author: Jasen, J. Fuchsberg, J. Wachtler, J. Gabrielli, J.

text:
    Dolores E. Becker et al., Respondents, v Eugene D. Schwartz et al., Appellants. Steven M. Park et al., Individually and as Administrators of the Estate of Lara E. Park, an Infant, Deceased, Respondents-Appellants, v Herbert Chessin et al., Appellants-Respondents.
    Submitted November 27, 1978;
    decided December 27, 1978

      POINTS OF COUNSEL

      Norman Bard, Joseph T. Mirabel and Walter F. Wortman for appellants in the first above-entitled action.
    I. A cause of action for wrongful life, unknown to the common law, is legally insufficient because of public policy and the lack of standards to measure damages. The creation of such a cause of action should be left for the Legislature. (Greenberg v Kliot, 47 AD2d 765, 37 NY2d 707; Johnson v Yeshiva Univ., 53 AD2d 523, 42 NY2d 818; Karlsons v Guerinot, 57 AD2d 73; Stewart v Long Is. Coll. Hosp., 35 AD2d 531, 30 NY2d 695; Williams v State of New York, 18 NY2d 481.) II. The parents’ cause of action for damages for rearing an unwanted child is not cognizable at law. (Ziemba v Sternberg, 45 AD2d 230; Chapman v Schultz, 47 AD2d 806; Debora S. v Sapega, 56 AD2d 841.)

      John Anthony Bonina for respondents in the first above-entitled action.
    I. There is ample existing authority to sustain respondents’ third cause of action. (Howard v Lecher, 42 NY2d 109; Ziemba v Sternberg, 45 AD2d 230; Stewart v Long Is. Coll. Hosp., 35 AD2d 531, 30 NY2d 695; Roe v Wade, 410 US 113; Chapman v Schultz, 47 AD2d 806; Debora S. v Sapega, 56 AD2d 841; Cox v Stratton, 77 Misc 2d 155.) II. The fourth cause of action at bar which is one for "wrongful life” or, more accurately, "wrongful birth”, ought to be sustained based on the precise allegations of the instant complaint. (Williams v State of New York, 18 NY2d 481; Stewart v Long Is. Coll. Hosp., 35 AD2d 531, 30 NY2d 695; Roe v Wade, 410 US 113; Cohn v Lionel Corp., 21 NY2d 559; Kober v Kober, 16 NY2d 191; Dulberg v Mock, 1 NY2d 54; Howard Stores Corp. v Pope, 1 NY2d 110.) III. The learned court below erred in restricting the first and second causes of action. (Karlsons v Guerinot, 57 AD2d 73; Howard v Lecher, 42 NY2d 109; Tobin v Grossman, 24 NY2d 609; Battalia v State of New York, 10 NY2d 237.)

      Richard A. Young, Stephen J. Pribula and Anthony M. Sola for appellants-respondents in the second above-entitled action.
    I. There is no cause of action for wrongful life. (Stewart v Long Is. Coll. Hosp., 35 AD2d 531, 30 NY2d 695; Williams v State of New York, 25 AD2d 907, 18 NY2d 481; Kelly v Gregory, 282 App Div 542, 283 App Div 914; Endresz v Friedberg, 24 NY2d 478; Woods v Lancet, 303 NY 349; Pulka v Edelman, 40 NY2d 781; Howard v Lecher, 42 NY2d 109; Jorgensen v Meade Johnson Labs., 483 F2d 237.) II. Since the infant plaintiff has no cause of action, the father’s derivative action must be dismissed. (Gilbert v Stanton Brewery, 295 NY 270; Karlsons v Guerinot, 57 AD2d 73; Clough v Board of Educ., 56 AD2d 233; Kotary v Spencer Speedway, 47 AD2d 127; OHearn v O'Hearn, 55 AD2d 766; Reilly v Rawleigh, 245 App Div 190.) III. The parents do not have a cause of action for the pregnancy, deemed unwanted in retrospect. (Stewart v Long Is. Coll. Hosp., 35 AD2d 531, 30 NY2d 695; Williams v State of New York, 18 NY2d 481; Maxson v Tomek, 244 App Div 604.) IV. There is no cause of action by the parents for any loss based on mental anguish or emotional distress.

      Gerald L. Gould for respondents-appellants in the second above-entitled action.
    I. The court below was correct in upholding the causes of action for the parents and for the infant. (Jorgensen v Meade Johnson Labs., 483 F2d 237.) II. There is no valid reason why emotional distress of the parents resulting from birth of a hopelessly defective child and caring for this child should not be compensable when it properly should have been avoided. (Battalia v State of New York, 10 NY2d 237; Endresz v Friedherg, 24 NY2d 478.)
   OPINION OF THE COURT

Jasen, J.

From its earliest days, the common law steadfastly clung to the notion that "in civil court the death of a human being could not be complained of as an injury.” (Baker v Bolton, 1 Camp 493, 170 Eng Rep 1033 [KB, 1808].) Judicial hesitance to chart a novel course beyond the safe harbors afforded by prevailing legal theory, particularly the principle that a tort died with its victim (Huggins v Butcher, 1 Brown & Gold 205, 123 Eng Rep 756 [CP, 1607]), spurred legislative recognition of the cause of action since known as "wrongful death”. (See, generally, Prosser, Torts [4th ed], § 127.) Ironically, in the relatively brief period since the enactment of the first wrongful death statute (Fatal Accidents Act, 1846, 9 & 10 Viet, ch 93), evolving legal theory has come full cycle. Although no longer shackled by the conceptual difficulties formerly posed by a "wrongful death” action, courts have again been drawn toward the murky waters at the periphery of existing legal theory to test the validity of a cause of action for what has been genetically termed "wrongful life”.

In Becker v Schwartz, Dolores Becker, then 37 years of age, conceived a child in September, 1974. After Dolores and her husband, Arnold Becker, learned of the pregnancy in October, they engaged the services of defendants, specialists in the field of obstetrics and gynecology. Thereafter, from approximately the tenth week of pregnancy until the birth of their child, Dolores Becker remained under defendants’ exclusive care. Tragically, on May 10, 1975, Dolores Becker gave birth to a retarded and brain-damaged infant who suffers, and will continue to suffer for the remainder of her life, from Down’s Syndrome, commonly known as mongolism.

It is plaintiffs’ contention that throughout the period during which Dolores Becker was under the care of defendants plaintiffs were never advised by defendants of the increased risk of Down’s Syndrome in children born to women over 35 years of age. Nor were they advised, allege plaintiffs, of the availability of an amniocentesis test to determine whether the fetus carried by Dolores Becker would be born afflicted with Down’s Syndrome.

Plaintiffs commenced this action seeking damages on behalf of the infant for "wrongful life”, and, in their own right, for the various sums of money they will be forced to expend for the long-term institutional care of their retarded child. Plaintiffs’ complaint also seeks damages for the emotional and physical injury suffered by Dolores Becker as a result of the birth of her child, as well as damages for the injury suffered by Arnold Becker occasioned by the loss of his wife’s services and the medical expenses stemming from her treatment.

Upon motion by defendants, Special Term dismissed plaintiffs’ complaint in its entirety as failing to state a cause of action. The Appellate Division modified the order of Special Term, however, sustaining plaintiffs’ complaint except to the extent that it seeks recovery of damages "for psychiatric injuries or emotional distress of plaintiff Dolores E. Becker and to the extent that plaintiff Arnold Becker’s claim for loss of services and medical expenses is based upon such psychiatric injuries”. (60 AD2d 587.) Defendants now appeal to this court on a certified question.

In the companion case, Park v Chessin, Hetty Park gave birth in June, .1969 to a baby who, afflicted with polycystic kidney disease, died only five hours after birth. Concerned with a possible reoccurrence of this disease in a child conceived in the future, Hetty Park and her husband, Steven Park, consulted defendants, the obstetricians who treated Hetty Park during her first pregnancy, to determine the likelihood of this contingency. In response to plaintiffs’ inquiry, defendants are alleged to have informed plaintiffs that inasmuch as polycystic kidney disease was not hereditary, the chances of their conceiving a second child afflicted with this disease were "practically nil”. Based upon this information, plaintiffs allege that they exercised a conscious choice to seek conception of a second child. As a result, Hetty Park again became pregnant and gave birth in July, 1970 to a child who similarly suffered from polycystic kidney disease. Unlike their first child, however, plaintiffs’ second child survived for two and one-half years before succumbing to this progressive disease.

Alleging that contrary to defendants’ advice polycystic kidney disease is in fact an inherited condition, and that had they been correctly informed of the true risk of reoccurrence of this disease in a second child, they would not have chosen to conceive, plaintiffs commenced this action seeking damages on behalf of the infant for "wrongful life” and, in their own right, for the pecuniary expense they have borne for the care and treatment of their child until her death. Plaintiffs’ complaint also seeks damages for the emotional and physical injuries suffered by Hetty Park as the result of the birth of her child; damages for emotional injuries and expenses suffered by Steven Park; damages for the injury suffered by Steven Park occasioned by the loss of his wife’s services; and damages on behalf of plaintiffs, as administrators of their child’s estate, for wrongful death.

Upon defendants’ motion to dismiss plaintiffs’ complaint, Special Term sustained those causes of action seeking damages for: "wrongful life”; plaintiffs’ pecuniary expense in caring for the child; Hetty Park’s emotional and physical injuries stemming from the birth; and Steven Park’s loss of his wife’s services. On appeal taken by defendants, the Appellate Division modified by further dismissing so much of plaintiffs’ complaint as seeks damages "(1) for the mental anguish or emotional distress of plaintiff Hetty B. Park and (2) for the loss of that plaintiff’s services, insofar as the claim for loss of services is based upon her mental anguish or emotional distress”. (60 AD2d 80, 95.) Plaintiffs and defendants cross-appeal to this court on a certified question.

