author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Mario Liberta, Appellant.
    Argued November 13, 1984;
    decided December 20, 1984

      POINTS OF COUNSEL

      Barbara Howe, Rose H. Sconiers and James A. W. McLeod for appellant.
    I. The trial court should have dismissed both counts of the indictment prior to trial based on the unconstitutionality of the underlying statute. (Orr v Orr, 440 US 268; Reed v Reed, 404 US 71; Michael M. v Sonoma County Superior Ct., 450 US 464; People v Whidden, 51 NY2d 457; Mississippi Univ. for Women v Hogan, 458 US 718; Eisenstadt v Baird, 405 US 438; Royster Guano Co. v Virginia, 253 US 412.) II. The trial court should have dismissed both counts of the indictment based on legal impediments to convicting this appellant under the statute. (People v Wood, 8 NY2d 48.)

      Richard J. Arcara, Erie County District Attorney (John J. DeFranks and Jo W. Faber of counsel), for respondent.
    I. Both the rape statute and the sodomy statute under which defendant was convicted are constitutional. (Eisenstadt v Baird, 405 US 438; Reed v Reed, 404 US 71; People v Onofre, 51 NY2d 476; Orr v Orr, 440 US 268; Poe v Ullman, 367 US 497; Griswold v Connecticut, 381 US 479; Wolfle v United States, 291 US 7; Michael M. v Sonoma County Superior Ct., 450 US 464; Craig v Boren, 429 US 190; Railway Express v New York, 336 US 106.) II. Section 130.00 (subd 4, par [b], cl [i]) of the Penal Law is a proper basis for prosecution of defendant who was separated from his wife pursuant to an order of protection issuing from the Family Court. (People v Cona, 49 NY2d 26; People v Tutt, 38 NY2d 1011.)

      Sarah Wunsch, Anne E. Simon, Laurie Woods, Joanne Schulman and Rhonda Copelon for Center for Constitutional Rights and others, amici curiae.

    I. The marital exemptions deprive women Of the right to privacy protected by the New York and United States Constitutions. (People v Onofre, 51 NY2d 476; Loving v Virginia, 388 US 1; Skinner v Oklahoma, 316 US 535; Eisenstadt v Baird, 405 US 438; Roe v Wade, 410 US 113; Carey v Population Servs. Int., 431 US 678; Planned Parenthood v Danforth, 428 US 52; Zagarow v Zagarow, 105 Misc 2d 1054; Union Pacific Ry. Co. v Botsford, 141 US 250; Olmstead v United States, 277 US 438.) II. The forcible marital rape and sodomy exemptions deny married women the equal protection of the laws guaranteed by the New York and United States Constitutions. (Monroe v Pape, 365 US 167; Trammel v United States, 445 US 40; Mississippi Univ. for Women v Hogan, 458 US 718; Strauder v West Virginia, 100 US 303; Craig v Boren, 429 US 190; People v Whidden, 51 NY2d 457.) III. The justifications for the forcible marital rape and sodomy exemptions fail to meet the required compelling interest, substantial or even rational basis tests. (People v Onofre, 51 NY2d 476; People v De Stefano, 121 Misc 2d 113; Bruno v Codd, 47 NY2d 582; De Angelis v De Angelis, 54 AD2d 1088; Planned Parenthood v Danforth, 428 US 52; People v Radunovic, 21 NY2d 186.) IV. The marital rape exemption violates the Thirteenth Amendment. (Clyatt v United States, 197 US 207; Bailey v Alabama, 219 US 219; Pollock v Williams, 322 US 4; People v Lavender, 48 NY2d 334; Jobson v Henne, 355 F2d 129; Ryder v Hulse, 24 NY 372.) V. The order of the Family Court satisfies the criteria of section 130.00 (subd 4, par [b], cl [i]) of the Penal Law. (People v Liberta, 90 AD2d 681.) VI. The unique statutory scheme of article 130 of the Penal Law permits the gender-specific aspect of section 130.35 of the Penal Law to withstand constitutional scrutiny. VII. Although the marital rape and forcible sodomy exemptions are invalid, defendant’s conviction should be upheld. (Champlin Refining Co. v Commission, 286 US 210; People v Mancuso, 255 NY 463; Matter of Patricia A., 31 NY2d 83; People v Ditto, 52 NY2d 657; People v Ryan, 267 NY 133; People v Shapiro, 4 NY2d 597; United States v Jackson, 390 US 570; Welsh v United States, 398 US 333; Califano v Westcott, 443 US 76.)

      Elizabeth Holtzman, Kings County District Attorney (Barbara D. Underwood and Evan Wolfson of counsel), for Elizabeth Holtzman, amicus curiae.

    I. The marital exemption unconstitutionally distinguishes among rapists and among rape victims in violation of the equal protection clauses of the Federal and New York State Constitutions. (People v Onofre, 51 NY2d 476, 451 US 987;Eisenstadt v Baird, 405 US 438; People v De Stefano, 121 Misc 2d 113; De Angelis v De Angelis, 54 AD2d 1088; Clyatt v United States, 197 US 207; Bailey v Alabama, 219 US 219; People v Lavender, 48 NY2d 334; American Broadcasting Co. v Wolf, 52 NY2d 394.) II. The marital exemption deprives women of their right to privacy which is protected by the Federal and New York State Constitutions. (People v Onofre, 51 NY2d 476; Eisenstadt v Baird, 405 US 438; Carey v Population Servs. Int., 431 US 678; Zagarow v Zagarow, 105 Misc 2d 1054; Roe v Wade, 410 US 113; Stanley v Georgia, 394 US 547; Loving v Virginia, 388 US 1; Skinner v Oklahoma, 316 US 535; Olmstead v United States, 277 US 438.) III. The proper remedy for the constitutional defect is not to invalidate the statute under which defendant was convicted, but merely to strike down the marital exemption, leaving his conviction intact. (Stanton v Stanton, 421 US 7; People v Mancuso, 255 NY 463; Skinner v Oklahoma, 316 US 535.)
   OPINION OF THE COURT

Wachtler, J.

The defendant, while living apart from his wife pursuant to a Family Court order, forcibly raped and sodomized her in title presence of their 2% year old son. Under the New York Penal Law a married man ordinarily cannot be prosecuted for raping or sodomizing his wife. The defendant, however, though married at the time of the incident, is treated as an unmarried man under the Penal Law because of the Family Court order. On this appeal, he contends that because of the exemption for married men, the statutes for rape in the first degree (Penal Law, § 130.35) and sodomy in the first degree (Penal Law, § 130.50), violate the equal protection clause of the Federal Constitution (US Const, 14th Arndt). The defendant also contends that the rape statute violates equal protection because only men, and not women, can be prosecuted under it.

I

Defendant Mario Liberta and Denise Liberta were married in 1978. Shortly after the birth of their son, in October of that year, Mario began to beat Denise. In early 1980 Denise brought a proceeding in the Family Court in Erie County seeking protection from the defendant. On April 30,1980 a temporary order of protection was issued to her by the Family Court. Under this order, the defendant was to move out and remain away from the family home, and stay away from Denise. The order provided that the defendant could visit with his son once each weekend.

On the weekend of March 21, 1981, Mario, who was then living in a motel, did not visit his son. On Tuesday, March 24, 1981 he called Denise to ask if he could visit his son on that day. Denise would not allow the defendant to come to her house, but she did agree to allow him to pick up their son and her and take them both back to his motel after being assured that a friend of his would be with them at all times. The defendant and his friend picked up Denise and their son and the four of them drove to defendant’s motel.

When they arrived at the motel the friend left. As soon as only Mario, Denise, and their son were alone in the motel room, Mario attacked Denise, threatened to kill her, and forced her to perform fellatio on him and to engage in sexual intercourse with him. The son was in the room during the entire episode, and the defendant forced Denise to tell their son to watch what the defendant was doing to her.

The defendant allowed Denise and their son to leave shortly after the incident. Denise, after going to her parents’ home, went to a hospital to be treated for scratches on her neck and bruises on her head and back, all inflicted by her husband. She also went to the police station, and on the next day she swore out a felony complaint against the defendant. On July 15, 1981 the defendant was indicted for rape in the first degree and sodomy in the first degree.

II

Section 130.35 of the Penal Law provides in relevant part that “A male is guilty of rape in the first degree when he engages in sexual intercourse with a female * * * by forcible compulsion”. “Female”, for purposes of the rape statute, is defined as “any female person who is not married to the actor” (Penal Law, § 130.00, subd 4). Section 130.50 of the Penal Law provides in relevant part that “a person is guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another person *** by forcible compulsion”. “Deviate sexual intercourse” is defined as “sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva” (Penal Law, § 130.00, subd 2). Thus, due to the “not married” language in the definitions of “female” and “deviate sexual intercourse”, there is a “marital exemption” for both forcible rape and forcible sodomy. The marital exemption itself, however, has certain exceptions. For purposes of the rape and sodomy statutes, a husband and wife are considered to be “not married” if at the time of the sexual assault they “are living apart *** pursuant to a valid and effective: (i) order issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart, or (ii) decree or judgment of separation, or (iii) written agreement of separation” (Penal Law, § 130.00, subd 4).

Defendant moved to dismiss the indictment, asserting that because he and Denise were still married at the time of the incident he came within the “marital exemption” to both rape and sodomy. The People opposed the motion, contending that the temporary order of protection required Mario and Denise to live apart, and they in fact were living apart, and thus were “not married” for purposes of the statutes. The trial court granted the defendant’s motion and dismissed the indictment, concluding that the temporary order of protection did not require Mario and Denise to live apart from each other, but instead required only that he remain away from her, and that therefore the “marital exemption” applied.

On appeal by the People, the Appellate Division reversed the trial court, reinstated the indictment, and remanded the case for trial. The Appellate Division held that a Family Court order of protection is within the scope of “[an] order * * * which by its terms or in its effect requires such living apart” even though it is directed only at a husband, and thus found that Mario and Denise were “not married” for purposes of the statute at the time of the incident.

