author: Alexander, J.

text:
    In the Matter of the Claim of Shirley Klein, Appellant. Thomas F. Hartnett, as Commissioner of Labor, Respondent.
    Argued November 20, 1991;
    decided December 23, 1991

      POINTS OF COUNSEL

      Gilbert L. Offenhartz for appellant.
    I. Section 563 (2) (c) of the New York State Labor Law violates the Establishment Clause of the First Amendment to the United States Constitution and the Due Process Clause of the Fourteenth Amendment. (Abington School Dist. v Schempp, 374 US 203; Murray v Curlett, 374 US 203; Texas Monthly v Bullock, 489 US 1; Walz v Tax Commn., 397 US 664; Lemon v Kurtzman, 403 US 602; Committee for Pub. Educ. v Nyquist, 413 US 756; Edwards v Aguillard, 476 US 1103.) II. Section 563 (2) (c) of the New York State Labor Law is violative of the Equal Protectian Clause of the Fourteenth Amendment of the United States Constitution.

      Robert Abrams, Attorney-General (Jane Lauer Barker, O. Peter Sherwood, Peter H. Schiff, Maryellen Weinberg and Steven Segall of counsel), for respondent.
    I. The exclusion from coverage of persons employed at a place of religious worship for the performance of duties of a religious nature does not violate the Establishment Clause of the First Amendment to the United States Constitution. (Lemon v Kurtzman, 403 US 602; Corporation of Presiding Bishop v Amos, 483 US 327; St. Martin Lutheran Church v South Dakota, 451 US 772; Abington School Dist. v Schempp, 374 US 203; Walz v Tax Commn., 397 US 664; Texas Monthly v Bullock, 489 US 1; Matter of Hollis Hills Jewish Center [Roberts], 92 AD2d 1039; Meek v Pittenger, 421 US 349.) II. The coverage exclusion at issue does not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. (Dandridge v Williams, 397 US 471; Matter of Sortina [Gant & Assocs.—Hartnett] 161 AD2d 922, 76 NY2d 888, 77 NY2d 801; Ohio Bur. of Employment Servs. v Hodory, 431 US 471; Corporation of Presiding Bishop v Amos, 483 US 327.)
   OPINION OF THE COURT

Alexander, J.

Labor Law § 563 excludes from unemployment insurance coverage, among others, persons performing duties of a religious nature at a place of worship (Labor Law § 563 [2] [c]). The question on this appeal is whether this statutory provision violates the Establishment Clause of the First Amendment of the US Constitution, or establishes an impermissible classification in violation of the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. We conclude that it does not.

Shirley Klein was employed in 1986 as an English teacher at Beth Jacob High School in Brooklyn, which was operated by Congregation Bais Yaakov, a religious organization. She taught English literature from a curriculum provided by the school, the textbooks for which were monitored so as to exclude any secular material "damaging to the faith.” Klein’s employment with Beth Jacob was terminated before the end of the 1987 school year. She filed for and received unemployment insurance benefits, but upon her former employer’s objection, a local office of the Unemployment Insurance Division of the Department of Labor determined that she was ineligible for unemployment insurance benefits because she had insufficient weeks of insured employment inasmuch as her previous employment at Beth Jacob was by a religious organization, exempt under Labor Law § 563 (2) from making contributions to the unemployment insurance fund on her behalf. She had received $4,140 in benefits which she was required to repay. Klein requested and was given a hearing before an Administrative Law Judge (ALJ) at which she argued, in part, that the employer exemption violated the Establishment and Equal Protection Clauses of the US Constitution. The ALJ sustained the determination of the local office, and in turn was affirmed by the Unemployment Insurance Appeal Board. The ALJ and the Appeal Board ruled that Klein was ineligible for unemployment insurance benefits because her position as a teacher at the Beth Jacob High School constituted employment excluded from coverage under Labor Law § 563 (2); however, neither reached the constitutional issues raised by Klein. The Appellate Division affirmed the ruling of the Board and, addressing the constitutional issues, concluded that Labor Law § 563 (2) (c) violates neither the Establishment Clause nor the Equal Protection Clause of the US Constitution (Matter of Klein [Hartnett], 164 AD2d 9). For the reasons set forth below, we now affirm the Appellate Division.

Appellant does not dispute that her position as a teacher at the Beth Jacob High School constituted noncovered employment under Labor Law § 563 (2) (c) (see, St. Martin Lutheran Church v South Dakota, 451 US 772, 783-784; Matter of Marasco [Hartnett], 145 AD2d 862, 863; Matter of Hollis Hills Jewish Center [Roberts], 92 AD2d 1039; see also, Matter of Rochester Christian Church v State of New York Pub. Serv. Commn., 55 NY2d 196, 203-204). She contends, however, that because the statute serves no secular legislative purpose, has the purpose and effect of favoring religious schools over nonreligious schools, and results in undue and excessive entanglement of government with religion, it violates the Establishment Clause of the First Amendment. She argues further that because the statute favors nonprofit religious schools over nonprofit secular or atheist schools, it unlawfully discriminates against and denies equal protection to teachers at nonprofit religious schools. These arguments are without merit.

We begin our analysis by observing the oft-quoted axiom that the constitutionality of a statute is presumed, and while this presumption is rebuttable, the heavy burden of establishing the contrary beyond a reasonable doubt rests upon the challenger (see, Elmwood-Utica Houses v Buffalo Sewer Auth., 65 NY2d 489, 495; Maresca v Cuomo, 64 NY2d 242, 250). As the following discussion demonstrates, appellant has failed in that burden.

The First Amendment of the US Constitution provides, in pertinent part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’ (US Const 1st Amend). These provisions, commonly known as the Establishment and Free Exercise Clauses, are applicable to the States through the Fourteenth Amendment (see, Abington School Dist. v Schempp, 374 US 203, 215-216). The basic purpose of the Religion Clauses is to insure that government will take no action that either sponsors or favors any particular religion, or interferes with the free exercise of religion (see, Walz v Tax Comma., 397 US 664, 669). This doctrine of "benevolent neutrality” permits religious exercise to exist without sponsorship and without interference. The doctrine recognizes, however, that no absolute separation between church and State is really possible, because "the very existence of the Religion Clauses is an involvement of sorts— one that seeks to mark boundaries to avoid excessive entanglement” (id., at 670). Thus, it is well established that "[t]he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause” (id., at 673; see also, Corporation of Presiding Bishop v Amos, 483 US 327, 334).

The United States Supreme Court has indicated that the constitutional validity of laws challenged under the Religion Clauses of the First Amendment is to be evaluated by determining whether the statute has a secular legislative purpose; whether its principal or primary effect is one that neither advances nor inhibits religion; and the statute must not foster excessive government entanglement with religion (Lemon v Kurtzman, 403 US 602, 612-613).

Appellant contends that Labor Law § 563 (2) (c) fails this test. She argues that the original and only legislative purpose of the statute was to advance religion over nonreligion by exempting nonprofit religious schools from the responsibility of providing unemployment insurance coverage for teachers employed by them; that the principal or primary effect of the statute is to impermissibly advance religious schools over nonreligious schools; and that it unconstitutionally entangles the State in religious matters by requiring that a determination be made whether the employer is a place of worship and whether the claimant employee is performing duties of a religious nature.

Appellant offers little or no analysis to support these assertions. Moreover, her contentions are fatally flawed. She inappropriately purports to examine subdivision (2) (c) of Labor Law § 563 in isolation, notwithstanding that to properly ascertain the intent of the Legislature, and thus the constitutionality of the statute under the Establishment Clause, that subdivision must be viewed in the context of the entire legislative act which embodies it (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 97). The legislative history of Labor Law § 563 demonstrates that the purpose of the enactment was to afford the protection of the Unemployment Insurance Law to employees of nonprofit organizations which were then exempt from compulsory coverage. To that end, the general exemption of nonprofit religious, charitable, scientific, literary and educational organizations was repealed (see, Mem of Industrial Commr, Governor’s Bill Jacket, L 1965, ch 740). Although exempt from compulsory coverage, these nonprofit organizations had the option under the prior law to voluntarily elect coverage. It seems that relatively few of them had availed themselves of this opportunity, however, in consequence of which most of the 350,000 employees of such organizations were unprotected by the prior Unemployment Insurance Law (id.). While the statute repealed the blanket exemption from the Unemployment Insurance Law of nonprofit religious, charitable, scientific, literary and educational organizations, the 1965 enactment retained exemptions for various groups the Legislature determined had stable employment, such as religious organizations and medical and teaching staffs and those who, when employed by the nonprofit organization, are not active members of the labor force in a true sense, such as clients of sheltered workshops and students working for the educational organizations where they are enrolled (id.; see also, L 1965, ch 740).

Thereafter, in order to insure that New York employers would continue to receive full Federal tax credits against their contributions to the unemployment insurance fund, and so that New York would continue to receive Federal grants for the administration of the Unemployment Insurance Law, the statute was amended to conform to changes in the Federal Unemployment Tax Act, resulting in the elimination of many of the exclusions affecting nonprofit organizations (see, Mem of Industrial Commr, Governor’s Bill Jacket, L 1971, ch 1027; Mem of Deputy Industrial Commr for Legal Affairs, Governor’s Bill Jacket, L 1977, ch 675, § 10). However, the exemptions relating to ministers, lay members of a bona fide church engaged in religious functions and persons employed as caretakers or for the performance of duties of a religious nature, were retained (L 1965, ch 740).

Additionally, the exemption continued to be applicable to other nonreligious organizations and types of employment as well. For example, inmates of a custodial or penal institution are exempt, as are persons who participate in certain youth services programs and persons who receive rehabilitative services or are given remuneration to work at a facility conducted to provide work for persons physically or mentally impaired. Contrary to appellant’s assertions, the purpose of the legislation was not to provide the benefit of the exemption exclusively to religious organizations; rather, the clear secular legislative purpose was to extend unemployment insurance coverage to previously exempt employees of nonprofit organizations, while retaining the exemption for the benefit of a range of nonprofit organizations whose employees were not active members of the work force in the true sense and whose employment was stable. Thus, religious organizations did not receive the exclusive benefit of the exemption, but only received an incidental benefit accorded to a range of other organizations. The fact of this incidental benefit does not render the exemption unconstitutional (cf., Texas Monthly v Bullock, 489 US 1).