At the outset, emphasis must necessarily be placed upon the posture in which these cases are now before this court. The question presented for review is not whether plaintiffs should ultimately prevail in this litigation, but rather, more narrowly, whether their complaints state cognizable causes of action. For the purposes of our review, limited as it is to an evaluation of the sufficiency of plaintiffs’ complaints, their allegations must be assumed to be true. (See Howard v Lecher, 42 NY2d 109, 112; Cohn v Lionel Corp., 21 NY2d 559, 562; Kober v Kober, 16 NY2d 191, 193.) Accordingly, we accept, without expressing any opinion as to defendants’ liability, each of plaintiffs’ allegations: to wit, that defendants failed to inform plaintiffs accurately of the risks involved in their pregnancies, and, in Becker, of the availability of an amniocentesis test; and, that had they been accurately informed, plaintiffs would have, in Park, chosen not to conceive a second child, and, in Becker, undergone an amniocentesis test, the results of which would have precipitated a decision on their part to terminate the pregnancy.

Even as a pure question of law, unencumbered by unresolved issues of fact, the weighing of the validity of a cause of action seeking compensation for the wrongful causation of life itself casts an almost Orwellian shadow, premised as it is upon concepts of genetic predictability once foreign to the evolutionary process. It borders on the absurdly obvious to observe that resolution of this question transcends the mechanical application of legal principles. Any such resolution, whatever it may be, must invariably be colored by notions of public policy, the validity of which remains, as always, a matter upon which reasonable men may disagree.

Thoughtful analysis of the validity of "wrongful life” as an emerging legal concept requires, in the first instance, a clear understanding of the alleged wrong upon which the cause of action is predicated. Not surprisingly, the term "wrongful life” has functioned as a broad umbrella under which plaintiffs alleging factually divergent wrongs have sought judicial recognition of their claims. To be distinguished from the cases before us are those in which recovery is sought for what may perhaps be most appropriately labeled "wrongful conception”, wherein parents, one of whom has undergone an unsuccessful surgical birth control procedure, have sought damages for the birth of an unplanned child. There, damages have not been sought on behalf of the child — a healthy and normal infant— but by the parents for. expenses attributable to the birth, including the pecuniary expense of rearing the child. Judicial reaction to the "wrongful conception” cause of action has been mixed. In a somewhat similar vein, recovery has been sought for damages incurred upon the birth of a child attributable to a "wrongful diagnosis” of an existing pregnancy, resulting in the deprivation of the mother’s choice to terminate the pregnancy within the permissible time period. (Compare Debora S. v Sapega, 56 AD2d 841, and Ziemba v Sternberg, 45 AD2d 230 [sustaining cause of action], with Rieck v Medical Protective Co., 64 Wis 2d 514 [rejecting cause of action].)

While courts have struggled with the concepts of "wrongful conception” or "wrongful diagnosis” as cognizable causes of action, they have had little difficulty in rejecting a cause of action which may be distinguished by use of the term "wrongful birth”. In the latter cause of action an illegitimate, but otherwise healthy child, seeks recovery in his or her own behalf for the injury suffered as a consequence of his or her birth into this world as a stigmatized child. To this point, courts have refused to sustain this cause of action. (See Williams v State of New York, 18 NY2d 481 [action against State which had custody of mother]; Stills v Gratton, 55 Cal App 3d 698 [action against physician for alleged negligent performance of an abortion]; Zepeda v Zepeda, 41 111 App 2d 240, cert den 379 US 945 [action against father]; Slawek v Stroh, 62 Wis 2d 295 [action against father].)

Standing distinctly apart from claims based upon a wrongful conception, a failure to diagnose a pregnancy, or an illegitimate birth, in which the essence of the wrong for which compensation is sought is the birth of a healthy and normal— albeit, unplanned — child, plaintiffs’ claims are premised upon the birth of a fully intended but abnormal child for whom extraordinary care and treatment is required. It is not contended that the defendant physicians’ treatment of Dolores Becker and Hetty Park caused the abnormalities in their infants (see Renslow v Mennonite Hosp., 67 Ill 2d 348 [sustaining cause of action based upon blood transfusion given to mother]; Sylvia v Gobeille, 101 RI 76 [sustaining cause of action based upon failure to prescribe drug during pregnancy]; cf. Jorgensen v Meade Johnson Labs., 483 F2d 237 [sustaining cause of action based upon injurious oral contraceptive]), but only that had plaintiffs been properly advised by defendants of the risks of abnormality, their infants would never have been born.

Irrespective of the label coined, plaintiffs’ complaints sound essentially in negligence or medical malpractice. As in any cause of action founded upon negligence, a successful plaintiff must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by the injured party. (See Restatement, Torts 2d, § 281; Prosser, Torts [4th ed], § 30.)

An examination of plaintiffs’ complaints leads to the conclusion that, insofar as plaintiffs allege claims on behalf of their infants, whether denominated as claims for wrongful life or otherwise, they have failed to state legally cognizable causes of action. If it be assumed that under the facts at bar defendants, as physicians, owed a duty to the infants in útero as well as to their parents (cf. Woods v Lancet, 303 NY 349), defendants’ breach of that duty may be viewed as the proximate cause for the infants’ birth. Had Hetty and Steven Park been accurately advised by their physicians of the chances that a future child of theirs would suffer from polycystic kidney disease, they allege that they would not have chosen to conceive a second child. Similarly, had Dolores and Arnold Becker been accurately advised of the chances that their already conceived child would be born afflicted with Down’s Syndrome, and of the availability of an amniocentesis test, they allege that they would have undergone that test, and had it indicated the presence of Down’s Syndrome in their child, that they would have terminated the pregnancy within the permissible time period. (See Roe v Wade, 410 US 113; Penal Law, § 125.05.)

However, there are two flaws in plaintiffs’ claims on behalf of their infants for wrongful life. The first, in a sense the more fundamental, is that it does not appear that the infants suffered any legally cognizable injury. (Cf. Williams v State of New York, 18 NY2d 481, 484, supra.) There is no precedent for recognition at the Appellate Division of "the fundamental right of a child to be born as a whole, functional human being” (60 AD2d, at p 88). Surely the use of somewhat similar words in another context affords no such basis. (Cf. Endresz v Friedberg, 24 NY2d 478, 483, distinguishing Woods v Lancet, 303 NY 349.) Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. Not only is there to be found no predicate at common law or in statutory enactment for judicial recognition of the birth of a defective child as an injury to the child; the implications of any such proposition are staggering. Would claims be honored, assuming the breach of an identifiable duty, for less than a perfect birth? And by what standard or by whom would perfection be defined?

There is also a second flaw. The remedy afforded an injured party in negligence is designed to place that party in the position he would have occupied but for the negligence of the defendant. (See Martin v Dierck Equip. Co., 43 NY2d 583, 589.) Thus, the damages recoverable on behalf of an infant for wrongful life are limited to that which is necessary to restore the infant to the position he or she would have occupied were it not for the failure of the defendant to render advice to the infant’s parents in a nonnegligent manner. The theoretical hurdle to an assertion of damages on behalf of an infant accruing from a defendant’s negligence in such a case becomes at once apparent. The very allegations of the complaint state that had the defendant not been negligent, the infant’s parents would have chosen not to conceive, or having conceived, to have terminated rather than to have carried the pregnancy to term, thereby depriving the infant plaintiff of his or her very existence. Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make. (See Smith v United States, 392 F Supp 654; Stewart v Long Is. Coll. Hosp., 35 AD2d 531, affd 30 NY2d 695; Gleitman v Cosgrove, 49 NJ 22; Jacobs v Theimer, 519 SW2d 846 [Tex]; Dumer v St. Michael’s Hosp., 69 Wis 2d 766.) Recognition of so novel a cause of action requiring, as it must, creation of a hypothetical formula for the measurement of an infant’s damages is best reserved for legislative, rather than judicial, attention. (Cf. Moore v Metropolitan Life Ins. Co., 33 NY2d 304, 313; Codling v Paglia, 32 NY2d 330, 344-345.) Accordingly, plaintiffs’ complaints insofar as they seek damages on behalf of their infants for wrongful life should be dismissed for failure to state legally cognizable causes of action.

There remains for consideration, however, the validity of plaintiffs’ causes of action brought in their own right for damages accruing as a consequence of the birth of their infants. There can be no dispute at this stage of the pleadings that plaintiffs have alleged the existence of a duty flowing from defendants to themselves and that the breach of that duty was the proximate cause of the birth of their infants. That they have been damaged by the alleged negligence of defendants has also been pleaded. Unlike the causes of action brought on behalf of their infants for wrongful life, plaintiffs’ causes of action, also founded essentially upon a theory of negligence or medical malpractice, do allege ascertainable damages: the pecuniary expense which they have borne, and in Becker must continue to bear, for the care and treatment of their infants. Certainly, assuming the validity of plaintiffs’ allegations, it can be said in traditional tort language that but for the defendants’ breach of their duty to advise plaintiffs, the latter would not have been required to assume these obligations. Calculation of damages necessary to make plaintiffs whole in relation to these expenditures requires nothing extraordinary. The fact that plaintiffs’ wrongful life claims brought on behalf of their infants do not state legally cognizable causes of action inasmuch as they fail to allege ascertainable damages in no way affects the validity of plaintiffs’ claims for pecuniary loss. Plaintiffs state causes of action in their own right predicated upon a breach of a duty flowing from defendants to themselves, as prospective parents, resulting in damage to plaintiffs for which compensation may be readily fixed. (See Jacobs v Theimer, 519 SW2d 846 [Tex], supra; Dumer v St. Michael’s Hosp., 69 Wis 2d 766, supra.) There is now no occasion, in passing on the sufficiency of the complaints to state a cause of action, to determine with particularity what items of expense or loss may properly be taken into account in computation of the damages recoverable. Such questions properly await consideration and resolution presumably on trial, after liability has been proved, if it can be. (See Johnson v Yeshiva Univ., 42 NY2d 818.)

