author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Raphael Betts, Appellant.
    Argued September 10,1987;
    decided October 15, 1987

      POINTS OF COUNSEL

      Lawrence K. Marks and Philip L. Weinstein for appellant.

      Robert Morgenthau, District Attorney (Joyce P. Adolfsen and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

The conviction for rape in the first degree, as affirmed by the Appellate Division, must be reversed and a new trial ordered because the trial court erred in its pretrial ruling that, if the defendant chose to testify in his own behalf at trial, he would be deemed to have waived his privilege against self-incrimination and be exposed to cross-examination, for credibility purposes, with respect to a pending unrelated criminal charge.

The applicable evidentiary rule is that a defendant is entitled to a pretrial ruling, based on the assertion of the privilege against self-incrimination, precluding the prosecution from cross-examining for credibility purposes only as to pending unrelated criminal charges if defendant takes the stand as a witness at the trial. We recognize that the issue seemed to many to have been well settled in New York that a defendant could, as a general rule, be cross-examined in these circumstances. While particular circumstances not present in this case may permit appropriate cross-examination on such an issue, careful analysis of the precedents affecting the specific evidentiary rule manifest the correctness of precluding it here.

Defendant, charged and ultimately convicted of forcible rape in the first degree, had a pretrial Sandoval (34 NY2d 371) hearing where he sought to block potential cross-examination concerning an earlier youthful offender adjudication and a pending burglary charge. His counsel argued that this line of cross-examination, even on credibility, would be unduly prejudicial and that, if asked about the pending burglary charge, defendant would have to invoke his privilege against self-incrimination. The trial court determined that the People could not inquire into the youthful offender adjudication but could ask about the facts of the burglary charge, and that if defendant testified he would not be allowed to assert his Fifth Amendment right. At trial, the defense unsuccessfully sought to have the court reconsider its pretrial Sandoval ruling and, at the close of the People’s case, offered no witnesses.

The People introduced into evidence, without objection by the defense, jeans which had been forcibly pulled off the victim at the time of the attack. During deliberations, the jury asked whether it could consider an otherwise unexplained stain found in the crotch of the jeans. Over defense objection that the jury was being allowed to speculate, the Trial Judge instructed that "the jeans are in evidence and therefore, anything about them that you deem relevant may be considered by you”. Defendant was convicted and the Appellate Division affirmed, without opinion.

Our reversal is based on the proposition that a defendant does not, by testifying, automatically and generally waive the privilege against self-incrimination with respect to questions concerning pending unrelated criminal charges. The application in this case, even for credibility purposes only, of the generally accepted defendant-witness waiver principle unduly prejudices defendant by its potential impact on the pending criminal charge and in its actual effect on the charge being tried. It exerts an undeniable chilling effect upon a real "choice” whether to testify in one’s own behalf.

The basic rule is well settled in this State that a criminal defendant, as a witness, places himself or herself in the position of any other witness, having the same duties and exposures (Brandon v People, 42 NY 265, 268; Connors v People, 50 NY 240, 242 ["assume(s) the burdens necessarily incident to the position”]; People v Shapiro, 308 NY 453, 458 ["subjects himself to the same rules of examination”]; 8 Wig-more, Evidence § 227 [2] [McNaughton rev 1961]). The rule includes a defendant-witness being "asked questions disclosing his past life and conduct, and thus impairing his credibility” (People v Casey, 72 NY 393, 398-399), as well as questions relative to the issue, even though injurious to the defense (People v Shapiro, 308 NY 453, 458, supra, citing People v Trybus, 219 NY 18).

In People v Tice (131 NY 651), one of our key cases, the court addressed the issue in the context of a man charged with murdering his wife asserting an insanity defense. He testified for himself but limited his direct examination to questions regarding his personal history. On cross-examination, the prosecutor asked questions designed to show Tice’s state of mind at the time of the murder, his memory, and his level of sanity. The trial court permitted the questions despite Tice’s assertion of his privilege against self-incrimination. We reasoned that "[t]hese questions had no relation to the facts brought out in defendant’s examination in chief, nor did the facts elicited affect his credibility, but they were pertinent to the issue” (People v Tice, supra, at 655 [emphasis supplied]). The holding articulated that when a defendant testifies, "he subjects himself voluntarily to the situation of any other witness, and if he is compelled to answer disparaging questions, or to give evidence relevant to the issue, which is injurious, it is the consequence of an election which he makes to become a witness, which involves a waiver on his part at that time, of the constitutional exemption” (People v Tice, supra, at 656-657). The court then added, although the issue was expressly not before it, that "[t]he range and extent of the cross-examination is within the discretion of the trial judge, provided only that it relates to relevant matters or to matters affecting credibility” (People v Tice, supra, at 657 [compare, previous emphasized quote]).

Tice was later relied upon for the general proposition that when a defendant takes the stand that defendant is subject to the same cross-examination as any other witness and that he or she puts credibility in issue like any other witness (see, People v Johnston, 228 NY 332, 340; People v Webster, 139 NY 73, 84). However, in Johnston we added significantly that a defendant-witness’ waiver of his constitutional privilege against self-incrimination "probably extends only to matters that are relevant to the charge on trial; that is, not to collateral matters, that is, facts affecting merely credibility” (People v Johnston, supra, at 340 [emphasis supplied]).

In People v Sorge (301 NY 198) we articulated the cross-examination rule in broad terms. In Sorge, the defendant was charged with having performed an illegal abortion. She was cross-examined about prior abortions, but she denied the prior acts and was questioned further after her denial. Unlike the present case, she had no pending criminal charges against her and she did not invoke her privilege. In analyzing whether the prosecutor’s continued questioning was appropriate, the Sorge court held that "[a] defendant, like any other witness, may be 'interrogated upon cross-examination in regard to any vicious or criminal act of his life’ that has a bearing on his credibility as a witness” (id., at 200). Our holding today neither retreats from that precise holding nor casts the slightest doubt on the correctness of the more general evidentiary principle it confirms.

Since our decision in Sorge, we have not had a clear opportunity to address what one significant text has characterized as "a conflict of authority on the question whether the accused, like any other witness, may refuse to answer questions concerning collateral matters relevant only to credibility” (Richardson, Evidence § 525 [Prince 10th ed]). We have, however, been concerned about the perceived generality and breadth of the waiver of the privilege allowing a defendant-witness to be cross-examined about different kinds of collateral matters affecting credibility only.

In People v Hopkins (58 NY2d 1079), for example, the defendant-witness was precluded from asserting the privilege when asked at a Huntley (15 NY2d 72) hearing about a prior attempt to strangle his wife. In declining to pass on the merits, we nonetheless referred to the rule in a manner consistent with the precise and narrow holding of Tice, as found in People v Johnston (228 NY, supra, at 340). Hopkins says that "whatever merit there may be to the contention that a defendant who chooses to take the witness stand at trial waives the privilege only with respect to matters probative of guilt or innocence and not to those relevant to credibility alone, it is not necessary for us to reach that question here” (People v Hopkins, supra, at 1083 [citations omitted]). Shortly after, in People v Pavao (59 NY2d 282), the issue proffered was whether it was improper for the trial court to allow the defendant-witness to be questioned regarding collateral pending assault and attempted murder charges in his trial on unrelated assault and attempted murder charges. In allowing the trial court’s exercise of discretion to stand, "we also note[d], however, that defendant made no objection to the court’s ruling on the ground of self-incrimination. That issue is, therefore, not preserved for our review” (id., at 292, n 3).

The holdings in People v Tice (131 NY 651, supra) and People v Sorge (301 NY 198, supra) never authorized, as a general proposition, credibility attacks on defendant-witnesses based on pending collateral criminal charges, if the defendant invokes the constitutional privilege with respect to such charges. Significantly, no case has been found where this court expanded the Tice rule in this way. Rather, the correct evidentiary rule for this case, which is in harmony with the common-law maturation of our precedents, is that a defendant-witness does not generally and automatically waive the privilege against self-incrimination as to pending collateral criminal charges (see also, Fed Rules Evid, rule 608 [b]; Proposed New York Code of Evidence, rule 608 [c]; 8 Wigmore, Evidence § 2276 [2] [McNaughton rev 1961]). Allowing a defendant-witness’ credibility to be assailed through the use of cross-examination concerning an unrelated pending criminal charge unduly compromises the defendant’s right to testify with respect to the case on trial, while simultaneously jeopardizing the correspondingly important right not to incriminate oneself as to the pending matter.