The exemption of section 563 (2) is not unlike the real property tax exemption found constitutional by the United States Supreme Court in Walz v Tax Commn. (supra). There the Court found that New York City’s tax exemption for property used exclusively for religious, educational, or charitable purposes did not advance religion by granting an exemption to all houses of worship as well as to a broad class of property owned by nonprofit organizations. The Court concluded that the statute "simply spare[s] the exercise of religion from the burden of property taxation levied on private profit institutions” (id., at 673). Similarly, section 563 (2) spares various nonprofit organizations, including religious organizations, the burden of contributing to the unemployment insurance fund on behalf of certain designated employees in furtherance of the "time-honored” tradition of exempting nonprofit organizations from general taxation (L 1965, ch 740, § 1).

The secular purpose requirement is aimed at preventing the relevant governmental decision maker — in this case the Legislature — from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters (Corporation of Presiding Bishop v Amos, 483 US 327, 335, supra). That requirement is satisfied by section 563 (2) (c) for the additional reason that it minimizes governmental intrusion into religious affairs by avoiding the necessity of scrutinizing a religious organization’s tenets each time a teacher or other employee is discharged for reasons related to the group’s religious mission (see, e.g., Corporation of Presiding Bishop v Amos, 483 US 327, supra). "[I]t is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions” (id., at 335). We therefore find no basis for concluding that the legislative purpose in enacting Labor Law § 563 (2) (c) was to advance religious schools over nonreligious schools (see, Lemon v Kurtzman, 403 US 602, 613, supra).

We similarly reject appellant’s contentions that the "principal or primary effect” of Labor Law § 563 (2) (c) is to impermissibly advance religious schools over nonreligious schools and that its operation results in undue and excessive entanglement of government with religion. The mere fact that religious groups are included within a range of organizations that benefit from the exemption does not have the "principal or primary” effect of "advancing religious schools over nonreligious schools” such that it is rendered unconstitutional. Nor does the fact that the exemption "spare[s] the exercise of religion from the burden of [unemployment insurance contributions] levied on [nonreligious schools]” render the statute an attempt to "establish” or "advance” religion (see, Walz v Tax Commn., 397 US 664, 673, supra). The Supreme Court has never indicated that statutes that give special consideration to religious groups are per se invalid (see, Corporation of Presiding Bishop v Amos, 483 US 327, 338, supra), or that relieving such institutions of obligations borne by other institutions constitute sponsorship or "establishment” of a particular religion or religion generally (Walz v Tax Commn., supra). "For a law to have forbidden 'effects’ under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence” (Corporation of Presiding Bishop v Amos, supra, at 337). The fact that the exemption provided by Labor Law § 563 may permit religious schools to better advance their purposes by relieving them of the financial burden of contributing to the unemployment insurance fund for their employees does not raise the specter of impermissible "sponsorship, financial support, and active involvement of the sovereign in religious activity” (id., at 336-337). Indeed there are many statutes, covering a variety of situations, which place religious institutions in special protective categories with respect to many activities, but are not considered as having "established” or having "the principal or primary effect” of advancing religion, including paying real property taxes (Real Property Tax Law § 420-a [1] [a]), zoning (see, e.g., Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508), and the use of alcohol in the community (Alcoholic Beverage Control Law § 64 [7]) (see, Matter of Rochester Christian Church v State of New York Pub. Serv. Commn., 55 NY2d 196, 202, supra).

Finally, although amendments to Labor Law § 563 (2) have eliminated many of the nonreligious employers that were originally exempted from compulsory contributions to the unemployment insurance fund (see, L 1971, ch 1027; L 1977, ch 675), the statute still provides the exemption to nonreligious as well as religious organizations. Therefore, it cannot be said that it is aimed exclusively or specifically at religious groups or organizations (cf., Texas Monthly v Bullock, 489 US 1, supra), or that it impermissibly benefits religious organizations more than nonreligious organizations (see, Walz v Tax Commn., 397 US 664, 672-673, supra).

We agree with the Appellate Division that the statute’s primary effect is the efficient administration of the Labor Law, attained in part by maintaining a "benevolent neutrality” toward all religion; in other words, the statute minimizes the involvement of government with the free exercise of religion. Although one effect of the statute is to allow religious organizations an economic benefit as a result of the exemption, such benefit is incidental, and does not deprive the exemption, as a whole, of its secular purpose and effect (see, Texas Monthly v Bullock, supra, at 14-15). Indeed, "[w]here, as here, government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, [there is] no reason to require that the exemption come packaged with benefits to secular entities” (Corporation of Presiding Bishop v Amos, supra, at 338). Moreover, since the government does not transfer part of its revenue to religious organizations, but simply abstains from demanding that religious organizations make payments on behalf of certain employees performing religious duties (see, Walz v Tax Commn., 397 US 664, 675, supra), the effect of the exemption is to "restrict * * * the fiscal relationship between church and state, and * * * to complement and reinforce the desired separation insulating each from the other” (id., at 676).

We find no unconstitutional entanglement by the State in religious matters required by the provisions of section 563 (2) (c). In analyzing a State’s involvement in religion "[t]he test is inescapably one of degree,” and "the questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement” (Walz v Tax Commn., supra, at 674, 675). For the purposes of section 563 (2) (c), however, the inquiry required to determine the religious status of an employer and thus the applicability of section 563 (2) (c) is minimal; legitimate good-faith characterizations of religious status by an organization must be accepted by the civil courts unless found to be insincere or a sham (see, Matter of Holy Spirit Assn. for Unification of World Christianity v Tax Commn., 55 NY2d 512, 527-528; Matter of Hollis Hills Jewish Center [Roberts], 92 AD2d 1039, 1040, supra). Thus, rather than fostering excessive government entanglement with religion, the exemption under examination here necessarily gives rise to a lesser degree of intrusion than would be required were the exemption not granted. Without the exemption there would be "official and continuing surveillance” required by collection activities and the attendant enforcement of the collection and compensation provisions of the statute (see, Labor Law §§ 570-575; see also, Walz v Tax Commn., supra, at 674-675). We conclude that any entanglement between church and State is minimized by the exemption found in section 563 (2) (c), thereby effectuating a more complete separation between the two (see, Corporation of Presiding Bishop v Amos, 483 US 327, 339, supra; Walz v Tax Commn., supra, at 674-675).

Appellant’s equal protection claim likewise must fail because the statutory classification at issue is reasonably related to legitimate State interests. There is no fundamental right to unemployment insurance benefits and the statute does not involve a suspect classification; therefore, to withstand an equal protection challenge the exclusion need only bear a rational relation to a legitimate government interest (see, Ohio Bur. of Employment Servs. v Hodory, 431 US 471, 489; People v Whidden, 51 NY2d 457, 460, appeal dismissed 454 US 803). The statutory classification involved here is based upon the religious nature of appellant’s employment, excluding from mandatory unemployment insurance coverage persons "employed at a place of religious worship * * * for the performance of duties of a religious nature” (Labor Law § 563 [2] [c]). As noted above, the original purpose of the exclusions of Labor Law § 563 (2) was to extend unemployment insurance coverage to employees of certain nonprofit organizations while retaining the exemption for some organizations, including religious organizations, in accordance with the "time-honored” tradition of sparing certain tax-exempt, nonprofit organizations from the burden of general taxation. In addition, the exemption promotes the efficient administration of the unemployment insurance program by avoiding undue government involvement in problems peculiar to religious employment. Section 563 (2) (c) is rationally related to these legitimate purposes and, therefore, does not offend the Equal Protection Clause.

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

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

Order affirmed, with costs.

      . The students at Beth Jacob High School were Orthodox Jewish girls and all the teachers were required to be Jewish women.

      . We note the pendency before the Supreme Court of Lee v Weisman (— US — [No. 90-1014, argued Nov. 6, 1991 (see, Arguments Before the Court, 60 USLW 3351)]), where it was argued that, in the context of prayer in public ceremonies, the Court should reexamine the three-part separation rubric established in Lemon.

      . Unemployment insurance benefits in New York are provided through a joint Federal-State program pursuant to the Federal Unemployment Tax Act (FUTA) (26 USC §§ 3301-3311) and the State Unemployment Insurance Law (Labor Law §§ 500-643), with FUTA imposing minimum coverage requirements on the State system.

      . The exclusion of employees of youth service programs (Labor Law § 563 [2] [f]) was added by a recent amendment (L 1991, ch 413, § 62).


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    In the Matter of Henry A. Camperlengo, Respondent, v Martin C. Barell, as Chancellor of the Board of Regents for the State of New York, et al., Appellants.
    Argued November 13, 1991;
    decided December 23, 1991

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Barbara K. Hathaway, O. Peter Sherwood and Jerry Boone of counsel), for appellants.
    Respondents properly used the expedited procedure of Public Health Law § 230 (10) (m) (iv) in the professional misconduct proceeding against petitioner, based upon a prior Department of Social Services determination where DSS charged and found a violation of the very same regulation upon which the professional misconduct charge is based, and the DSS findings conclusively establish petitioner’s guilt of professional misconduct. (Matter of Hee K. Choi v State of New York, 74 NY2d 933; Matter of Abraham v Ambach, 135 AD2d 921; Matter of Dragan v Commissioner of Educ. of State of N. Y., 142 AD2d 846; Kaufman v Lilly & Co., 65 NY2d 449; Ryan v New York Tel. Co., 62 NY2d 494; Gilberg v Barbieri, 53 NY2d 285; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481; Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11; Bronxville Palmer v State of New York, 18 NY2d 560; Matter of Newsday, Inc. v Ross, 80 AD2d 1.)