Of course, this is not to say that plaintiffs may recover for psychic or emotional harm alleged to have occurred as a consequence of the birth of their infants in an impaired state. The recovery of damages for such injuries must of necessity be circumscribed. Controlling on this point is Howard v Lecher (42 NY2d 109, supra), in which parents of a child born afflicted with Tay-Sachs disease sought recovery for the trauma they endured witnessing their child succumb to this degenerative disorder. Similar to the present cases, the plaintiffs in Howard alleged that their physician failed to inform them of the risk involved in their pregnancy and of the availability of tests to determine whether their child would be born afflicted with Tay-Sachs disease. Had they been so advised, the plaintiffs maintained, they would have undergone the available tests, the results of which, if indicative of the presence of Tay-Sachs disease in their unborn child, would have precipitated a decision on their part to terminate the pregnancy.

While sympathetic to the plight of these parents, this court declined for policy reasons to sanction the recovery of damages for their psychic or emotional harm occasioned by the birth and gradual death of their child. To have permitted recovery in Howard, we observed, would have "inevitably led to the drawing of artificial and arbitrary boundaries.” (42 NY2d, at p 113, supra.)

Contrary to the contention of the dissent, to permit plaintiffs to recover for pecuniary loss while precluding recovery for alleged emotional injuries suffered as a result of their infants’ birth does not run counter to this court’s decision in Johnson v State of New York (37 NY2d 378). In Johnson, we sustained a cause of action for emotional harm predicated upon the plaintiff’s receipt of a notice informing her of the death of her mother when, in fact, she was very much alive. In so holding, we recognized the existence of a duty on the part of the defendant flowing to the plaintiff daughter to refrain from issuing such notices in a negligent manner. The breach of that duty, we held, entitled the plaintiff to recover damages for "the proven harmful consequences proximately caused by the breach.” (37 NY2d, at p 383, supra.) Recovery was, therefore, permitted not only for the plaintiff’s pecuniary loss, but also for emotional harm caused by the tortious act.

Seizing upon the broad principle stated in Johnson, the dissent posits that recognition of a duty flowing directly from defendants to plaintiffs would require recognition of plaintiffs’ right to recover damages for emotional harm, as well as for pecuniary loss occasioned by the birth of their infants. To do so, maintains the dissent, would eviscerate our holding in Howard v Lecher (42 NY2d 109, supra). However, nothing in Johnson mandates this result.

Johnson held only that once a duty flowing directly from a defendant to a plaintiff is breached, the plaintiff may recover damages for "the proven harmful consequences proximately caused by the breach.” (37 NY2d, at p 383, supra.) We had little difficulty in concluding that the psychological impact resulting from a daughter’s receipt of a notice incorrectly indicating that her mother had expired would be debilitating. That a daughter might receive such notice with mixed emotions lacks any rational basis in human experience. The same cannot be confidently said with respect to the birth of a child, the conception of which was planned and fully desired by the parents. To be sure, parents of a deformed infant will suffer the anguish that only parents can experience upon the birth of a child in an impaired state. However, notwithstanding the birth of a child afflicted with an abnormality, and certainly dependent upon the extent of the affliction, parents may yet experience a love that even an abnormality cannot fully dampen. To assess damages for emotional harm endured by the parents of such a child would, in all fairness, require consideration of this factor in mitigation of the parents’ emotional injuries. (See Restatement, Torts, § 920.) Unlike the case in Johnson where the element of mitigation was not involved, and unlike plaintiffs’ causes of action for pecuniary loss in the instant cases, calculation of damages for plaintiffs’ emotional injuries remains too speculative to permit recovery notwithstanding the breach of a duty flowing from defendants to themselves. As in the case of plaintiffs’ causes of action for damages on behalf of their infants for wrongful life, the cognizability of their actions for emotional harm is a question best left for legislative address.

Accordingly, in Becker v Schwartz the question certified is answered in the negative. The order of the Appellate Division should be modified, with costs, by dismissing plaintiffs’ complaint except to the extent that it seeks recovery of the sums expended for the long-term institutional care of their retarded child.

In Park v Chessin, the question certified is answered in the negative. The order of the Appellate Division should be modified, with costs, by dismissing plaintiffs’ complaint except to the extent that it seeks recovery for the sums expended for the care and treatment of their child until her death.

Fuchsberg, J.

(concurring). I agree with the majority opinion insofar as it dismisses the "wrongful life” causes of action brought on behalf of each of the two infants. However, I would not posit that disposition on a professed inability to calculate the extent and amount of the damages.

My own reason is a more fundamental one. There can be no tort "except in the case of some individual whose interests have suffered” and in cases such as these there is no way of showing that the "interests” of the infants have suffered at all (Prosser, Torts [4th ed], § 30).

My point will become more concrete if we contrast the basis for the parents’ own causes of action here with that of their children. Essentially, the claim of the parents in each case is that, but for the defendants’ dereliction in failing to properly inform the parents of the great risk that their children would be born in hopelessly and permanently deformed states, the parents would have arranged to have the pregnancy terminated in the one case, and, in the other, the child would not have been conceived at all. The direct consequence of the medical malpractice, the parents allege, was to frustrate the intended exercise of the legal right in such circumstances (see Roe v Wade, 410 US 113) to have avoided the special responsibilities and attendant physical, economic or psychic damage thus imposed upon them. As Judge Jasen’s opinion makes clear, a cause of action is thus spelled out.

But the same cannot be said about the two infants’ causes of action. It is undisputed that the defendants neither created nor added to the children’s abnormalities; the claim is simply that, but for their failure to act in accordance with accepted medical standards, the children would not have been born. Who. then can say, as it was essential tó the parents’ causes of action that they say for themselves, that, had it been possible to make the risk known to the children-to-be — in their cellular or fetal state or, let us say, in the mind’s eye of their future parents — that the children too would have preferred that they not be born at all?

To ordinary mortals, the answer to the question obviously is "no one”. Certainly the answer does not lie in the exercise by the children, if their mental conditions permit, of subjective judgments long after their births. Therefore, whatever be the metaphysical or philosophical answer — speculative, perhaps debatable, but hardly resolvable — and however desirable it may be for society to otherwise treat these problems with sensitivity, I am compelled to conclude that the matter is just not justiciable (cf. Williams v State of New York, 18 NY2d 481, 484 [Desmond, Ch. J.]; Stewart v Long Is. Coll. Hosp., 58 Misc 2d 432, 436, mod on other grounds 35 AD2d 531, affd 30 NY2d 695; Gleitman v Cosgrove, 49 NJ 22, 63 [Weintraub, Ch. J., dissenting opn]; Note, 87 Yale LJ 1488, 1500-1502; Comment, 13 Wayne L Rev 750, 756-757).

In my view, it is therefore unnecessary to reach the "uncertainty of damages” rationale on which the majority opinion lays such great stress. For if the right to bring a "wrongful life” action could be conceptualized, it is not to be assumed, given the elasticity with which tort law adapts to the need to fix damages for intangible injuries, that difficulty in their calculation would immunize the tort-feasor from damages (see Note, 55 Minn L Rev 58, 62-67). It is, for instance, a recognized axiom, not peculiar to traditional tort law alone, that where a wrong "itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts” (Story Parchment Co. v Patterson Co., 282 US 555, 563; see, also, Prosser, Torts [4th ed], § 30; Birnbaum & Rheingold, Torts, 28 Syracuse L Rev 525, 564-565).

Now a word regarding the majority’s determination that the causes of action brought for the parents’ damages in their own right are viable save to the extent they seek damages for emotional injury. While I join in that determination too, as to emotional injury I do so on the constraint of the court’s earlier decision in Howard v Lecher (42 NY2d 109). I also note that, in joining Judge Cooke in dissent in Howard, I took the majority’s determination in Howard to be a further step, albeit via the quicksand of an asserted public policy, in the retreat Tobin v Grossman (24 NY2d 609) had signalled for the time from the forward-looking principles reflected by earlier cases such as Ferrara v Galluchio (5 NY2d 16) and Battalia v State of New York (10 NY2d 237).

Finally, I call attention to one other fact. To the extent that plaintiffs Hetty Park and Dolores Becker have suffered ascertainable damages in the form of pain and suffering attendant upon their pregnancies (in Ms. Park’s case for the entire pregnancy and in Ms. Becker’s case for its continuance beyond the point when she claims it would have been terminated), these would appear to be clearly compensable. Thus, if the damages question were before us, these more traditional elements of damages would be distinguishable from those proscribed by Howard, i.e., psychic or emotional harm alleged to have resulted from the birth of the infants in an impaired state.

Wachtler, J.

(dissenting in part). Insofar as this opinion relates to the case of Becker v Schwartz, I agree with the majority that the suit for "wrongful life” brought on behalf of the infant should be dismissed. I would, however, also dismiss the parents’ collateral suit for the expense of rearing an unwanted child.

A doctor who provides prenatal care to an expectant mother should not be held liable if the child is born with a genetic defect. Any attempt to find the physician responsible, even to a limited extent, for an injury which the child unquestionably inherited from his parents, requires a distortion or abandonment of fundamental legal principles and recognition, by the courts, of controversial rights and duties more appropriate for consideration and debate by a legislative body. These problems, which are always present when the child born with a genetic disorder seeks to hold the doctor responsible, are compounded when the parents seek compensation, on their own behalf, for collateral injuries occasioned by emotional distress or the increased cost of caring for a handicapped child.

The heart of the problem in these cases is that the physician cannot be said to have caused the defect. The disorder is genetic and not the result of any injury negligently inflicted by the docto.r. In addition it is incurable and was incurable from the moment of conception. Thus the doctor’s alleged negligent failure to detect it during prenatal examination cannot be considered a cause of the condition by analogy to those cases in which the doctor has failed to make a timely diagnosis of a curable disease. The child’s handicap is an inexorable result of conception and birth.