The law unquestionably gives an accused a real choice about testifying but "distortion introduced by the accused’s testimony can be fully corrected only if matters affecting his credibility can be fully probed” (8 Wigmore, Evidence § 2276 [2], at 463-464 [McNaughton rev 1961]). Thus, the general rule provides the People a corresponding opportunity to cross-examine, relevantly and appropriately, and this extends to many areas and subjects. We conclude nevertheless that it does not counterbalance the accused’s constitutional right to refrain from testifying concerning pending collateral criminal charges because "[w]hile an accused, unlike an ordinary witness, has an option whether to testify at all, exacting such a [sweeping] waiver as the price of taking the stand leaves little of the right to testify on one’s own behalf’ (McCormick, Evidence § 42, at 92 [3d ed 1984]). The imbalance in that equation is self-evident.

The policy of protecting the defendant’s opportunity to testify, while allowing the prosecution a balanced evidentiary response, is well served by the rule that the defendant’s choice to testify in the case on trial does not, by itself, effect a waiver of the privilege against self-incrimination as to pending unrelated charges. This rule will not, on the other hand, preclude prosecutors from inquiry into pending criminal charges if a defendant, in taking the stand, makes assertions that open the door and render those charges relevant for contradiction and response.

As to the defendant’s argument regarding the deliberating jury’s consideration of a stain on the jeans after its request for instructions from the court, we note that it was error to fail to give, after specific request, a cautionary instruction against the jury speculating on the meaning of any evidence before it.

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

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

Order reversed, etc.


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    Benjamin Morell, Individually and as Administrator of the Estate of Rebecca Morell, Deceased, Appellant, v Govindan R. Balasubramanian et al., Respondents.
    Argued September 9,1987;
    decided October 8, 1987

      POINTS OF COUNSEL

      Rebecca L. Weinstein for appellant.

      Robert Abrams, Attorney-General (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff, of counsel), for respondents.
   OPINION OF THE COURT

Hancock, Jr., J.

The issue is whether Supreme Court has subject matter jurisdiction to entertain an action against State employees for injuries allegedly sustained as a result of their negligence. The Appellate Division dismissed plaintiffs complaint holding that the State is the real party in interest in such an action and that it must be brought in the Court of Claims. We disagree and hold that the employees are the real parties in interest— not the State — and that, therefore, Supreme Court has subject matter jurisdiction. There should be a reversal and a reinstatement of the complaint.

From June 1981 until February 1982, plaintiffs decedent, Rebecca Morell, underwent treatment for severe and disabling rheumatoid arthritis at Helen Hayes Hospital, a State institution. In February 1982, during a hip replacement procedure performed by defendants, State-employed physicians, decedent suffered a cardiac arrest and died. Plaintiff, as administrator of his deceased wife’s estate and individually, commenced two malpractice actions — one against the State in the Court of Claims and another, the instant action, against defendants in Supreme Court, New York County. In both actions plaintiff seeks damages allegedly resulting from defendants’ negligent medical treatment of his wife. Supreme Court, in denying defendants CPLR 3211 (a) (2) dismissal motion, held that State employees may be sued in Supreme Court for tortious conduct committed in the course of their employment. The Appellate Division reversed and dismissed the complaint (contrast, Paone v Tryon, 112 AD2d 149; Ott v Barash, 109 AD2d 254; Olmstead v Britton, 48 AD2d 536; De Vivo v Grosjean, 48 AD2d 158). We granted leave to appeal.

Since the adoption of the Court of Claims Act (L 1929, ch 467) the State has been subject to suit for damages, but only in the Court of Claims (see, Court of Claims Act § 8; NY Const, art VI, § 9; Goldstein v State of New York, 281 NY 396, 404). The Court of Claims has limited jurisdiction to hear actions against the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State — i.e., where the State is the real party in interest. Generally, actions against State officers acting in their official capacity in the exercise of governmental functions are deemed to be, in essence, claims against the State and, therefore, suable only in the Court of Claims (see, Sinho gar v Parry, 53 NY2d 424, 431; Glassman v Glassman, 309 NY 436, 440; Psaty v Duryea, 306 NY 413, 417, 419; Automated Ticket Sys. v Quinn, 90 AD2d 738, 739, affd 58 NY2d 949; Matter of Bock v Cooperman, 89 AD2d 539, 540, affd 59 NY2d 776; see also, Schaffer v Evans, 57 NY2d 992, 994). Not every suit against an officer of the State, however, is a suit against the State. (Glassman v Glassman, supra, at 443.)

A suit against a State officer will be held to be one which is really asserted against the State when it arises from actions or determinations of the officer made in his or her official role and involves rights asserted, not against the officer individually, but solely against the State. Thus, an action for damages against the Director of the State Lottery Division, stemming from a disputed termination of claimant’s license agreement, was, in actuality, an action against the State; it could, therefore, be brought only in the Court of Claims and Supreme Court had no jurisdiction (Automated Ticket Sys. v Quinn, supra). Similarly, a demand for damages against the Commissioner of the State Department of Social Services, based on the allegedly unconstitutional procedures employed by the State for out-of-State placement of mentally or emotionally handicapped children, was one against the State and, as such, assertable only in the Court of Claims (Sinhogar v Parry, supra, at 431; see, Psaty v Duryea, supra [State is real party in interest in suit for damages by a contractor against the State Commissioner of Conservation to recover the amount of a check deposited with the State to guarantee a bid that had assertedly been submitted by mistake]; Samuel Adler, Inc. v Noyes, 285 NY 34 [claim against the Commissioner of Agriculture and Markets to recover the amount paid to the State as license fee after the State denied the application for a license must be brought in Court of Claims against State]).

Where, however, the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest — even though it could be held secondarily liable for the tortious acts under respondeat superior. Thus, an action arising out of a traffic accident against a hospital operating a State ambulance service was not one against the State as real party in interest. The action could, therefore, be maintained against the hospital in Supreme Court (Murtha v New York Homeopathic Med. Coll. & Flower Hosp., 228 NY 183; see, Ottmann v Village of Rockville Centre, 275 NY 270; Clark v Cannizzaro, 37 AD2d 634). Similarly, where plaintiffs’ property was damaged by defendants in making street excavations as agents of the State, plaintiff was permitted to sue the primary tort-feasors in Supreme Court even though, as the court noted, the State could be held secondarily liable for their conduct. (Columbia Mach. Works v Long Is. R. R. Co., 267 App Div 582, 584). And, in Rhynders v Greene (255 App Div 401, 402), the court, in holding that a State official could be sued for tort damages in Supreme Court because of a negligently constructed drainage system, observed that although "the State has assumed liability for defendant’s alleged tort * * * the [Court of Claims Act] has not relieved the defendant from his personal responsibility for wrongs committed by him. The wrongdoer, even when an agent, must respond, whether the principal may be held or not.” (See also, Isle of Wight Owners’ Assn. v Missouri Val. Dredging Co., 9 NY2d 929, affg 12 AD2d 502.)

From the foregoing, it follows that plaintiff’s suit against defendants individually for an alleged breach of the duty of care owed by them directly to decedent was not one against State officers as representatives of the State in their official capacity which had to be brought in the Court of Claims. That plaintiff could have chosen to proceed in the Court of Claims directly against the State based on its vicarious responsibility for defendants’ actions does not make the State the real party in interest in the suit against defendants in Supreme Court.

We see no merit in the Attorney-General’s argument that the Court of Claims Act, in sections 8 and 9 (2), contains a legislative directive that whenever the State can be held vicariously liable under the doctrine of respondeat superior, all actions based on the tortious actions of its employees must be considered as claims against the State and brought in the Court of Claims. This reading of the Court of Claims Act would, of course, deprive an injured party of any forum for an action against the individual tort-feasor since only the State can be sued in the Court of Claims (see, Court of Claims Act § 9; Automated Ticket Sys. v Quinn, 90 AD2d 738, 739, supra). Such interpretation would, thus, result in a judicially created total immunity for State employees from individual liability for their tortious conduct while in the State’s employ. The interpretation must be rejected.

There is no question that prior to the adoption of the Court of Claims Act (L 1929, ch 467), State employees could be sued in Supreme Court and held individually liable for their torts (see, Murtha v New York Homeopathic Med. Coll. & Flower Hosp., supra). The Attorney-General’s interpretation would require us to attribute to the Legislature, in its enactment of the Court of Claims Act, the intention of abolishing the then existing common-law right of an injured party to sue a tortious State employee in courts other than the Court of Claims. The Attorney-General points to nothing in the statute or in its history which suggests that the Legislature, when it created a new right for an injured party to sue the State in the Court of Claims for the acts of its employees (Court of Claims Act § 9 [2]), was at the same time, intending to take away the injured party’s established right to sue the individual tort-feasor if, indeed, it could do so. To read such intention into the statute by implication would offend accepted canons of statutory construction. (See, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 74, 94, 141, 153.)