      Dennis B. Schlenker for respondent.
    I. The DSS determination that petitioner-respondent failed to keep proper records does not equate in this case to a finding of professional misconduct. (Matter of Hee K. Choi v State of New York, 74 NY2d 933; Matter of Camperlengo v Barell, 164 AD2d 633; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Sowa v Looney, 23 NY2d 329; Matter of Hecht v Monaghan, 307 NY 461; Matter of Wignall v Fletcher, 303 NY 435.) II. Use of the direct-referral procedure in this case would improperly give preclusive effect to the DSS finding, and thereby deny due process to petitioner-respondent. (Matter of Simpson v Wolansky, 38 NY2d 391; Mathews v Eldridge, 424 US 319; Ryan v New York Tel. Co., 62 NY2d 494; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481; Silberstein v Silberstein, 218 NY 525; People v Plevy, 52 NY2d 58; Gilberg v Barbieri, 53 NY2d 285; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65; Matter of Saleem v Commissioner of Educ., 133 AD2d 953; Matter of Sood v Commissioner of Educ. of State of N. Y., 137 AD2d 918.) III. DSS is not empowered by the Social Services Law or its own regulations to make a determination of professional misconduct based upon record-keeping requirements. (Matter of Axelrod v Ambach, 126 AD2d 288.)
   OPINION OF THE COURT

Simons, J.

Petitioner is a psychiatrist licensed to practice medicine in New York State. Respondent Commissioner of Education has found him guilty of professional misconduct, suspended his license for five years (four of which were stayed while petitioner was placed on probation) and ordered him to perform 100 hours of community service. Respondent’s finding followed an expedited hearing before the Regents Review Committee (RRC) limited to evidence relevant to the penalty to be imposed (see, Public Health Law § 230 [10] [m] [iv]). RRC’s finding of professional misconduct rested on a determination by the Department of Social Services (DSS), in a prior unrelated proceeding, that petitioner was guilty of failing to maintain proper records for his Medicaid patients in violation of DSS regulations. DSS revoked petitioner’s Medicaid eligibility as a result of those violations.

Petitioner commenced this CPLR article 78 proceeding claiming that under Education Law § 6509 (9) respondents could not suspend his license in an expedited procedure based upon the DSS determination, but had to find him guilty of violating regulations of the Department of Education following a full hearing. The Appellate Division agreed and remitted the matter to the Board of Regents for a de nova hearing on the charges. It held that the language and purpose of the regulations of the two departments were so disparate that they could not be used to support RRC’s conclusion that a violation of the DSS regulations also constituted professional misconduct under the Education Law. On this appeal, respondents contend that use of the expedited procedure was proper because the DSS findings conclusively established petitioner’s guilt of professional misconduct under the Education Law. We agree and, therefore, reverse.

The Public Health Law permits expedited proceedings when charges of professional misconduct are based upon an agency’s final determination of a violation of a State statute or regulation and that determination would constitute professional misconduct under Education Law § 6509 (see, Public Health Law § 230 [10] [m] [iv]; Matter of Hee K. Choi v State of New York, 74 NY2d 933, 937). Education Law § 6509 (9) incorporates into the statutory provision "unprofessional conduct” as defined in the Board of Regents’ rules and includes failure "to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient” (8 NYCRR 29.2 [a] [3]). In this case, respondents charged petitioner with violating the Board’s record-keeping rule and relied on the findings made by DSS in the prior unrelated proceeding involving violations of DSS’ record-keeping requirements (see, 18 NYCRR 515.1 [a]; former 515.2). Based upon these charges and findings, it employed the expedited Public Health Law procedure and sustained the charges.

In Matter of Hee K. Choi v State of New York (74 NY2d 933, 937, supra), we addressed the use of the expedited procedure by the RRC and the Commissioner of Education and held that they had properly equated the DSS findings with violations of Education Law § 6509 (2) and (9) to sustain the charges of professional misconduct. The test in determining whether the expedited procedure could be so employed, we said, is not whether the language and purpose of the regulations violated are the same or interchangeable but whether the findings which supported the previous agency determination could also support a finding of professional misconduct under Education Law § 6509. Consistent with Choi, the DSS findings relied on by the RRC in this expedited disciplinary proceeding support its determination of professional misconduct under the Education Law.

The Department of Social Services charged petitioner with violating the provisions of 18 NYCRR former 515.2 (a) and (b) (12) defining unacceptable practices by a Medicaid provider. These DSS standards specifically incorporated the Education Department’s record-keeping regulation and violation of it was a material element of the DSS charges against petitioner. Thus, in sustaining the charges, DSS found petitioner guilty of violating the very same Education Department regulation relied on by respondents in this professional misconduct proceeding. Indeed, the Administrative Law Judge in the DSS hearing, quoting the Board of Regents rule set forth at 8 NYCRR 29.2 (a) (3), found that "petitioner has committed the unacceptable practice quoted above, including the commission of unprofessional conduct in the practice of medicine, by 'failing to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient.’ ” Based upon this finding, RRC could conduct an expedited hearing to determine whether petitioner was guilty of professional misconduct under section 6509 (9) of the Education Law.

Even without this finding, however, there are other factual findings made by DSS, and relied on by RRC, which support the finding of professional misconduct. Most notable is the Administrative Law Judge’s finding that petitioner had failed to keep records for at least 14 of his patients and that these omissions constituted a violation of the DSS record-keeping regulation, which required him to maintain a record for each patient which "fully disclose[d] the extent of the care, services or supplies furnished” (18 NYCRR former 515.2 [b] [11]). As a result of this finding, RRC concluded in the expedited disciplinary proceeding that petitioner had also violated the Department of Education’s record-keeping regulation, which required him to maintain a record for each patient which "accurately reflected] the evaluation and treatment of the patient” (8 NYCRR 29.2 [a] [3]). Its conclusion is supported by the record: If petitioner failed to keep any records revealing the "extent of the care, services or supplies furnished” to his patients, as required under the DSS record-keeping provision, he necessarily failed to keep any records which "accurately reflected] the evaluation and treatment of the patients” as required by the Department of Education’s record-keeping provision. Thus, we conclude that it was proper for respondents to resort to the expedited procedure authorized by Public Health Law § 230 (10) (m) (iv) because the DSS findings RRC relied on support a finding of professional misconduct.

Petitioner also challenges the use of the expedited procedure on the grounds of fairness contending that he did not have a full and fair opportunity to litigate the issue of professional misconduct in the prior DSS proceeding because at the time of the DSS hearing Public Health Law § 230 (10) (m) (iv), the relevant statutory provision giving the determination of one agency preclusive effect in a proceeding by another agency, had not yet been passed. He claims that at no time during the course of the DSS proceeding was it foreseeable that his license to practice medicine might be affected by that proceeding. The fact that Public Health Law § 230 (10) (m) (iv) was amended to include cases of professional misconduct after the DSS proceeding but prior to the professional misconduct proceeding does not, in and of itself, change the result here since the procedure in an action is governed by the law regulating it at the time any question of procedure arises (see, Matter of Clayton v Clement, 33 NY2d 386, 390; Matter of Saleem v Commissioner of Educ., 133 AD2d 953, 954; Matter of Kaplan v Board of Regents, 87 AD2d 952, 953).

Moreover, petitioner should have anticipated that the DSS determination could be used in the professional misconduct proceeding because under long-settled principles of collateral estoppel, the determination of administrative agencies are entitled to preclusive effect (see, Matter of Hee K. Choi v State of New York, 74 NY2d 933, 936, supra; Ryan v New York Tel. Co., 62 NY2d 494, 499). Thus, even absent the expedited procedure mechanism, petitioner could have been precluded from introducing at a disciplinary hearing any new evidence on the charge of violating the Department of Education’s record-keeping regulation so long as the elements of collateral estoppel had been met, i.e., there was an "identity of the issue[s]” necessarily decided in the prior action or proceeding and "a full and fair opportunity” to contest the decision now said to be controlling (Ryan v New York Tel. Co., supra, at 500-501; Matter of Hee K. Choi v State of New York, supra, at 936).

Here, respondents have met their burden of establishing those elements — the DSS findings relied on by respondents and previously specified support the conclusion that DSS necessarily decided in its Medicaid proceeding the issue of whether petitioner violated the Department of Education record-keeping regulation. However, petitioner has failed to meet his burden of demonstrating that he lacked a full and fair opportunity to litigate that issue in the DSS proceeding. Indeed, the record indicates otherwise. Petitioner knew that an adverse decision by DSS would result in a permanent suspension from the Medicaid program and reimbursement of over $70,000. Moreover, he had been specifically charged by DSS with violating Department of Education regulations, which should have put him on notice of the possibility of future proceedings by the Department of Education. Finally, petitioner fully participated in the DSS proceeding: he was represented by counsel, was given an opportunity to introduce evidence, present witnesses on his behalf, and cross-examine the Department’s witnesses.

Accordingly, the order of the Appellate Division insofar as appealed from should be reversed, with costs, and respondent’s determination finding petitioner guilty of unprofessional conduct pursuant to 8 NYCRR 29.2 (a) (3) and imposing a penalty therefor be reinstated.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order, insofar as appealed from, reversed, etc.

       Respondents also found petitioner guilty of a second charge dealing with a willful violation of a regulation (see, 8 NYCRR 29.1 [b] [1]), but they do not appeal that part of the Appellate Division order annulling that determination. Thus, this appeal deals only with petitioner’s record-keeping violation (8 NYCRR 29.2 [a] [3]). However, there is no need to remand the matter for consideration of a new penalty as a result of our reversal and confirmation of the charge because petitioner’s license was suspended concurrently on each charge (see, Matter of Okereke v State of New York, 129 AD2d 373, 377, lv denied 70 NY2d 611; Matter of Turley v Board of Regents, 54 AD2d 1020, 1021).


author: Simons, J. Hancock, Jr., J.

text:
    Luisa Thompson, Respondent, v City of New York, Appellant, et al., Defendants.
    Argued November 19, 1991;
    decided December 23, 1991

      POINTS OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Stephen J. McGrath and Leonard Koerner of counsel), for appellant.
    The provision of street illumination by a municipality is the exercise of a governmental function, and, in the absence of proof of some other unusual condition of which the municipality might have a duty to warn, is not a component of a duty to keep its roadways in a reasonably safe condition. As the parties’ submissions establish that plaintiffs claim is one solely for insufficient illumination, the court below erred in reinstating the complaint. (Yonki v City of New York, 276 App Div 407, 303 NY 852; O’Connor v City of New York, 58 NY2d 184; Gutelle v City of New York, 55 NY2d 794; Tomassi v Town of Union, 46 NY2d 91; Griffin v Town of Harrison, 268 NY 238; Eger v City of New York, 206 App Div 718, 239 NY 561; Andrews v City of Elmira, 128 App Div 699; Schlicher v City of New York, 175 Misc 696, 264 App Div 763; Cimato v City of Lackawanna, 158 AD2d 1000; Bauer v Town of Hempstead, 143 AD2d 793.)

