author: Fuchsberg, J. Meyer, J.

text:
    Albert L. Sutton, as Executor of Leon A. Sutton, Deceased, Respondent, v East River Savings Bank, Appellant, et al., Defendants.
    Argued March 25, 1982;
    decided May 11, 1982

      POINTS OF COUNSEL

      Edward F. Gentner, Jr., for appellant.
    I. Where an agreement is unambiguous on its face, the court may not entertain alternative interpretations of its meaning. (Boulter Carting Co. v Deperno, 72 AD2d 939; Barrett v Jacobs, 255 NY 520; Curry v Mackenzie, 239 NY 267; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Moyer v Briggs, 47 AD2d 64.) II. Assuming ambiguity in the written agreement, defendant bank has met its burden to set forth evidentiary facts sufficient to establish that the parties intended a commission to be paid only upon the transfer of the fee by the bank to McDonald’s. (Barrett v Jacobs, 255 NY 520.)

      Philip A. Mittleman and Benedict Ginsberg for respondent.
    I. Because the underlying agreement is clear and unambiguous on its face, parol evidence may not be introduced in an attempt to create an issue of fact in order to defeat summary judgment. (Fiore v Fiore, 46 NY2d 971.) II. Even if parol evidence were to be allowed defendant bank has not disclosed in evidence form particular parol evidence which would defeat summary judgment. (Mallad

      Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Erlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255.)
   OPINION OF THE COURT

Fuchsberg, J.

In an action to recover a real estate brokerage commission, defendant East River Savings Bank appeals from an order of the Appellate Division, which, reversing Special Term on the law, granted summary judgment in favor of the plaintiff, executor of the broker’s estate, on his first cause of action. This count was grounded on a written agreement between the broker and the bank. The bank’s contention is that it tendered extrinsic evidentiary facts sufficient to defeat the motion for summary judgment and that, even if it had not, the Appellate Division’s construction of the agreement was erroneous. We now uphold the Appellate Division’s determination.

The agreement, in letter form, related to a New York City commercial building on which the bank was in the process of foreclosing a defaulted first mortgage; at the time, no judgment of foreclosure had yet been entered. The letter-agreement, prepared by the broker but signed by both the bank and himself, read as follows:

“Re: 22 E. 42nd St. NYC
“In accordance with our understanding and in pursuance with your request at the meeting in your office on January 4th with Mr. Frank O’Neill of McDonald Corporation, I am sending you this letter in duplicate with regard to my commission as the broker for the" sale of the above captioned property.
“My commission for the sale of the property or for the assignment of your mortgage to McDonald Corporation shall be $10,000.00 to be due at the time of title closing if the deal entails the sale of the property or at the time of assignment of your mortgage if the deal entails the sale of same.
“In the event, for any reason, McDonald Corporation shall elect to act through a nominee or an assignee, then it is understood that I shall be entitled to the commission above stated”.

Thereafter, McDonald, the fast food chain, by its nominee, Franchise Realty Interstate Corporation, took title to the property. It did so after bidding it in at the foreclosure sale. The price, as revealed by the referee’s report, was sufficient to permit full satisfaction of defendant’s mortgage. This suit ensued when the bank balked at having to pay the $10,000 commission.

In defending the action, the bank pressed the position that the agreement manifests an intent that the broker be deemed to have earned the stated commission only if the bank “obtain[ed] title to the property by means of a foreclosure sale, with subsequent conveyance of the property to McDonald’s or its nominee”; that, since the acquisition proceeded along a different path, a “condition precedent ha[d] remained unfulfilled”; and that, as a consequence, nothing was due the broker. Moreover, when put to the test on plaintiff’s motion for summary judgment, the bank submitted two affidavits by which it professed to proffer extrinsic evidence to confirm its contentions.

However, neither affidavit filled that bill. One, by a counsel for the bank, since he laid no claim to any firsthand knowledge of the facts, was not competent for this purpose (see David Graubart, Inc. v Bank Leumi Trust Co. of N. Y., 48 NY2d 554, 559). The other, by a bank officer who had not signed the agreement, aside from essaying a vigorous argument as to how the bank believed the agreement should be interpreted, consisted of a compendium of conclusory, self-serving and even speculative assertions, such as comments on what “the parties had in mind in executing the letter” and what the broker should have “understood”. Though the officer also offered information that he had “dealt personally with plaintiff’s decedent”, neither the nature nor precise content of these dealings was specified. In short, neither affidavit offered either a tender of evidentiary proof in admissible form or a demonstration of an acceptable excuse for a failure to meet the “strict requirement” for such a tender in opposition to a motion for summary judgment (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068; cf. Rotuba Extruders v Ceppos, 46 NY2d 223, 231).