Contrary to the contentions of the Attorney-General, the passage of Public Officers Law § 17 (providing for the defense and indemnification of State employees by the State for acts or omissions in the course of employment; see, L 1971, ch 1104; L 1978, ch 466, § 1) confirms our conclusion that the Legislature, in adopting the Court of Claims Act, did not intend to abrogate the right of an injured party to sue a State employee for damages. The references in Public Officers Law § 17 (3) (a) to settlements by or judgments against State employees "in any state or federal court” are a legislative recognition that State employees can be sued in such courts. Indeed, if they could not be, there would be no purpose at all for the indemnification provisions in Public Officers Law § 17 because there would be no court in which State employees could be sued since individuals are not subject to suit in the Court of Claims. We agree with the conclusions in Paone v Tryon (112 AD2d 149, supra); Ott v Barash (109 AD2d 254, supra); Olmstead v Britton (48 AD2d 536, supra); De Vivo v Grosjean (48 AD2d 158, supra) that nothing in Public Officers Law § 17 imposes direct liability upon the State for the negligent acts or omissions of its employees or makes the State the real party in interest in actions against them; and that the statute does not purport to diminish the remedies available to an injured party (see, Public Officers Law § 17 [5]; Ott v Barash, supra, at 257).

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendants’ motion to dismiss the complaint denied.

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

Order reversed, etc.

      . Public Officers Law § 17 (3) (a) provides: "The state shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim, or shall pay such judgment or settlement; provided, that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duties; the duty to indemnify and save harmless or pay prescribed by this subdivision shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the employee.”

      . Defendants argue that the purpose of Public Officers Law § 17 was to create rights for employees solely in connection with Federal causes of action under the civil rights laws (42 USC §§ 1981, 1983). This argument is without merit. The statute plainly states that it applies to "any civil action * * * in any state or federal court” which occurred as the result of negligence "or which is brought to enforce a provision of section nineteen hundred eighty-one or nineteen hundred eighty-three of title forty-two of the United States code” (Public Officers Law § 17 [2] [a]; see, Report of NY Law Rev Commn to Governor, 1978 McKinney’s Session Laws of NY, at 1605).


author: Alexander, J.

text:
    Josephine Ravo, an Infant, by Her Father and Natural Guardian, Antonio Ravo, Respondent, v Sol Rogatnick, Respondent, and Irwin L. Harris, Appellant.
    Argued September 3,1987;
    decided October 13, 1987

      POINTS OF COUNSEL

      John L. A. Lyddane for appellant.

      Brian J. Shoot and Harvey Weitz for Josephine Ravo, respondent.
   OPINION OF THE COURT

Alexander, J.

In this medical malpractice action, defendant, Dr. Irwin L. Harris, appeals from an order of the Appellate Division unanimously affirming an amended judgment of Supreme Court, entered on a jury verdict, finding him jointly and severally liable with Dr. Sol Rogatnick for injuries negligently inflicted upon plaintiff, Josephine Ravo, and resulting in brain damage that has rendered her severely and permanently retarded. The issue presented is whether joint and several liability was properly imposed upon defendant under the circumstances of this case where, notwithstanding that the defendants neither acted in concert nor concurrently, a single indivisible injury— brain damage — was negligently inflicted. For the reasons that follow, we affirm.

I.

Uncontroverted expert medical evidence established that plaintiff, Josephine Ravo, who at the time of trial was 14 years of age, was severely and permanently retarded as a result of brain damage she suffered at birth. The evidence demonstrated that the child was born an unusually large baby whose mother suffered from gestational diabetes which contributed to difficulties during delivery. The evidence further established that Dr. Rogatnick, the obstetrician who had charge of the ante partum care of Josephine’s mother and who delivered Josephine, failed to ascertain pertinent medical information about the mother, incorrectly estimated the size of the infant, and employed improper surgical procedures during the delivery. It was shown that Dr. Harris, the pediatrician under whose care Josephine came following birth, misdiagnosed and improperly treated the infant’s condition after birth. Based upon this evidence, the jury concluded that Dr. Rogatnick committed eight separate acts of medical malpractice, and Dr. Harris committed three separate acts of medical malpractice.

Although Dr. Rogatnick’s negligence contributed to Josephine’s brain damage, the medical testimony demonstrated that Dr. Harris’ negligence was also a substantial contributing cause of the injury. No testimony was adduced, however, from which the jury could delineate which aspects of the injury were caused by the respective negligence of the individual doctors. Indeed, plaintiff’s expert, Dr. Charash, testified that while the hypoxia and trauma directly attributable to Dr. Rogatick’s negligence were two major villains — being the most common causes of perinatal difficulty — the hyperbilirubinemia and excessively high hematocrit level inadequately addressed by Dr. Harris could not be excluded as having a contributing effect. The expert concluded that neither he nor anybody else could say with certainty which of the factors caused the brain damage. Similarly, Dr. Perrotta, testifying on behalf of plaintiff, opined that she could not tell whether the excessively high hematocrit level contributed “10 percent, 20 percent, or anything like that” to the injury. Nor, as the Appellate Division found, did Dr. Harris adduce any evidence that could support a jury finding that he caused an identifiable percentage of the infant plaintiff’s brain damage. Indeed, Dr. Harris’ entire defense appears to have been that he was not responsible for the plaintiff’s injury to any degree.

The trial court instructed the jury that if they found that both defendants were negligent, and that their separate and independent acts of negligence were direct causes of a single injury to the plaintiff, but that it was not possible to determine what proportion each contributed to the injury, they could find each responsible for the entire injury even though the act of one may not have caused the entire injury, and even though the acts of negligence were not equal in degree. The court further instructed the jury that if they found that both defendants were negligent, they would have “to compare their negligence on the basis of 100 percent”. The court also instructed the jury that if they found both defendants responsible for the plaintiff’s injury “then you will evaluate their respective faults in contributing to the infant’s condition”.

These instructions were explanatory of an interrogatory, previously accepted without objection by Dr. Harris, and submitted to the jury, that requested the standard Dole v Dow apportionment of fault (Dole v Dow Chem. Co., 30 NY2d 143). Notwithstanding his failure to object to this interrogatory, Dr. Harris raised for the first time, after the jury was charged, an objection to the instructions, contending that he was only “liable for what injury he puts [sic] on top of the injury that exists”, and therefore responsible only as a successive and independent tort-feasor. The trial court rejected defendant’s contention, and the jury returned a verdict for plaintiff in the total amount of $2,750,000 attributing 80% of the “fault” to Dr. Rogatnick and 20% of the "fault” to Dr. Harris.

In a postverdict motion, Dr. Harris sought an order directing entry of judgment limiting the plaintiff’s recovery against him to $450,000 (20% of the $2,250,000 base recovery — the court having setoff $500,000 received by plaintiff in settlement of claims against other defendants) based upon his contention that his liability was not joint and several, but rather was independent and successive. This motion was denied. The Appellate Division dismissed Harris’ appeal from the order denying the postverdict motion and affirmed the amended judgment entered on the jury’s verdict.

II.

When two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable (see, Suria v Shiffman, 67 NY2d 87; Bichler v Lilly & Co., 55 NY2d 571; Derby v Prewitt, 12 NY2d 100, 105; Sweet v Perkins, 196 NY 482, 485). This is so because such concerted wrongdoers are considered “joint tort-feasors” and in legal contemplation, there is a joint enterprise and a mutual agency, such that the act of one is the act of all and liability for all that is done is visited upon each (Bichler v Lilly & Co., 55 NY2d 571, 580-581, supra; see generally, Prosser and Keeton, Torts § 46 [5th ed]). On the other hand, where multiple tort-feasors “neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive” (Suria v Shiffman, 67 NY2d 87, 98, supra; see, Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57, 66; Derby v Prewitt, 12 NY2d 100, 105, supra; Matter of Parchefsky v Kroll Bros., 267 NY 410, 413). Under successive and independent liability, of course, the initial tort-feasor may well be liable to the plaintiff for the entire damage proximately resulting from his own wrongful acts (Milks v McIver, 264 NY 267, 270), including aggravation of injuries by a successive tort-feasor (Milks v McIver, 264 NY 267, 270, supra; Matter of Parchefsky v Kroll Bros., 267 NY 410, 414, supra; Derby v Prewitt, 12 NY2d 100, 105, supra). The successive tort-feasor, however, is liable only for the separate injury or the aggravation his conduct has caused (see, Suria v Shiffman, 67 NY2d 87, 98, supra; Derby v Prewitt, 12 NY2d 100, 106, supra; Dubicki v Maresco, 64 AD2d 645, 646; see also, Zillman v Meadowbrook Hosp. Co., 45 AD2d 267).