Nevertheless the plaintiffs, parents and child, urge that the doctor should be held liable for the child’s handicapped life, not because he caused the disorder, but because he is responsible for the child’s birth. The theory is that if the doctor had advised the parents of the risk of bearing a handicapped child, and the availability of tests for detecting the disorder, the mother would have consented to the tests, the tests would have revealed the defect, the parents or at least the mother would have decided to have an abortion, the abortion would have been successfully performed and thus the child would not have been forced to lead a life of hardship. However, since the doctor failed or neglected to advise them of the risk, they claim that they were denied the opportunity to take the additional steps which would have terminated the pregnancy and thus the doctor should be held liable for the birth and the child’s consequent handicapped existence. Even if we assume, as we must on a motion to dismiss the complaint, that the parents would have made all the difficult decisions leading to an abortion — a conclusion which could be certain, if ever, only in retrospect — we must still go to great lengths to find that the doctor’s failure to detect the defect was the cause, indeed the proximate cause, of the child’s handicapped life. And the causal relationship is even more remote when the parents seek to recover for an injury they have suffered as a result of the alleged injury to the child.

But the problems extend beyond causation. There is also the question as to what right the doctor violated and to whom the right belongs. The infant essentially claims that she had a right not to be born when birth would necessarily mean a life of hardship. The majority notes that the damages for violation of such a right would be impossible to assess. But on an even more fundamental level this cause of action must fail because the courts have long refused to recognize that such a right exists (Williams v State of New York, 18 NY2d 481).

"Impossibility of entertaining this suit”, we said in the Williams case (at p 484), "comes not so much from difficulty in measuring the alleged 'damages’ as from” the fact that this "is not a suable wrong that is cognizable in court.” A majority at the Appellate Division apparently felt that this holding was dictated by the fact that abortion was then illegal, an impediment which has now been removed in many cases. That however was not the basis for our determination in Williams. The antiabortion law was not mentioned in the opinion and, in fact, the case did not involve a claim that the plaintiff should have been aborted, but that she should not have been conceived. It was alleged that her mother had been raped while a patient at a State mental institution and the plaintiff sought damages from the State for the social stigma and loss of legal rights that she must suffer as an illegitimate child. We noted that "[i]f the pleaded facts are true, the State was grievously neglectful as to her mother, and as a result the child may have to bear unfair burdens” (Williams v State of New York, supra, at p 484). Nevertheless we refused to recognize a right to be "born under one set of circumstances rather than another” as a "brand new ground for suit” (Williams v State of New York, supra, at pp 483, 484; see, also, Tobin v Grossman, 24 NY2d 609, 614). And of course whether the infant was wrongfully conceived, as in Williams, or could have been legally aborted, as in the case now before us, is of no practical significance. In either event there is no right not to be born, even into a life of hardship, and thus no right cognizable at law which the defendant can be said to have violated.

Since the infant’s suit must be dismissed, the parents’ cause of action for the costs of "special treatment, teaching, care, medical services, aid and assistance throughout the lifetime of the infant” should be dismissed as well. A parent’s right to recover expenses occasioned by an injury to the child "is based upon and arises out of the negligence which causes the injury to the child. The injury to the child results in a two-fold action, one for the father and one for the child” (Psota v Long Is. R. R. Co., 246 NY 388, 395-396; cf. Maxson v Delaware Lackawanna & Western R. R. Co., 112 NY 559; Gray v Brooklyn Hgts. R. R. Co., 175 NY 448). Thus the parents’ suit for the pecuniary losses is derivative; it cannot stand alone (Reilly v Rawleigh, 245 App Div 190; Kotary v Spencer Speedway, 47 AD2d 127; O’Hearn v O’Hearn, 55 AD2d 766; cf. Maxson v Tomek, 244 App Div 604, mot for lv to app den 268 NY 726). If the child cannot establish a good cause of action to recover for its injury, the parents’ suit for collateral losses, flowing from the injury to the child, must also fail (see, e.g., Gleich v Volpe, 32 NY2d 517; Warmsley v Long Is. Banana Co., 35 NY2d 953; see, also, Glendenning v Feld, 285 App Div 604).

The majority, disregarding this principle, has held instead that the doctor owed a duty directly to the parents and thus they may recover, for a violation of their own rights, the special costs of raising the handicapped child. This involves the creation of a completely new tort. It also conflicts with our decision in Howard v Lecher (42 NY2d 109) in which we held that the parents of a child born with a genetic defect could not recover from the doctor for the emotional distress that they had suffered as a result of the child’s birth, even though the defect could have been detected and the pregnancy aborted if the doctor had advised the parents of the risk and the available medical tests. That determination was based on our prior decision in Tobin v Grossman (24 NY2d 609, 611, supra) in which we said: "no cause of action lies for unintentional harm sustained by one, solely as a result of injuries inflicted directly on another”.

The majority’s attempt to distinguish Howard misses the point of the holding. The fact that the damage in the case now before us may be easily ascertained is of no consequence. We did not find that the damages in Howard were impossible to assess, nor did we refer to damages in the opinion. Neither is there any merit to the suggestion that we denied relief in that case solely because the parents sought to recover for mental injury, as opposed to the pecuniary losses requested here. That circumstance was not the controlling factor. Rather it was the indirect nature of the parents’ injury which was found to be dispositive. Thus we rejected the argument made by the plaintiffs and the dissenting Judges that the doctor owed a duty to the mother so that "the injury was inflicted directly upon the individual claiming the harm and the same individual to whom the duty was owed was the one directly injured by the breach” (Howard v Lecher, supra, at p 116 [Cooke, J., dissenting]). Today, little more than a year after Howard was decided, a majority of the court has rejected the basis for the holding and has adopted the dissenting view.

In fact if, as the majority now holds, the doctor did breach a duty directly owed to the parents, there is no longer any reason why they should not be entitled to recover for their emotional suffering as well as the pecuniary loss. Our decision in Johnson v State of New York (37 NY2d 378) is directly in point. In that case the plaintiff brought a claim against the State for emotional harm and pecuniary losses after State hospital employees had negligently misinformed her that her mother had died. After concluding that the plaintiff "was the one to whom a duty was directly owed by the hospital, and the one who was directly injured by the hospital’s breach of that duty” we set aside the Appellate Division’s determination that recovery should be limited to pecuniary losses. We stated at pages 383-384: "not only justice but logic compels the further conclusion that if claimant was entitled to recover her pecuniary losses she was also entitled to recover for the emotional harm caused by the same tortious act. The recovery of the funeral expenses stands only because a duty to claimant was breached. Such a duty existing and such a breach of that duty occurring, she is entitled to recover the proven harmful consequences proximately caused by the breach. In the light of the Battalia [10 NY2d 237] and Ferrara [5 NY2d 16] cases (supra) and the reasoning upon which they are based, recovery for emotional harm to one subjected directly to the tortious act may not be disallowed so long as the evidence is sufficient to show causation and substantiality of the harm suffered, together with a 'guarantee of genuineness’ to which the court referred in the Ferrara case”. Certainly, in the present case, it could not be said that the parents’ claim of emotional suffering is any less genuine than their claim of pecuniary loss.

In addition, although the parents in this case only seek compensation for the special expenses necessary for the care of a handicapped child, there is no logical reason why in other cases, parents should not be entitled to have the doctor also pay the normal costs of supporting the child. After all, if the doctor had not breached his duty, the child would never have been born and the parents would not have been burdened with any of the costs of support.

And there will inevitably be other costs, even more difficult to assess. A doctor exposed to liability of this magnitude will undoubtedly, in marginal cases, be inclined to practice "defensive medicine” by advising abortion rather than run the risk of having to pay for the lifetime care of the child if it is born with a handicap. Thus the majority’s decision will involve human costs as well, in those cases where otherwise healthy children will be unnecessarily aborted as the only alternative to the threat of pecuniary liability.

In sum, by holding the doctor responsible for the birth of a genetically handicapped child, and thus obligated to pay most, if not all, of the costs of lifetime care and support, the court has created a kind of medical paternity suit. It is a tort without precedent, and at variance with existing precedents both old and new. Indeed the members of the majority are divided among themselves as to what principle of law requires the doctor to pay damages in this case. The limits of this new liability cannot be predicated. But if it is to be limited at all it would appear that it can only be confined by drawing arbitrary and artificial boundaries which a majority of the court consider popular or desirable. This alone should be sufficient to indicate that these cases pose a problem which can only be properly resolved by a legislative body, and not by courts of law.

Accordingly, the order of the Appellate Division should be reversed and the third and fourth causes of action dismissed.

Gabrielli, J.

(concurring in part and dissenting in part). I dissent in part and vote to modify the order of the Appellate Division by dismissing the complaint for the reasons stated by Judge Wachtler in Becker v Schwartz.

Becker v Schwartz:

Chief Judge Breitel and Judge Jones concur with Judge Jasen; Judge Fuchsberg concurs in a separate opinion in whiclj Judge Cooke concurs; Judge Wachtler dissents in part and votes to reverse in another opinion in which Judge Gabrielli concurs.

Order modified, with costs to defendants, in accordance with the opinion herein, and, as so modified, affirmed. Question certified answered in the negative.

Park v Chessin:

Chief Judge Breitel and Judge Jones concur with Judge Jasen; Judge Fuchsberg concurs in a separate opinion in which Judge Cooke concurs; Judge Gabrielli concurs in part and dissents in part and votes to modify in a memorandum; Judge Wachtler taking ho part.

Order modified, with costs to defendants, in accordance with the opinion herein, and, as so modified, affirmed. Question certified answered in the negative.

      . "Down’s Syndrome” is a syndrome of mental retardation associated with a variable constellation of physical abnormalities caused by a chromosomal anomaly. (Stedman’s Medical Dictionary [23d ed].) While a normal fetus has 23 pairs of chromosomes, mongoloid children commonly have an additional chromosome in what is classified as chromosome pair 21, giving rise to the descriptive term "trisomy 21”. It is this chromosomal anomaly — a critical portion of chromosome 21 being represented in most cells three times instead of twice — which is thought to precipitate this syndrome of mental retardation. (See Lilienfeld, Epidemiology of Mongolism 1-2 [1969].)