      Martin S. Rothman, Daniel J. Friedman, Alan M. Friedman and Alyne I. Diamond for respondent.
    I. The City breached its duty to plaintiff having failed to maintain the existing streetlight in operating condition on one of the most heavily traveled pedestrian and vehicular thoroughfares in The Bronx, where plaintiff was struck by a motorist who did not see her until the moment of impact, because of the outage. (Gutelle v City of New York, 55 NY2d 794; Tomassi v Town of Union, 46 NY2d 91; Lopes v Rostad, 45 NY2d 617; Glasier v Town of Hebron, 131 NY 447; McKone v Village of Warsaw, 187 NY 336; Hooker v Town of Hanover, 247 App Div 623; Kamnitzer v City of New York, 265 App Div 636; Ehrgott v Mayor of City of N. Y., 96 NY 264; Oeters v City of New York, 270 NY 364; Whittaker v Village of Franklinville, 265 NY 11.) II. The City’s inflammatory "floodgates” argument is as misconceived as it is baseless. (Schuster v City of New York, 5 NY2d 75; Crosland v New York City Tr. Auth., 68 NY2d 165.)
   OPINION OF THE COURT

Simons, J.

Plaintiff was injured when struck by an automobile while crossing the Grand Concourse near its intersection with Field Place in The Bronx. It was dark at the time of the accident and a bulb in the nearest streetlight had burned out. At issue is plaintiff’s right to damages from the City of New York based on the City’s failure to maintain the streetlight by replacing the bulb.

Plaintiff sued the driver of the car that hit her, the City of New York and Acolyte Electric Corp., the company which had contracted with the City to maintain and repair streetlights. She alleged that the City was liable because it had breached its nondelegable duties to maintain the streetlights at or near the intersection in good working order and failed to maintain the streets and roadways in a safe condition. The City and Acolyte moved for summary judgment and the trial court granted their motions. The Appellate Division initially affirmed (157 AD2d 634) but on reargument it modified the order by denying the City’s motion for summary judgment, reinstating the complaint against it, and remitting the matter to the trial court for further proceedings (164 AD2d 773). The appeal is before us by leave of the Appellate Division on a certified question. We now reverse. Plaintiff has established neither the City’s legal duty to maintain streetlights nor that the street was defective or unsafe at the accident scene.

A municipality has a duty to maintain its streets in a reasonably safe condition (see, Lopes v Rostad, 45 NY2d 617, 623; Oeters v City of New York, 270 NY 364, 368; Kamnitzer v City of New York, 265 App Div 636, 639). Although authorized to install street lighting by General City Law §20 (7), a municipality generally is required to do so only in certain situations where it is necessary to keep the street safe, i.e., where there is a defect or some unusual condition rendering the street unsafe to the traveling public (see, Griffin v Town of Harrison, 268 NY 238, 241-242; Bauer v Town of Hempstead, 143 AD2d 793, 793-794; Andrews v City of Elmira, 128 App Div 699, 701; Schlicher v City of New York, 175 Misc 696, 697, affd 264 App Div 763; 4B Warren, Negligence in the New York Courts § 67.09 [21] [b], at 424 [4th ed]). The duty to maintain existing streetlights is similarly limited to those situations in which illumination is necessary to avoid dangerous and potentially hazardous conditions (see, Mastro v Maiorino, 174 AD2d 654).

In order to prevail, therefore, plaintiff had to show that the City permitted a dangerous or potentially hazardous condition to exist and cause injury (see, e.g., Bottalico v State of New York, 59 NY2d 302, 305 [roadway shoulder maintained in a dangerous condition]; Barrett v City of Buffalo, 96 AD2d 709, 710 [jury question whether city created a dangerous condition by placing a cover on a water box with inadequate support]; Prager v Motor Vehicle Acc. Ind. Corp., 74 AD2d 844, 845, affd 53 NY2d 854 [traffic light outage deemed a dangerous condition]; Meyer v State of New York, 51 AD2d 828, 829 ["malfunction reports” regarding traffic light placed State on notice of potentially hazardous condition]). Plaintiffs claim that a light bulb burned out was not, standing alone, sufficient to establish a cause of action: she was obliged to show that by failing to replace the bulb, the City created a dangerous condition on the Grand Concourse. The most that appears, however, is that the roadway near the intersection of Field Place is large and at times busy — a condition which exists at many city intersections. The mere outage of the streetlight did not render this reasonably safe street dangerous.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant City’s motion for summary judgment granted, and the certified question answered in the negative.

Hancock, Jr., J.

(dissenting). I would affirm. I agree with the reasoning of the Appellate Division that "[b]y installing he streetlight in the first instance, the municipality voluntarily undertook to act on behalf of pedestrians such as plaintiff and induced their reasonable reliance on such undertaking (Kircher v City of Jamestown, [74 NY2d 251]; see also, Cuffy v City of New York, 69 NY2d 255). The issue here is thus not one of absence of street lighting, but the negligent maintenance of lighting already installed” (164 AD2d 773, 774-775). Although the City might not have had a duty to install the streetlights in question in the first instance (see, Schlicher v City of New York, 175 Misc 696, 697, affd without opn 264 App Div 763), once the City had undertaken to install the streetlight, it was legally obligated to exercise due care in maintaining it (see, Allen v Town of Hempstead, 145 AD2d 588 [when a municipality undertakes to provide street lighting at a particular location, it may be held liable to a plaintiff who suffers injury due to a hazardous and dark condition created by a broken streetlight that is in close proximity to the site of the accident]; Moch Co. v Rensselaer Water Co., 247 NY 160; see also, Unger v Village of Fayetteville, 175 AD2d 606 [liability of Village upheld on theory that maintenance of existing streetlights is a proprietary function]).

The majority’s reasoning that the City has a duty to maintain installed streetlights only to the extent that the City has a duty to install them in the first instance, it seems to me, is erroneous. Our prior holdings have made clear that a municipality has a duty to act with reasonable care in the absence of a duty to act in the first instance, if the municipality voluntarily undertakes to act (see, Bottalico v State of New York, 59 NY2d 302 [State has a duty to maintain roadway shoulder in reasonably safe condition once it has undertaken to provide a shoulder]; Florence v Goldberg, 44 NY2d 189 [municipality which voluntarily undertook to provide crossing guards at intersections may be held liable for negligent performance of that duty, notwithstanding that, absent a voluntary assumption of the duty, none would have existed]; Moch Co. v Rensselaer Water Co., 247 NY 160, 167, supra ["The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all”]; see also, Kircher v City of Jamestown, 74 NY2d 251; Cuffy v City of New York, 69 NY2d 255; De Long v County of Erie, 60 NY2d 296). The majority provides no reasons for departure from this rule.

Chief Judge Wachtler and Judges Kaye, Titone and Bellacosa concur with Judge Simons; Judge Hancock, Jr., dissents and votes to affirm in a separate opinion in which Judge Alexander concurs.

Order reversed, etc.

       Although the City claims otherwise, plaintiff could have been entitled to damages from the resulting injuries had she proved the street was not reasonably safe without having to establish a "special relationship” between the plaintiff and the City (cf., Kircher v City of Jamestown, 74 NY2d 251, 255; Cuffy v City of New York, 69 NY2d 255, 260).


author: Kaye, J. Alexander, J.

text:
    Magali Hernandez, as Administratrix of the Estate of Laura Morales, Deceased, Respondent, v New York City Health and Hospitals Corporation, Appellant, et al., Defendants.
    Argued October 17, 1991;
    decided December 23, 1991

      POINTS OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Fred Kolikoff and Larry A. Sonnenshein of counsel), for appellant.
    Application of an infancy toll to the limitations period which governs a wrongful death action is contrary to precedents established by this Court in 1940 and 1978, and would be contrary to the rule established in the majority of jurisdictions that have considered the issue. As this Court has recognized, any perceived inequities in the applicable statutes should be corrected by the Legislature rather than the judiciary. (Mossip v Clement & Co., 163 Misc 771, 256 App Div 469, 283 NY 554; Ratka v St. Francis Hosp., 44 NY2d 604; Collins v Jamaica Hosp., 158 AD2d 649, 76 NY2d 703; Bonilla v Abbott, 113 AD2d 861; Beninati v Oldsmobile Div. of Gen. Motors, 94 Misc 2d 835; Cruz v Mount Sinai Hosp., 61 AD2d 915; Liff v Schildkrout, 49 NY2d 622; Matter of Holquin, 101 Misc 2d 174; Rosenberg v Kurk, 36 Misc 2d 177; Matter of Hawley, 13 Misc 2d 270.)

      Philip Hoffer and Rose L. Hoffer for respondent.
    The commencement of a death claim action in this case was stayed by a statutory prohibition by reason of the necessity for the appointment of a guardian for the sole distributee, who is an infant, before an administrator could be appointed and, therefore, the Statute of Limitations was tolled by CPLR 204 (a) and 208 and the duration of the stay is not part of the time within which the action must be commenced, especially so in the absence of any claim of prejudice. (Sharrow v Island Lines, 214 NY 101; Caffaro v Trayna, 35 NY2d 245; George v Mt. Sinai Hosp., 47 NY2d 170; Roldan v Allstate Ins. Co., 149 AD2d 20; Collins v City of New York, 55 NY2d 646; Brennan v City of New York, 59 NY2d 791; Ratka v St. Francis Hosp., 44 NY2d 604; Mossip v Clement & Co., 283 NY 554; Gonzalez v New York City Hous. Auth., 77 NY2d 663.)
   OPINION OF THE COURT

Kaye, J.