Of course, had the tender been of requisite quality, the courts below would have had to determine whether the agreement was so beset by ambiguity that the determination of the intent of the parties required a trial at which a jury or other fact finder could clear up the ambiguity by passing on the credibility of the extrinsic evidence and whatever inferences reasonably could be drawn therefrom (Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169, 172). For, the threshold decision on whether a writing is ambiguous is the exclusive province of the court (Patterson, Interpretation and Construction of Contracts, 64 Col L Rev 833, 839).

Thus, absent such a tender, all that was available to the court in the present case was the writing itself. Ambiguous or not, the document then became one for construction by the Judge alone, since if “equivocality must be resolved wholly without reference to extrinsic evidence” the issue must be so determined (Hartford Acc. & Ind. Co. v Wesolowski, supra, p 172; cf. Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291). It follows that the concern that there might be some ambiguity, expressed by the sole dissenting Justice at the Appellate Division, was beside the point.

In this legal posture, whether the obligation of the Judge at nisi prius, in construing the written agreement, may be said, in an exact sense, to have been to pass on it as a matter of law, or whether it implicitly called upon him to treat with integral factual elements as well, the rule which leaves the matter in the hands of the Judge is supported by experientially indorsed considerations of policy and practicality (see Thayer, A Preliminary Treatise on Evidence at the Common Law, ch 5, Law and Fact in Jury Trials, pp 202-207). Rooted in ancient history (see Essays in Anglo-Saxon Law, p 230), this practice continues to be justified, inter alia, by “the judge’s superior equipment — his education and legal experience — to interpret written instruments and to give them reliability” (Patterson, Interpretation and Construction of Contracts, 64 Col L Rev 833, 837).

Worthy of note too is that, by cataloguing this procedure “[a]s a determination of law, the trial judge’s interpretation of the meaning of a written contract is not as conclusive upon an appellate court as his ‘findings of fact’ would be and hence may be set aside as ‘an error’ of law”. (Patterson, ibid.)

Now exercising this right of review, we remember that, in searching for the probable intent of the parties, lest form swallow substance, our goal must be to accord the words of the contract their “fair and reasonable meaning” (Heller v Pope, 250 NY 132, 135). Put another way, “the aim is a practical interpretation of the expressions of the parties to the end that there be a ‘realization of [their] reasonable expectations’ ” (see Brown Bros. Elec. Contrs. v Beam Constr. Co., 41 NY2d 397, 400, quoting 1 Corbin, Contracts, § 1; see, also, 4 Williston, Contracts [3d ed], § 600, pp 284-285). Concordantly, as previously indicated, not merely literal language, but whatever may be reasonably implied therefrom must be taken into account (10 NY Jur, Contracts, § 191, p 96; Matter of People [Bond & Mtge. Guar. Co.], 267 NY 419, 425). As we recently declared, unless there are reservations to the contrary, embraced in the interpretative result should be “ ‘any promises which a reasonable person in the position of the promisee would be justified in understanding were included’ ” (Rowe v Great Atlantic & Pacific Tea Co., 46 NY2d 62, 69, quoting from 5 Williston, Contracts [rev ed, 1937], § 1293, the substance of which is now in 4 Williston, Contracts [3d ed], § 610B).

These guidelines in mind, examination of the agreement as a whole almost unavoidably impresses one with the idea that its broad concern was to effect a satisfactory liquidation of the bank’s interest in the property rather than with the design of the transaction by which this would be achieved. That an assignment of the mortgage itself was an expressed prospect also reinforces the inference that the goal of the bank, as a lender, was, as far as possible, to recoup its loan rather than become the property’s owner of record. And it seems to us that, reasonably and realistically read, the bank’s continuing commitment to the broker notwithstanding the possible change in the former’s status from that of foreclosing mortgagee to that of owner would include the intermediate stages through which the process of making such a transition would normally take the parties. Surely, it demands no divining discernment to understand that the foreclosure sale was such an event. Accordingly, we agree with the Appellate Division’s conclusion that “just such a purchase as occurred is one of the alternatives which reasonably must have been contemplated by the agreement” (83 AD2d 801).