The defendant was then convicted of rape in the first degree and sodomy in the first degree and the conviction was affirmed by the Appellate Division. Defendant asserts on this appeal that the temporary order of protection is not the type of order which enables a court to treat him and Denise as “not married” and that thus he is within the marital exemption. Defendant next asserts, assuming that because of the Family Court order he is treated just as any unmarried male would be, that he cannot be convicted of either rape in the first degree or sodomy in the first degree because both statutes are unconstitutional. Specifically, he contends that both statutes violate equal protection because they burden some, but not all males (all but those within the “marital exemption”), and that the rape statute also violates equal protection for burdening only men, and not women. The lower courts rejected the defendant’s constitutional arguments, finding that neither statute violated the equal protection clause in the Fourteenth Amendment. Although we affirm the conviction of the defendant, we do not agree with the constitutional analysis of the lower courts and instead conclude that the marital and gender exemptions must be read out of the statutes prohibiting forcible rape and sodomy.

Ill

We first address the defendant’s argument that, despite the order of protection, he was within the “marital exemption” to rape and sodomy and thus could not be prosecuted for eith er crime. Until 1978, the marital exemption applied as long as the marriage still legally existed. In 1978, the Legislature expanded the definition of “not married” to include those cases where the husband and wife were living apart pursuant to either a court order “which by its terms or in its effect requires such living apart” or a decree, judgment, or written agreement of separation (L1978, ch 735; see Penal Law, § 130.00, subd 4). We agree with the Appellate Division that the order of protection in the present case falls squarely within the first of these situations.

The legislative memorandum submitted with the original version of the 1978 amendment, after referring to the situations brought within the scope of “not married”, stated: “In each of the alternatives set forth in this bill, there must be documentary evidence of a settled and mutual intention to dissolve the marital relationship, or a court determination that the spouses should, for the well-being of one or both, live apart” (NY Legis Ann, 1978, pp 403-404). Although the language of the amendment was subsequently changed to the form in which it was enacted, this legislative memorandum was submitted with the final version of the bill. In addition to this clear statement of legislative intent, the plain language of the statute indicates that an order of protection is within the meaning of an order “which by its terms or in its effect requires [the spouses to live] apart”. This language would be virtually meaningless if it did not encompass an order of protection, as the statute separately provides for the other obvious situation where a court order would require spouses to live apart, i.e., where there is a decree or judgment of separation.

Accordingly, the defendant was properly found to have been statutorily “not married” to Denise at the time of the rape.

IV

The defendant’s constitutional challenges to the rape and sodomy statutes are premised on his being considered “not married” to Denise and are the same challenges as could be made by any unmarried male convicted under these statutes. The defendant’s claim is that both statutes violate equal protection because they are underinclusive classifications which burden him, but not others similarly situated (see Tribe, American Constitutional Law, p 997). A litigant has standing to raise this claim even though he does not contend that under no circumstances could the burden of the statute be imposed upon him (see Michael M. v Sonoma County Superior Ct., 450 US 464, 472, n 8, 473; Orr v Orr, 440 US 268, 272-273). This rule of standing applies as well to a defendant in a criminal prosecution who, while conceding that it is within the power of a State to make criminal the behavior covered by a statute, asserts that the statute he is prosecuted under violates equal protection because it burdens him but not others (see Linda R. S. v Richard D., 410 US 614, 619, n 5; Skinner v Oklahoma, 316 US 535; People v Illardo, 48 NY2d 408, 417; Clancy, Equal Protection Considerations of the Spousal Sexual Assault Exclusion, 16 N Eng L Rev 1, 4-8). Thus, defendant’s constitutional claims are properly before this court.

A. THE MARITAL EXEMPTION

As noted above, under the Penal Law a married man ordinarily cannot be convicted of forcibly raping or sodomizing his wife. This is the so-called marital exemption for rape (see 1881 Penal Code, tit X, ch II, § 278). Although a marital exemption was not explicit in earlier rape statutes (see 1863 Rev Stats, part 4, ch I, tit 2, art 2, § 22), an 1852 treatise stated that a man could not be guilty of raping his wife (Barbour, Criminal Law of State of New York [2d ed], p 69). The assumption, even before the marital exemption was codified, that a man could not be guilty of raping his wife, is traceable to a statement made by the 17th century English jurist Lord Hale, who wrote: “[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract” (1 Hale, History of Pleas of the Crown, p 629). Although Hale cited no authority for his statement it was relied on by State Legislatures which enacted rape statutes with a marital exemption and by courts which established a common-law exemption for husbands.

The first American case to recognize the marital exemption was decided in 1857 by the Supreme Judicial Court of Masseichusetts, which stated in dictum that it would always be a defense to rape to show marriage to the victim (Commonwealth v Fogerty, 74 Mass 489). Decisions to the same effect by other courts followed, usually with no rationale or authority cited other than Hale’s implied consent view. In New York, a 1922 decision noted the marital exemption in the Penal Law and stated that it existed “on account of the matrimonial consent which [the wife] has given, and which she cannot retract” CPeople v Meli, 193 NYS 365, 366 [Sup Ct]).

Presently, over 40 States still retain some form of marital exemption for rape. While the marital exemption is subject to an equal protection challenge, because it classifies unmarried men differently than married men, the equal protection clause does not prohibit a State from making classifications, provided the statute does not arbitrarily burden a particular group of individuals (Reed v Reed, 404 US 71, 75-76). Where a statute draws a distinction based upon marital status, the classification must be reasonable and must be based upon “some ground of difference that rationally explains the different treatment” (Eisenstadt v Baird, 405 US 438,447; People v Onofre, 51 NY2d 476, 491, cert den 451 US 987).

We find that there is no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New York statute to be unconstitutional.

Lord Hale’s notion of an irrevocable implied consent by a married woman to sexual intercourse has been cited most frequently in support of the marital exemption (“Equal Protect ion Considerations”, supra, n 6, 16 N Eng L Rev, at p 21). Any argument based on a supposed consent, however, is untenable. Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm (see Coker v Georgia, 433 US 584, 597-598; Note, Rape Reform and a Statutory Consent Defense, 74 J of Crim L & Criminology 1518,1519,1527-1528). To ever imply consent to such an act is irrational and absurd. Other than in the context of rape statutes, marriage has never been viewed as giving a husband the right to coerced intercourse on demand (see De Angelis v De Angelis, 54 AD2d 1088; “Abolishing The Marital Exemption”, supra, at n 4, 1983 U of Ill L Rev, at p 207; “Marital Rape Exemption”, supra, at n 5, 52 NYU L Rev, at pp 311-312). Certainly, then, a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman (“Equal Protection Considerations”, supra, n 6, 16 N Eng L Rev, at pp 19-20; cf. Planned Parenthood v Danforth, 428 US 52). If a husband feels “aggrieved” by his wife’s refusal to engage in sexual intercourse, he should seek relief in the courts governing domestic relations, not in “violent or forceful self-help” (State v Smith, 85 NJ 193, 206).

The other traditional justifications for the marital exemption were the common-law doctrines that a woman was the property of her husband and that the legal existence of the woman v/as “incorporated and consolidated into that of the husband” (1 Blackstone’s Commentaries [1966 ed], p 430; see State v Smith, supra, at pp 204-205; “Marital Rape Exemption”, supra, n 5, 52 NYU L Rev, at pp 309-310). Both these doctrines, of course, have long been rejected in this State. Indeed, “[njowhere in the common-law world — [or] in any modern society — is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being” (Trammel v United States, 445 US 40, 52).

Because the traditional justifications for the marital exemption no longer have any validity, other arguments have been advanced in its defense. The first of these recent rationales, which is stressed by the People in this case, is that the marital exemption protects against governmental intrusion into marital privacy and promotes reconciliation of the spouses, and thus that elimination of the exemption would be disruptive to marriages. While protecting marital privacy and encouraging reconciliation are legitimate State interests, there is no rational relation between allowing a husband to forcibly rape his wife and these interests. The marital exemption simply does not further marital privacy because this right of privacy protects consensual acts, not violent sexual assaults (see Griswold v Connecticut, 381 US 479, 485-486; “Equal Protection Considerations”, supra, n 6, 16 N Eng L Rev, at p 23). Just as a husband cannot invoke a right of marital privacy to escape liability for beating his wife, he cannot justifiably rape his wife under the guise of a right to privacy.

Similarly, it is not tenable to argue that elimination of the marital exemption would disrupt marriages because it would discourage reconciliation. Clearly, it is the violent act of rape and not the subsequent attempt of the wife to seek protection through the criminal justice system which “disrupts” a marriage (Weishaupt v Commonwealth, 227 Va 389, 315 SE2d 847, at p 855). Moreover, if the marriage has already reached the point where intercourse is accomplished by violent assault it is doubtful that there is anything left to reconcile (see Trammel v United States, 445 US 40, 52, supra; “Marital Rape Exemption”, supra, n 5,52 NYU L Rev, at p 315). This, of course, is particularly true if the wife is willing to bring criminal charges against her husband which could result in a lengthy jail sentence.

Another rationale sometimes advanced in support of the marital exemption is that marital rape would be a difficult crime to prove. A related argument is that allowing such prosecutions could lead to fabricated complaints by “vindictive” wives. The difficulty of proof argument is based on the problem of showing lack of consent. Proving lack of consent, however, is often the most difficult part of any rape prosecution, particularly where the rapist and the victim had a prior relationship (see “Spousal Exemption to Rape”, supra, at n 4, 65 Marq L Rev, at p 125; “Marital Rape Exemption”, supra, n 5, 52 NYU L Rev, at p 314). Similarly, the possibility that married women will fabricate complaints would seem to be no greater than the possibility of unmarried women doing so (“Marital Rape Exemption”, supra, n 5, 52 NYU L Rev, at p 314; “Equal Protection Considerations”, supra, n 6, 16 N Eng L Rev, at p 24). The criminal justice system, with all of its built-in safeguards, is presumed to be capable of handling any false complaints. Indeed, if the possibility of fabricated complaints were a basis for not criminalizing behavior which would otherwise be sanctioned, virtually all crimes other than homicides would go unpunished.