In this wrongful death action, the complaint was served after expiration of the one-year 90-day Statute of Limitations then applicable to claims against the New York City Health and Hospitals Corporation. The action was dismissed as untimely by the trial court and reinstated by the Appellate Division. This appeal requires us to determine whether the Statute of Limitations was tolled by the infancy of the sole distributee of decedent’s estate.

I.

In March 1987, Laura Morales — the decedent — was admitted to North Central Bronx Hospital, a facility owned and operated by defendant Health and Hospitals Corporation. Decedent died intestate on April 8, 1987, leaving her infant son as her sole distributee. Also surviving were several of decedent’s siblings and her mother.

Letters of guardianship were issued to Margarita Colon, the infant’s grandmother, on December 22, 1987. Upon issuance of the letters of guardianship, the guardian renounced her right to letters of administration and sought leave of court to have Magali Hernandez, decedent’s niece, appointed administratrix of the estate. On December 31, 1987, the Surrogate issued limited letters of administration to Magali Hernandez, granting her authority to commence the present action.

In February 1988, plaintiff was granted leave to file a late notice of claim, and the present action was commenced on December 16, 1988. Thereafter, defendant moved to dismiss the claim as time-barred, asserting that the action was not commenced within one year and 90 days of death as required by McKinney’s Unconsolidated Laws of NY § 7401 (2) (New York City Health and Hospitals Corporation Act § 20 [2] [L 1969, ch 1016, § 1]). Plaintiff responded that the limitations period was tolled during pendency of the motion for leave to file a late notice of claim and by the infancy of decedent’s sole distributee. Supreme Court granted defendant’s motion to dismiss, holding that pendency of the motion would have tolled the Statute of Limitations for only one month (from January to February 1988), and that the infancy toll was inapplicable because there were other distributees who could have promptly filed for letters of administration.

The Appellate Division modified, reinstating the complaint as to defendant. The court held that the Statute of Limitations on the wrongful death claim was tolled until the guardian was appointed; where the sole distributee is an infant, no one is eligible to receive letters of administration and bring a wrongful death action as personal representative of the estate until a guardian is appointed. Further, the court noted Supreme Court’s error in concluding that there were other distributees as neither decedent’s siblings nor her mother were entitled to share in the estate under the distribution scheme set out in the Estates, Powers and Trusts Law. Finally, the court overruled its own prior decision in Cruz v Mount Sinai Hosp. (61 AD2d 915) to the extent inconsistent with its holding in the present case.

The Appellate Division granted leave to appeal, certifying the following question: "Was the order of this Court, which modified the order of the Supreme Court, properly made?” We now answer that question in the affirmative, concluding that the Statute of Limitations was tolled until the appointment of the infant’s guardian.

II.

Under the EPTL, plaintiffs have two years, measured from the date of death, in which to bring a wrongful death action (EPTL 5-4.1). At the time the present action was commenced, however, a one-year 90-day Statute of Limitations applied to actions brought against this municipal defendant (Unconsolidated Laws § 7401 [2]; Brennan v City of New York, 59 NY2d 791). Unless that limitations period was tolled, plaintiff’s action — commenced one year and eight months after decedent’s death — was not timely.

Under the CPLR, where the "person entitled to commence an action is under a disability because of infancy * * * at the time the cause of action accrues” the Statute of Limitations is tolled (CPLR 208). The problem arises in the application of this toll to the wrongful death cause of action. The "person entitled to commence” a wrongful death action is not the decedent’s distributee — who is the beneficiary of the claim— but the decedent’s personal representative (see, EPTL 5-4.1). Is the infancy of the sole distributee a disability attributable to the "person entitled to commence an action” in the unusual situation where no personal representative can be appointed to bring a wrongful death action until the infant obtains a guardian?

Defendant argues that we answered that question in Ratka v St. Francis Hosp. (44 NY2d 604) and Mossip v Clement & Co. (256 App Div 469, affd 283 NY 554). However, neither case decided the issue before us.

In both Mossip and Ratka, the decedents were survived by adult distributees. In Ratka, this Court affirmed an Appellate Division decision that held no infancy toll was available to the surviving child where there existed, at the time of decedent’s death, next of kin who were under no disability to receive letters of administration (44 NY2d, at 608, affg 54 AD2d 587).

The parties differ on the meaning of "next of kin” as used in Ratka. Plaintiff would limit those words to distributees; defendant would read them to include a decedent’s relatives— here, for example, her mother, siblings and niece.

Ratka, like judicial opinions generally, should be read in light of its facts (see, e.g., Crane v Bennett, 177 NY 106, 112) and limited to situations where — as in that case — there are other distributees who qualify for letters of administration. Indeed, the definition of "distributee” replaced that of "next of kin” in the relevant statute (compare, former Decedent Estate Law § 134 ["next of kin” defined as those entitled under the relevant distribution laws to share in the assets of the decedent], with EPTL 1-2.5 [defining "distributees” as those entitled to share in the property of a decedent under the governing distribution statutes]; see also, Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 1-2.5, at 14). Clearly, the Court in Ratka referred to the adult distributee when it noted that other "next of kin” were under no disability to receive letters of administration.

Nor is Mossip dispositive of the question we now confront. Mossip held that a " 'right of action belongs to or is vested in the person or persons who has or have the lawful right to prosecute it.’ ” (256 App Div, at 473, supra, quoting Matter of Meng, 227 NY 264, 277.) It followed that no infancy toll could apply where the person entitled to bring the wrongful death action was the personal representative, not the infant distributee. However, in Mossip there was another eligible distributee, who had a right to letters of administration and thus the right to become personal representative. The rationale of Mossip does not control the present case, where no one had or could have had the "lawful right to prosecute” the action until a guardian was appointed for the person otherwise entitled to assume that role.

The question before us thus remains an open one in this State.

III.

In resolving the question, we look first to the relevant statutory scheme. The wrongful death cause of action in New York is exclusively statutory, the first such statute having been enacted in 1847 (L 1847, ch 450; see also, NY Const, art I, § 16). We have no common-law cause of action for wrongful death (see, Ratka v St. Francis Hosp., 44 NY2d 604, 612, supra).

Under the wrongful death statute, a decedent’s personal representative may maintain the action for the benefit of the distributees of the estate (EPTL 5-4.1; see also, 5-4.4). "Personal representative” is defined as "a person who has received letters to administer the estate of a decedent” (EPTL 1-2.13).

Under the SCPA, distributees have a prior right to letters of administration (SCPA 1001); an infant, however, is ineligible to receive such letters (SCPA 707 [1] [a]). Thus, as the Appellate Division observed, "where the sole distributee is an infant, no one is eligible to receive letters of administration until such time as a guardian is appointed.” (169 AD2d 535, 536; see also, SCPA 1001 [2], [6].) It follows that in the present case, at the time of decedent’s death, no one could be granted letters of administration — and consequently no one could commenee the wrongful death action — until a guardian was appointed for the child.

The confluence of the pertinent EPTL, SCPA and CPLR provisions in this case thus gives rise to an unusual — perhaps unique — problem. EPTL 5-4.1 grants the personal representative procedural authority to bring the wrongful death claim; SCPA 1001 and 707 make it impossible for anyone to assume that role until a guardian is appointed for the infant sole distributee; and CPLR 208 speaks of tolling the Statute of Limitations when the person entitled to bring the action is under a disability at the time of accrual. In that a wrongful death action accrues at the time of death, mechanical application of CPLR 208 is impossible unless the position of the infant/sole distributee under the SCPA is ignored. We decline to reach that unnecessarily harsh result, and instead would construe the toll of CPLR 208 to apply until the earliest moment there is a personal representative or potential personal representative who can bring the action, whether by appointment of a guardian or majority of the distributee, whichever occurs first.

What should not be lost in the maze of statutes is that the person — the only person — whose interests are at stake in bringing this action is decedent’s child. Though a wrongful death action technically must be brought by the personal representative to ensure order in settling decedent’s affairs, any damages recovered are "exclusively for the benefit of the decedent’s distributees”; the cause of action is not part of and bears no legal relationship to decedent’s estate (EPTL 5-4.4; Hamilton v Erie R. R. Co., 219 NY 343, 350). The personal representative is a "mere nominal party,” acting in the capacity of trustee or agent for the beneficiaries (Hamilton v Erie R. R. Co., supra, at 351; see also, Central N. Y. Coach Lines v Syracuse Herald Co., 277 NY 110, 113-114). Damages are measured by the effect of the wrongful act on the distributees —the pecuniary loss suffered by the individual distributees as a result of decedent’s death (see, George v Mt. Sinai Hosp., 47 NY2d 170, 176; Matter of Meekin v Brooklyn Hgts. R. R. Co., 164 NY 145; EPTL 5-4.3; compare, EPTL 11-3.2 [action for injury to person of decedent belonging to decedent’s estate]).

Thus, in the present case it is decedent’s infant child who has suffered any loss recognized by law, who is entitled to all proceeds of the action, and who will bear the full burden of dismissal of the claim. Moreover, as decedent’s distributee, the child would be in the group — indeed the sole member of the group — from which the personal representative would ordinarily be chosen.

Given these circumstances, we conclude that the infant/sole distributee should have the benefit of the toll provided by CPLR 208. We note that other courts considering this issue have reached a similar conclusion (see, Pulsifer v Olcott, 63 Misc 2d 524, affd 41 AD2d 781; Matter of Cruz v New York City Health & Hosps. Corp., 131 Misc 2d 376; see also, Stutz v Guardian Cab Co., 273 App Div 4 [applying military service toll to sole distributee]).