It is sometimes the case that tort-feasors who neither act in concert nor concurrently may nevertheless be considered jointly and severally liable. This may occur in the instance of certain injuries which, because of their nature, are incapable of any reasonable or practicable division or allocation among multiple tort-feasors (see, e.g., Hawkes v Goll, 281 NY 808, affg 256 App Div 940; Slater v Mersereau, 64 NY 138; Wiseman v 374 Realty Corp., 54 AD2d 119; see also, Prosser and Keeton, Torts § 52, at 347 [5th ed]).

We had occasion to consider such a circumstance in Slater v Mersereau (64 NY 138, supra), where premises belonging to the plaintiff were damaged by rainwater as a result of the negligent workmanship by a general contractor and a subcontractor. We held that where two parties by their separate and independent acts of negligence, cause a single, inseparable injury, each party is responsible for the entire injury: “Although they acted independently of each other, they did act at the same time in causing the damages * * * each contributing towards it, and although the act of each, alone and of itself, might not have caused the entire injury, under the circumstances presented, there is no good reason why each should not be liable for the damages caused by the different acts of all * * * The water with which each of the parties were instrumental in injuring the plaintiffs was one mass and inseparable, and no distinction can be made between the different sources from whence it flowed, so that it can be claimed that each caused a separate and distinct injury for which each one is separately responsible * * * [t]he contractor and subcontractors were separately negligent, and although such negligence was not concurrent, yet the negligence of both these parties contributed to produce the damages caused at one and the same time” (Slater v Mersereau, 64 NY 138, 146-147, supra).

Our affirmance in Hawkes v Goll (281 NY 808, affg 256 App Div 940, supra) demonstrates that simultaneous conduct is not necessary to a finding of joint and several liability when there is an indivisible injury. In that case, the decedent was struck by the vehicle driven by the defendant Farrell and was thrown across the roadway, where very shortly thereafter he was again struck, this time by the vehicle driven by the defendant Goll, and dragged some 40 to 50 feet along the highway. He was taken to the hospital where he expired within the hour. The Appellate Division stated (256 App Div 940): “As the result of his injuries the plaintiff’s intestate died within an hour. There could be no evidence upon which the jury could base a finding of the nature of the injuries inflicted by the first car as distinguished from those inflicted by the second car. The case was submitted to the jury upon the theory that if both defendants were negligent they were jointly and severally liable. While the wrongful acts of the two defendants were not precisely concurrent in point of time, the defendants may nevertheless be joint tort feasors where, as here, their several acts of neglect concurred in producing the injury.”

A similar result was reached in Wiseman v 374 Realty Corp. (54 AD2d 119, supra). There, the decedent had sustained injuries in a fall caused by the defective stairway and handrail in the defendant 374 Realty Corp.’s building which resulted in his hospitalization. While hospitalized, he was treated, until his death, with a drug “Decadron”, allegedly known to cause stomach bleeding as a side effect, and requiring an adequate amount of antacid therapy on a daily basis to prevent and protect against such occurrence. In reinstating Dole v Dow cross claims by the manufacturer of the “Decadron” and the hospital against 374 Realty Corp., the court observed that notwithstanding that the acts of negligence occurred at separate times, the injuries sustained by the decedent resulted in his death, and that no distinction could be made between the injuries sustained through the negligence of the building owner and those resulting from the improper conduct of the manufacturer and the hospital (Wise-man v 374 Realty Corp., 54 AD2d 119, 122, supra).

Similarly, here the jury was unable to determine from the evidence adduced at trial the degree to which the defendants’ separate acts of negligence contributed to the brain damage sustained by Josephine at birth. Certainly, a subsequent tortfeasor is not to be held jointly and severally liable for the acts of the initial tort-feasor with whom he is not acting in concert in every case where it is difficult, because of the nature of the injury, to separate the harm done by each tort-feasor from the others (see, Chipman v Palmer, 77 NY 51; see generally, Prosser, Joint Torts and Several Liability, 25 Calif L Rev 413). Here, however, the evidence established that plaintiffs brain damage was a single indivisible injury, and defendant failed to submit any evidence upon which the jury could base an apportionment of damage.

Harris argues, however, that since the jury ascribed only 20% of the fault to him, this was in reality an apportionment of damage, demonstrating that the injury was divisible. This argument must fail. Clearly, the court’s instruction, and the interrogatory submitted in amplification thereof, called upon the jury to determine the respective responsibility in negligence of the defendants so as to establish a basis for an apportionment between them, by way of contribution, for the total damages awarded to plaintiff (see, CPLR 1401; Dole v Dow Chem. Co., 30 NY2d 143, supra). In that respect, the jury’s apportionment of fault is unrelated to the nature of defendants’ liability (i.e., whether it was joint and several or independent and successive).

As we said in Schauer v Joyce (54 NY2d 1, 5): “CPLR 1401, which codified this court’s decision in Dole v Dow Chem Co. (30 NY2d 143), provides that ‘two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.’ The section ‘applies not only to joint tortfeasors, but also to concurrent successive, independent, alternative, and even intentional tortfeasors’ (Siegel, New York Practice, § 172, p 213; see McLaughlin, Practice Commentarles, McKinney’s Cons Laws of NY, Book 7B, CPLR 1401, pp 362-363).” The focus and purpose of the Dole v Dow inquiry, therefore, is not whether, or to what degree, a defendant can be cast in damages to a plaintiff for a third party’s negligence, as was the case in Zillman v Meadowbrook Hosp. Co. (45 AD2d 267, supra). Rather, it seeks to determine “whethereach defendant owed a duty to plaintiff and whether, by breaching their respective duties, they contributed to plaintiff’s ultimate injury” claimed to have been caused by each defendant (Helmrich v Lilly & Co., 89 AD2d 441, 444; see, Schauer v Joyce, 54 NY2d 1, 5, supra).

Here, the jury determined that the defendants breached duties owed to Josephine Ravo, and that these breaches contributed to her brain injury. The jury’s apportionment of fault, however, does not alter the joint and several liability of defendants for the single indivisible injury. Rather, that aspect of the jury’s determination of culpability merely defines the amount of contribution defendants may claim from each other, and does not impinge upon plaintiff’s right to collect the entire judgment award from either defendant (CPLR 1402). As we stated in Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. (45 NY2d 551, 557): “The right under the Dole-Dow doctrine to seek equitable apportionment based on relative culpability is not one intended for the benefit of the injured claimant. It is a right affecting the distributive responsibilities of tort-feasors inter sese * * * It is elementary that injured claimants may still choose which joint tort-feasors to include as defendants in an action and, regardless of the concurrent negligence of others, recover the whole of their damages from any of the particular tort-feasors sued (see Kelly v Long Is. Light. Co., 31 NY2d 25, 30).” This being so, in light of the evidence establishing the indivisibility of the brain injury and the contributing negligence of Dr. Harris, and of the manner in which the case was tried and submitted to the jury, we conclude that joint and several liability was properly imposed.

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

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

Order affirmed, with costs.


author: Kaye, J.

text:
    Linda Baker, Appellant, v Board of Education of the West Irondequoit Central School District et al., Defendants, and Thomas Nichols, as President of the West Irondequoit Teachers Association, et al., Respondents.
    Argued September 1, 1987;
    decided October 13, 1987

      POINTS OF COUNSEL

      Thomas G. Dignan and Margaret A. Clemens for appellant.

      Bernard F. Ashe, Ivor R. Moskowitz and Rocco A. Solimando for respondents.
   OPINION OF THE COURT

Kaye, J.

This appeal calls upon us to determine first, what Statute of Limitations should govern an action by a teacher against a public sector union for breach of its duty of fair representation and second, whether a cause of action can be stated for breach of such duty by a teacher after resigning her position. We conclude that the action was timely because brought within six years of accrual, and that where construetive discharge is the gravamen of the complaint resignation does not divest a teacher of a cause of action against the union. .