The final argument in defense of the marital exemption is that marital rape is not as serious an offense as other rape and is thus adequately dealt with by the possibility of prosecution under criminal statutes, such as assault statutes, which provide for less severe punishment. The fact that rape statutes exist, however, is a recognition that the harm caused by a forcible rape is different, and more severe, than the harm caused by an ordinary assault (see “Marital Rape Exemption”, supra, n 5, 52 NYU L Rev, at p 316; “Abolishing the Marital Exemption”, supra, n 4, 1983 U of Ill L Rev, at p 208). “Short of homicide, [rape] is the ‘ultimate violation of self’ ” (Coker v Georgia, 433 US 584, 597 [citation omitted], supra). Under the Penal Law, assault is generally a misdemeanor unless either the victim suffers “serious physical injury” or a deadly weapon or dangerous instrument is used (Penal Law, §§ 120.00, 120.05, 120.10). Thus, if the defendant had been living with Denise at the time he forcibly raped and sodomized her he probably could not have been charged with a felony, let alone a felony with punishment equal to that for rape in the first degree.

Moreover, there is no evidence to support the argument that marital rape has less severe consequences than other rape. On the contrary, numerous studies have shown that marital rape is frequently quite violent and generally has more severe, traumatic effects on the victim than other rape (see, generally, Russell, Rape In Marriage, pp 190-199; “Rape Prosecution”, supra, at n 6, 7 Vt L Rev, at pp 45-46; “Abolishing the Marital Exemption”, supra, at n 4, 1983 U of 111 L Rev, at p 209).

Among the recent decisions in this country addressing the marital exemption, only one court has concluded that there is a rational basis for it (see People v Brown, 632 P2d 1025 [Col]). We agree with the other courts which have analyzed the exemption, which have been unable to find any present justification for it (see People v De Stefano, 121 Misc 2d 113; Commonwealth v Chretien, 383 Mass 123; State v Smith, 85 NJ 193, supra; Weishaupt v Commonwealth, 227 Va 389, supra; State v Rider, 449 So 2d 903 [Fla App]; State v Smith, 401 So 2d 1126 [Fla App]). Justice Holmes wrote: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past” (Holmes, The Path of the Law, 10 Harv L Rev 457, 469). This statement is an apt characterization of the marital exemption; it lacks a rational basis, and therefore violates the equal protection clauses of both the Federal and State Constitutions (US Const, 14th Arndt, § 1; NY Const, art I, § 11).

B. THE EXEMPTION FOR FEMALES

Under the Penal Law only males can be convicted of rape in the first degree. * Insofar as the rape statute applies to acts of “sexual intercourse”, which, as defined in the Penal Law (see Penal. Law, § 130.00) can only occur between a male and a female, it is true that a female cannot physically rape a female and that therefore there is no denial of equal protection when punishing only males for forcibly engaging in sexual intercourse with females. The equal protection issue,, however, stems from the fact that the statute applies to males who forcibly rape females but does not apply to females who forcibly rape males.

Rape statutes historically applied only to conduct by males against females, largely because the purpose behind the proscriptions was to protect the chastity of women and thus their property value to their fathers or husbands (see State v Smith, 85 NJ, at p 204, supra; 2 Burdick, Law of Crime, pp 218-225; Comment, Rape Laws, Equal Protection, and Privacy Rights, 54 Tulane L Rev 456, 457 [hereafter cited as “Rape Laws”]). New York’s rape statute has always protected only females, and has thus applied only to males (see Penal Law, § 130.35; 1909 Penal Law, § 2010; 1881 Penal Code, tit X, ch II, § 278). Presently New York is one of only 10 jurisdictions that does not have a gender-neutral statute for forcible rape.

A statute which treats males and females differently violates equal protection unless the classification is substantially related to the achievement of an important governmental objective (Caban v Mohammed, 441 US 380, 388; Craig v Boren, 429 US 190,197; People v Whidden, 51 NY2d 457,460, app dsmd 454 US 803). This test applies whether the statute discriminates against males or against females (Caban v Mohammed, 441 US, at p 394, supra; Orr v Orr, 440 US 268, 279, supra; People v Whidden, supra). The People bear the burden of showing both the existence of an important objective and the substantial relationship between the discrimination in the statute and that objective (Wengler v Druggists Mut. Ins. Co., 446 US 142, 151-152; Caban v Mohammed, 441 US, at p 393, supra). This burden is not met in the present case, and therefore the gender exemption also renders the statute unconstitutional.

The first argument advanced by the People in support of the exemption for females is that because only females can become pregnant the State may constitutionally differentiate between forcible rapes of females and forcible rapes of males. This court and the United States Supreme Court have upheld statutes which subject males to criminal liability for engaging in sexual intercourse with underage females without the converse being true (People v Whidden, supra; Michael M. v Sonoma County Superior Ct., 450 US 464, supra). The rationale behind these decisions was that the primary purpose of such “statutory rape” laws is to protect against the harm caused by teenage pregnancies, there being no need to provide the same protection to young males (see Michael M. v Sonoma County Superior Ct., 450 US, a t pp 470-473, supra;People v Whidden, 51 NY2d, at p 461, supra).

There is no evidence, however, that preventing pregnancies is a primary purpose of the statute prohibiting forcible rape, nor does such a purpose seem likely (see “Rape Laws”, op. cit., 54 Tulane L Rev, at p 467). Rather, the very fact that the statute proscribes “forcible compulsion” shows that its overriding purpose is to protect a woman from an unwanted, forcible, and often violent sexual intrusion into her body (cf. Ballard v United States, 430 A2d 483 [DC App]; “Rape Laws”, op. cit., at p 468). Thus, due to the different purposes behind forcible rape laws and “statutory” (consensual) rape laws, the cases upholding the gender discrimination in the latter are not decisive with respect to the former, and the People cannot meet their burden here by simply stating that only females can become pregnant.

The People also claim that the discrimination is justified because a female rape victim “faces the probability of medical, sociological, and psychological problems unique to her gender”. This same argument, when advanced in support of the discrimination in the statutory rape laws, was rejected by this court in People v Whidden (51 NY2d, at p 461, supra), and it is no more convincing in the present case. “[A]n ‘ “archaic and overbroad” generalization’ * * * which is evidently grounded in long-standing stereotypical notions of the differences between the sexes, simply cannot serve as a legitimate rationale for a penal provision that is addressed only to adult males” (id., quoting Craig v Boren, 429 US, at p 198, supra; cf. Orr v Orr, 440 US, at p 283, supra; Tribe, Constitutional Law, p 1066).

Finally, the People suggest that a gender-neutral law for forcible rape is unnecessary, and that therefore the present law is constitutional, because a woman either cannot actually rape a man or such attacks, if possible, are extremely rare. Although the “physiologically impossible” argument has been accepted by several courts (see People v Reilly, 85 Misc 2d 702, 706-707; Brooks v State, 24 Md App 334; Finley v State, 527 SW2d 553 [Tex Crim App]), it is simply wrong. The argument is premised on the notion that a man cannot engage in sexual intercourse unless he is sexually aroused, and if he is aroused then he is consenting to intercourse. “Sexual intercourse” however, “occurs upon any penetration, however slight” (Penal Law, § 130.00); this degree of contact can be achieved without a male being aroused and thus without his consent.

As to the “infrequency” argument, while forcible sexual assaults by females upon males are undoubtedly less common than those by males upon females this numerical disparity cannot by itself make the gender discrimination constitutional. Women may well be responsible for a far lower number of all serious crimes than are men, but such a disparity would not make it permissible for the State to punish only men who commit, for example, robbery (cf. Craig v Boren, 429 US, at pp 200-204, supra).

To meet their burden of showing that a gender-based law is substantially related to an important governmental objective the People must set forth an “ ‘exceedingly persuasive justification’ ” for the classification (Mississippi Univ. for Women v Hogan, 458 US 718, 724;Kirchberg v Feenstra, 450 US 455,461), which requires, among other things, a showing that the gender-based law serves the governmental objective better than would a gender-neutral law (Orr v Orr, 440 US, at pp 281-282, supra; “Rape Laws”, op. cit., 54 Tulane L Rev, at p 468; cf. Michael M. v Sonoma County Superior Ct., 450 US, at p 464, supra). The fact that the act of a female forcibly raping a male may be a difficult or rare occurrence does not mean that the gender exemption satisfies the constitutional test. A gender-neutral law would indisputably better serve, even if only marginally, the objective of deterring and punishing forcible sexual assaults. The only persons “benefitted” by the gender exemption are females who forcibly rape males. As the Supreme Court has stated, “[a] gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny” (Orr v Orr, 440 US, at pp 282-283, supra).

Accordingly, we find that section 130.35 of the Penal Law violates equal protection because it exempts females from criminal liability for forcible rape.

V

Having found that the statutes for rape in the first degree and sodomy in the first degree are unconstitutionally underinclusive, the remaining issue is the appropriate remedy for these equal protection violations. When a statute is constitutionally defective because of underinclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the statute to those formerly excluded (Califano v Westcott, 443 US 76, 89; Welsh v United States, 398 US 333, 361 [Harlan, J., concurring]; Matter of Burrows v Board of Assessors, 64 NY2d 33; Developments in the Law — Equal Protection, 82 Harv L Rev 1065,1136). Accordingly, the unconstitutionality of one part of a criminal statute does not necessarily render the entire statute void (see United States v Jackson, 390 US 570, 585; People v Mancuso, 255 NY 463, 473).

This court’s task is to discern what course the Legislature would have chosen to follow if it had foreseen our conclusions as to underinclusiveness (Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191). As Judge Cardozo wrote over 50 years ago, “‘The question is in every case whether the Legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether’ ” (People v Mancuso, 255 NY 463, 474, supra; cf. United States v Jackson, 390 US 570, 585, supra [“ ‘(u)nless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law’ ”]). These principles of severance apply as well where elimination of an invalid exemption will impose burdens on those not formerly burdened by the statute (see Orr v Orr, 440 US 268, 271-272, 283-284, supra; Goodell v Goodell, 77 AD2d 684; Childs v Childs, 69 AD2d 406), and where the exemption is part of a criminal statute (see Skinner v Oklahoma, 316 US 535, 543, supra; State v Books, 225 NW2d 322, 325 [Iowa]; cf. Welsh v United States, 398 US, at p 361 [Harlan, J., concurring], supra).

