and 48, setting out the rules of merger and bar, read as follows:
      “§47. Judgment for Plaintiff-The General Rule of Merger

        “When a valid and final personal judgment is rendered in favor of the plaintiff: (a) The plaintiff cannot thereafter maintain an action on the original claim or any part thereof, but he can maintain an action upon the judgment; and (b) In an action upon the judgment, the defendant cannot avail himself of defenses he might have interposed, or did interpose, in the first action.
      “§48. Judgment for Defendant — The General Rule of Bar “A valid and final personal judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim.”
      (See, also, Comment a to section 48.)


author: Jasen, J.

text:
    In the Matter of the Estate of Alfred J. Maruccia, Deceased. Ethelyn Maruccia et al., Respondents; Dorothy Costa et al., Appellants.
    Argued October 13, 1981;
    decided November 19, 1981

      POINTS OF COUNSEL

      Asher Marcus and Peter James Johnson for Laura Maruccia and another, appellants.
    I. The provisions in the separation agreement were wholly inconsistent with the provisions in favor of petitioner-respondent in the decedent’s prior will and hence were revoked under EPTL 3-4.3. (New York State Loan & Trust Co. v Helmer, 77 NY 64; Sims v United States Trust Co. of N. Y., 103 NY 472; People v Kelly, 284 App Div 421; Burnside & Co. v Havener

      Securities Corp., 25 AD2d 373; Dunham v Omaha & Council Bluffs St. Ry. Co., 106 F2d 1, 309 US 661; Lewis v Smith, 9 NY 502; Matter of Hollister, 18 NY2d 281; Matter of Coffed, 46 NY2d 514.) II. The court below erred in its interpretation of the words “or otherwise” in the second part of paragraph twelfth of the separation agreement in issue. (Dunham v Omaha & Council Bluffs St. Ry. Co., 106 F2d 1, 309 US 661; Nezo York State Loan & Trust Co. v Helmer, 77 NY 64; Sims v United States Trust Co. of N. Y., 103 NY 472.) III. The court below also erred in its interpretation of the words which followed “or otherwise” in the TWELFTH paragraph of the separation agreement in issue here. (Lewis v Smith, 9 NY 502.) IV. The court below also erred in overlooking or ignoring paragraph twentieth of the separation agreement. (Sims v United States Trust Co. of N. Y., 103 NY 472.) V. The court below also erred in considering matters de hors the separation agreement in declaring that only statutory rights and claims were released and relinquished by the separation agreement. (Raleigh Assoc. v Henry, 302 NY 467.) VI. The provisions of the separation agreement in issue here were just as wholly inconsistent with the provisions of decedent’s will as the provisions in the separation agreement in Matter of Hollister (18 NY2d 281), were with the will in that case. (Sims v United States Trust Co. of N. Y., 103 NY 472.)

      Howard Bindelglass and Kim E. Baptiste for Dorothy Costa, appellant.
    I. On the basis of this court’s decision in Hollister, the terms of the 1976 Maruccia separation agreement were wholly inconsistent with, and thus acted as a revocation of, decedent’s prior testamentary dispositions in favor of Ethelyn Maruccia. (Matter of Hollister, 18 NY2d 281.) II. The court below erred by narrowly construing the Maruccia agreement and by relying upon distinguishable and irrelevant precedent. (Matter of Shack, 207 Misc 953; Matter of Ga Nun, 200 Misc 789; Matter of Bisconti, 306 NY 442; Feitelberg v Matuson, 124 Misc 595; Thomas v Thomas, 178 Misc 349.) III. The court below erred in ruling that Ethelyn Maruccia did not waive her right to serve as executor of decedent’s estate.

      Robert Markewich and Gary Brown for Ethelyn Maruccia, respondent.
    I. The waivers in the separation agreement are entirely consistent with the testamentary dispositions. (Matter of Hollister, 18 NY2d 281; Daly v Haight, 170 App Div 469; Rosner v Textile Binding & Trimming Co., 193 Misc 653; McKay v Stewart, 59 Misc 2d 380; Matter of Torr, 17 Misc 2d 1063; Matter of Lans, 29 Misc 2d 758, 13 AD2d 922.) II. The legislative history of EPTL 3-4.3 supports the decision of the court below.