This result strikes the appropriate balance among competing policy considerations. On the one hand, Statutes of Limitation serve to bar stale claims, adding an element of certainty to human affairs (see, Ratka v St. Francis Hosp., 44 NY2d, at 612, supra; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429). Against this important interest must be weighed the fairness of not unreasonably denying a claimant the right to assert a claim (see, Caffaro v Trayna, 35 NY2d 245, 250; see also, Carlucci, Time For a Change: The Infancy Toll and Wrongful Death Actions, 60 NY St BJ 18 [Apr. 1988]). Ultimately, what distinguishes this case and requires that the balance be weighed in claimant’s favor is the infancy of the sole distributee.

We underscore that the Statute of Limitations is tolled only until appointment of a guardian or the majority of the sole distributee, whichever is earlier, when letters of administration may issue and a personal representative may assume the role of plaintiff. That is the first time there exists a potential personal representative entitled to "commence an action” (see, CPLR 208; SCPA 1001 [2], [6]). Establishing the earliest time for removal of the disability in the unusual situation presented accommodates both the interests of the infant and those of society in barring stale claims.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Alexander, J.

(dissenting). In order to avoid an "unnecessarily harsh result,” the majority today holds that in the "unusual situation” where an infant is the sole distributee of a decedent, the time within which the personal representative of the decedent’s estate must commence a wrongful death action under EPTL 5-4.1 is tolled by CPLR 208 until a guardian is appointed for the infant, or until the infant distributee reaches majority, whichever occurs first. Because this interpretation constitutes nothing less than sheer judicial legislation, I dissent.

It is well established that the courts "do not sit in review of the discretion of the Legislature or determine the expediency, wisdom, or propriety of its action on matters within its powers” (McKinney’s Cons Laws of NY, Book 1, Statutes § 73; see also, Bronx Gas & Elec. Co. v Public Serv. Commn., 190 App Div 13 [the courts should not, through any argument of necessity or hardship, arising either from a failure of the Legislature to act or from an unwise action on its part, assume the burden of legislation]). However, in its effort to rectify a perceived defect in the statutory scheme governing the prosecution of wrongful death actions, the majority has chosen to elevate a particular public policy concern over another equally important policy, as well as settled canons of statutory interpretation and stare decisis, justifying this judicial legislation on the basis of a distinction between the situation presented in this case and those in Ratka v St. Francis Hosp. (44 NY2d 604) and Mossip v Clement & Co. (256 App Div 469, affd 283 NY 554) that is both inconsequential and irrelevant to proper statutory analysis (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 72).

While conceding that EPTL 5-4.1 vests the right of action for wrongful death exclusively and solely in the personal representative of a decedent’s estate, the majority nonetheless concludes that because such an action is for the benefit of the decedent’s distributees, where the sole distributee is an infant, the saving provision of CPLR 208 should be applied to toll the Statute of Limitations. This conclusion has absolutely no basis in the language of EPTL 5-4.1 or CPLR 208 and is inconsistent with long-standing precedent of this Court.

EPTL 5-4.1 provides, in pertinent part, that '[t]he personal representative * * * may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death * * * Such an action must be commenced within two years after the decedent’s death” (emphasis added). CPLR 208 provides that '[i]f a person entitled to commence an action is under a disability because of infancy * * * at the time the cause of action accrues * * * [and] the time otherwise limited is less than three years, the time [within which the action must be commenced] shall be extended by the period of disability” (emphasis added). The infant distributee in this case is not a person entitled to bring the action and therefore his disability cannot toll the Statute of Limitations in this wrongful death action.

New York’s wrongful death statute was first enacted in 1847 (L 1847, ch 450) and has been constitutionally guaranteed since 1894 (see, NY Const, art I, § 16, providing that "[t]he right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation”). We have on several occasions expressly declined to adopt a common-law cause of action for wrongful death (see, Carrick v Central Gen. Hosp., 51 NY2d 242, 249-250, n 2; Liff v Schildkrout, 49 NY2d 622, 631-632; Ratka v St. Francis Hosp., 44 NY2d 604, 610-612, supra). Indeed, the New York courts have consistently held that the right of action for wrongful death is purely statutory, and was unknown at common law (see, e.g., Liff v Schildkrout, 49 NY2d 622, 631-632, supra; George v Mt. Sinai Hosp., 47 NY2d 170, 176; Ratka v St. Francis Hosp., 44 NY2d 604, 610-612, supra; Caffaro v Trayna, 35 NY2d 245, 248; Matter of Meng, 227 NY 264, 273; cf., Neal v Butler Aviation Intl., 422 F Supp 850; Barnette v Butler Aviation Intl., 89 Misc 2d 350). Therefore, the statute, which vests the right of action for wrongful death in the "personal administrator” of a decedent for the benefit of the distributees — not in the heirs or distributees personally (see, Ratka v St. Francis Hosp., supra; Mossip v Clement & Co., 283 NY 544, supra; Matter of Meng, 227 NY 264, supra), is in derogation of the common law and should be strictly construed (see, Matter of Robert Paul P., 63 NY2d 233, 238; McKinney’s Cons Laws of NY, Book 1, Statutes § 301, at 459).

This Court has previously declined to extend the tolling provisions of CPLR 208 to wrongful death actions (Ratka v St. Francis Hosp., supra; Mossip v Clement & Co., supra). In Ratka we affirmed the general principle earlier stated in Mossip that "[t]he infancy of the decedent’s children will not suspend the running of the * * * Statute of Limitations for commencement of a wrongful death action” (Ratka v St. Francis Hosp., supra, at 611-612). In that case the decedent was survived by his wife, an adult daughter and six infants. More than two years passed during which neither the wife nor the daughter sought appointment as representative of the decedent’s estate for purposes of bringing a wrongful death action. After the statutory period expired, one of the infants, having subsequently reached majority, was granted letters of administration and commenced a wrongful death action three years after the date of his father’s death. This Court affirmed the Appellate Division’s dismissal of the action as time-barred.

The majority advances no principled reason for reaching a contrary result in this case. They contend that the critical distinction in Ratka and Mossip, which compels a different result here, is that in those cases other distributees were available at the time of decedent’s death who were qualified and eligible to receive letters of administration and commence a wrongful death action. Here, however, the only person entitled to take the property of decedent at the time of her death was her 10-year-old son who, because of his infancy was not eligible to act as personal representative of the estate (see, EPTL 4-1.1 [a] [6]; SCPA 707 [1] [a]). Consequently, until the appointment of a guardian to represent his interest, no other person was available, qualified and eligible to be granted letters of administration (see, SCPA 1001 [1]). Thus, the argument goes, during the period between the date of death and the appointment of either the guardian or the administrator, the Statute of Limitations should be tolled as a result of the infancy of the sole distributee.

Contrary to the majority’s suggestion, our refusal to find the infancy toll of CPLR 208 applicable to the wrongful death actions in Ratka and Mossip did not rest upon the existence of other eligible and qualified distributees who could have been appointed as the personal administrator. Rather, the premise upon which we decided both of those cases was that expressed in Mossip, where we affirmed the general principle that the right of action for wrongful death "is exclusively given and belongs to the representative,” and therefore, unless the "person entitled to bring an action” is disabled, the tolling provision of CPLR 208 does not apply (see, Mossip v Clement & Co., 256 App Div 469, 473, 474, affd 283 NY 554, supra; see also, Ratka v St. Francis Hosp., supra, at 612; but see, Matter of Cruz v New York City Health & Hosps. Corp., 131 Misc 2d 376; Barnette v Butler Aviation Intl., 89 Misc 2d 350, supra; Pulsifer v Olcott, 63 Misc 2d 524, affd 41 AD2d 781). Manifestly, the infant distributee is not a person entitled to bring the action (see, SCPA 707), and thus his disability cannot impact the running of the Statute of Limitations.

Moreover, even if the infancy toll of CPLR 208 were applicable in this instance, the majority’s rule is inconsistent with and contradicts the clear mandate of that section; it prematurely terminates the effect of the toll upon the appointment of a guardian. CPLR 208 clearly states that where the toll applies "the time [within which the action must be commenced] shall be extended by the period of disability” (emphasis added). The plain language of the statute does not support the conclusion that the infancy toll applies only until "the earliest moment there is a personal representative or potential personal representative” (majority opn, at 693). Under CPLR 208 the Statute of Limitations is tolled throughout the infancy, and there is no authority for terminating it sooner. Thus, in Ratka we expressly rejected application of the toll because its application would undermine the effectiveness of the limitation period.

Indeed, we have noted that Statutes of Limitation are "statutes of repose” representing " 'a legislative judgment that * * * occasional hardship [resulting from not applying the tolling provisions] is outweighed by the advantage of barring stale claims’ ” (Ratka v St. Francis Hosp., supra, at 612 [emphasis added]). Statutes of Limitation embody the important policy consideration of giving repose to human affairs (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429). As we held in Flanagan (supra), "[t]he Statute of Limitations was enacted to afford protection to defendants against defending stale claims after a reasonable period of time had elapsed” (id., at 429). Quoting Riddlesbarger v Hartford Ins. Co. (74 US 386, 390), we observed that Statutes of Limitation " 'become statutes of repose, protecting parties from the prosecution of stale claims, when, by loss of evidence from death of some witnesses, and the imperfect recollection of others, or the destruction of documents, it might be impossible to establish the truth’ ” (Flanagan v Mount Eden Gen. Hosp., supra, at 429-430).

To allow the infancy toll to operate here undermines the important policy considerations underlying Statutes of Limitatian, because the wrongful death action in this case could be brought approximately 11 years after this decedent’s death, and "in instances where there are younger distributees, an even longer delay or tolling would be permissible” (Ratka v St. Francis Hosp., supra, at 612). Although the Legislature, by providing the infancy toll, has recognized that certain circumstances outweigh the policies underlying applicable Statutes of Limitation, it is also accepted that such limitations often operate to bar justified as well as unjustified claims, "heedless of whether or not the delay in bringing suit was justifiable or, indeed, could have been avoided at all” (see, 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 201.01, at 2-7). The majority concludes that the result it reaches "strikes the appropriate balance among competing policy considerations.” (Majority opn, at 694.) However, in so doing, the majority ignores the fact that the Legislature has already struck what it perceives to be the appropriate balance and expressly limited our powers in this area (see, CPLR 201 ["No court shall extend the time limited by law for the commencement of an action”]).