All this is not to say that another construction is beyond the realm of rationality. For instance, the bank focusing on the agreement’s word “deal”, urges that, since the “deal” by which McDonald’s nominee acquired title was not one to which it, literally or formally, was a party, the “deal” envisaged never materialized. In context, however, as we construe the agreement, so restricted an application of the term “deal” does not coincide with what the parties must have intended. Rather, it appears much more consistent with the general purport of the agreement to take it to be a way of fixing the point in time when decedent will have earned his commission, i.e., “at the time of title closing if the deal entails the sale of the property or at the time of assignment of your mortgage if the deal entails the sale of same” (emphasis added), and not as a limiting definition on the events that could precipitate it. Indeed, if ambiguity can be said to lurk in the placement of the word, in our opinion deference would be due to the confluence of the principal purposes of the parties to the agreement, here the bank’s desire to collect the debt and that of the broker to be compensated for successful efforts in this direction (4 Williston, Contracts [3d ed], § 619; 3 Corbin, Contracts, § 554; Restatement, Contracts 2d, § 202, Comment c).

For all these reasons, the order from which this appeal is taken should be affirmed, with costs.

Meyer, J.

(dissenting). What the majority overlooks is that any insufficiency in the bank’s papers in opposition to plaintiff’s motion for summary judgment is irrelevant, for until plaintiff presented evidentiary facts establishing prima facie his cause of action, the bank was under no obligation to demonstrate that there was a triable issue of fact (cf. Indig v Finkelstein, 23 NY2d 728; Seymour v St. Luke’s Hosp., 28 App Div 119, 123, app dsmd 159 NY 524; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.12). Because plaintiff’s papers are devoid of any such proof, the order of the Appellate Division should be reversed and the order of Special Term denying summary judgment to plaintiff on the first cause of action should be reinstated.

Plaintiff is the executor of his father’s estate. The first cause of action alleges that decedent, a real estate broker, and defendant bank entered into an agreement dated January 5,1977, concerning the sale of a property known as 22 East 42nd Street, New York, New York, to the McDonald Corporation or its nominee, the operative portion of which read: “My commission for the sale of the property or for the assignment of your mortgage to McDonald Corporation shall be $10,000.00 to be due at the time of title closing if the deal entails the sale of the property or at the time of assignment of your mortgage if the deal entails the sale of same”, that the property was thereafter sold to McDonald’s nominee, that decedent duly performed and that there was consequently due plaintiff the sum of $10,000.

The executor’s affidavit in support of the motion for summary judgment on that cause of action is not stated to be on personal knowledge. It attaches as exhibits the letter agreement quoted above, states that McDonald’s nominee purchased the property at a foreclosure sale on October 26, 1977, attaches a copy of the referee’s report of sale (which shows that upon foreclosure of the bank’s mortgage the i property was sold by the referee to McDonald’s nominee ■ and that the referee on November 29,1977 executed a deed “of the said mortgaged premises so sold by me as Referee hereunder” [emphasis supplied]), and expressly eschews any statement “as to the reasons why the sale was accomplished by way of foreclosure as opposed to an outright purchase and sale”.

It is, of course, plaintiff’s burden to prove performance of the contract alleged. Plaintiff offers no explanation of what decedent did by way of performance other than as the January .5, 1977 letter prepared by decedent refers to a meeting that day with a McDonald’s representative in the bank’s offices, nor why the letter, which carefully referred to a sale by the bank of the mortgage, did not also speak to the possibility of the bank “selling” through the device of allowing the property to be sold in foreclosure. If plaintiff can prove that the latter was a bad faith device to avoid payment of a commission, he will be entitled to recover on his third cause of action, but that is not before us. The agreement before us, however, cannot be construed as an agreement by the bank to pay a commission for the sale of the property in foreclosure, for that is not a sale by the bank and the bank did not agree to pay a commission for a sale no matter by whom (other than the bank) the sale was made.