      William S. Ellis for Camille Maruccia and another, respondents.
    I. The position of the court below that the separation agreement was not “wholly inconsistent” with the voluntary requests in the second wife’s favor was correct. (Matter of Hollister, 18 NY2d 281; Matter of Coffed, 46 NY2d 514; Titus v Bassi, 182 App Div 387; Matter of Ga Nun, 200 Misc 789, 279 App Div 982; Matter of Loeb, 155 Misc 863; Matter of Gilmour, 146 Misc 113; Matter of Lans, 29 Misc 2d 758, 13 AD2d 922; Matter of Torr, 17 Misc 2d 278; Matter of Cote, 195 Misc 410; Matter of Swords, 120 Misc 427, 208 App Div 852.) II.The language of article “twelfth” was intended to waive only the statutory rights of the parties. (Goldsmith v United States, 42 F2d 133; Matter of Ga Nun, 200 Misc 789, 279 App Div 982; Matter of Shack, 207 Misc 953; Sims v United States Trust Co. of N. Y., 103 NY 472; Matter of Bisconti, 306 NY 442; New York State Loan & Trust Co. v Helmer, 77 NY 64; People v Kelly, 284 App Div 421; Matter of Coffed, 46 NY2d 514.)
   OPINION OF THE COURT

Jasen, J.

The issue on this appeal is whether the provisions of the separation agreement entered into between the decedent and his second wife are “wholly inconsistent” with the terms of the decedent’s will so as to cause a revocation of the testamentary dispositions in her favor pursuant to EPTL 3-4.3. In order to resolve this question, we are required to reconsider this court’s decision in Matter of Hollister (18 NY2d 281).

The essential facts are not in dispute. Decedent’s first marriage to Laura Maruccia produced two children, Barbara and Dorothy. After divorcing Laura, decedent married Ethelyn Maruccia, the petitioner herein, on" February 3, 1957, and this marriage produced two daughters as well, Camille and Marianne.

On June 24, 1966, decedent executed his last will and testament. Desiring to preclude his first wife, Laura, from receiving any part of his estate, decedent provided in article second of his will that if Laura was entitled to exercise a right of election as his surviving spouse, she was to receive the minimum statutory allowance. (See EPTL 5-1.1.) Under article third, decedent bequeathed all his stock in his real estate corporation to petitioner and also bequeathed, in five equal shares, his half interest in a real estate partnership along with his interest in a second mortgage to his four daughters and petitioner. In article seventh, decedent appointed petitioner and a friend, Dr. Murray Jonas, as executors and trustees under the will. The rest of decedent’s estate was to pass under article eighth in five equal shares to petitioner and the four children.

On June 1, 1976, nearly 10 years after decedent executed his will, petitioner and decedent entered into a separation agreement. Among other things, this agreement provided that decedent was to make certain payments to petitioner through 1981, assign to her his 200 shares of common stock in the First National Bank of Florida, and acknowledge that a mortgage on certain New York realty belonged solely to petitioner. For her part, petitioner was required to transfer to decedent certain stock in decedent’s real estate corporation, execute a quitclaim deed in decedent’s favor covering certain Florida realty, and assign to decedent her interest in their joint bank account and certificate of deposit.

The separation agreement also contained a general release found in article twelfth. Because of its importance to this appeal, article twelfth is set forth in its entirety: “twelfth : Except as hereinbefore stated, each party hereto releases and relinquishes to the other party all claims or rights which may now exist or hereafter arise by reason of the marriage between the parties with respect to any property, whether real or personal, belonging to such other party and, without limiting the foregoing, each party hereby waives and releases to the other party all right to share in any of the property or estate of such other party which has arisen or may hereafter arise by operation of the law or otherwise, and hereby specifically waives and releases all right of dower or curtesy, or rights in lieu thereof, and all rights to share in the estate of the other party under the intestacy laws of any jurisdiction and all right of election to take against (a) any Last Will and Testament of such other party whether executed prior or subsequent to the execution hereof or (b) any testamentary substitute or inter vivos transfer made by the other party and all right to administer the estate of such other party.”

The separation agreement was not filed with the clerk of Supreme Court until August 1, 1977. Neither party obtained a divorce, and, on October 28, 1977, Alfred Maruccia died. During the 17 months that elapsed between the time the separation agreement was signed and his death, decedent did not execute another will, nor did he alter any of the provisions of the 1966 document.

On November 7,1977, petitioner and Dr. Jonas presented the 1966 will for probate, and petitioner was issued preliminary letters testamentary. While the probate proceeding was pending, objections were filed by decedent’s first wife and the two children of the first marriage, all appellants herein, challenging petitioner’s status as executor and beneficiary of decedent’s estate on the ground that she had waived her rights under the will by entering into the separation agreement with the decedent. Appellants then moved for summary judgment seeking a determination that all the testamentary dispositions in petitioner’s favor and the provision appointing her as executor and trustee had been revoked by the separation agreement. Petitioner, joined by her two daughters, made a cross motion for summary judgment seeking a determination that the release clause of the separation agreement did not vitiate any of the terms of decedent’s will as to petitioner.