For approximately 14 years plaintiff was a mathematics teacher in the West Irondequoit Central School District (the district) and a member of the West Irondequoit Teachers Association (the union). According to her complaint, during the 1983-1984 school year, plaintiff had been allowed a full-time education leave to pursue graduate studies in computer science, which the district planned to have her teach. In March 1984, she requested an extension to continue the two-year Masters’ degree program, and was refused by the district superintendent. As an alternative, plaintiff in August requested relief from certain administrative duties so that she might continue her studies part time. After the superintendent replied that such relief might be arranged for one semester only, plaintiff resigned. Weeks later, she learned facts indicating that her requests may have been inequitably denied, including the fact that male teachers in similar circumstances had been granted leaves of absence and relief from administrative duties.

The collective bargaining agreement between the union and the district included a mandatory three-stage grievance procedure. Efforts were first to be made to resolve any grievance informally with the principal; next, a unit member was to submit the matter to the union’s grievance committee. If the committee found the grievance legitimate, it would file a written appeal with the district superintendent, who would conduct a hearing and issue a written decision. Finally, if the member and union were dissatisfied, and if the union determined the grievance to be meritorious, it could submit the matter to arbitration.

Plaintiff alleges that on October 5, 1984, she delivered a letter to the school, with a copy to the union, outlining her grievance under the collective bargaining agreement. Five days later, the union notified her that it would not represent her and that she would have to pursue the matter on her own. One reason advanced was that, since plaintiff had already resigned, the union could not represent her in any grievance matters. Plaintiff’s grievance was subsequently denied by the principal. Thereafter, the district superintendent denied a request that her resignation be set aside and that she be granted an extension of her education leave. The superintendent stated that he met with plaintiff as a courtesy but that the formal grievance procedure provided for in the collective bargaining agreement was not available to her because she was no longer an employee. Plaintiff’s subsequent request for arbitration was denied by the district, which asserted that she could not use the grievance procedure without the union. Plaintiff then asked that the union reconsider submitting her grievance to arbitration; in February 1985 the union refused.

In July 1985, some 10 months after her resignation, plaintiff commenced the present action for reinstatement and other relief, alleging that the district had treated her inequitably based on her gender, in violation of the collective bargaining agreement as well as State and Federal laws, and that she had in effect been forced to resign, or had been constructively discharged. That matter is not now before us. She also asserted a cause of action against the union for breach of its duty of fair representation, claiming that the union’s refusal to pursue the grievance on her behalf was arbitrary, capricious and in bad faith as it had not investigated her claims, had not contacted any witness concerning the circumstances of her case, and had never even contacted her for any information. The complaint further charged that the union’s refusal to reconsider its decision was similarly arbitrary, capricious and in bad faith because the union had failed to consult her or her attorney and did not consult its own attorney regarding the merits of her grievance and her right to union representation. That is the matter now before us.

The union sought dismissal of the fair representation cause of action on three grounds: first, that it was untimely, having been commenced more than six months after accrual; second, that the complaint did not state a cause of action in that, upon her resignation, plaintiff ceased to be a member of the bargaining unit entitled to representation; and third, that plaintiff failed to exhaust contractual and internal union remedies. Special Term denied the motion but the Appellate Division reversed, concluding that the applicable limitations period for a cause of action for breach of a duty of fair representation by a public sector union is the Federal six-month period for filing an unfair labor practice against a private employer (DelCostello v Teamsters, 462 US 151), and that any duty to represent plaintiff ceased when she resigned (123 AD2d 500). The court did not address the alleged failure to exhaust remedies.

We now reverse and deny the union’s motion to dismiss the complaint as against it.

Statute of Limitations

The rights and obligations of public sector employees and unions are governed by article 14 of the Civil Service Law, known as the Taylor Law (Civil Service Law § 200 et seq.). Neither the Taylor Law nor the CPLR prescribes a Statute of Limitations applicable to actions for a union’s breach of duty of fair representation. This appeal requires us to identify the period.

In DelCostello, the Supreme Court held that the six-month Statute of Limitations for bringing unfair labor practice charges before the National Labor Relations Board, contained in section 10 (b) of the National Labor Relations Act (the NLRA) (29 USC § 160 [b]), governs suits by private employees against unions for breach of the duty of fair representation and against private employers for breach of collective bargaining agreements. The union argues that DelCostello compels us to apply the same limitations period to fair representation actions by public employees. In the alternative, the union urges that we apply the 90-day period provided in CPLR 7511 (a) for proceedings to vacate arbitration awards or the four-month limitations period established by the Public Employment Relations Board (PERB) for bringing unfair labor practice charges before PERB (see, Civil Service Law § 205 [5] [d]; § 209-a; 4 NYCRR 204.1 [a] [1]).

We conclude that the Federal statute applied in DelCostello cannot govern this action under State law, and that— until the Legislature acts to impose a limitations period — the six-year statute (CPLR 213 [1]) must be applied.

The duty of fair representation may be traced to Federal law, where it arose as an implied cause of action under the scheme of the NLRA (DelCostello v Teamsters, 462 US, at 164, supra; Matter of Civil Serv. Bar Assn. v City of New York, 64 NY2d 188, 195-196). In determining the Statute of Limitations for such claims, the Supreme Court faced a familiar problem in Federal civil law: the law provided no Statute of Limitations for this cause of action, so the court had to borrow one elsewhere. While the court might ordinarily have selected the most closely analogous Statute of Limitations under State law, in DelCostello it determined that available State provisions were unsatisfactory and that implementation of Federal policy required application of a rule drawn from Federal law (462 US, at 166-169, supra). The court chose the limitations period set forth in the NLRA for making unfair practice charges to the National Labor Relations Board, reasoning that it had been designed with an eye to balancing the same Federal interests that were at issue in fair representation cases (462 US, at 169, supra).

Our determination must have a different focus because the fair representation cause of action against public sector unions has a different source. The State and its political subdivisions are explicitly excluded from the definition of employer contained in the NLRA (29 USC § 152 [2]); that statute does not govern public sector unions or their members. Instead, the relationship among public employers, public employees and public employee organizations in New York State is governed by New York State’s Taylor Law. In applying the section of the statute regarding improper employer and union practices, the Taylor Law provides that the "fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent.” (Civil Service Law § 209-a [3]; see also, Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50.) The Taylor Law establishes the scheme by which certified unions are recognized as the exclusive bargaining agents for their members (Civil Service Law § 204). This statutory role is the basis for the implied cause of action in favor of public employees against their unions for breach of the duty to represent all members fairly (Matter of Civil Serv. Bar Assn. v City of New York, 64 NY2d 188, 196, supra).

When DelCostello is applied to actions by private employees against their employers or unions for violations of obligations established under the NLRA, this is a simple matter of applying Federal limitations periods to Federal causes of action. But in article 2 of the CPLR the State Legislature has established time limitations for causes of action arising under State law, including even a catch-all provision to be applied when no other period has been specifically prescribed by law (CPLR 213 [1]). "The Statute of Limitations has been changed from time to time in New York in response to current needs and expectations in society and has been peculiarly a subject of legislative solicitude.” (Cubito v Kreisberg, 69 AD2d 738, 746, affd for reasons stated in opn of Hopkins, J., 51 NY2d 900; see also, 1 Weinstein-Korn-Miller, NY Civ Prac fl 201.01 ["Statutes of limitation are essentially creatures of the legislative rather than of the judicial process.”].) We therefore must look to the limitations periods prescribed by the Legislature and select the one that best fits the character of an action for breach of the duty of fair representation under State law.

The options proposed by the union — the 90-day limit for a proceeding to vacate an arbitration award (CPLR 7511 [a]) and the four-month period established by PERB for filing unfair practices claims (4 NYCRR 204.1 [a] [1]) — are not suitable. In an action to vacate an arbitration award, the grievance has already "run its full course, culminating in a formal award by a neutral arbitrator” (DelCostello v Teamsters, 462 US, at 166, n 16, supra); this is scarcely parallel to an action for arbitrary refusal to take a grievance to arbitration in the first instance, where it is necessary to make investigation, evaluate responses, retain counsel and frame a complaint (id.). Unlike the statutory six-month period chosen by the Supreme Court in DelCostello, the four-month period found in the PERB regulation is of course not a period that has been fixed by the State Legislature for the preclusion of court actions. When a four-month limitation has been prescribed by statute for particular proceedings — as in CPLR 217 — it has been upon the Legislature’s determination that there are strong policy considerations supporting such a truncated period, vital for the conduct of certain kinds of governmental affairs (Solnick v Whalen, 49 NY2d 224, 232).