The question then is whether the Legislature would prefer to have statutes which cover forcible rape and sodomy, with no exemption for married men who rape or sodomize their wives and no exception made for females who rape males, or instead to have no statutes proscribing forcible rape and sodomy. In any case where a court must decide whether to sever an exemption or instead declare an entire statute a nullity it must look at the importance of the statute, the significance of the exemption within the over-all statutory scheme, and the effects of striking down the statute (Califano v Westcott, 443 US, at p 90, supra; Welsh v United States, 398 US, at pp 365, 366 [Harlan, J., concurring], supra; Developments in the Law — Equal Protection, 82 Harv L Rev 1065, 1136-1137). Forcible sexual assaults have historically been treated as serious crimes and certainly remain so today (see, generally, Coker v Georgia, 433 US 584, supra; 1 Callaghan’s Criminal Law in New York [Groble, 3d ed], § 19:01). Statutes prohibiting such behavior are of the utmost importance, and to declare such statutes a nullity would have a disastrous effect on the public interest and safety. The inevitable conclusion is that the Legislature would prefer to eliminate the exemptions and thereby preserve the statutes. Accordingly we choose the remedy of striking the marital exemption from sections 130.35 and 130.50 of the Penal Law and the gender exemption from section 130.35 of the Penal Law, so that it is now the law of this State that any person who engages in sexual intercourse or deviate sexual intercourse with any other person by forcible compulsion is guilty of either rape in the first degree or sodomy in the first degree. Because the statutes under which the defendant was convicted are not being struck down, his conviction is affirmed.

Though our decision does not “create a crime”, it does, of course, enlarge the scope of two criminal statutes. We recognize that a court should be reluctant to expand criminal statutes, due to the danger of usurping the role of the Legislature, but in this case overriding policy concerns dictate our following such a course in light of the catastrophic effect that striking down the statutes and thus creating a hiatus would have (cf. Goodell v Goodell, 77 AD2d, at p 685, supra). Courts in other States have in numerous cases applied these same principles in eliminating an unconstitutional exception from a criminal statute and thereby enlarging the scope of the statute. The decision most similar factually to the present one comes from the Alaska Supreme Court in Pías v State (598 P2d 966). That court addressed an equal protection challenge by a female prostitute to a statute which criminalized prostitution, and defined it as a female offering her body for sexual intercourse for hire. The court agreed with the defendant that the statute violated equal protection because it covered only females, but chose to remedy this underinclusion by striking the definition, thereby expanding the statute to cover any person who engaged in prostitution, and affirmed her conviction.

The defendant cannot claim that our decision to retain the rape and sodomy statutes, and thereby affirm his conviction, denies him due process of the law. The due process clause of the

Fourteenth Amendment requires that an accused have had fair warning at the time of his conduct that such conduct was made criminal by the State (see Bouie v City of Columbia, 378 US 347). Defendant did not come within any of the exemptions which we have stricken, and thus his conduct was covered by the statutes as they existed at the time of his attack on Denise.

Neither can it be said that by the affirmance of his conviction the defendant is deprived of a constitutionally protected right to equal protection. The remedy chosen by our opinion is to extend the coverage of the provisions for forcible rape and sodomy to all those to whom these provisions can constitutionally be applied. While this remedy does treat the defendant differently than, for example, a married man who, while living with his wife, raped her prior to this decision, the distinction is rational inasmuch as it is justified by the limitations imposed on our remedy by the notice requirements of the due process clause (US Const, 14th Arndt), and the prohibition against ex post facto laws (US Const, art I, § 10). Thus, for purposes of choosing the proper remedy, the defendant is simply not similarly situated to those persons who were not within the scope of the statutes as they existed prior to our decision.

To reverse the defendant’s conviction would mean that all those persons now awaiting trial for forcible rape or sodomy would be entitled to dismissal of the indictment. Indeed if we were to reverse no person arrested for forcible rape or sodomy prior to the date of this decision could be prosecuted for that offense, and every person already convicted of forcible rape or sodomy who raised the equal protection challenge would be entitled to have the conviction vacated. As the equal protection clause does not require us to reach such a result, we decline to do so.

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

Chief Judge Cooke and Judges Jasen, Jones, Meyer and Kaye concur; Judge Simons taking no part.

Order affirmed.

      . The defendant and Denise were divorced several months after the assault in the motel room.

      . The other prerequisite for finding a husband and wife to be “not married” based on an order of protection is that they were in fact living apart at the time of the incident. This is a question of fact which was resolved against the defendant by the jury and will not he disturbed by this court.

      . Although the discussion of the marital exemption will focus on rape, the constitutional analysis is applicable to sodomy as well.

      . The influence of Hale’s statement, despite its failure to cite any authority has been discussed by several courts and commentators (see State v Smith, 85 NJ 193, 199; Commonwealth v Chretien, 383 Mass 123, 124, n 1; State v Rider, 449 So 2d 903,904 [Fla App]; Note, Abolishing The Marital Exemption For Rape: A Statutory Proposal, 1983 U of 111 L Rev 201,202 [hereafter cited as “Abolishing the Marital Exemption”]; Note, Spousal Exemption To Rape, 65 Marq L Rev 120,121 [hereafter cited as “Spousal Exemption”]). Interestingly, Hale’s statement has not been fully accepted in England (see Weishaupt v Commonwealth, 227 Va 389, 315 SE2d 847, 850-852).

      . See, generally, State v Smith, 85 NJ, at p 200; “Spousal Exemption”, supra, at n 4, at pp 129-130; Note, Marital Rape Exemption, 52 NYU L Rev 306, 309 (hereafter cited as “Marital Rape Exemption”).

      . Statutes in nine States provide a complete exemption to rape as long as there is a valid marriage (Alabama, Arkansas, Kansas, Montana, South Dakota, Texas, Vermont, Washington, West Virginia). In 26 other States, statutes provide for a marital exemption but with certain exceptions, most typically where the spouses are living apart pursuant to either a court order or a separation agreement (Alaska, Arizona, Colorado, Idaho, Indiana, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Wyoming, Wisconsin). In three other States (Georgia, Mississippi, Nebraska) and the District of Columbia the exemption appears to still exist as a common-law doctrine, and it may still have a limited application in Virginia (see Weishaupt v Commonwealth, 227 Va 389). Finally, in Connecticut, Delaware, Hawaii, and Iowa, there is a marital exemption for some, but not all degrees of forcible rape (see, generally, for statutory references, Schwartz, Spousal Exemption for Criminal Rape Prosecution, 7 Vt L Rev 33,38-41 [hereafter cited as “Rape Prosecution”]; Note, Clancy, Equal Protection Considerations of the Spousal Sexual Assault Exclusion, 16 N Eng L Rev 1, 2-3, n 4 [hereafter cited as “Equal Protection Considerations”]; “Abolishing the Marital Exemption”, supra, at n 4, at pp 203-205).

      . A wife may sue her husband for torts he commits against her, including assault and battery (General Obligations Law, § 3-313).

      . The stigma and other difficulties associated with a woman reporting a rape and pressing charges probably deter most attempts to fabricate an incident; rape remains a grossly under-reported crime (see Note, Rape Reform and a Statutory Consent Defense, 74 J of Crim L & Criminology 1518,1519, n 7; “Marital Rape Exemption”, supra, n 5, 52 NYU L Rev, at pp 314-315; “Spousal Exemption”, supra, n 4, 65 Marq L Rev, at p 126).

      . Rape in the first degree and sodomy in the first degree are “Class B violent felony offenses”, the minimum sentence for which is a jail term of 2-6 years, and the maximum sentence for which is a jail term of 8V3-25 years (Penal Law, § 70.02). The defendant possibly could have been charged with coercion in the first degree, a class D felony (Penal Law, § 135.65), but not all forcible rapes meet all the elements of the coercion statute (see People v Greer, 42 NY2d 170,174-175), and thus if a husband cannot be prosecuted under tide rape statute when he forcibly rapes his wife he may be able to escape prosecution for any felony.

      . The Colorado Supreme Court, relying on a 1954 Law Review comment, stated that the marital exemption “may remove a substantial obstacle to the resumption of normal marital relations” and “averts difficult emotional issues and problems of proof inherent in this sensitive area” (632 P2d, at p 1027). We have considered, and rejected, both of these arguments.

      . The sodomy statute applies to any “person” and is thus gender neutral. Defendant’s gender-based equal protection challenge is therefore addressed only to the rape statute.

      . A female can, however, be convicted under the present statute as an accomplice to a forcible rape of a female (Penal Law, §§ 20.00, 20.05, subd 3; People v Evans, 58 AD2d 919).

      . The other nine jurisdictions are Alabama, Delaware, District of Columbia, Georgia, Idaho, Kansas, Mississippi, Oregon, and Virginia. Some of these other States, like New York (see Penal Law, § 130.65), have other statutes which proscribe conduct including the forcible rape of a male by a female and which have less severe punishments than for forcible rape of a female by a male.

      . In at least two States there is a specific statute which states that “[t]he essential guilt of rape consists in the outrage to the person and feelings of the female” (Okla Stats Ann, tit 21, § 1113; Idaho Code Ann, § 18-6103).

      . See Plas v State, 598 P2d 966 (Alaska); People v Henry, 131 Cal App 82; State v Books, 225 NW2d 322 (Iowa); City of Duluth v Sarette, 283 NW2d 533 (Minn); Tom & Jerry v Nebraska Liq. Control Comm., 183 Neb 410; State v Fowler, 193 NC 290; State v McLeary, 65 NC App 174, affd 311 NC 397; State v Burgun, 49 Ohio App 2d 112; State v Watkins, 259 SC 285, vacated on other grounds 413 US 905; Matter of Tullos, 541 SW2d 167 (Tex Crim App).