The Surrogate, relying primarily on this court’s decision in Matter of Hollister (18 NY2d 281, supra), found the language employed in the separation agreement to be “wholly inconsistent” with the testamentary dispositions in petitioner’s favor and held such provisions revoked. The court admitted decedent’s will to probate, revoked the preliminary letters testamentary issued to petitioner, and ordered that letters testamentary would issue to Dr. Jonas upon his duly qualifying as executor and trustee.

On appeal, a unanimous Appellate Division reversed, on the law, and struck the decretal paragraphs from the Surrogate’s decree revoking the testamentary dispositions in petitioner’s favor and the preliminary letters issued to her. According to the court below, “[t]he provisions of the separation agreement were not ‘wholly inconsistent’ with the voluntary bequests and appointnment in the second wife’s favor set forth in the will. The provisions of the separation agreement dealt merely with waiver of statutory rights, which upon the husband’s death might benefit his second wife.” (78 AD2d, p 323.) We affirm.

Restating the principles formerly embodied in sections 39 and 40 of the Decedent Estate Law, EPTL 3-4.3 provides : “A conveyance, settlement or other act of a testator by which an estate in his property, previously disposed of by will, is altered but not wholly divested does not revoke such disposition, but the estate in the property that remains in the testator passes to the beneficiaries pursuant to the disposition. However, any such conveyance, settlement or other act of the testator which is wholly inconsistent with such previous testamentary disposition revokes it.” (Emphasis supplied.) This statute serves a two-fold purpose in that any alteration in the testator’s interest in a previously devised or bequeathed asset will not work a revocation, but a conveyance or other act which is entirely inconsistent with the prior testamentary disposition will cause it to be revoked. (See, generally, 9 Rohan, NY Civ Prac, par 3-4.3.) We are concerned here with that aspect of EPTL 3-4.3 which provides for revocation by a subsequent, “wholly inconsistent” instrument.

A number of lower courts have considered the effect of a separation agreement on a prior testamentary disposition in favor of a spouse. The results reached often depended upon the particular facts of each case. In approaching the question whether a separation agreement is “wholly inconsistent” with a prior devise .or bequest, some courts have focused solely on the language employed by the parties in the general release clause, and yet have come to opposite conclusions while construing essentially identical provisions. (Compare, e.g., Matter of Nelson, 51 Misc 2d 375; Matter of Swords, 120 Misc 427, affd 208 App Div 852, with Matter of Shack, 207 Misc 953; see, also, Schoonmaker v Crounse, 261 App Div 77; Titus v Bassi, 182 App Div 387.) Other courts have looked to the relationship between and conduct of the parties, both before and after executing the separation agreement, in order to ascertain whether there was a revocation. (E.g., Matter of Ga Nun, 200 Misc 789, affd 279 App Div 982; Matter of Gilmour, 146 Misc 113.) To say the least, these cases are not easily reconciled.

In Matter of Hollister (18 NY2d 281, swpra), this court was presented with an opportunity to decide whether a general release clause in a separation agreement revoked a prior testamentary disposition in favor of the testator’s husband. The clause provided that the husband released “ ‘any and all right, title and interest in and to the property or estate of the Wife (whether now owned or hereafter acquired), her executors and administrators, heirs at law and pext of kin, which the husband now has or may have’ including any right to take against her will under section 18 of the Decedent Estate Law.” (18 NY2d, at p 286.) This language was found to be “inconsistent with the survival of the testamentary gifts to the husband.” (18 NY2d, at p 286.) In reaching this conclusion, this court placed primary reliance on Matter of Silberstein (108 NYS2d 88, 92), in which Surrogate Savárese stated: “Where separation agreements have been held to be wholly inconsistent with the provisions of a precedent testamentary instrument the parties either expressly provide for a release or waiver of all rights and interests in the estate of each other or used language from which such an intent could reasonably be implied.” However, as noted by the concurring opinion, the Hollister majority did not actually decide what language in a separation agreement has the effect of revoking a prior testamentary disposition. (18 NY2d, at p 287 [Keating, J., concurring].)

More recently, in Matter of Coffed (46 NY2d 514), this court was confronted with the question whether reciprocal wills had been revoked by a general release signed by the decedent. Noting that the holding in Hollister was inapplicable to the situation in Coffed inasmuch as the bequests to the testator’s spouse had been automatically revoked by divorce (see EPTL 5-1.4), we further distinguished Hollister on the ground that the boilerplate language in the release executed by Mr. Coffed did not approach the more specific language used by the Hollisters. Finally, we stated that the continued viability of Hollister was “in doubt” in view of legislative action concerning the effect of a subsequent separation or divorce upon an existing disposition to a spouse. (46 NY2d, at p 520.) However, we did not reach this question because Hollister was distinguishable on its facts. We now address that issue.