The Appellate Division awarded plaintiff summary judgment on the theory that the bank had failed to come forward with evidentiary proof establishing a triable issue of fact. But bearing in mind that it is plaintiff’s obligation first to establish a prima facie case, that the agreement was prepared by decedent on his letterhead, that almost 10 months elapsed after its date before the sale was made, that there is no evidence concerning what decedent did in the interim or why the sale was in the foreclosure proceeding and by a court-appointed official rather than the bank, plaintiff’s moving papers failed to establish performance sufficiently to require response by the bank.

The interpretation of a writing such as is here involved is, absent extrinsic evidence, normally for the court (Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169, 172). On the present papers, therefore, defendant bank could properly be awarded summary judgment. The bank made no cross motion for summary judgment, however, and plaintiff may be able after discovery, which so far as the record reveals has not yet taken place, to supply evidentiary materials establishing either that a sale in foreclosure was within the intent of the parties or that the sale as negotiated between McDonald’s nominee and the bank, though in form a sale by the referee, was in fact a sale by the bank. It was, however, error on the papers before the court to grant plaintiff summary judgment on the first cause of action, for plaintiff’s papers are simply insufficient to call into play the interpretative function of the court. If authority for that proposition of law is required it exists in Barrett v Jacobs (255 NY 520, 521) where, as the record reveals, the issue was whether a “transfer of leasehold” had occurred so as to entitle plaintiff broker to a commission when the leasehold owner subleased to the proposed transferee in order to give him additional time to obtain financing and we held in a Per Curiam that “it is not clear that the respondents have earned their commissions under their contract of employment” and reversed an order of the Appellate Division granting summary judgment to the plaintiff broker. That case is on all fours with the present case and should be followed. Plaintiff should be put to his proof.

Chief Judge Cooke and Judges Gabrielli and Jones concur with Judge Fuchsberg; Judge Meyer dissents and votes to reverse in a separate opinion in which Judges Jasen and Wachtler concur.

Order affirmed.

       Plaintiff’s complaint also alleged three other causes of action. The second was in quantum meruit, the third for conspiracy to deprive the plaintiff of a commission and the fourth for related relief against other defendants. These play no part on this appeal.


source: Caselaw Access Project

author:
      Per Curiam.
     Meyer, J.

license: Public Domain

text:
    In the Matter of the Commitment of Star A. and Another, Dependent Children. Talbot Perkins Children’s Services, Appellant; Sarah A. R., Respondent.
    Argued March 22, 1982;
    decided May 13, 1982

      POINTS OF COUNSEL

      Terry Milburn for appellant.
    I. Where the court found that respondent failed to plan, a finding that parental rights should be terminated is not precluded because the agency ceased its futile efforts to encourage the parental relationship when thwarted by respondent’s own conduct. (Matter of Orlando F., 40 NY2d 103.) II. Reasonable attempts to encourage a meaningful relationship between a parent and child satisfy the “diligent efforts” requirement within the meaning of the statute. (Matter of Ray A. M., 37 NY2d 619; Matter of Shantal M. K., 68 AD2d 482; Matter of Orlando F., 40 NY2d 103; Matter of Joyce A. R., 52 AD2d 882; Matter of Ikem B., 73 AD2d 359.)

      Yvonne Lawrence for respondent.
    Where the Family Court held that respondent mother failed to plan for the future of her children, the court was justified in refusing to terminate parental rights in view of the fact the agency had not made diligent efforts to encourage the parental relationship. (Matter of Thomas TT, 67 AD2d 788; Matter of Orlando F., 40 NY2d 103; Matter of Anita "PP", 65 AD2d 18; Matter of Suzanne N. Y., 102 Misc 2d 215; Stanley v Illinois, 405 US 645; Matter of Sanjivini K., 47 NY2d 374; Matter of Mark “GG”, 69 AD2d 311.)

      Lenore Gittis, Law Guardian {Robin L. Faine and Wendy Sue Lauring of counsel), on behalf of Star A. and another, respondent.
    Where respondent’s family participated in her care, and efforts to help her with her mental health problems were made by outside agencies, the Family Court’s determination that appellant’s own efforts in this area were required to satisfy its obligation of due diligence, and the court’s failure to accord proper weight to appellant’s substantial efforts to foster the parental relationship, constituted an abuse of discretion as a matter of law. Further, no reasonable view of the evidence can support the court’s dismissal of the petitions on the grounds that appellant failed to fulfill its statutory obligation. (Matter of Orlando F., 40 NY2d 103; Matter of Ray A. M., 37 NY2d 619; Matter of Karas, 59 AD2d 1022; Matter of Joyce A. R., 52 AD2d 882; Matter of Sydney, 84 Misc 2d 932; Matter of Orzo, 84 Misc 2d 482; Matter of Hime Y., 52 NY2d 242; Matter of Anita “PP”, 65 AD2d 18; Matter of Amos HH, 59 AD2d 795.)
   OPINION OF THE COURT

Per Curiam.