      . We note also that in the decision previously discussed which found" a rational basis for the marital exemption, People v Brown (632 P2d 1025 [Col]), the court stated that if it did find that the exemption was unconstitutional it would strike just the exemption and leave intact the sexual assault statute; which would then cover all persons (id., at p 1027).


source: Caselaw Access Project

license: Public Domain

text:
    Tony Stephano, Respondent, v News Group Publications, Inc., Appellant.
    Argued November 15, 1984;
    decided December 20, 1984

      POINTS OF COUNSEL

      Slade R. Metcalf, Howard M. Squadron and Eugenie C. Gavenchak for appellant.
    I. The court below ignored the protection historically, accorded to the use of pictures in an editorial context. (Roberson v Rochester Folding Box Co., 171 NY 538; Arrington v New York Times Co., 55 NY2d 433; Wojtowicz v Delacorte Press, 43 NY2d 858; Gautier v Pro-Football, Inc., 304 NY 354; Delan v CBS, Inc., 91 AD2d 255; Murray v New York Mag. Co., 27 NY2d 406; Lahiri v Daily Mirror, 162 Misc 776; Koussevitzky v Allen, Towne & Heath, 188 Misc 479, 272 App Div 759; Davis v High Soc. Mag., 90 AD2d 374; Bass v Arrow Publishers, 59 AD2d 684.) II. The court below erred in finding an issue of fact that News Group’s use of Stephano’s photograph was for purposes of trade or advertising. (Pagan v New York Herald Tribune, 32 AD2d 341; Lopez v Triangle Communications, 70 AD2d 359; La Forge v Fairchild Pub., 23 AD2d 636; Namath v Sports Illustrated, 48 AD2d 487,39 NY2d 897; Booth v Curtis Pub. Co., 15 AD2d 343, 11 NY2d 907; Middleton v News Syndicate Co., 162 Misc 516; Time, Inc. v Hill, 385 US 374; Arrington v New York Times Co., 55 NY2d 433; Murray v New York Mag. Co., 27 NY2d 406; Offset Paperback Mfrs. v Banner Press, 71 AD2d 593.) III. Plaintiff’s right of publicity claim must be dismissed. (Haelan Labs. v Topps Chewing Gum, 202 F2d 866, 346 US 816; Hicks v Casablanca Records, 464 F Supp 426; Delan v CBS, Inc., 91 AD2d 255; Namath v Sports Illustrated, 48 AD2d 487; Booth v Curtis Pub. Co., 15 AD2d 343; Gautier v Pro-Football, Inc., 304 NY 354; Brinkley v Casablancas, 80 AD2d 428; Rosemont Enterprises v Random House, 58 Misc 2d 1, 32 AD2d 892; Current Audio v RCA Corp., 71 Misc 2d 831; Frosch v Grosset & Dunlap, 75 AD2d 768.) IV. Plaintiff’s only possible claim here is for breach of contract. (Gautier v Pro-Football, Inc., 304 NY 354; Dzurenko v Jordache, Inc., 59 NY2d 788; Welch v Mr. Christmas, 57 NY2d 143.)
    A. Richard Golub and Gary S. Graifman for respondent.
    I. Where a magazine hires a professional model to pose in designer clothes, and supplies such designer clothes, this created “event” cannot be for newsworthy purposes. (Reilly v Rapperswill Corp., 50 AD2d 342; Binns v Vitagraph Co., 210 NY 51; Flores v Mosler Safe Co., 7 NY2d 276; Arrington v New York Times Co., 55 NY2d 433; Murray v New York Mag. Co., 27 NY2d 406; Welch v Mr. Christmas, 57 NY2d 143.) II. A so-called article can be an “advertisement in disguise” and a violation of sections 50 and 51 of the Civil Rights Law if without written consent and defendant’s use of plaintiff’s photograph herein constituted such violative use. (Dallesandro v Holt & Co., 4 AD2d 470, 7 NY2d 735; Heller v Family Circle, 85 AD2d 679; Flores v Mosler Safe Co., 7 NY2d 276; Grant v Esquire, Inc., 367 F Supp 876; Griffin v Medical Soc., 7 Misc 2d 549; Reilly v Rapperswill Corp., 50 AD2d 342; Pagan v New York Herald Tribune, 32 AD2d 341, 26 NY2d 941; Davis v Duryea, 99 Misc 2d 933; Arrington v New York Times Co., 55 NY2d 433; Thompson v Close-Up, Inc., 197 Misc 921, 277 App Div 848.) III. The instant case is distinguishable from Pagan and La Forge and appellant errs in relying on such cases. (Griffin v Medical Soc., 7 Misc 2d 549; Lopez v Triangle Communications, 70 AD2d 359.) IV. Independent of the statute, defendant’s use of plaintiff’s photograph was a violation of plaintiff’s common-law right of privacy. (Price v Hal Roach

      Studios, .400 F Supp 836; Haelan Labs. v Topps Chewing Gum, 202 F2d 866, 346 US 816; Groucho Marx Prods. v Day & Night Co., 523 F Supp 485, 689 F2d 317; Lombardo v Doyle, Dane & Bernbach, 58 AD2d 620.) V. Defendant’s contention that plaintiff is limited to a contract claim is erroneous and admits the commercial nature of the transaction.
   OPINION OF THE COURT

Wachtler, J.

The plaintiff, a professional model, claims that the defendant used his picture for trade or advertising purposes without his consent, and thus violated his statutory right to privacy (Civil Rights Law, § 51), by publishing a picture of him modeling a “bomber jacket” in a magazine article containing information regarding the approximate price of the jacket, the name of the designer, and the names of three stores where the jacket might be purchased. Plaintiff also claims that the defendant’s conduct violated a common-law right of publicity. The trial court granted summary judgment to the defendant concluding that the article reported a newsworthy event of fashion news, and was not published for trade or advertising purposes. A divided Appellate Division reversed and denied summary judgment finding that factual questions were presented as to whether the defendant had used the plaintiff’s picture for trade purposes and whether the article constituted an advertisement in disguise. The defendant has appealed by leave of the Appellate Division which certified a question as to the correctness of its order.

In the summer of 1981 the plaintiff agreed to model for an article on men’s fall fashions. The photographic session took place on August 11, 1981. The defendant used two of the photographs taken during that session to illustrate an article entitled “Classic Mixes”, which appeared under the heading “Fall Fashions” in the September 7, 1981 issue of New York magazine. Another photograph taken during the session was used, a week earlier, in the August 31,1981 issue of New York magazine, in a column entitled “Best Bets”. That column, a regular feature in the magazine, contains information about new and unusual products and services available in the metropolitan area. One of the items included in the August 31 column was a bomber jacket modeled by the plaintiff. The text above the picture states: “Yes Giorgio — From Giorgio Armani. Based on his now classic turn on the bomber jacket, this cotton-twill version with ‘fun fur’ collar features the same cut at a far lower price — about $225. It’ll be available in the stores next week. — Henry Post Bomber Jacket/Bamey’s, Bergdorf Goodman, Bloomingdale’s.”

It is the plaintiff’s contention that he agreed to model for one article only — the September 7,1981 article on Fall Fashions — and that the defendant violated his rights by publishing his photograph in the August 31 “Best Bets” column. The complaint alleges two causes of action. First the plaintiff claims that the defendant violated his civil rights by using his photograph for trade or advertising purposes without his consent. In his second cause of action the plaintiff claims that the defendant ’s conduct “invaded plaintiff’s right of publicity”. On each cause of action the plaintiff seeks $350,000 in compensatory damages and an equal amount in exemplary damages.

The defendant’s answer asserts several affirmative defenses. The primary defense is that the photograph and article relating to it involve matters of legitimate public interest and concern and thus do not violate the plaintiff’s rights under the Civil Rights Law (§§ 50, 51), or any common-law right of publicity. The defendant also urged that the second cause of action, for invasion of the plaintiff’s right of publicity, does not set forth a claim “separate and distinct” from the first cause of action.

On May 4, 1982 the plaintiff filed a note of issue and statement of readiness indicating that he waived his right to discovery proceedings, that there are no outstanding requests for discovery, and that the case was ready for trial. At the defendant’s request, however, the parties stipulated that the note of issue would be withdrawn to afford the defendant an opportunity to move for summary judgment. In the motion for summary judgment the defendant urged that the complaint should be dismissed because the plaintiff’s photograph was not published for trade or advertising purposes.

In support of the motion the defendant submitted affidavits by two of the editors involved in the publication of the “Best Bets” column of August 31,1981. The affidavits state that the column is a regular news feature of the editorial portion of the magazine, designed to provide readers with information, sometimes including prices, concerning interesting products and services in the New York metropolitan area. They state that such information is provided solely for newsworthy purposes — “advertising concerns” play no part in deciding what to include in “Best Bets” and the magazine receives no payment for any item mentioned in the. column. They further state that the item concerning the bomber jacket was included in the August 31 “Best Bets” column because the fashion editor suggested that it would be of interest to readers of New York magazine.

The plaintiff’s affidavit in opposition to the motion stated: “While it may be that a party whose service or product is included in ‘Best Bets’ does not pay a direct advertising fee to be included, the benefits to the magazine are obtained in an indirect manner. Stores, designers, and retailers featured there have all advertised in New York magazine at other times and places, and giving them this ‘breakout’ feature in the ‘Best Bets’ column acts as barter for such advertising at another time and place.” The plaintiff further stated that the designer and the stores mentioned in the August 31 column had previously advertised in New York magazine and observed that “the publicity benefits in the column to the designer and retail outlets mentioned are evident from a fair reading of the column”.

The trial court granted summary judgment to the defendant concluding, on the basis of the exhibits submitted, that the bomber jacket item was a “newsworthy observation” and was not published for advertising or trade purposes within the contemplation of the statute. The court also held that the inclusion of information concerning the availability of the jacket at certain stores,- which currently advertised in the magazine, was not sufficient to sustain the claim that the item had been published for trade or advertising purposes “without a further showing of benefit to defendant”.

The Appellate Division reversed and denied the defendant’s motion for summary judgment. The majority observed that the September 7 article was published for trade purposes because it was included to increase circulation. Finding that the “form and presentation” of both articles were identical the majority held that a reasonable person could conclude that the August 31 article was also used for trade purposes. “The real question”, the majority stated, “is whether the public interest aspect of the August 31, 1981 article is merely incidental to its commercial purpose”. The majority held that it “is also possible that this article constituted an advertisement in disguise since many of the magazine’s advertisers were mentioned in the copy” (98 AD2d 287,291). One Justice concurred on the ground that a fact question was presented as to whether the plaintiff had consented to the use of his picture in both articles. One Justice dissented for essentially the same reasons as those stated by the trial court. We now reverse.