Plaintiff urges that the closest analogy to an action for breach of the duty of fair representation is a claim for legal malpractice, since both challenge the adequacy of representation in circumstances requiring specialized knowledge and advocacy skills. Based on Video Corp. v Flatto Assocs. (58 NY2d 1026) and Sears, Roebuck & Co. v Enco Assocs. (43 NY2d 389), plaintiff would then have us apply the six-year Statute of Limitations for contract actions (CPLR 213 [2]), instead of the three-year statute for malpractice actions (CPLR 214 [6]), reasoning that ultimately the rights and obligations as established by the collective bargaining agreement between the union (as exclusive representative of the employees) and the district are at the root of the issues raised against the union in this action. In our view, this analogy also is flawed (see, United Parcel Serv. v Mitchell, 451 US 56; see also, DelCostello v Teamsters, 462 US, at 165, supra), but we are nonetheless led to the result urged by plaintiff — a six-year limitations period — because this is the period the Legislature has prescribed for "an action for which no limitation is specifically prescribed by law”. (CPLR 213 [1].)

We recognize that application of the six-year period results in great disparity between similar claims of public and private employees, and also that it runs counter to other policy considerations. It is obviously desirable that labor disputes be resolved expeditiously. As has been noted in the private union context, the grievance and arbitration procedure often involves interpretation of the collective bargaining agreement and fundamentally affects the relationship between the employer and the union; the system can become unworkable if these interpretations may be called into question years later (see, DelCostello v Teamsters, 462 US, at 169, supra; United Parcel Serv. v Mitchell, 451 US 56, 63-64, supra). Whether or not identical considerations prevail in a member’s fair representation claims against a public sector union, there is surely an equivalent interest in the prompt disposition of grievances. In deciding the case before us, we invite the Legislature to address the issue and fix a more suitable Statute of Limitations — one that balances the private interest of employees in prosecuting their grievances and the public interest in the expeditious resolution of public sector labor disputes.

Duty of Fair Representation

While various contentions are advanced regarding the scope of the duty of fair representation, only a narrow facet of this issue is before us. In its dismissal motion the union did not challenge the complaint on the basis that the conduct alleged fails to state a cause of action for breach of the duty of fair representation, and we do not reach that issue. The union by its motion contested only its continuing duty to represent plaintiff after her resignation. As the court below concluded: "there is no duty to represent someone who is not a member of a union * * * Since plaintiff ceased to be a regular employee when she resigned effective September 4, 1984, the Union had no duty to represent her with respect to her grievance filed a month after her resignation, (see, Smith v Sipe, 67 NY2d 928).” (123 AD2d 500, 501-502, supra.) We disagree.

Initially, it is plain both that the union’s duty extends beyond actual union members — the collective bargaining agreement itself speaks of "unit members” as those regularly employed by the district (see also, Civil Service Law § 203)— and that Smith v Sipe (67 NY2d 928, supra) did not address the status issue that now confronts us. While the dissent of Presiding Justice Mahoney, adopted by this court, indeed speaks of a union’s duty to fairly represent its "members” (109 AD2d 1034, 1036), the issue in that case was whether mere acts of negligence might constitute a breach of the duty of fair representation; the person to whom such a duty runs was not considered.

An employer cannot extinguish an employee’s rights under a collective bargaining agreement by simply terminating the employment; nor would a wrongful discharge — which is premised on a breach of agreement occurring during employment, while the individual was a member of the bargaining unit— automatically sever the union’s duty of fair representation arising from its role as exclusive bargaining agent. A cause of action can be and commonly is, brought after termination, premised on breach of the collective bargaining agreement or breach of the duty of fair representation during employment. (See, e.g., DelCostello v Teamsters, 462 US 151, supra; Vaca v Sipes, 386 US 171; Gosper v Fancher, 49 AD2d 674, affd 40 NY2d 867, cert denied 430 US 915; Ferri v Public Employees Fedn., 92 AD2d 1054; Jackson v Regional Tr. Serv., 54 AD2d 305.) The fact that employment has terminated, in such instances, cannot absolve the labor organization of its responsibilities under the collective bargaining agreement and the law.

While plaintiff indeed filed her alleged grievance only after she had resigned, she was nonetheless a regular employee and thus a member of the bargaining unit at the time her grievance arose, and she has charged that breach of the collective bargaining agreement forced her resignation and amounted to a constructive discharge. Viewing plaintiff’s assertions in her favor as we must on this dismissal motion, and without reaching the question whether there is any merit in plaintiff’s claim, it appears that plaintiff’s status is not materially different from that of an employee who claims he or she was actually fired in violation of the collective bargaining agreement. As in the case of a wrongful discharge, plaintiff’s status as a former employee here does not divest her of the right to maintain an action for breach of the duty of fair representation during her employment.

The third ground of the dismissal motion — that the action against the union must be dismissed because plaintiff failed to exhaust contractual and union remedies — is fully answered by the record of plaintiff’s efforts to present her claim in accordance with the three-stage grievance procedure provided in the collective bargaining agreement. In light of this record, the allegation of the complaint that she merely "attempted to” file a grievance cannot be regarded as a fatal deficiency (see, Credit Alliance Corp. v Andersen & Co., 65 NY2d 536, 541, n 1; Rovello v Orofino Realty Co., 40 NY2d 633).

Accordingly, the Appellate Division order should be reversed, with costs, and the motion of defendant West Irondequoit Teachers Association to dismiss the complaint as against it denied.

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

Order reversed, etc.

      . As the union points out in its brief, resolution of the issue as to the union could also determine the applicable limitations period as against the employer. Additionally, in light of our holding, we need not determine when plaintiiFs cause of action accrued — whether upon exhaustion of the grievance procedures or upon the union’s first notification that it would proceed no further on her behalf. If the Legislature were to fix the appropriate Statute of Limitations, it might further choose to settle the interrelated issue of accrual date (see, e.g., CPLR 217).

      . We therefore do not consider the contention first raised on this appeal that the union’s rejection of plaintiiFs grievance is at most a mere mistake in contract interpretation, which does not rise to the level of violation of the duty of fair representation (see, Smith v Sipe, 67 NY2d 928).


text:
    41 Kew Gardens Road Associates et al., Respondents, v Stanley Tyburski, as Assessor-in-Charge of Queens County, et al., Appellants.
    Argued September 1,1987;
    decided October 13, 1987

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Jeffrey E. Glen and
      Reed G. Schneider of counsel), for appellants.

      Charles G. Moerdler, Jay R. Fialkoff, Amy S. Klein and Pat

      S. Conti for respondents.
   OPINION OF THE COURT

Bellacosa, J.

In this declaratory judgment action, we conclude that New York City’s Local Law No. 63 of 1986 (Administrative Code of City of New York § 11-208.1), which requires owners of income-producing property in New York City to furnish income and expense statements to the Commissioner of Finance in preparation for real property assessment, is constitutional on its face and a valid exercise of the City’s home rule power. The order of the Appellate Division should be reversed and the City’s cross motion for summary judgment granted, declaring Local Law No. 63 constitutional.

Shortly after the ordinance was reenacted in December 1986, respondents, a group of real property owners and real estate industry trade associations, instituted this action. They moved for a preliminary injunction enjoining the enforcement of the local law; the City cross-moved for summary judgment declaring the local law valid and dismissing the complaint; and, during oral argument on those motions, respondents added their own cross motion for summary judgment. The trial court granted summary judgment to respondents and invalidated the ordinance and the Appellate Division affirmed on the opinion of the lower court (133 AD2d 67).

New York City is a "special assessing unit” within which all real property is divided into four classes (Real Property Tax Law § 1802 [1]), each to be assessed at the same percentage of full value (RPTL 305 [2]). To comply with these State-wide mandates of the Real Property Tax Law, cities calculate real property taxes by determining the full value of each parcel, fixing the ratio of full value to assessed value in each class, and, finally, applying a uniform tax rate for each class of property to the assessed value producing the tax due (see generally, Foss v City of Rochester, 65 NY2d 247, 254-256).

Inasmuch as the accurate determination of the full value of the property to be taxed is the starting point for the assessor’s calculations, that foundation is critical to whatever formula or methodology is employed for ultimately arriving at the tax due. State law does not dictate a particular formula for determining the threshold of full value (Matter of Merrick Holding Corp. v Board of Assessors, 45 NY2d 538; G.R.F., Inc. v Board of Assessors, 41 NY2d 512). Three methods have become generally accepted: (1) sales analysis and comparison, also known as the market value approach and the most commonly used method; (2) income capitalization; and (3) replacement cost (Matter of Merrick Holding Corp. v Board of Assessors, 45 NY2d 538, supra; Matter of City of New York [Salvation Army], 43 NY2d 512; Matter of Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d 236, 240). The income capitalization approach is generally regarded as the preferred method for determining the value of income-producing property, which is what is at issue in this case (1 Bonbright, Valuation of Property, at 216; see also, Matter of Merrick Holding Corp. v Board of Assessors, 45 NY2d 538, supra). Understandably, the income capitalization method can be effective only with thorough data, including accurate actual income and operating expenses of the subject properties.