I am no less sympathetic than the majority to the plight of infants who may be deprived of the proceeds of a meritorious and successful wrongful death claim by application of the time limitations set forth in EPTL 5-4.1, but any deficiency in this regard must be corrected by the Legislature, not the judiciary (see, Liff v Schildkrout, 49 NY2d 622, 634, supra). Accordingly, I would reverse the order of the Appellate Division, and dismiss the complaint.

Judges Simons, Hancock, Jr., and Bellacosa concur with Judge Kaye; Judge Alexander dissents and votes to reverse in separate opinion in which Chief Judge Wachtler and Judge Titone concur.

Order affirmed, etc.

      . The City of New York and several individual physicians were also named as defendants. Those parties have been dismissed from the suit and no appeal has been taken.

      . That has since been changed. Effective August 24, 1990, a two-year Statute of Limitations applies to wrongful death claims against the Health and Hospitals Corporation (L 1990, ch 804, § 122).

      . The two-year limitation is a limitation on the remedy, not the right (see, Ratka v St. Francis Hosp., 44 NY2d 604, 611; Sharrow v Inland Lines, 214 NY 101, 110). Therefore, although the statute creating the cause of action itself limits the time for bringing suit, it is treated as an ordinary Statute of Limitations — subject to any relevant tolling provision — rather than a condition precedent to suit (see, Carrick v Central Gen. Hosp., 51 NY2d 242, 253, n 5; see generally, Siegel, NY Prac § 34, at 38 [Prac 2d ed]). The one-year 90-day Statute of Limitations is similarly subject to the tolls provided in CPLR article 2 (see, Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256, 259).

      . Courts elsewhere have considered the applicability of infancy tolls to wrongful death actions (see generally, Annotation, Minority of Surviving Children as Tolling Limitation Period in State Wrongful Death Action, 85 ALR3d 162), reaching different conclusions (compare, Haakanson v Wakefield Seafoods, 600 P2d 1087 [Alaska]; Hun v Center Props., 63 Haw 273, 626 P2d 182 [applying infancy toll], with Huntington v Samaritan Hosp., 101 Wash 2d 466, 680 P2d 58; Wyatt v Spartan Mill Co., 287 SC 334, 338 SE2d 341 [refusing to apply the infancy toll]). In that the laws as well as the facts vary, these cases are of limited utility in our analysis.

        . Addressing the dissent, it is indeed a curious basis for criticism that a court would seek to avoid unnecessarily harsh results, especially in the present circumstances. Reading CPLR 208 in isolation, the dissent would dismiss the infant’s claim because the representative is not under the disability of infancy. What representative? That the SCPA also controlled, precluding the possibility of there being a representative until appointment of a guardian, is virtually ignored by the dissent and precisely the source of the problem. The Court’s solution — to apply the CPLR 208 toll until there is some person "entitled to commence an action” — is hardly remarkable where the claim is for the infant’s sole benefit and but for his infancy he would otherwise be the representative.


text:
    Martin Santulli, Respondent-Appellant, v Englert, Reilly & McHugh, P. C., Appellant-Respondent.
    Argued November 14, 1991;
    decided January 16, 1992

      POINTS OF COUNSEL

      Scott W. Bush for appellant-respondent.
    I. The claims of plaintiff are barred by the applicable Statute of Limitations. (Glamm v Allen, 57 NY2d 87; Lazzaro v Kelly, 87 AD2d 975, 57 NY2d 630; Video Corp. v Flatto Assocs., 58 NY2d 1026; Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389; Winkler v Messinger, Alperin & Hufjay, 147 AD2d 693; Pittelli v Schulman, 128 AD2d 600; Albany Sav. Bank v Caffry, Pontiff, Stewart, Rhodes & Judge, 95 AD2d 918; Brainard v Brown, 91 AD2d 287; Loengard v Santa Fe Indus., 70 NY2d 262; Campagnola v Mulholland, Minion & Roe, 76 NY2d 38.) II. The continuous representation doctrine does not apply to the facts of the case. (Glamm v Allen, 57 NY2d 87; National Life Ins. Co. v Hall & Co., 67 NY2d 1021; Albany Sav. Bank v Caffry, Pontiff, Stewart, Rhodes & Judge, 95 AD2d 918.) III. The facts of the case fail to support a claim for breach of contract. (Badik v Murphy, 160 AD2d 1199; Pacesetter Communications Corp. v Solin & Breindel, 150 AD2d 232, 74 NY2d 892; Boecher v Borth, 51 AD2d 598; Shaffer v Hirsch, 52 AD2d 785.)

      Donna B. Heinrichs for respondent-appellant.
    I. The drawing of the mortgage by defendant law firm in the instant case embodied a promise to achieve a definite result, i.e., a mortgage which would provide adequate security for the debt owed to plaintiff. Thus, defendant is liable to plaintiff for breach of contract, the applicable Statute of Limitations is six years, and the within action is in all respects timely. (Sinopoli v Cocozza, 105 AD2d 743; Video Corp. v Flatto Assocs., 58 NY2d 1026; Albany Sav. Bank v Caffry, Pontiff, Stewart, Rhodes & Judge, 95 AD2d 918; Brainard v Brown, 91 AD2d 287; Sager v DeRiggi, 161 AD2d 571.) II. It was error for the court below to dismiss plaintiff’s cause of action for breach of contract on a finding that there was no express promise to obtain a specific result. A cause of action for breach of contract may be based upon contractual obligations which are implied as well as express. In any event, there is unequivocal evidence in this case that an express promise existed. (Bloom v Kernan, 146 AD2d 916.) III. A malpractice claim which has its genesis in the contractual relationship of the parties and which seeks recovery for damages to property or pecuniary interest is governed by a six-year Statute of Limitations under CPLR 213 (2) regardless of the theory upon which the claim is pleaded. (Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389; Schur v Porter, 712 F Supp 1140; Cohen v Goodfriend, 665 F Supp 152.) IV. The attorney-client relationship between defendant law firm and plaintiff Santulli did not terminate on or about February 18, 1981, the date the faulty mortgage was recorded, but continued until August 9, 1983 when defendant sent plaintiff a letter stating that their law firm was disqualified from pursuing plaintiff’s claim. (Lazzaro v Kelly, 87 AD2d 975, 57 NY2d 630; Gilbert Props. v Millstein, 33 NY2d 857; Boorman v Bleakley, Platt, Schmidt, Hart & Fritz, 88 AD2d 942; Citibank v Suthers, 68 AD2d 790; Volgraff v Block, 117 Misc 2d 489; Wilson v Econom, 56 Misc 2d 272; Muller v Sturman, 79 AD2d 482.)
   OPINION OF THE COURT

Alexander, J.

In this action for legal malpractice and breach of contract, plaintiff Martin Santulli and defendant law firm Englert, Reilly & McHugh, P. C. each appeal, by leave of the Appellate Division, from an order of that court. The Appellate Division modified Supreme Court’s order by granting defendant’s motion for summary judgment and dismissing plaintiff’s breach of contract cause of action as legally insufficient and affirming that court’s denial of defendant’s motion, addressed to plaintiff’s malpractice claim, for summary judgment based on Statute of Limitations grounds. We agree that the malpractice claim is not barred by the Statute of Limitations, but conclude that the contract cause of action should not have been dismissed.

I

In October 1980, plaintiff retained defendant law firm to represent him in the sale of his hardware business. Plaintiff had agreed with one Daniel White to sell the business for the total sum of $75,000, $35,000 of which was to be secured by a first mortgage on property owned by Samuel White, Daniel White’s father. These terms and conditions, among others, were contained in the contract of sale negotiated by defendant on plaintiff’s behalf. According to plaintiff’s allegations, defendant was to prepare a mortgage covering the entirety of the property owned by Samuel White and have it recorded. It appears that the mortgage instrument was not executed at the closing because the mortgagor was not present. However, shortly after the closing of the transaction, the mortgage was executed and defendant had it recorded in the local County Clerk’s office in February 1981. During the next couple of months, the only further contact between plaintiff and defendant was with respect to discussions concerning the bill for legal services rendered in connection with the sale. Questions about the bill were resolved and the bill was paid in April 1981.

Daniel White made approximately 20 payments to plaintiff on the mortgage debt but ultimately defaulted. In May 1983, plaintiff sought defendant’s assistance in collecting amounts due on the mortgage. Shortly thereafter, plaintiff discovered that although the description of the property intended to be encumbered purported to cover the entire property owned by Samuel White, only a portion of that real property was in fact encumbered because the easterly 50% of the described property was excepted from the mortgage. This was the portion of the property on which a house was located — the remaining portion which was actually pledged contained only two vacant lots and a shed which were only of minimal value. Thus, the most valuable portion of the property — the easterly portion upon which the house was located — was excepted as security for the debt.

Plaintiff informed defendant of the defective mortgage and they discussed the possibility of a foreclosure proceeding. Defendant advised plaintiff in August of that year, however, that it could not represent him in any foreclosure proceedings because of a potential conflict of interest — the partner who was actually involved in the transaction would probably have to testify.

Plaintiff retained other counsel and in September 1985 commenced this action against defendant asserting causes of action for legal malpractice and breach of contract and seeking treble damages pursuant to Judiciary Law § 487. Defendant interposed a general denial and asserted various defenses including the Statute of Limitations and failure to state a cause of action. Following discovery, defendant moved for summary judgment dismissing the complaint on those two grounds. In opposition, plaintiff contended that the doctrine of continuous representation operated to toll the Statute of Limitations and argued that a breach of contract cause of action was sufficiently stated.