      . Amniocentesis is the "[t]ransabdominal * * * aspiration of fluid from the amniotic sac.” (Stedman’s Medical Dictionary [23d ed].) Biochemical tests are performed on the sample of amniotic fluid withdrawn, often times allowing the detection of chromosomal abnormality.

      . Polycystic disease of the kidneys is a condition "characterized by numerous cysts (of varying sizes) scattered diffusely throughout the kidneys, sometimes resulting in organs that tend to resemble grapelike clusters of cysts.” (Stedman’s Medical Dictionary [23d ed].)

      . For a discussion of the varied nature of the claims asserted in this area see generally Kashi, The Case of the Unwanted Blessing: Wrongful Life (31 U Miami L Rev 1409); Tedeschi, On Tort Liability for "Wrongful Life” (1 Israel L Rev 513); Note, A Cause of Action for "Wrongful Life”: (A Suggested Analysis) (55 Minn L Rev 58); Note, Torts Prior to Conception: A New Theory of Liability (56 Neb L Rev 706); Note, Remedy for the Reluctant Parent: Physicians’ Liability for the Post-Sterilization Conception and Birth of Unplanned Children (27 U Fla L Rev 158); Note, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling (87 Yale LJ 1488); Comment, Strict Liability: A "Lady in Waiting” for Wrongful Birth Cases (11 Cal W L Rev 136); Comment, Wrongful Birth: The Emerging Status of a New Tort (8 St Mary’s LJ 140); Comment, Preconception Torts: Foreseeing the Unconceived (48 U Col L Rev 621).

      . (See, e.g., La Point v Shirley, 409 F Supp 118 [unsuccessful tubal ligation]; Clegg v Chase, 89 Misc 2d 510 [unsuccessful sterilization]; Coleman v Garrison, 349 A2d 8 [Del] [unsuccessful sterilization]; Christensen v Thornby, 192 Minn 123 [unsuccessful sterilization]; Shaheen v Knight, 11 Pa D & C 2d 41 [unsuccessful sterilization]; Terrell v Garcia, 496 SW2d 124 [Tex], cert den 415 US 927 [unsuccessful tubal ligation] [rejecting "wrongful conception” cause of action]; contra, e.g., Bishop v Byrne, 265 F Supp 460 [unsuccessful sterilization]; Custodio v Bauer, 251 Cal App 2d 303 [unsuccessful sterilization]; Anonymous v Hospital, 33 Conn Supp 125 [unsuccessful tubal ligation]; Betancourt v Gaylor, 136 NJ Super 69 [unsuccessful sterilization]; Bowman v Davis, 48 Ohio St 2d 41 [unsuccessful tubal ligation]; cf. Troppi v Scarf, 31 Mich App 240 [negligent filling of birth control prescription] [recognizing cause of action for "wrongful conception”].)


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Richard A. Corkum, Individually and as President of the Court Clerks Benevolent Association, et al., Appellants, v Richard J. Bartlett, as Chief Administrative Judge of the Unified Court System of the State of New York, Respondent. James R. Hannon, Individually and as President of the New York State Supreme Court Officers Association, Intervenor-Appellant.
    Argued January 11, 1979;
    decided February 6, 1979

      POINTS OF COUNSEL

      Albert H. Blumenthal, Janet P. Kane, Stephanie Hill and Geoffrey McC. Johnson for appellants.
    I. Hearings may not be held and a classification plan may not be adopted absent guidelines established pursuant to section 28 of article VI of the New York State Constitution and section 211 of the Judiciary Law. II. The Chief Administrator may not adopt a classification plan. (Matter of Fitzgerald v Conway, 275 App Div 205; Matter of De Cicco v McCoy, 40 AD2d 732; Matter of Nemeroff Realty Corp. v Kerr, 38 AD2d 437, 32 NY2d 873; Weinberg v Town of Clarkstown, 78 Misc 2d 464; Matter of Vanderveer v Vanrouwendaal, 89 Misc 2d 604; Matter of Weekes v O’Connell, 304 NY 259; Matter of Bizarre, Inc. v State Liq. Auth., 29 AD2d 500; Matter of Ostrove v New York Teachers Retirement System Bd., 32 AD2d 163, 27 NY2d 623; Matter of Kleinman v McCoy, 19 NY2d 292; Matter of Ainsbergv McCoy, 26 NY2d 56.)

      Michael R. Juviler, Michael Colodner and John Eiseman for respondent.
    I. The Chief Administrator of the courts may lawfully be authorized to adopt a classification plan. (Matter of Blyn v Bartlett, 39 NY2d 349; Matter of Lazette v Board of Educ., 35 NY2d 272.) II. The hearings are lawful.
   OPINION OF THE COURT

Per Curiam.

On October 2, 1978, the Office of Court Administration announced the scheduling of public hearings concerning a proposed classification plan and proposed title standards for nonjudicial employees of the unified court system. The announcement also advised that the hearings would consider an attached "Proposed administrative policy of the Chief Judge concerning the establishment of a classification plan and an appeals procedure”. The attachment indicated that the policy had been approved by the Court of Appeals after consultation by the Chief Judge with the Administrative Board of the courts, and that the court had sanctioned conducting the hearings on both subjects simultaneously.

Soon after the announcement and before the first hearing was scheduled, the petitioners, as court employees and presidents of associations of employees of the unified court system, commenced this article 78 proceeding to enjoin the Chief Administrator of the courts from holding any hearings on either the proposed administrative policy or title standards, from exercising any delegated powers or duties with regard to these proposals and, finally, from establishing or implementing any revised classification plan or title standards. In essence, the petitioners contend that (1) only the Chief Judge, in consultation with the Administrative Board, and with the approval of the Court of Appeals, may promulgate classification plans and title standards and that the delegation to the Chief Administrator of unilateral authority to do so and to hold hearings thereon is violative of section 28 of article VI of the State Constitution and section 211 of the Judiciary Law; that (2) the proposed policy, which would permit such delegation, is therefore also unconstitutional and unlawful; and that (3), in any event, until the proposed policy has actually been adopted, it is improper to hold hearings on the classification plan and title standards purportedly promulgated pursuant thereto.

Special Term, holding that the adoption of a classification plan was a nondelegable responsibility of the Chief Judge, entered a judgment enjoining the Chief Administrator from holding hearings or adopting the proposed plans. Upon appeal, however, the Appellate Division unanimously concluded that the formulation of a personnel classification plan and the holding of hearings in that connection were properly delegable. But, noting that implementation of the proposed plan or any revision thereof was still some time off, it withheld as premature any determination of whether responsibility for actual adoption was also delegable. On these bases, it reversed the judgment, dismissed the petition and permitted the hearings to proceed.

For the reasons which follow, we believe the dismissal must be upheld. The Chief Administrator has the power to establish a classification plan when directly delegated that authority by the Chief Judge, and he may conduct public hearings in furtherance of that purpose.

The constitutional roots of the power exercised by those charged with the administration of the State court system are to be found in section 28 of article VI of the New York Constitution, which reads:

"§ 28. a. The chief judge of the court of appeals shall be the chief judge of the state of New York and shall be the chief judicial officer of the unified court system. There shall be an administrative board of the courts which shall consist of the chief judge of the court of appeals as chairman and the presiding justice of the appellate division of the supreme court of each judicial department. The chief judge shall, with the advice and consent of the administrative board of the courts, appoint a chief administrator of the courts who shall serve at his pleasure.

"b. The chief administrator, on behalf of the chief judge, shall supervise the administration and operation of the unified court system. In the exercise of such responsibility, the chief administrator of the courts shall have such powers and duties as may be delegated to him by the chief judge and such additional powers and duties as may be provided by law.

"c. The chief judge, after consultation with the administrative board, shall establish standards and administrative policies for general application throughout the state, which shall be submitted by the chief judge to the court of appeals, together with the recommendations, if any, of the administrative board. Such standards and administrative policies shall be promulgated after approval by the court of appeals.”

Striking is the unqualified constitutional statement that "the chief administrator * * * shall supervise the administration and operation of the unified court system.” True, this broad power is hemmed in by the fact that the administrator serves at the will and on behalf of the Chief Judge, but the breadth of the Chief Judge’s power as the fount of the delegation makes it a strength as well. For, with respect to supervision or management, as distinguished from policy formulation, the Constitution places no limitations on the duties the Chief Judge may delegate to the administrator. And, neither consultation with the Administrative Board nor approval by the Court of Appeals is a prerequisite to the exercise of supervisory powers by the Chief Administrator — a marked contrast with the restrictions placed on the establishment of "standards and administrative policies for general application throughout the state” (emphasis ours). Moreover, far from restricting the Chief Administrator in any way, subdivision b’s grant to him of "such additional powers and duties as may be provided by law” is merely a further source from which to add to the broad administrative authority of that office. In short, the Chief Judge’s administrative powers are complete, and the Chief Administrator may employ them fully when and while and to the extent that they have been delegated to him.

Of course, what is "administrative” is not always easy to determine. Generally, the term is an elastic one, dependent on the context in which the power came into existence and is expected to be exercised. In this case, a strong clue to the intent of the constitutional amendment’s legislative draftsmen is provided by section 211 of the Judiciary Law, which they also authored and which describes examples of what they considered to be the Chief Judge’s administrative powers. Pointedly, among the day-to-day operational functions which section 211 lists as administrative activities for which policy standards are to be established are "Personnel practices affecting nonjudicial personnel including: title structure, job definition, classification [etc.]” (Judiciary Law, § 211, subd 1, par [d]). The clear inference to be drawn from the statutory structure is that the Legislature considered the adoption of classification plans an administrative task, which, perforce, would be delegable by the Chief Judge. Indeed, to say the least, it would have been highly inconvenient, if not impractical, to implement any other concept of power distribution, given the Chief Judge’s judicial obligations as a member of the Court of Appeals and his consequent probable need to rely on the Chief Administrator to deal with the mass of detail inherent in creating a personnel plan for such a large, diverse and complex organization as the unified court system with its approximately 9,500 nonjudicial employees. It follows that the constitutional grant of power to "supervise the administration and operation of the unified court system” (NY Const, art VI, § 28, subd b) is not to be read in the hyperrestrictive manner which petitioners advocate. Consistent with this scheme is the broad statutory provision allowing the Chief Administrator to "Hold hearings and conduct investigations” (Judiciary Law, § 212, subd 1, par [h]).