In June 1986, New York City enacted a predecessor local law numbered 24 in order to formalize the procedure for acquiring such data. That law was invalidated, however, on the ground that a misprint in the City Record had caused improper notice to be given of the public hearing before the Mayor (41 Kew Gardens Rd. Assocs. v Tyburski, 124 AD2d 553 [2d Dept], lv denied 68 NY2d 612 [1986]). With minor modifications, that precursor was reenacted in December 1986 as Local Law No. 63 and is the subject of the instant proceeding.

Local Law No. 663 provides that, with certain exceptions, owners of income-producing property in New York City must file a statement of "all income derived from and all expenses attributable to the operation of such property” (Administrative Code § 11-208.1 [a]). Statements reflecting the previous calendar year’s income and expenses were to filed by September 1, but the Commissioner of Finance could extend the date by 30 days (Administrative Code § 11-208.1 [a] [4]). (This court, in effect, stayed the effective date of this legislation by vacating the statutory stay inuring to the benefit of the City on its appeal from the lower courts’ invalidation of Local Law No. 63.) The law further exempts groups of small property owners from the filing requirement: (1) those whose property is assessed at $40,000 or less; (2) those who own residential property containing 10 or fewer dwelling units; and (3) those who own a property in class one or two, as defined by RPTL 1802, which contains six or fewer dwelling units and one retail store (Administrative Code § 11-208.1 [e]). Failure to file in the first instance is punishable by a fine of up to 3% of the property’s assessed value for the current year. Failure to file by a deferred date can result in a higher penalty of up to 4% of the assessed value; if the required statement is not filed for a second consecutive year, the penalty may reach as high as 5% (Administrative Code § 11-208.1 [d] [1]). A penalty can be imposed only after a property owner has had an opportunity to be heard (Administrative Code § 11-208.1 [d] [1]).

In addition to these penalty provisions, the City Finance Commissioner is given other enforcement tools. If a required statement is not timely filed, the Commissioner can seek a court order compelling production of the statement. At its option, the Commissioner also can subpoena relevant books and records concerning the property’s income and operating expenses (Administrative Code § 11-208.1 [d] [3]). A property owner who does not file a timely statement may be precluded, under the terms of the local law, from using the City’s Tax Commission’s administrative review procedure (Administrative Code § 11-208.1 [d] [2]).

Concern has also been expressed throughout the court challenges to this local law, including during the City Council’s consideration of this legislation, as to whether and to what extent the Council could or should provide for the confidentiality or nondisclosure of the filed statements. The local law contains a provision stating that it is unlawful for the Commissioner of Finance or the Tax Commission to reveal any statement "[e]xcept in accordance with proper judicial order or as otherwise provided by law” (Administrative Code § 11-208.1 [f|).

Our analysis starts with the proposition that the State Constitution grants powers to municipalities by self-executing grants, which require no further State legislative implementation (e.g., NY Const, art IX, § 1), and by indirect grants which require further legislation before a municipality may act (e.g., NY Const, art IX, § 2). While the power to tax is vested solely in the State Legislature (NY Const, art III, § 1; art XVI, § 1), the Legislature has delegated to its municipal subdivisions the authority for them to assess and collect their own authorized taxes. Article IX, § 2 (c) (ii) (8) of the State Constitution expressly empowers cities to adopt and amend local laws including, but not limited to, the collection and administration of local taxes as authorized by the Legislature. Municipal Home Rule Law § 10 (1) (ii) (c) (2) is directly derived from this constitutional provision and it expressly grants to the City the authority to adopt local laws relating to "[t]he preparation, making, confirmation and correction of assessments”. The City’s authority to adopt a local law relating to the "preparation or making of assessments” may not be exercised in a manner inconsistent with the Constitution or any general law of the State (see, Consolidated Edison v Town of Red Hook, 60 NY2d 99, 105).

Next, a duly enacted local law is clothed with the presumption of constitutionality that applies to State legislative enactments (Lighthouse Shores v Town of Islip, 41 NY2d 7, 11-12). This is especially pertinent and cogent in the area of taxation where special deference is given to legislative policy choices (Trump v Chu, 65 NY2d 20, 25; Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529, 535; Shapiro v City of New York, 32 NY2d 96, 103, appeal dismissed 414 US 804). Defeating this presumption places a heavy burden, at the threshold, on the party challenging the local law (Lighthouse Shores v Town of Islip, 41 NY2d 7, supra) to prove inconsistency with the State Constitution or general laws of the State.

The property owners’ efforts in that regard, as gleaned from their complaint and as presented by the record and arguments in the various courts, may be condensed for our present purposes as follows: the City exceeded its limited authority to legislate in the area of real property tax assessment because Local Law No. 63 is vague, inconsistent with State law as an' unequal protection of law and as a discriminatory classification among real property owners; the State Legislature’s repeated refusal to enact specific legislation, sought by the City, demonstrated its intent that the City should not have the particular power exercised in this case; the purported confidentiality protection is illusory and in violation of the property owners’ constitutionally protected privacy rights; the subpoena power conferred by the local law is invalid and in conflict with State law and the Federal Constitution; and the penalty and limitation-on-administrative-review procedures violate due process rights.

The City’s central contention, with which we agree based on the plain language of the State statutory authorization and its implementation in Local Law No. 63, is that the home rule provision (Municipal Home Rule Law § 10 [1] [ii] [c] [2]) supplies the express authority to enact Local Law No. 63 because the filing of income and expense statements relates essentially to the "preparation of assessments”.

The pertinent response of the property owners is that the filing requirement is far more than just the "preparation of assessments”. They urge that the City’s enactment is an exercise of impermissible in personam taxing jurisdiction over individual property owners and is inconsistent with the so-called in rem nature of the real property tax as defined by the State Legislature (see, RPTL 304). It is in this particular respect among others, they argue, that the City exceeded its authority by enacting this local law. Their construction, however, is not persuasive because Local Law No. 63, by its terms, requires the filing of information related solely to the operation of the income-producing property. No distinctly "personal” financial information is required of anyone. To the extent that the data overlap or partake of some personal attributes, that is incidental to and inherent in the legitimate acquisition of information about the property itself.

Notably, these data are of the type customarily required of real property taxpayers as a prerequisite to certiorari challenges to reduce assessments and taxes in particularized instances (see, NY City Charter § 163 [e]; §§ 164-a, 164-b; Matter of 749 Broadway Realty Corp. v Boyland, 1 Misc 2d 575, affd 1 AD2d 819, affd 3 NY2d 737; see also, 22 NYCRR 202.60 [c]). What the City is doing, in part and in effect, is generalizing and advancing that process, accomplishing an evenhandedness among all similarly situated taxpayers while improving the accuracy of its assessment preparation process.

The filing requirement of this local law does not relieve a municipality, as an assessor, from its statutorily imposed nondelegable duty of determining the value of the property to be taxed, nor on its face does it unfairly or inappropriately shift the burden of doing so to the real property taxpayer. The required information serves instead to assist the assessor in the valuation process and in the preparation of the assessment, according to prescribed law and procedure. We have no occasion here to pass on infringements in cost or otherwise which may wrongly burden a taxpayer, because this local law by its terms goes no farther than requiring the filing of otherwise available income and expense data.

The property owners’ further contention that the City’s enactment conflicts with Real Property Tax Law § 1802 fails because article 18 of the Real Property Tax Law deals exclusively with methods of assessment and, as has been pointed out, Local Law No. 63 deals with preassessment valuation information. While Local Law No. 63 does create new and different classes, those classifications are drawn for purposes of gathering distinctive, productive information related to the valuation process and not directly for the assessment itself, as the property owners claim. There is no conflict between the two enactments; rather, they complement one another. Indeed, Parker 86th Assocs. v City of New York (93 AD2d 388, affd 59 NY2d 986), supports the City’s position in this regard because there we upheld a local law directing owners of property with a value in excess of $30,000 to pay taxes in two rather than four installments. In response to the claim that the law was inconsistent with the classification scheme of RPTL article 18, the courts concluded that the local law’s classifications were created for purposes of collection — not assessment — and that there was no conflict between the two. In this case, Local Law No. 63 distinguishes between relatively larger and smaller properties for purposes of the preparation of assessments — not for purposes of the actual assessment.