Section 50 of the Civil Rights Law prohibits the use of “the name, portrait or picture of any living person” for advertising or trade purposes without the person’s consent and declares a violation of the statute to be a misdemeanor. Section 51 of the statute provides civil remedies, including injunctive relief, compensatory damages and, if the defendant acted knowingly, exemplary damages.

The statutes have their origin in this court’s 1902 decision in Roberson v Rochester Folding Box Co. (171 NY 538). In that case it was held that a young woman whose picture had been used by the defendant on flour advertisements without her consent could not recover for a violation of her right to privacy because no su ch right was recognized at common law. The Legislature responded the following year by amending the Civil Rights Law to establish a statutory “right to privacy” (see Rhodes v Sperry & Hutchinson Co., 193 NY 223, 227, affd sub nom. Sperry & Hutchinson Co. v Rhodes, 220 US 502). Since the adoption of the statutes, this court has repeatedly held that the right of privacy is governed entirely by statute in this State (Arrington v New York Times Co., 55 NY2d 433; Cohen v Hallmark Cards, 45 NY2d 493, 497, n 2; Gautier v Pro-Football, Inc., 304 NY 354, 358).

Section 51 of the Civil Rights Law has been applied in cases, such as the Roberson case, where the picture of a person who has apparently never sought publicity has been used without his or her consent for trade or advertising purposes (see, e.g., Cohen v Herbal Concepts 63 NY2d 379; Flores v Mosler Safe Co., 7 NY2d 276). In such cases it has been noted that the statute serves “to protect the sentiments, thoughts and feelings of an individual” (Flores v Mosler Safe Co., supra, p 280; Cohen v Herbal Concepts, supra).

This history has led some courts to conclude that the statutory right to privacy is limited to the type of case which originally prompted its enactment and thus would not preclude the recognition in this State of a common-law “right of publicity” in cases where the defendant has exploited, without consent, and usually without payment, the name, picture, or portrait of an individual who has consciously sought to establish a publicity value for his personality (see, e.g., Haelan Labs. v Topps Chewing Gum, 202 F2d 866, 868, cert den 346 US 816; Factors Etc. v Pro Arts, 579 F2d 215, cert den 440 US 908; but also see Brinkley v Casablancas, 80 AD2d 428). The statute, however, is not limited to situations where the defendant’s conduct has caused distress to a person who wishes to lead a private life free of all commercial publicity.

By its terms the statute applies to any use of a person’s picture or portrait for advertising or trade purposes whenever the defendant has not obtained the person’s written consent to do so. It would therefore apply, and recently has been held to apply, in cases where the plaintiff generally seeks publicity, or uses his name, portrait, or picture, for commercial purposes but has not given written consent for a particular use (Welch v Mr. Christmas, 57 NY2d 143; cf. Shields v Gross, 58 NY2d 338). Thus where the written consent to use the plaintiff’s name or picture for advertising or trade purposes has expired (Welch v Mr. Christmas, supra) or the defendant has otherwise exceeded the limitations of the consent (Shields v Gross, supra), the plaintiff may seek damages or other relief under the statute, even though he might properly sue for breach of contract. The right which the statute permits the plaintiff to vindicate in such a case may, perhaps, more accurately be described as a right of publicity (Zacchini v Scripps-Howard Broadcasting Co., 433 US 562). In this respect the statute parallels the common-law right of privacy which generally provides remedies for any commercialization of the individual’s personality without his consent (see Prosser, Privacy, 48 Cal L Rev 383, 403; also, see, Cohen v Herbal Concepts, supra; Flores v Mosler Safe Co., supra, pp 280-281; Gautier v Pro-Football, Inc., supra, p 358). Since the “right of publicity” is encompassed under the Civil Rights Law as an aspect of the right of privacy, which, as noted, is exclusively statutory in this State, the plaintiff cannot claim an independent common-law right of publicity.

The only question then is whether the defendant used the plaintiff’s picture for trade or advertising purposes within the meaning of the statute when it published his picture in the “Best Bets” column without his consent.

The statute does not define trade or advertising purposes. However, the courts have consistently held, from the time of its enactment, that these terms should not be construed to apply to publications concerning newsworthy events or matters of public interest (Binns v Vitagraph Co., 210 NY 51,52; accord Humiston v Universal Film Mfg. Co., 189 App Div 467; Lahiri v Daily Mirror, 162 Misc 776; Gautier v Pro-Football, Inc., supra; Booth v Curtis Pub. Co., 15 AD2d 343, affd 11 NY2d 907; Pagan v New York Herald Tribune, 32 AD2d 341, affd 26 NY2d 941; Murray v New York Mag. Co., 27 NY2d 406; Arrington v New York Times Co., supra). The exception reflects Federal and. State constitutional concerns for free dissemination of news and other matters of interest to the public (Arrington v New York Times Co., supra, p 440), but essentially requires an interpretation of the statute to give effect to the legislative intent (Binns v Vitagraph Co., supra, p 52; Humiston v Universal Film Mfg. Co., supra; Lahiri v Daily Mirror, supra; Gautier v Pro-Football, Inc., supra, p 359). We have recently noted that this exception should be liberally applied (Arrington v New York Times Co., supra, p 440).

The newsworthiness exception applies not only to reports of political happenings and social trends (Arrington v New York Times Co., supra; Murray v New York Mag. Co., supra), but also to news stories and articles of consumer interest including developments in the fashion world (Pagan v New York Herald Tribune, supra). Nevertheless, the plaintiff contends that the photograph in this case did not depict a newsworthy event because it is a posed picture of a professional model taken at a photographic session staged by the defendant. However, the event or matter of public interest which the defendant seeks to convey is not the model’s performance, but the availability of the clothing item displayed. A fashion display is, of necessity, posed and arranged. Obviously the picture of the jacket does not lose its newsworthiness simply because the defendant chose to employ a person to model it in a controlled or contrived setting (Pagan v New York Herald Tribune, supra).

The fact that the defendant may have included this item in its column solely or primarily to increase the circulation of its magazine and therefore its profits, as the Appellate Division suggested, does not mean that the defendant has used the plaintiff’s picture for trade purposes within the meaning of the statute. Indeed, most publications seek to increase their circulation and also their profits. It is the content of the article and not the defendant’s motive or primary motive to increase circulation which determines whether it is a newsworthy item, as opposed to a trade usage, under the Civil Rights Law (Arrington v New York Times Co., supra, p 440; Booth v Curtis Pub. Co., supra). It is settled that a “ ‘picture illustrating an article on a matter of public interest is not considered used for the purposes of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise’ ” (Murray v New York Mag. Co., 27 NY2d 406, 409, supra, quoting Dallesandro v Holt & Co., 4 AD2d 470, 471, app dsmd 7 NY2d 735; see, also, Arrington v New York Times Co., supra, p 440; Pagan v New York Herald Tribune, supra; Gautier v Pro-Football, Inc., supra, p 359; Booth v Curtis Pub. Co., supra). A contrary rule would unreasonably and unrealistically limit the exception to nonprofit or purely altruistic organizations which are not the only, or even the primary, source of information concerning newsworthy events and matters of public interest.

The plaintiff’s primary contention is that his picture was used for advertising purposes within the meaning of the statute. Although the article was not presented to the public as an advertisement, and was published in a column generally devoted to newsworthy items (cf. Gautier v Pro-Football, Inc., supra, pp 358-359), the plaintiff claims that it is in fact an advertisement in disguise. In addition, although the defendant has submitted affidavits that the article was published solely as a matter of public interest, without any consideration for advertising concerns, and that the magazine received no payment for including the item in its “Best Bets” column, the plaintiff nevertheless contends that he has presented sufficient facts to require a trial on the issue.

The facts on which the plaintiff relies are entirely circumstantial. He does not claim to have personal knowledge, or direct proof, that this particular article was actually published by the defendant for advertisement purposes. The circumstances on which he bases his claim are (1) the fact that the news column contains information normally included in an advertisement identifying the designer of the jacket, the approximate price, and three places where the jacket may be purchased, and (2) the fact that some or all of those stores mentioned in the article had previously advertised products in the magazine. Those circumstances are not enough to raise a jury question as to whether the article was published for advertising purposes.

The plaintiff does not dispute the fact that the information provided in the article is of legitimate reader interest. Indeed, similar information is frequently provided in reviews or news announcements of books, movies, shows or other new products including fashions (see, e.g., Pagan v New York Herald Tribune, supra). Nor does the plaintiff contend that it is uncommon for commercial publishers to print legitimate news items or reviews concerning products by persons or firms who have previously advertised in the publisher’s newspaper or magazine. In short, the plaintiff has not presented any facts which would set this particular article apart from the numerous other legitimate news items concerning new products. He offers only his speculative belief that in this case the information on the jacket was included in the defendant’s column for advertising purposes or perhaps, more vaguely, to promote additional advertising. That, in our view, is insufficient to defeat the defendant’s motion for summary judgment. The rule exempting articles of public interest from the operation of the Civil Rights Law would, as a practical matter, lose much of its force if publishers of articles which are at least prima facie newsworthy were required to incur the expense of a trial to meet such general and insubstantial accusations of disguised advertising.

14] The Appellate Division suggested that the plaintiff should be permitted to explore the merits of his claim during discovery proceedings. However, as noted, the plaintiff waived his right to discovery and certified that the case was ready for trial. It is also evident, from his opposition papers to the summary judgment motion, that he was content to present his case entirely on the basis of the circumstances of the publication. He never requested discovery in connection with the motion, or contended that discovery was necessary to respond to the facts alleged in the defendant’s affidavits (CPLR 3212, subd [f]). Under these circumstances it cannot be said, as a matter of law, that the plaintiff should be granted additional opportunities for discovery.

Finally, it should be emphasized that we do not mean to suggest that a publisher, who has employed a professional model to pose for pictures to be used in an article may avoid the agreed fee, or otherwise ignore contractual arrangements, if the model’s pictures are used to illustrate a newsworthy article or one involving matters of public interest. Although the complaint alludes to an agreement between the parties, the plaintiff has not sought to enforce a contract or recover damages for a breach. Since the plaintiff chose to frame his complaint entirely in terms of rights covered by the Civil Rights Law, which we have concluded is not applicable in this case, the complaint should be dismissed.