However, an important restriction on these powers does exist. Subdivision c of section 28 of article VI of the new constitutional provision mandates that before the Chief Judge may establish "standards and administrative policies” he must consult with the Administrative Board and obtain the approval of the Court of Appeals. Section 211 of the Judiciary Law retraces these built-in checks and balances and, as already indicated, requires that such standards and policies be formulated for personnel practices. Furthermore, section 211 (subd 1, par [d]) expressly provides that "[sjtatewide standards and policies concerning personnel practices relating to nonjudicial personnel * * * shall be promulgated after a public hearing”.

The hearings held here were in compliance with that provision. There is no circumscription of the power of the Chief Administrator, either in subdivision c of section 28 of article VI or in the statutes, that interdicts the administrator from conducting them. The standards and policies to be considered at the hearing had successfully run the gamut of submission by the Chief Judge, consultation with the Administrative Board and approval by the Court of Appeals. Nor does subdivision c, in speaking of promulgation of standards and policies only after approval of the Court of Appeals, either in letter or spirit restrict the Chief Judge from empowering the Chief Administrator to carry out the formal act of promulgation.

Even if so, the petitioners, relying in considerable part on the relative brevity of the written formulation of the proposed administrative policy, assert that the proposed declaration is inadequate to meet the guideline requirements contemplated by subdivision c of section 28 of article VI. But the long and short of it is hardly the measure. Policy statements, like Constitutions, expectedly may be variable in size and scope (compare United States Constitution with New York State Constitution). Thus, though policy statements may be detailed, they often are brief but broad statements of principle, identifying goals to be achieved while leaving to administrative implementation the methodology by which those goals are in fact to be reached.

To boot, in the present case the proposed policy statement is not as scanty as the petitioners suggest. It would require the Chief Administrator to classify all employees in accordance with their "duties”, "responsibilities” and "volume of work”. Further, all positions would be allocated to salary grades. Moreover, the implementation of the classification plan would not take place until public hearings provided employees or their representatives an opportunity to comment. Also, consultations with the Administrative Board would be required both preceding and following the public hearings. And if, withal, an employee should regard himself or herself as unjustly treated, he or she would not be left without an adequate remedy. For an employee aggrieved by the classification either as to position or salary grade — or an employee organization whose members are so aggrieved — would have the right of appeal to a three-member classification review board. In order to assure objectivity, board members would be appointed independently by government agencies outside the court system, and their decisions would be subject to review in a proceeding brought by either side pursuant to CPLR article 78.

Finally, we find no cause for complaint in the fact that the hearings, both the one required on the proposed declaration of policy and the one volunteered on the classification plan and title standards, were to be held jointly. While the latter could not be adopted until after the former, it is implicit that the actual adoption of the plan or any revision of it would not take place until the guidelines established by the policy or any revised version of it had first been adopted. Obviously, as evidenced by the proposed policy’s provision for a public hearing on the plan, here the one was prepared and proposed in contemplation of the other. So long as the plan is promulgated subsequent to and consistent with a prior establishment of policy (and there is no reason to believe this two-step order of things will not be followed), the dual presentation at the public hearing is to be viewed as nothing more than a permissibly expedient way of preventing unnecessary delay in the implementation of a classification system during a time of transition from the former system of court administration to the present one.

Accordingly, the order should be affirmed, without costs.

Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion; Chief Judge Cooke taking no part.

Order affirmed.

APPENDIX

Judiciary Law

§ 211. Administrative functions of the chief judge of the court of appeals

1. The chief judge, after consultation with the administrative board, shall establish standards and administrative policies for general application to the unified court system throughout the state, including but not limited to standards and administrative policies relating to:

(a) The dispatch of judicial business, the designation of administrative judges, hours of court, assignment of terms and judges, transfer of judges and causes among the courts of the unified court system, the assignment and reassignment of administrative functions performed by judicial and nonjudicial personnel, the need for additional judicial or nonjudicial personnel, and the publication of judicial opinions.

(b) The adoption, amendment, rescission and implementation of rules and orders regulating practice and procedure in the courts, subject to the reserved power of the legislature provided for in section thirty of article six of the constitution.

(c) The form and preparation of the itemized estimates of the annual financial needs of the unified court system.

(d) Personnel practices affecting nonjudicial personnel including: title structure, job definition, classification, qualifications, appointments, promotions, transfers, leaves of absence, resignations and reinstatements, performance ratings, removal, sick leaves, vacations and time allowances. Statewide standards and policies concerning personnel practices relating to nonjudicial personnel shall be consistent with the civil service law, and shall be promulgated after a public hearing at which affected nonjudicial employees or their representatives shall have the opportunity to submit criticisms, objections and suggestions relating to the proposed standards and policies.

(e) Administrative methods and systems of the unified court system.

(f) The form, content, maintenance and disposition of court records.

(g) Fiscal, accounting and auditing practices, the collection of fines and fees, and the custody and disposition of court funds.

(h) The purchase, distribution and allocation of equipment and supplies.

(i) The maintenance and management of law libraries, provision of rooms and accommodations for the courts of the unified court system, the judges, justices and the clerical and administrative personnel thereof.

(j) The examination of the operation of the courts and the state of their dockets and the investigation of criticisms and recommendations.

2. The chief judge shall submit such standards and administrative policies to the court of appeals, together with the recommendations, if any, of the administrative board. Such standards and administrative policies shall be promulgated by the chief judge after approval by the court of appeals.

3. Whenever there is a vacancy in the office of chief judge or if the chief judge shall be unable to exercise the duties, functions or powers of his office, during the period of such vacancy or inability the court of appeals shall designate an associate judge of that court to act in his stead.

      . On October 4, 1978, a detailed 269-page "proposed classification plan” and an even longer "proposed title standards (draft)” were released for distribution.

      . The Administrative Board of the courts, whose powers under the Constitution are now largely consultative, consists of the Chief Judge of the Court of Appeals and the Presiding Justices of each of the four Appellate Divisions.

      . The hearings have now been completed, but a stay of the establishment of a classification plan, which we granted pending the hearing and determination of this expedited appeal, remains in effect.

      . Section 211 of the Judiciary Law is annexed as an Appendix.


author: Jones, J.

text:
    The People of the State of New York, Respondent-Appellant, v Roger Cwikla, Appellant-Respondent. The People of the State of New York, Respondent, v Wilfred Ford, Appellant.
    Argued January 9, 1979;
    decided February 8, 1979

      POINTS OF COUNSEL

      Henry Winestine and William E. Hellerstein for appellant-respondent.
    I. The prosecutor’s refusal to disclose exculpatory evidence and the trial court’s refusal to compel such disclosure denied appellant due process and the right of confrontation. (Brady v Maryland, 373 US 83; People v Testa, 48 AD2d 691, 40 NY2d 1018; United States v McCrane, 547 F2d 204; Giglio v United States, 405 US 150; Boone v Paderick, 541 F2d 447; People v Rojas, 51 AD2d 589; People v Ford, 41 AD2d 550; People v Roth, 30 NY2d 99; People v Andre W., 44 NY2d 179; United States v Agurs, 427 US 97.) II. There was no evidence of use or possession of a dangerous instrument. (Lanzetta v New Jersey, 306 US 451; People v Bell, 306 NY 110; People v Cricuoli, 157 App Div 201; Loop v Litchfield, 42 NY 351.)

      Eleanor Jackson Piel for appellant.
    I. The failure of the prosecutor to turn over his correspondence with Thomas Cox’s mother and the Parole Board deprived defendant of exculpatory material for cross-examination and deprived defendant of a fair trial. (People v Roth, 30 NY2d 99; People v Savvides, 1 NY2d 554; People v Mangi, 10 NY2d 86; Pointer v Texas, 380 US 400; People v Boone, 49 AD2d 559; Brady v Maryland, 373 US 83; United States v McCrane, 547 F2d 204.) II. The misconduct of the prosecutor coupled with the prejudicial and erroneous rulings of the trial court against the background of defense counsel’s repeated requests to be relieved as counsel— all combined to deprive defendant of his Sixth Amendment right to a fair trial. (People v Jelke, 284 App Div 211, 308 NY 56; People v Cruz, 52 AD2d 1; People v Steinhardt, 9 NY2d 267; People v Alicea, 37 NY2d 601; People v Levy, 47 AD2d 12.) III. The hearing and.trial court Judges committed reversible error in their rulings on in-person and photographic identification and the admission in evidence of the proceedings at the lineup and in-court identification under all the circumstances of this case. (Simmons v United States, 390 US 377; Schmerber v California, 384 US 757; Rochin v California, 342 US 165; People v Vega, 51 AD2d 33; United States ex rel. Cannon v Montanye, 486 F2d 263; People v Rahming, 26 NY2d 411; United States ex rel. Phipps v Follette, 428 F2d 912; United States v Russell, 532 F2d 1063; United States v Fernandez, 456 F2d 638; People v Nival, 33 NY2d 391.) IV. Based on the evidence at trial the conviction of defendant of the crime of burglary in the first degree must be set aside because a handkerchief is not a "dangerous instrument” within the meaning of the burglary statute or the statute proscribing possession of a "dangerous instrument”. (United States v Stever, 222 US 167; United States v Resnick, 299 US 207; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227; United States v Powell, 423 US 87.) V. Under all the circumstances of this case the jury rendered a repugnant verdict and the court should have either sent the jury back to deliberate further or set the verdict aside. (People v Bullis, 30 AD2d 470; People v Speach, 49 AD2d 210; People v Bevlin, 47 AD2d 929; People v Haymes, 34 NY2d 639.)