In this proceeding to permanently terminate the parental rights of a natural mother to her two infant children, the principal issue before the court is whether the petitioner agency has met its statutory duty to undertake diligent efforts to strengthen the parental relationship before moving to terminate it on the ground of permanent neglect.

Subdivision 7 of section 384-b of the Social Services Law provides that a parent’s rights to the custody of his or her child may be terminated upon a judicial determination that the child is permanently neglected. A child may be found permanently neglected within the meaning of the section if it is shown that the parent “failed for a period of more than one year following the date the child came into the care of an authorized agency ‘substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s, diligent efforts to encourage and strengthen the parental relationship’” (Matter of Hime Y., 54 NY2d 282, 284-285, citing Social Services Law, § 384-b, subd 7, par [a]). The duty imposed upon the agency to make diligent efforts to foster the parental relationship “reflects a cultural judgment that society should not terminate the parent-child relationship unless it has first attempted to strengthen it” (Matter of Leon RR, 48 NY2d 117, 126). The statute defines “diligent efforts” as including but not limited to consultation and cooperation with the parent or parents in developing a plan for the child as well as providing services to the parents so that problems preventing the discharge of the child from care may be resolved or ameliorated (Social Services Law, § 384-b, subd 7, par [f], els [1], [3]).

In November, 1972, respondent was found wandering the streets of New York City with her two infant children. Respondent was required to be hospitalized and, presumably because of this circumstance, the Bureau of Child Welfare assumed care of the children. Eventually, the children came into the care of Talbot Perkins Children’s Services, the petitioner agency. Between December 11, 1974, when a neglect petition had been accepted, and March, 1977, some attempts to work with the respondent to develop a plan for the children were made by petitioner. During the time the children were placed with the agency, it was aware that respondent was suffering from some degree of mental illness. The record indicates that respondent was briefly hospitalized in 1975 at the South Beach Psychiatric Center and was then referred to a therapist in New York City. Her course of treatment apparently ended during this period when she moved to her father’s residence in New Jersey.

Throughout the period during which the agency was charged with strengthening the parental relationship, social workers attempted to keep informed of some of the psychiatric care which respondent was receiving from independent sources, but the record shows that the agency apparently did little to channel her toward appropriate psychiatric care when she strayed from her treatments. Additionally, the agency had little or nothing to do with the treatment she received during this period. At one point a psychiatrist for the agency did interview respondent, but the record indicates that this was nothing more than a diagnostic interview and did little, if anything, to help respondent to overcome her mental disorders.

In view of the agency’s failure to take steps to channel respondent toward appropriate treatment, Family Court concluded that the agency had failed in its obligation to make diligent efforts to strengthen the parental relationship. Thus, although Family Court also concluded that respondent had failed to plan for the future of her children, the court nevertheless dismissed the petition to terminate her custody and guardianship rights because of the agency’s “‘neglect in fulfilling its express statutory duty’ ” (Social Services Law, § 384-b, subd 7). The Appellate Division then affirmed the order of Family Court (83 AD2d 529).

Preliminarily, we note our belief that the statutory language requiring diligent efforts to strengthen the parental relationship before moving to terminate it may encompass, under appropriate circumstances, a duty on the part of the agency to direct the natural parent toward psychiatric treatment designed to remedy the obstacles barring family reunification. Whether this duty is activated under the circumstances and whether it is fulfilled are largely questions of fact. Significantly, in the present case we are confronted with affirmed factual findings that the respondent was suffering from certain psychiatric disorders and that the agency failed in its obligation to direct respondent toward appropriate treatment.

The agency now maintains, however, that its failure to make diligent efforts to secure appropriate psychiatric care for respondent should not mandate the dismissal of the termination petitions, because any efforts the agency might have made would, in the agency’s opinion, have been futile. In support of this argument, the agency notes that respondent exhibited uncooperative behavior while at the South Beach Psychiatric Center, that before seeing the agency’s psychiatrist she canceled two appointments and failed to keep another, and that she became traumatized during one of her numerous contacts with the agency’s social workers.