Accordingly, the order of the Appellate Division should be reversed, the complaint dismissed and the certified question answered in the negative.

Chief Judge Cooke and Judges Jasen, Jones, Meyer, Simons and Kaye concur.

Order reversed, with costs, complaint dismissed, and question certified answered in the negative.

      . In his brief to this court the plaintiff claims that the defendant’s use of his photographs in both articles is in issue because the plaintiff did not give his written consent to use them in either article. It appears that the plaintiff was injured at the photographic session and subsequently refused to sign a release in order to avoid compromising the unrelated action for physical injuries. Nevertheless, in his complaint, he only objected to the August 31 “Best Bets” article. Similarly, in his papers in opposition to the motion for summary judgment, the plaintiff identified that publication alone as the basis for the complaint. Thus the only question properly before us concerns the defendant’s liability for publishing the plaintiff’s photograph in the “Best Bets” article of August 31, 1981.

       On January 15, 1985, subsequent to the date of the Court of Appeals decision, the Appellate Division, upon that court’s own motion, corrected its originally published vote (98 AD2d 278, 299) to reflect that its vote “at the time of reversal of the order appealed from was Murphy, P.J.; Fein, J. concurred in a separate writing; and Asch and Milonas, JJ. dissented and would affirm in a wilting by Asch, J.” — [Rep.

      . In view of the fact that the plaintiff is asserting his own right of publicity we need not consider whether the statute would also control assignment, transfer or descent of publicity rights (compare Price v Hal Roach Studios, 400 F Supp 836, 844, with Frosch v Grosset & Dunlap, 75 AD2d 768; and Rosemont Enterprises v Random House, 58 Misc 2d 1, affd 32 AD2d 892; see, also, Sims, Right of Publicity: Survivability Reconsidered, 49 Fordham L Rev 453).


author: Jones, J. Meyer, J.

text:
    In the Matter of Civil Service Bar Association, Local 237, International Brotherhood of Teamsters, Petitioner, v City of New York, Respondent, and Howard M. Katz et al., on Behalf of Themselves and All Others Similarly Situated, Intervenors-Appellants.
    Argued November 19, 1984;
    decided December 27, 1984

      POINTS OF COUNSEL

      Seymour M. Waldman, Robert B. Stulberg and Martin Jacobson for intervenors-appellants.
    I. Civil Service Bar Association’s unfair representation of the beneficiaries of the original award vitiated the supplemental award and required its vacatur. (Steele v Louisville & Nashville R.R. Co., 323 US 192; Vaca v Sipes, 386 US 171; Hines v Anchor Motor Frgt., 424 US 554; De Cherro v Civil Serv. Employees Assn., 60 AD2d 743; Matter of Union Free School Dist. No. 6 v New York State Div. of Human Rights, 43 AD2d 31, 33 NY2d 975; Anderson v AMBAC Inds., 40 NY2d 865; Gosper v Fancher, 49 AD2d 674, 40 NY2d 867, 430 US 915; Holodnak v Avco Corp., 381 F Supp 191, 514 F2d 285, 423 US 892; Humphrey v Moore, 375 US 335; Elgin, Joliet & Eastern Ry. Co. v Burley, 325 US 711.) II. After rendering the “ original award, the arbitrator was functus ófficio. Hence, the supplemental award is a nullity and should have been so declared. The court below erred by concluding that, if the settlement embodied in the supplemental award was within the collective bargaining powers of the parties, the award’s invalidity could be ignored, particularly when no other approach was available to the parties. (Flannery v Sahagian, 134 NY 85; Herbst v Hagenaers, 137 NY 290; Matter of Mole [Queen Ins.
      Co.], 14 AD2d 1; Matter of Eisenstein [Rednick], 8 AD2d 794; Matter of Wolff & Munier [Diesel Constr. Co.], 41 AD2d 618, 44 AD2d 530, 36 NY2d 750; Levine v Klein, 70 AD2d 532; Matter of City of Troy [Village of Menands], 48 AD2d 733; Paperhandlers Union No. 1 v U.S. Trucking Corp., 441 F Supp 469; Randall v Lodge No. 1076, 648 F2d 462.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis and June A. Witterschein of counsel), for respondent.
    I. Upon failing to find any “misrepresentation or misconduct” within the meaning of CPLR 5015, the trial court should have dismissed the motion. (Matter of Reale [Healy N. Y. Corp.], 54 AD2d 1039; Donato v American Locomotive Co., 283 App Div 410, 306 NY 966; Parker v Borock, 5 NY2d 156; Arizaga v New York City Health & Hosps. Corp., 96 AD2d 457; Matter of Mole [Queen Ins. Co.], 14 AD2d 1.) II. Even assuming the trial court had jurisdiction to treat this matter as a direct review of an arbitration award, it erred in vacating the judgment on the ground that the arbitrator was functus officio and, therefore, exceeded his authority in issuing the “Final Supplemental Award”. (North Syracuse Cent. School Dist. v North Syracuse Educ. Assn., 45 NY2d 195; Kwasnik v Willo Packing Co., 61 AD2d 791; Matter of Soto v Goldman, 7 NY2d 397; Arizaga v New York City Health & Hosps. Corp., 96 AD2d 457; Matter of Cornell v Caren, 76 AD2d 974, 53 NY2d 939; Parker v Borock, 5 NY2d 156; Chupka v Lorenz-Schneider Co., 12 NY2d 1, 372 US 227; Grant Co. v Srogi, 71 AD2d 457, 52 NY2d 496; Teitelbaum Holdings v Gold, 48 NY2d 51.)
   OPINION OF THE COURT

Jones, J.

A union does not violate its duty of fair representation when it settles an appeal from an order confirming an arbitration award by agreeing to surrender or to diminution of benefits awarded in arbitration to some employees in exchange for benefits to other employees not affected by the original award, in the absence of arbitrary, discriminatory or bad-faith conduct by the union. In the circumstances of this case, the Appellate Division did not err in its determination that the Union did not engage in such conduct.

The somewhat complex procedural context out of which this appeal reaches us is fully described in the opinion of Justice Samuel J. Silverman at the Appellate Division (99 AD2d 264). For the purposes of this appeal it suffices to note that the present controversy began when the City of New York in March 1975 appointed at least one attorney, who had previously been employed as a provisional attorney, to the position of associate attorney and paid him a salary of $23,950, $3,000 higher than the stated minimum salary for that position. On September 12, 1975, the Civil Service Bar Association (Union), which is the exclusive bargaining representative for City employees holding civil service positions known as “attorney classifications”, filed a “group” grievance on behalf of . all attorneys affected without naming any specific attorney. The basis for the grievance was the claim that the appointment of the one attorney at a salary of $23,950 constituted a unilateral change by the City in the minimum salary for the position of associate attorney, thereby triggering an asserted requirement under the collective bargaining agreement that the minimum salaries of all grades be raised correspondingly. After the grievance had been denied in all stages, the Union took the matter to arbitration. The City’s contention that the matter was inarbitrable was rejected by the Board of Collective Bargaining, and the grievance proceeded to arbitration. The arbitrator ruled in favor of the Union and ordered the City to increase all minimum salaries to the highest amount by which any employee’s original salary exceeded the minimum and awarded back pay from July 25, 1974.

This award was confirmed, on motion of the Union and over opposition by the City, in a judgment entered September 19, 1977 (the so-called “Helman judgment”). The City filed a notice of appeal to the Appellate Division. While the appeal was pending, apparently due to lack of confidence on both sides with respect to the outcome of the appeal, settlement negotiations ensued between the City and the Union. The former arbitrator apparently participated in the settlement discussions as did a mediator requested from the Office of Collective Bargaining. As a result, the parties reached an agreement by which all employees in three attorney titles who were on the City’s payroll on January 6, 1977 and remained on the payroll at the time of or retired prior to the ratification and acceptance of the settlement would receive a lump-sum payment of $2,000, the contractual minimum and maximum salaries for the titles would be increased by $2,500, and the pending collective bargaining for a new contract would be based on these increased salaries.

The settlement was approved by the Union’s board of directors on December 1, 1977 by a 17 to 4 vote and by the Union membership by a vote of 190 to 60 at a December 13, 1977 general meeting from which former Union members were excluded in accordance with express provision of the Union bylaws. At the request of the parties the former arbitrator thereupon issued a so-called “Final Supplemental Award” which embodied the substance of their settlement. By judgment entered December 20, 1977 (the so-called “Korn judgment”), Supreme Court vacated the Helman judgment and confirmed the settlement.

Thereafter, by notice of motion dated February 2, 1978, a group of present and former employees sought to intervene in the action and to set aside the Korn judgment and the “Final Supplemental Award” on which it was based. These employees claimed that they had received more favorable benefits under the original award in arbitration than they would under the settlement and that some of them, having resigned, would receive nothing under the terms of the settlement. Supreme Court denied the application to intervene by order entered March 24, 1978, essentially on the ground that the would-be intervenors had not shown sufficient justification for intervention. The Appellate Division reversed, holding that sufficient ground had been shown for intervention, and remanded the case for a hearing on the factual issues raised by intervenors’ application under CPLR 5015 (subd [a], par 3) to vacate the Korn judgment and the “Final Supplemental Award” on the ground of “fraud, misrepresentation, or other misconduct” based on assertions that the Union had breached its duty of fair representation when the settlement was negotiated (64 AD2d 594).

On remand, Supreme Court vacated the “Final Supplemental Award”, holding that the former arbitrator lacked jurisdiction under principles of functus officio, and consequently set aside the Korn judgment based on that award under CPLR 5015 (su bd [a], par 5). As well, the court reinstated the Helman judgment which had confirmed the original arbitration award. On appeal by the City of New York, the Appellate Division reversed and denied the intervenors’ CPLR 5015 vacatur motion, holding that the Union did not violate its duty of fair representation (99 AD2d 264). We affirm.