      Mario Merola, District Attorney (Allen H. Saperstein and Billie Manning of counsel), for respondent and respondent-appellant.
    I. Cwikla’s sentence after retrial was proper. (North Carolina v Pearce, 395 US 711; Chaffin v Stynchcombe, 412 US 17; Colten v Kentucky, 407 US 104; Blackledge v Perry, 417 US 21; People v Shuman, 37 NY2d 302.) II. Defendant’s guilt was established by overwhelming evidence. III. Defendants’ conviction was proper under former Penal Law (§ 265.05, subd 9) and, under the circumstances used, the handkerchief was a dangerous instrument. (People v Rumaner, 45 AD2d 290; Gooch v United States, 297 US 124; United States v Powell, 423 US 87; Prussian v United States, 282 US 675;
      People v Reilly, 255 App Div 109, 280 NY 509; Connally v General Constr. Co., 269 US 385; Jordan v De George, 341 US 223; Nik-O-Lok Co. v Carey, 52 AD2d 375, 40 NY2d 1089; People v Byron, 17 NY2d 64.) IV. The verdict was neither inconsistent nor repugnant. (People v Pugh, 36 AD2d 845, 29 NY2d 909, 406 US 921.) V. The conduct of the prosecutor did not deprive defendants of their right to a fair trial. (People v Chapman, 39 NY2d 790; People v Alicea, 37 NY2d 601; People ex rel. Washington v La Vallee, 34 AD2d 603; People v Savvides, 1 NY2d 554; People v Crimmins, 36 NY2d 230.) VI. The trial court acted properly and did not abridge defendants’ right to a fair trial. (Butler v United States, 191 F2d 433; People v Gonzalez, 38 NY2d 208; People v Duffy, 36 NY2d 258; People v Schwartzman, 24 NY2d 211; People v Boulware, 29 NY2d 135; People v Katz, 209 NY 311; People v Baker, 23 NY2d 307; People v Woolley, 53 AD2d 779.) VII. The determinations of the hearing and trial courts with respect to Ford’s pretrial and in-court identifications were correct. (United States v Wade, 388 US 218; Schmerber v California, 384 US 757; United States v Holsey, 437 F2d 250; United States v Boatwright, 425 F Supp 747; United States v Hammond, 419 F2d 166; People v Vega, 51 AD2d 33; People v Freeland, 36 NY2d 518; People v Zabrocky, 26 NY2d 530; People v Nival, 33 NY2d 391.)
   OPINION OF THE COURT

Jones, J.

A prosecutor is under a duty to disclose to defense counsel correspondence between the office of the District Attorney and the Parole Board advising of the co-operation of a principal prosecution witness in the trial of the witness’ accomplices and expressing the hope that such co-operation will be taken into account when the witness is considered for parole. Further, a handkerchief used as a gag as in this instance is a dangerous instrument within subdivision 13 of section 10.00 of the Penal Law, which is not unconstitutional.

On February 1, 1972 defendants Cwikla and Ford, together with one Thomas Cox, were indicted and charged with felony murder, burglary and possession of a dangerous instrument as a misdemeanor in connection with a burglary of an apartment which occurred on January 4, 1972 and resulted in the death of the tenant. Defendant Cwikla and Cox were apprehended prior to the filing of this indictment but defendant Ford remained at large. Cox entered a plea of guilty to manslaughter in the first degree; Cwikla proceeded to trial and was found guilty of felony murder, burglary in the first degree and possession of a dangerous instrument. On appeal, this conviction was reversed because of prosecutorial misconduct and errors committed by the court (People v Cwikla, 45 AD2d 584).

On retrial Cwikla and Ford, who had been apprehended following Cwikla’s first conviction, were tried together. At trial the prosecution contended that while burglarizing an apartment defendants, together with Cox, bound and with a handkerchief gagged the tenant of the apartment and that as a consequence of being so confined the tenant died of asphyxiation. Defendants were each convicted of burglary in the first degree and possession of a dangerous instrument as a misdemeanor; they were acquitted of the other charge. The Appellate Division affirmed those convictions but modified the sentences imposed (60 AD2d 40). Both defendants and the People have been granted leave to appeal. For the reasons stated below we reverse and order a new trial.

At trial, the principal prosecution witness was the admitted participant Tommy Cox, who was then serving the sentence imposed on his plea of guilty to manslaughter in the first degree. During the course of his direct examination Cox testified that he had been given no promise in consideration for his testimony. On cross-examination he admitted that prior to testifying he had requested the Assistant District Attorney to write to the Parole Board on his behalf, but denied that he had been given any promise for his co-operation. Thereupon defense counsel made an application to the court for the production by the prosecution of any correspondence between the office of the District Attorney and the Parole Board concerning Tommy Cox. It was defense counsel’s position that such material, if it existed, might be exculpatory as tending to show a motivation to lie on the part of the prosecution’s chief witness. The Assistant District Attorney refused either to produce any such materials or to indicate whether or not any correspondence of this nature even existed. The trial court agreed to issue a subpoena directing the Parole Board to turn over any such material; it refused, however, to order disclosure from the prosecutor. It was not until the cases were on appeal to the Appellate Division that appellate counsel for the People for the first time furnished defense counsel with copies of pretrial correspondence which had been found in the Assistant District Attorney’s trial folder. This consisted of the following:

(a) two letters from Tommy Cox’s mother to the Assistant District Attorney who was trying the case asking his intervention with the Parole Board on her son’s behalf;

(b) a letter to the State Department of Correctional Services with specific reference to Tommy Cox (forwarded in turn to the Board of Parole) in which the Assistant District Attorney wrote:

"It has come to my attention that the above named inmate will appear or has appeared before the Parole Commission for the purpose of determining whether the said inmate will be considered for parole.

"This letter is being written to you for the purpose of advising you and your Commission of this inmate’s cooperation in the investigation and prosecution of a co-defendant by the name of Roger Cwikla. As a result of the cooperation displayed by Mr. Cox and the other evidence that was revealed during the course of the trial, the said defendant, Cwikla, was convicted of Murder and received a sentence of fifteen (15) years to life.

"At the time that the above named inmate, Mr. Cox, was sentenced by the Supreme Court of Bronx County, the Court was made aware of the cooperation extended by the said inmate at which time the Court imposed a sentence of fifteen (15) years.

"The undersigned feels that you and your commission should be made aware of the extreme cooperation given by Mr. Cox and hopefully you would consider the same at the time Mr. Cox appears before your body for consideration.

"You should also be advised that a third defendant in this case was apprehended recently [defendant Ford] and I am sure, if necessary, Mr. Cox will testify once again in the prosecution of the said third defendant.

"If there is further information that you desire from my office, please do not hesitate to call upon me.”

(c) a letter from the chairman of the Board of Parole, acknowledging receipt of the Assistant District Attorney’s letter and expressing gratitude "for your concern, and the valued insight you present with regard to Mr. Cox”, adding: "the information provided in your correspondence is an added and welcome supplement to our case records, and I can assure you that it will be available to the Parole Board panel members who will meet with Mr. Cox to discuss release consideration.”

It is fundamental that material evidence which is in the possession of the prosecution and which is exculpatory in nature must be turned over to the defendant in order to give meaning to the constitutional right to a fair trial (Brady v Maryland, 373 US 83). It is equally true that "[w]hen the 'reliability of a given witness may well be determinative of guilt or innocence’, nondisclosure of evidence affecting credibility falls within this general rule.” (Giglio v United States, 405 US 150, 154, quoting Napue v Illinois, 360 US 264, 269.) The existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles (Giglio v United States, supra; Boone v Paderick, 541 F2d 447, 450).

The materials sought by defense counsel here — correspondence between the office of the District Attorney and the Parole Board relating to the witness Tommy Cox — were of such a nature that the jury could have found that, despite the witness’ protestations to the contrary, there was indeed a tacit understanding between the witness and the prosecution, or at least so the witness hoped. We have on a previous occasion noted that the existence of such an agreement "might be a strong factor in the minds of the jurors in assessing the witness’ credibility and in evaluating the worth of his testimony”. (People v Savvides, 1 NY2d 554, 557.) Consequently, in view of the significance which the jury might have attached to this evidence and in keeping with the principles enunciated in Brady v Maryland (373 US 83, supra), and its progeny, we hold that the nondisclosure of this evidence denied defendant his right to a fair trial.

Moreover, in the present circumstances we are dealing with a specific request by defense counsel which particularized the materials sought to be produced. As the Supreme Court has recently stated: "When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable”. (United States v Agurs, 427 US 97, 106.) Here the conduct of the Assistant District Attorney was particularly inexcusable. His denial at trial of any knowledge concerning the existence of correspondence between his office and the Parole Board is mystifying in view of the fact that it was he who personally wrote to the State Department of Correctional Services on the witness’ behalf and received the letter of acknowledgment from the chairman of the Board of Parole. Furthermore, his comments in summation implying that Cox received no consideration from the Parole Board in return for his testimony compounded the prejudice to defendant. These tactics approach the level of prosecutorial misconduct which we condemned in (People v Savvides (1 NY2d 554, supra) where the District Attorney sat by silently and permitted his witness to testify falsely that he had not received any promise of leniency in return for his testimony. While in the present case the materials sought by defense counsel do not directly demonstrate the existence of an express promise, there is nonetheless a strong inference, at the very least, of an expectation of leniency which should have been presented to the jury for its consideration. The potential persuasiveness of this inference is suggested by the extent of the misleading and obstructive tactics employed by the Assistant District Attorney at trial. Accordingly, the failure of the prosecutor to turn over these materials was error which requires reversal of defendants’ convictions and a new trial.