The Legislature has adopted an elaborate scheme whereby the revocation of a will is to be effected with much the same formality as that required to make a valid will in the first instance. (See EPTL 3-4.1.) Although the provisions of EPTL 3-4.3 concerning the revocatory effect of separation agreements “wholy inconsistent” with prior testamentary dispositions continues to be the law, the Legislature may be said to have expressed its approval of both a narrow construction by the courts of waiver clauses in separation agreements and the judicial inclination away from vitiating the statutory requirements governing the validity and amendment of wills. (Temporary State Commission on Modernization, Revision and Simplification of Law of Estates, Rep No. 8.2.5A, NY Legis Doc, 1966, No. 19, pp 744-745.) Indeed, the statute itself, by employing the term “wholly inconsistent”, supports a strict approach to implied revocations under EPTL 3-4.3. (Emphasis supplied; see Matter of Cote, 195 Misc 410.) In addition, this view is bolstered further by the practical recognition that “a solemn testamentary instrument should not be rendered ineffectual upon conjecture as to the motivation of a testator who in his lifetime had ample opportunity to revoke or to amend the instrument had he desired to do so.” (Matter of Torr, 17 Misc 2d 1063, 1065.)

With this is mind, we hold that in order for a separation agreement to have the effect of revoking a prior devise or bequest pursuant to EPTL 3-4.3, the agreement must either contain a provision whereby the spouse explicitly renounces any testamentary disposition in his or her favor made prior to the date of the separation agreement or employ language which clearly and unequivocally manifests an intent on the part of the spouses that they are no longer beneficiaries under each other’s wills. To the extent that Matter of Hollister indicates that a general waiver of rights “against the estate” of a spouse is sufficient to render the separation agreement “wholly inconsistent” with a prior devise or bequest or that revocation of a testamentary disposition may be reasonably “implied” from the language of a subsequent separation agreement, it is overruled.

In this case, the separation agreement does not contain any provision whereby petitioner renounced the voluntary bequests made to her by decedent. Rather, article twelfth merely provides for a relinquishment by petitioner of statutory rights arising from the marital relationship. Indeed, from the language found in article twelfth, it would seem that the parties deliberately avoided any reference to the voluntary bequests to and appointment of petitioner as executor under decedent’s will. The ambiguous phrases whereby petitioner waived and released all right to share in the decedent’s estate “which has arisen or may hereafter arise by operation of law or otherwise” and in which she gave up “all right to administer the estate” are alone insufficient to work a revocation of the provisions of decedent’s will. Under the criteria set forth earlier, a far clearer indication of decedent’s intent is required before it can be concluded that he desired to revoke a prior devise or bequest to his wife.

In conclusion, it should be noted that the holding in this case will have limited application. As noted earlier, in situations where execution of the separation agreement is followed by divorce or dissolution of the marriage, all prior testamentary dispositions to the former spouse will be revoked automatically by operation of law, unless the will provides otherwise. (EPTL 5-1.4.) Nor does this case affect the ability of a testator to provide for his or her estranged spouse in a will executed subsequent to the signing of a separation agreement which revoked prior testamentary dispositions pursuant to EPTL 3-4.3. In fact, the difficulty encountered in this case would have been avoided had the decedent’s will been amended to take into account the change in the relationship with his second wife. In the words of one commentator, “sound practice would indicate that whenever parties are legally separated or divorced, the client’s will should be amended to reflect the changed circumstances and revised plan of testamentary dispositions.” (Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 3-4.1, p 526.)

Accordingly, the order of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, etc.

      . In arriving at the conclusion that there was no revocation of the provisions of decedent’s will pursuant to EPTL 3-4.8, the court below employed the rule of interpretation of ejusdem generis to limit the effect of the language in the separation agreement whereby petitioner waived all rights to share in the estate “which [have] arisen or may hereafter arise by operation of law or otherwise.” (Emphasis supplied.) We need not address the propriety of the Appellate Division’s reliance on the ejusdem, generis rule because, under the standard we adopt in this case, the language of the separation agreement is insufficient to cause a revocation of the provisions of decedent’s will no matter what effect is given to the phrase “or otherwise”.

      . Although EPTL 3-4.3 eliminates the reference in section 39 of the Decedent Estate Law by which the testator had to state in the nontestamentary instrument that he intended to revoke the prior devise or bequest (see Temporary State Commission on Modernization, Revision and Simplification of Law of Estates, Rep No. 8.2.5A, NY Legis Doc, 1966, No. 19, pp 751-752), EPTL 3-4.3 retains the “wholly inconsistent” provision of section 40 of the Decedent Estate Law. Thus, a court is still required to determine whether an agreement is wholly inconsistent with and therefore revokes a prior testamentary disposition.