Supreme Court denied defendant’s motion, finding that issues of fact existed requiring a trial, but dismissed plaintiff’s treble damages claim. The Appellate Division modified Supreme Court’s order, dismissed the cause of action for breach of contract because there was no express promise by defendant to obtain a specific result and determined that the continuous representation doctrine did not apply. However, relying on Video Corp. v Flatto Assocs. (58 NY2d 1026), the court concluded that the action for malpractice was timely commenced because the six-year contract Statute of Limitations applied (CPLR 213 [2]). Additionally, the court determined that to the extent its prior decisions in Albany Sav. Bank v Caffry, Pontiff, Stewart, Rhodes & Judge (95 AD2d 918) and Brainard v Brown (91 AD2d 287) required a different result, they were overruled. One Justice dissented in part, concluding that defendant’s motion for summary judgment should be granted in its entirety because the malpractice claim was barred by the three-year Statute of Limitations (CPLR 214 [6]). Both parties were granted leave to appeal by the Appellate Division pursuant to CPLR 5602 (b).

II

Addressing the sufficiency of plaintiff’s contract cause of action, we conclude that the Appellate Division erred in holding that no cause of action was stated because there was no promise to achieve a specific result. A cause of action for breach of contract may be based on an implied promise to exercise due care in performing the services required by the contract (see, Bloom v Kernan, 146 AD2d 916, 917; see also, Video Corp. v Flatto Assocs., 58 NY2d 1026, supra). Here, the complaint alleges that defendant "agreed to do all services relative to the sale of plaintiff’s hardware business, including the preparation of the first mortgage” which was intended to secure the contract balance of $35,000 and was to cover the premise owned by Samuel White, the purchaser’s father. Plaintiff alleges that the defendant breached the "agreement of retainer” by "failing to properly draw and record such a first mortgage.” Giving the plaintiff the benefit of every fair inference and intendment arising from the allegations, and viewing the complaint as a whole, we conclude that a cause of action for breach of contract was adequately stated.

The Appellate Division dismissed the contract cause of action, however, because there was no express promise to obtain a specific result. That court relied on Badik v Murphy (160 AD2d 1199) and Pacesetter Communications Corp. v Solin & Breindel (150 AD2d 232, lv dismissed 74 NY2d 892). Pacesetter is distinguishable, however; there the parties had executed a written retainer agreement which not only, explicated the attorney’s undertaking but expressly disavowed any specific promises to the client stating that "[w]e have made no representations or guarantees to you that any result can or will be obtained, or is likely to be obtained, in this matter” (id., at 236). The court’s reliance here on its prior decision in Badik is puzzling, especially since Badik, citing only to the court’s prior determination in Albany Sav. Bank v Caffry, Pontiff, Stewart, Rhodes & Judge (95 AD2d 918, supra), which was expressly overruled in this case, summarily stated that plaintiff’s proof "established only a cause of action in negligence and not one for breach of contract” (Badik v Murphy, supra, at 1201). In any event, we conclude that to the extent Badik can be read to support the proposition that an express promise to obtain a specific result is required to sustain a contract cause of action in the context of an attorney-client relationship, it should not be followed.

Defendant argues that a cause of action for breach of contract in the context of an attorney-client relationship may be sustained only where there is either a specific promise by the attorney to perform and there is a complete failure of any performance or where the attorney has undertaken a specific task and has failed to perform that task. This argument accords with the holding of the Third Department in Brainard v Brown (91 AD2d 287, supra) and Albany Sav. Bank v Caffry, Pontiff, Stewart, Rhodes & Judge (95 AD2d 918, supra) both of which that court expressly overruled in the case at bar. In any event, Brainard is of doubtful vitality since it relied on the majority opinion at the Appellate Division, First Department, in Video Corp. v Flatto Assocs. (85 AD2d 448), which was subsequently modified by this Court (58 NY2d 1026, supra) to reinstate the complaint in its entirety and where we concluded that Justice Sandler’s analysis in his dissenting in part opinion correctly interpreted our holding in Sears, Roebuck & Co. v Enco Assocs. (43 NY2d 389).

Turning then to the legal malpractice cause of action, we reject, as did the Appellate Division, defendant’s argument that the three-year Statute of Limitations provided in CPLR 214 (6) applies and because this action was commenced more than four years after the cause of action arose, the action is time barred.

We have been called upon on prior occasions to respond to the question of the appropriate Statute of Limitations to be applied in actions for professional malpractice (other than medical, dental or podiatric) and concluded that "the choice of applicable Statute of Limitations is properly related to the remedy rather than to the theory of liability” (Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389, 394-395, supra; see also, Video Corp. v Flatto Assocs., 58 NY2d 1026, supra; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669). We noted in Sears that the liability of the defendants there, "whether verbalized as in tort for professional malpractice or as in contract for nonperformance of particular provisions of the contract, arose out of the contractual relationship of the parties — i.e., absent the contract between them, no services would have been performed and thus there would have been no claims” (Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389, 396, supra). So too in the case at bar, all potential liability of the defendant arises out of the agreement retaining the firm as attorneys for the plaintiff in respect to the sale of his business. Here, as in Sears, we perceive no significant difference flowing from the manner in which the liability is classified or described, for in any event, "an agreement to exercise due care in the performance of the agreed services is to be implied” (id., at 396).

Thus, an "action for failure to exercise due care in the performance of a contract insofar as it seeks recovery for damages to property or pecuniary interests recoverable in a contract action is governed by the six-year contract Statute of Limitations (CPLR 213, subd 2)” (Video Corp. v Flatto Assocs., 58 NY2d 1026, 1028, supra; see also, Sager v DeRiggi, 161 AD2d 571; Sinopoli v Cocozza, 105 AD2d 743; Baratta v Kozlowski, 94 AD2d 454; see generally, Farrell, 1983 Survey of New York Law, 35 Syracuse L Rev 59, 60-63; Siegel, NY Prac, § 37, at 45 [2d ed]).

Defendant contends, however, that because the malpractice cause of action arose from the alleged negligent discharge of the duties arising from an attorney-client relationship, not from any contractual obligations, plaintiffs cause of action is grounded in tort, subject to the shorter three-year Statute of Limitations found in CPLR 214 (6). Pointing to our recent decision in Loengard v Santa Fe Indus. (70 NY2d 262), defendant argues that the choice of the applicable Statute of Limitations should be governed by the substantive remedy sought by a plaintiff; here, damages for negligent discharge of the duties arising from the attorney-client relationship. While defendant accurately states the rule, the argument,, defendant advances misapplies it. Here, the remedy plaintiff seeks is recovery of the $35,000, the balance of the purchase price of the business that should have been secured by the mortgage on the White property — damages to his pecuniary interests identical to those which would be recoverable in the contract action.

The choice of the applicable Statute of Limitations does indeed properly relate to the remedy sought rather than to the theory of liability (see, Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669, 672, supra). Language used in many of our earlier cases indicated, however, that in applying the Statute of Limitations, the "reality” or "essence” of the action should be examined, not its form (id., at 674). Defendant would apply the language of those earlier cases here, arguing that the "essence” of the malpractice action is negligence. Many of these cases in which that language was used were decided in the context of causes of action to recover damages for direct or underlying personal injury and therefore involved policy considerations significantly different from those policy considerations involved where the action seeks to recover damages to property or pecuniary interests only (Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389, 395, supra).

Nevertheless, defendant argues that the rule of Sears, Roebuck and Video Corp. should not be applied in the legal malpractice circumstance because the relationship between attorney and client is "much more than a contractual relationship”; it is a relationship "founded in principle upon the elements of trust and confidence” and therefore is "unique.” Defendant cites to our recent decision in Campagnola v Mulholland, Minion & Roe (76 NY2d 38) in support of the contention that traditional contract principles should not be applied in the context of the attorney-client relationship. No persuasive reason is offered, however, for not applying the six-year Statute of Limitations to a legal malpractice claim where the remedy sought is damages relating solely to the plaintiff’s pecuniary or property loss and which arose out of the contractual relationship (see, Video Corp. v Flatto Assocs., 58 NY2d 1026, supra).

Defendant’s further contention that application of the six-year contract Statute of Limitations to this action would in effect nullify the provisions of CPLR 214 (6), was raised in both Sears, Roebuck and Video Corp., and although considered by this Court, was ultimately rejected. We reject the argument here as well.

Where a plaintiff fails to commence an action to recover damages on a legal malpractice claim within three years of the accrual of the cause of action, and seeks to rely on the six-year contract Statute of Limitations to protect that claim, the damages recoverable will be limited to those damages recoverable for a breach of contract. To the extent the legal malpractice claim seeks damages different from or greater than those customarily recoverable under a breach of contract claim, CPLR 214 (6) will govern.

Finally we note that the courts below properly concluded that the continuous representation doctrine has no applicability under the facts of this case. There clearly was no further representation of plaintiff by defendant following the settlement of the bill in April 1981 (see, Glamm v Allen, 57 NY2d 87, 93; Pittelli v Schulman, 128 AD2d 600).

Accordingly, the order of the Appellate Division should be modified, with costs to plaintiff, by denying defendant’s motion for summary judgment as to the second cause of action and, as so modified, affirmed. The certified question should be answered in the affirmative.

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

Order modified, etc.

      . The Appellate Division certified to us the question: "Did this Court err as a matter of law in modifying the order of the Supreme Court by reversing so much thereof as denied defendant’s motion for summary judgment dismissing the second cause of action, granting the motion to that extent and dismissing the second cause of action, and, as so modified, affirming the order?”

      . In Video, we determined that to the extent our decision in Gilbert Props. v Millstein (33 NY2d 857), which applied the three-year Statute of Limitations to a legal malpractice action, differed with our holding in that case, it should not be followed. Lazzaro v Kelly (87 AD2d 975, affd 57 NY2d 630) and Glamm v Allen (57 NY2d 87), which involved application of the three-year Statute of Limitations period in an attorney-client context were decided prior to our decision in Video. Glamm is distinguishable on two other grounds as well. First, the determinative issue in that case was not whether the six-year or three-year Statute of Limitations was applicable, but whether the Statute of Limitations would be tolled pursuant to General Municipal Law § 50-e and CPLR 210 (b). We determined that the tolling provisions applied and the action was timely commenced within three years. Moreover, in Glamm, plaintiff’s claim was for personal injury, not for damage to property or pecuniary interests.