In passing, we note that we agree, for the reasons stated in the opinion of Mr. Justice Harold Birns at the Appellate Division, that the evidence in this case was sufficient to justify the jury’s finding that the handkerchief with which the victim was gagged and which led to his death by asphyxiation was a dangerous instrument within the meaning of subdivision 13 of section 10.00 of the Penal Law, and further that that subdivision as so interpreted is not unconstitutional as void for vagueness.

Finally, in view of the fact that our disposition of this case requires a new trial, we think it appropriate to address other issues raised by defendant Ford concerning the propriety of certain pretrial identification procedures and the introduction, at trial, of proof of the pretrial lineup identification of defendant pursuant to CPL 60.25.

At a pretrial identification hearing the first of three identification witnesses, Alex Vega, was unable to make a courtroom identification of defendant Ford. Ford’s appearance at the hearing had been altered to the. extent that his head and face had been shaved, allegedly for medical reasons. On application of the District Attorney, Ford was ordered to don a wig and facial hairs and to sit in a lineup with four other Black men— none of whom had on a wig, but each of whom had natural hair. All three identification witnesses then selected defendant from the lineup. Subsequently, at a continuation of the identification hearing, a second identification witness, Henry Drucker, was unable to recognize defendant in the courtroom. At the conclusion of the hearing the court ruled that the lineup was proper and constitutional. The court, however, granted the defense motion to suppress the in-court identification by the witnesses Alex Vega and Henry Drucker "with leave to the district attorney to introduce as evidence in chief the line-up [identification] made by these witnesses under 60.25 of the Criminal Procedure Law”.

Defendant urges that it was error of constitutional dimension initially to require the alteration of his appearance by a cosmetician, particularly when the artificial wig made him stand out among the other four Black men. Defendant further contends that the court misinterpreted and misapplied the provisions of CPL 60.25.

Defendant’s argument concerning the compelled wearing of artificial head and facial hairs appears to be two-pronged. In the first instance defendant seems to argue that the tampering with his appearance was violative of his constitutional privilege against compelled self incrimination and as well a constitutional right to determine his own appearance (cf. People v Vega, 51 AD2d 33 [compelling the defendant to remove a beard]). Secondly, defendant argues that the lineup was impermissibly suggestive inasmuch as defendant was the only person in the lineup who wore a wig and that this artificial change in appearance "made the defendant stand out from the others”.

In the circumstances of this case, it was not error to compel defendant to conform his appearance at the lineup to his appearance at the time of the crime. Similar orders have been upheld in a variety of circumstances. For the purpose of facilitating identification, it has been held permissible to require a defendant to wear strips of tape on his face and repeat words which had been used by the criminal participants (United States v Wade, 388 US 218); to model a blouse (Holt v United States, 218 US 245); to wear a scarf partially covering his face (United States v Gaines, 450 F2d 186, cert den 405 US 927); to wear an artificial goatee (United States v Hammond, 419 F2d 166, 168, cert den 397 US 1068); and to wear a wig (United States v Boatwright, 425 F Supp 747, 752-753). Thus, defendant’s constitutional privilege against self incrimination was in nowise violated. Additionally, requiring defendant to wear a wig in this instance was not a significant infringement of the right, if any, which he may have to determine his appearance; he could have immediately returned to his prior appearance following his participation in the lineup by merely removing the wig.

With regard to defendant’s contention that the wig made him stand out from the other participants in the lineup, the trial court specifically determined that the lineup procedure was conducted in a constitutionally proper fashion. This essentially factual finding was necessarily affirmed by the Appellate Division and we perceive no reason to disturb it.

We next turn to defendant’s contention that the court misinterpreted and misapplied CPL 60.25. This section permits an identification witness to testify that he has previously identified and recognized the defendant prior to trial in circumstances consistent with the defendant’s constitutional rights if "[h]e is unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question”. The thrust of defendant’s argument is that the statute only applies to a situation where the witness is unable, in fact, to identify the defendant at trial, due to a lapse of time or other factors, and does not apply where, as here, the witness has been barred from making such an identification by prior court order. We disagree. For purposes of permitting testimony of a prior identification pursuant to this statute, a determination by a trial court that a witness does not possess sufficient present recollection to permit an in-court identification of the defendant must be accorded the same effect as a statement by the witness that he cannot now identify the defendant. Such an interpretation, in fact, is advantageous to the defendant inasmuch as it precludes the possibility of an in-court identification by a witness actually lacking sufficient present recollection. Therefore, we find no error in the introduction of evidence at trial concerning the lineup identification of defendant by the witnesses Drucker and Alex Vega.

Accordingly, for the reasons stated, the orders of the Appellate Division should be reversed, and the case remitted for a new trial.

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

Orders reversed and a new trial ordered. Cross appeal by the People dismissed.

      . The Assistant District Attorney stated that he "[could not] with authority say whether anything was sent or received at this point”. It is worth noting that the same Assistant District Attorney prosecuted defendant Cwikla at his first trial, which trial was reversed, in part, for prosecutorial misconduct.

      . All three witnesses testified that they had viewed photographs of Ford prior to the hearing. The trial court ruled that the exhibition of photographs complied with the standards of Simmons v United States (390 US 377).

      . We have reviewed the other issues raised by defendant Ford concerning the pretrial identification procedures and find them to be without merit.

      . In view of our disposition of this case, the issue raised by the People concerning the modification of defendant Cwikla’s sentence is academic and need not be addressed.


text:
    In the Matter of Child and Family Service of Syracuse and Onondaga County, Respondent, v Philip L. Toia, as Commissioner of New York State Department of Social Services, Respondent, and John Lascaris, as Commissioner of the Onondaga County Department of Social Services, Appellant.
    Argued January 8, 1979;
    decided February 13,1979

      POINTS OF COUNSEL

      John A. Barnaba and James H. Hughes for appellant.
    I. The determination of respondent Toia that the local agency correctly determined not to authorize the expenditure of public funds in the form of medical assistance to petitioner Child and Family Service of Syracuse and Onondaga County was supported by the substantial evidence adduced from the minutes of the fair hearing and the exhibits attached thereto. (Landing Estates v Jones, 67 Misc 2d 354; Matter of Hamer v Urstadt, 74 Misc 2d 719; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Burton Trucking Corp. v O’Connell, 7 NY2d 299; Matter of Neet v Hults, 26 AD2d 970; Matter of Borek v Toia, 56 AD2d 727; People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185; Matter of Roe v New York Foundling Hosp., 36 AD2d 100; People ex rel. Anonymous v Saratoga County Dept. of Public Welfare, 30 AD2d 756.) II. The determination of respondents was correct as a matter of law. (Jensen v United States, 78 F Supp 974; Rutkowski v Wasko, 286 App Div 327; Matter of Korte, 78 Misc 276; Lorden v United States, 83 F Supp 822; Matter of Schenectady County Dept. of Social Servs. v Patricia Ann S., 73 Misc 2d 104.) III. The term support within the context of section 384 (subd 2) of the Social Services Law is meant and intended to include medical care and assistance for a child surrendered to an authorized agency. (“Harrison” v “Harrison”, 202 Misc 19; “Bentley” v “Bentley”, 191 Misc 972; Matter of Domes v Board of Supervisors of Erie County, 230 App Div 276.)

      Thomas E. Myers and John M. Freyer for Child and Family Service of Syracuse and Onondaga County, respondent.
    I. The county commissioner is bound by the State commissioner’s decision not to appeal. (Matter of Oswego County Dept. of Social Servs. v Toia, 91 Misc 2d 871; Matter of Aroune v Sipprell, 36 AD2d 888, 33 NY2d 844.) II. The commissioners’ determinations denying medical assistance to the three infants were arbitrary, capricious and erroneous as a matter of law. (Matter of Catoe v Lavine, 51 AD2d 545, 39 NY2d 709; Tucker v Toia, 43 NY2d 1.) III. Assuming that Child and Family is a "responsible relative” of the three infants, the record is devoid of evidence that Child and Family had sufficient financial resources to make the infants ineligible for medical assistance. (Matter of Weir v Berger, 57 AD2d 629; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Stork Rest. v Bowin, 282 NY 256; Matter of Santiago v Toia, 60 AD2d 156.) IV. Section 384 (subd 2) of the Social Services Law is limited in application to ordinary support received by private adoption agencies and does not apply to medical assistance paid directly to hospitals and physicians under section 366 of the Social Services Law. V. Denial of medical assistance to children surrendered to a private authorized adoption agency would deny the infants equal protection of the laws. (Matter of Lee v Smith, 43 NY2d 453; Matter of Arnold v Reed, 43 NY2d 829; Matter of Schenectady County Dept. of Social Servs. v Patricia Ann S., 73 Misc 2d 104; Williams v Wohlgemuth, 366 F Supp 541, 416 US 901; Matter of Catoe v Lavine, 51 AD2d 545; United States Dept. of Agric, v Moreno, 413 US 528.)
   OPINION OF THE COURT

Per Curiam.

Section 366 (subd 1, par [a], cl [5]) of the Social Services Law requires that "Medical assistance shall be given * * * to a person who requires such assistance and who * * * although not receiving nor in need of public assistance or care for his maintenance under other provisions of this chapter, has not, * * * sufficient income and resourses, including available support from responsible relatives, to meet all the costs of medical care and services available under this title, and is either (i) under the age of twenty-one years or over the age of sixty-four years.” Respondents admitted that the three infants who required medical care were without income or resources of their own, but nevertheless denied them assistance, contending that the available resources of the Child and Family Service of Syracuse and Onondaga County, to whom the children had been surrendered, must be taken into account as available support. We are required to reject this contention.

While the care and custody of these three children had been surrendered to the Child and Family Service pursuant to written surrender instruments (Social Services Law, §§ 383, 384), the agency is still not a "responsible relative”. Its function is the more limited one of caring for the childrens’ needs only until adoption can be arranged. Given this limited contact with the children, the Service is not legally a relative within the contemplation of section 366, and its income and resources may not be considered by the Department of Social Services in computing eligibility for medical assistance.

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

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion.

Judgment affirmed.