As a threshold matter, we note that it was error on the part of Supreme Court in the circumstances of this case to invoke the doctrine of functus officio as a basis, under CPLR 5015 (subd [a], par 4), for vacatur of the “Final Supplemental Award” and the stipulation of settlement incorporating the provisions thereof, and, under CPLR 5015 (subd [a], par 5), for vacatur of the judgment of Supreme Court confirming that settlement. The former arbitrator in participating at the request of the parties in the formulation of their settlement was not acting qua arbitrator in either a continuing or new arbitration proceeding; he was acting rather as an impartial mediator, with the consent of the City and the Union, to assist them to a settlement of pending litigation on appeal. That the form of his participation and of the subsequent proceedings may have been cast as in arbitration for purposes of circumventing the restrictions and control of the Emergency Financial Control Board, as Justice Silverman noted (99 AD2d, pp 269-270), is of no moment in this litigation. As the case came before the courts below and as the appeal now reaches us, the judgment sought to be vacated must be treated as one entered in implementation of a settlement between the City and the Union in the course of appellate litigation between them. It is not properly to be characterized as a judgment confirming an award in arbitration.

We turn then to the principal argument on which intervenors rely for reversal. They argue that the Union violated its duty of fair representation of their interests in negotiating the settlement of the appeal from the Helman judgment which had confirmed the arbitration award which benefited them. The duty of fair representation had its genesis under Federal law in the Supreme Court’s opinions in Steele v Louisville & Nashville R.R. Co. (323 US 192) and Tunstall v Brotherhood of Locomotive Firemen & Enginemen (323 US 210). In those cases, the court held that a union is obligated to act “fairly” toward all employees it represents stemming from its statutory authority and responsibility as their exclusive bargaining representative. In Vaca v Sipes (386 US 171, 190), the court established the standard for determining when the duty of fair representation is violated. According to the court, such a breach “occurs ordy when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith” (id.; see, also, Hines v Anchor Motor Frgt., 424 US 554, 568-569; Humphrey v Moore, 375 US 335, 349-350; Ford Motor Co. v Huffman, 345 US 330, 337-339).

Although the State and its political subdivisions are excluded from the definition of “employer” contained in subdivision (2) of section 2 of the National Labor Relations Act (29 USC § 152 [2]), the courts in New York have recognized a similar duty of fair representation on the part of public sector unions predicated on their role as exclusive bargaining representatives (e.g., Gosper v Fancher, 49 AD2d 674, affd 40 NY2d 867, cert den 430 US 915; Menkes v City of New York, 91 AD2d 654, 655; De Cherro v Civil Serv. Employees Assn., 60 AD2d 743; Jackson v Regional Tr. Serv., 54 AD2d 305).

Ascertaining whether, in any particular instance, the duty of fair representation has been violated is essentially a factual determination (cf. Smith v Hussmann Refrig. Co., 619 F2d 1229, 1236 [en banc], reh den 619 F2d 1253, cert den 449 US 839; Griffin v International Union, UAAAIWA, 469 F2d 181, 182). Here, the Appellate Division found that there was “no reason to believe that the Union did not act honestly and in good faith.” (99 AD2d, p 273.) The court also held that “[i]t was not unfair to use the original award as a lever, or a club, to obtain for all the members of the Union a more equal benefit.” (Id.) Both the Ci ty and the Union were unsure of their chances of success on the appeal, and both sides were dissatisfied with the compression of salaries between the minimum and maximum salary rates which the original award created, as well as with the prospect of practical difficulties which might be encountered in implementation of the award and with the possible effect the award might have on pending collective bargaining for a new contract. There being support in the record for these findings, there was no err or of law in the determination by the Appellate Division that the Union did not violate its duty of fair representation in the circumstances of this case.

The intervenors contend that the settlement violated the Union’s duty of fair representation because it could not, under any circumstances, agree to surrender or to diminution of “rights” intervenors claim to have acquired under the initial arbitration award in exchange for benefits to other Union members who would not have been affected by the original award. In the intervenors’ view, once the award was confirmed any settlement could only benefit those employees who would have benefited from the award. This argument assumes that the employees gained indefeasible contract rights in consequence of the confirmation of the initial arbitration award. The viability on appeal of the confirmation of the award, however, was much in question, and both sides had reason to believe that it might not be upheld. It was not arbitrary, therefore, for the Union, in settling the appeal, to agree to a reduction in the back pay and increased salary to be paid to the affected employees and to an elimination of lump-sum payments to those who had resigned before the settlement was ratified. Moreover, as found by the Appellate Division, in light of the uncertainty which surrounded the claim that gave rise to the grievance, denying benefits to these employees in consequence of the settlement “did not defeat any reasonable expectations that they had before the grievance was instituted.” (99 AD2d, p 273.)

That the maximum salary was increased as a result of the settlement, benefiting employees who would not have been affected by the original award, does not render the settlement arbitrary as a matter of law.. Unions must have leeway to resolve their obligations to employees who have conflicting interests. As stated by the Supreme Court: “Just as a union must be free to sift out wholly frivolous grievances which would only clog the grievance process, so it must be free to take a position on the not so frivolous disputes. Nor should it be neutralized when the issue is chiefly between two sets of employees. Conflict between employees represented by the same union is a recurring fact. To remove or gag the union in these cases would surely weaken the collective bargaining and grievance processes.” (Humphrey v Moore, 375 US 335, 349-350, supra.) Where the union undertakes a good-faith balancing of the divergent interests of its membership and chooses to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees, such accommodation does not, of necessity, violate the union’s duty of fair representation (cf. Local 13, Int. Longshoremen’s & Warehousemen’s Union v Pacific Mar. Assn., 441 F2d 1061,1067; Maurer v International Union, UAAAIWA, 105 LRRM 2883 [US Dist Ct — Pa]). A union’s settlement of a group salary grievance cannot be viewed in isolation from its role as collective negotiating representative for the union as a whole. This is especially so where, as here, the settlement avoids a compression of the salary schedule which would diminish increases in salary attributable to length of service and promotion thereby prejudicing the seniority interests of the nonintervening employees. Moreover, not to be overlooked is the strong policy of the law favoring settlement of litigation.

Accordingly, the Appellate Division did not err as a matter of law in determining that this Union did not violate its duty of fair representation when it settled the appeal from the order confirming the arbitration award by agreeing to surrender or to diminution of the benefits that had been awarded in arbitration to some employees in exchange for benefits to other employees not affected by the original award, there having been no arbitrary, discriminatory or bad-faith conduct by the Union.* ***

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

Meyer, J.

(concurring). I would affirm, but on the ground that the intervenors failed to establish any predicate under CPLR 5015 (subd [a], par 3) for vacatur of the judgment entered upon the settlement between the Union and the City.

As originally drafted, CPLR 5015 (subd [a], par 3) provided for vacatur of a judgment only on the ground of “fraud” (see Third Prelim Report of Advisory Comm on Practice and Procedure, NY Legis Doc., No. 17,1959, p 203). In a subsequent draft patterned on rule 60 (b) (3) of the Federal Rules of Civil Procedure, the text of the CPLR paragraph was revised to include “fraud, misrepresentation, or other misconduct” (see Oppenheimer v Westcott, 47 NY2d 595, 603; Fourth Prelim Report of Advisory Comm on Practice and Procedure, NY Legis Doc., No. 20, 1960, pp 214-215; 5 Weinstein-Kom-Miller, NY Civ Prac, par 5015.08). “Misrepresentation” and “misconduct” were added to broaden the bases for granting relief to include situations in which it would be inequitable to permit a party to retain the benefits of a judgment where it is shown that the party had engaged in nonfraudulent but wrongful conduct in obtaining the judgment (see 5 Weinstein-Korn-Miller, op. cit., pars 5015.08, 5015.09; 7 Moore’s Fed Prac, par 60.24 [5]). Relief is thus authorized when it is established that the judgment sought to be vacated is infirm in consequence of fraud, misrepresentation or other misconduct practiced on the court in which the judgment was granted.

No proof was tendered in this case to establish the necessary prerequisite for relief under CPLR 5015 (subd [a], par 3). Evidence and argument were advanced to demonstrate that the Union was guilty of “misconduct” in consequence of an asserted violation of the duty of fair representation that it owed intervenors. Misconduct of this nature, if any there were, however, was misconduct as to interested parties, not misconduct practiced on the court which issued the Korn judgment. No other proof established fraud or other misconduct against the court. Accordingly, no predicate was shown for vacatur under CPLR 5015 (subd [a], par 3), and intervenors’ motion under that rule should have been denied on that ground.

Judges Jasen, Wachtler and Kaye concur with Judge Jones; Judge Meyer concurs in result in a separate opinion in which Chief Judge Cooke and Judge Simons concur.

Order affirmed, with costs.

      . This apparently was the salary that the attorney had been earning in his provisional position.

        . CPLR 5015 (subd [a]) provides as follows:
      “Rule 5015. Relief from judgment or order.
      “(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
      “1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or
      “2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or “3. fraud, misrepresentation, or other misconduct of an adverse party; or “4. lack of jurisdiction to render the judgment or order; or “5. reversal, modification or vacatur of a prior judgment or order upon which it is based.”

      . Because we conclude that the so-called “Final Supplemental Award” was not an award in arbitration but was an integral step in the settlement of appellate litigation, it is not necessary to consider or decide whether the intervenors would have had standing to challenge an award in arbitration, or whether CPLR 5015 would be applicable to set aside such an award (and whether if so, the provisions of paragraph 5 of subdivision [a] could be invoked to vacate a judgment based on an arbitration award).

      . The decisions on which the intervenors would rely in support of a per se rule against exchanging the benefits certain employees would have received under the original award for benefits to other employees do not support such a broad legal proposition. Rather, the opinions are expressed in terms of the factual contexts in which those cases arose (see Smith v Hussmann Refrig. Co., 619 F2d 1229, 1240 [ere banc], reh den 619 F2d 1253, cert den 449 US 839; Harrison v United Transp. Union, 530 F2d 558,561, cert den 425 US 958; Price v International Brotherhood of Teamsters, 457 F2d 605, 611).

      . Inasmuch as we conclude that the Appellate Division properly dismissed, on the merits, the intervenors’ claim that the Union had violated its duty of fair representation, we do not consider or address the contention of the City, adopted in the concurring opinion, that violation of the duty of fair representation would not constitute grounds for vacatur under CPLR 5015 (subd [a], par 3).