Another aspect of the authority-to-enact issue warrants passing comment. The property owners argued strongly that there could be no implied authority for the City to act because of the State Legislature’s failure, after many years of effort by the City, to enact express authorizing legislation (cf., CPC Intl. v McKesson Corp., 70 NY2d 268; Matter of Knight-Ridder Broadcasting v Greenberg; 70 NY2d 151; Matter of Bliss v Bliss, 66 NY2d 382). This contention is neither persuasive nor pertinent because, as we have noted, it is the independent, express municipal home rule authority from which Local Law No. 63 derives its efficacy.

We turn now to the property owners’ broad contention that the local ordinance is inconsistent with the State Constitution on equal protection grounds. We reject this argument for the same reason that it fails on the asserted inconsistencies with article 18 of the RPTL. While Local Law No. 63 distinguishes between taxpayers based on the size or value of the property, that does not per se render an enactment unconstitutional unless there is no rational basis for the classifications (Trump v Chu, 65 NY2d 20,supra). As with the general presumption of constitutionality, the rational basis prerequisite presents a heavy burden to those challenging the legislation (id.; Maresca v Cuomo, 64 NY2d 242, 250). In contravention to this assertion of the property owners, the City advances several particular justifications for exempting and thus distinguishing smaller property owners from the filing requirements. First, in terms of potential revenue, the City shows that exempt properties produce a relatively small amount of the City’s tax revenue, while the properties covered by the local law comprise 20% of all income-producing properties and account for about 60% of all taxes attributable to those properties. Second, to require income and expense statements from small property owners would be, as the City argues, a vain exercise because there would be little increase in tax revenues based on overriding State law limitations — the fixed, limited amount that assessments can be increased regardless of increase in value (see, RPTL 1805 [1], [2]). The properties covered by Local Law No. 63, on the other hand, are not subject to similar caps on assessment (RPTL 1805 [3]), a statutory distinction which itself provides a rational predicate for the distinctions drawn in the local law. Finally, there is support for the City’s assertion that the unnecessary and unfruitful burdens of preparing income and expense statements would also be disproportionately heavier for owners of the smaller exempted properties than it is for the relatively larger property owners covered by Local Law No. 63, a traditionally valid classification distinction in tax law (Trump v Chu, 65 NY2d 20, 27, supra).

Local Law No. 63 is not unconstitutionally vague; it might more aptly be described as all too definitive. Moreover, "[d]ue process requires only a reasonable degree of certainty so that individuals of ordinary intelligence are not forced to guess at the meaning of statutory terms”. (Foss v City of Rochester, 65 NY2d 247, 253, supra.) Here that standard is satisfied because the disputed terms (e.g., "income”, "expense”, "assessed value” and "current fiscal year”) are defined by judicial construction or are commonly used in other statutes without further definition (see, e.g., id.; SCPA 1704 [4]; State Finance Law § 98-a; Abandoned Property Law § 214; Not-for-Profit Corporation Law § 202 [b]; 22 NYCRR 202.60 [c]; Administrative Code § 11-208.1 [e]).

We hold that Local Law No. 63 is facially valid. Thus, no inferences should be drawn concerning the validity of the implementation and application of the several enforcement mechanisms of this ordinance because it would be premature to speculate on the outcome of any appropriate proceedings instituted to challenge and to review penalties, or other enforcement mechanisms, including entitlement to administrative procedural safeguards, which are distinct and sever-able from the core filing requirement itself (see, Local Laws, 1986, No. 63 of City of New York, § 5).

Similarly, the issue of whether the data from the filings may be made available to third parties is premature. The local law itself in conjunction with existing State law provide independent procedures and protections within which privacy claims can be adjudicated (see, Public Officers Law §§ 87, 89).

Finally, the property owners’ contention that certain letters mailed to property owners constituted official "rules and regulations” and as such were not properly promulgated pursuant to New York City Charter § 1105 is without merit. The letters did not create any new exemption or requirements. They merely informed non-"income-producing” property owners that they need not file a statement under Local Law No. 63.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the City’s cross motion for summary judgment declaring Local Law No. 63 constitutional should be granted.

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

Order reversed, etc.


author: Per Curiam.

text:
    Ralph Diamond et al., Appellants-Respondents, v Mario Cuomo, as Governor of the State of New York, et al., Respondents, and Westchester County Board of Elections, Respondent-Appellant.
    Argued October 12, 1987;
    decided October 15, 1987

      POINTS OF COUNSEL

      Joseph O. Giaimo for appellants-respondents.

      Robert Abrams, Attorney-General (Lawrence S. Kahn, O. Peter Sherwood and Arnold D. Fleischer of counsel), for Mario Cuomo and others, respondents.

      Michael Colodner, John Eiseman and Ann T. Pfau for Albert M. Rosenblatt and another, respondents.

      Henry J. Logan, County Attorney (Frank Marocco and Ken

      neth E. Powell of counsel), for respondent-appellant.

      Joseph F. Gagliardi pro se, amicus curiae.

   OPINION OF THE COURT

Per Curiam.

This action, instituted by various State Judges, seeks a declaration that article VI, § 25 (b) of the State Constitution and section 23 of the Judiciary Law, which require retirement of Judges and Justices of the Unified Court System at age 70, are unconstitutional as applied to them. We rejected similar claims in 1984 declaring the challenged provisions constitutional in Maresca v Cuomo (64 NY2d 242, appeal dismissed 474 US 802). Since then, however, Congress has amended the Age Discrimination in Employment Act (29 USC § 623) to prohibit discrimination in employment based on age, against persons age 70 and above. In interpreting that statute, as it applies to State judicial officers, the Administrative Board determined that the statutory protection required that appointed Judges be allowed to continue to the end of their appointive terms, notwithstanding their age, but that elected Judges must retire at age 70 because the Federal statute, by its terms, did not apply to elected State officers (29 USC § 630 mi

It is plaintiffs’ contention that in view of the Federal statute and the Administrative Board’s interpretation of it, the preexisting provisions of the Constitution and the Judiciary Law deny them their constitutional right to due process and equal protection of the laws. They concede that the Federal statute must be applied to State employees under the Supremacy Clause of the United States Constitution (US Const, art VI, cl 2) and they make no attempt to challenge its constitutionality. They contend, however, that their constitutional rights have been abridged because of the operation of the Federal statute, as interpreted by the Administrative Board, on the State constitutional and statutory provisions.

We answered plaintiffs’ due process concerns in Maresca v Cuomo (supra) and see no occasion to reconsider those matters here.

With respect to their equal protection claim, we hold first that age is not a suspect class and therefore the appropriate standard of review is whether the classifications created are rationally related to some State interest. Applying that standard, we agree with the majority at the Appellate Division that the Administrative Board did not err in applying the Federal statute as written, nor does any denial of plaintiffs’ rights to equal protection of the laws result from the joint operation of the State and Federal statutes and the State constitutional provision.

In Maresca we noted various grounds for mandating retirement of Judges at the age of 70 which established the rationality of New York’s system for choosing and retiring Judges. Those reasons remain valid notwithstanding the effect of the Federal statute. That the State policy requiring retirement of Judges is partially frustrated because the Federal statute preempts it with respect to appointed Judges does not render the policy irrational and the State is free to pursue that policy to the extent doing so is consistent with Federal law. While certain anomalies appear as the result of the unrelated provisions of the Federal statute and the State provisions, such anomalies in judicial classifications are not unusual given the diversity of the State and its population, and have been upheld (see, e.g., Cass v State of New York, 58 NY2d 460). As we noted in Maresca, "for the repeal of such provisions, appeal lies to the ballot and to the legislative processes of democratic government, not to the courts” (id., at 249, citing Noble State Bank v Haskell, 219 US 575, 580 [Holmes, J.]; United States v Butler, 297 US 1, 79 [Stone, J., dissenting]).

One of the plaintiffs is a certificated Supreme Court Justice. The Administrative Board determined that such Justices hold office by reason of their election to the Supreme Court, that they are exempt from the provisions of the Federal statute, and that their tenure is limited by Judiciary Law § 115. We find no error with that interpretation and no merit to the claim that such Justices’ constitutional rights have been abridged because they have been held elected, not appointed, officers who are exempt from the provisions of the Federal statute.

Accordingly, the order of the Appellate Division should be affirmed and the cross appeal of the Westchester County Board of Elections should be dismissed as academic, all without costs.

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

Order affirmed, etc.