We agree with the conclusion of Family Court that the agency could not, in this instance, simply predetermine that any further efforts on its part to ensure that respondent received appropriate treatment would have been futile. As that court noted, the agency’s “ ‘neglect in fulfilling its express statutory duty cannot be excused or justified because it would have been difficult or burdensome for it to undertake [diligent] efforts due to [respondent’s] predicaments’ ” (citing Matter of Anita “PP”, 65 AD2d 18, 22). The agency’s argument is particularly unconvincing in this instance, where it is conceivable that respondent’s resistance to psychiatric treatment, as claimed by petitioner, could stem in part from her existing psychiatric problems. Since we sit in this case to pass upon questions of law alone, in order to reverse and uphold the termination petition upon petitioner’s argument we would be required to conclude that the agency had made “diligent efforts” as a matter of law. We cannot reach such a conclusion of law on the record in this case.

Similarly, we find the Law Guardian’s additional arguments to be without merit. The Law Guardian maintains, primarily, that further efforts by the agency to secure psychiatric care for respondent should be excused as unnecessary because these services were already being provided to respondent by some independent sources. Of course, an agency should not be required to secure services for a parent which are merely duplicative of those already being received. In this instance, however, we are presented with no acceptable evidence or factual finding that the agency’s efforts would have been duplicative. In fact, the record itself provides scant details of the psychiatric care which respondent actually received, and we cannot conclude as a matter of law that respondent received psychiatric care appropriate for the goal of family reunification.

Accordingly, in the face of an affirmed finding of fact that the agency failed to undertake diligent efforts to strengthen and encourage the parental relationship, we conclude that the order of the Appellate Division should be affirmed, with costs.

Meyer, J.

(dissenting). In my view the Legislature intended that equal dignity be accorded the right of a parent to raise her own child and the right of the child in its own best interests to a positive family relationship. Because the majority and the courts below apply a “diligent efforts” standard inconsistent with that intent and more stringent than the Legislature enacted, the affirmed finding of fact upon which the majority relies does not proscribe review by us, and on analysis of the record I conclude that there should be a reversal. I, therefore, respectfully dissent.

The legislative intent is explicitly stated in subdivision 1 of section 384-b of the Social Services Law. Paragraph (a) of that subdivision makes findings of the desirability of children growing up with a normal family in a permanent home, of the child remaining with his or her natural parent and the parent’s right to bring up their own children unless the best interests of the child would be endangered by their doing so, that the State’s first obligation is to help the family remain together or reunite, but that when the natural parent cannot or will not provide a normal family home for the child and continued foster care is not appropriate, a permanent alternative home for the child must be sought.

Paragraph (b) of the subdivision speaks to the adverse effects of long continued foster care and of the necessity for not only assuring parental rights but also for terminating them when necessary, in the following language:

“The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens. The legislature further finds that provision of a timely procedure for the termination, in appropriate cases, of the rights of the natural parents could reduce such unnecessary stays.

“It is the intent of the legislature in enacting this section to provide procedures not only assuring that the rights of the natural parent are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating parental rights and freeing the child for adoption.”

It is against that background that we must construe paragraph (f) of subdivision 7 of the section which defines “diligent efforts” to mean “reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child” (emphasis supplied). Thus, though clauses (1) and (3) of paragraph (f) make clear that “diligent efforts” include planning for appropriate services to the child and his family and the provision of services and assistance to the parents in order to resolve or ameliorate the problems preventing discharge of the child from foster care, the agency complies with the “diligent efforts” standard if it makes reasonable attempts to provide the necessary services.

The Appellate Division majority wrote no opinion, contenting itself with affirmance on the opinion of the Family Court Judge. The Family Court Judge took no note of the words “reasonable attempts” in paragraph (f). She did note that the case record contained an October, 1973 psychiatric evaluation of borderline character disorder and psychotic symptomatology with the recommendation that respondent attend an after-care clinic before the children were returned to her, that the agency in May, 1974 reported its goal for respondent was for her to receive psychiatric treatment until she could care fqr the children and in March, 1975 indicated that it would encourage her to get treatment. She nevertheless concluded that diligent effort had not been made because she found the record “devoid of evidence that the agency made any efforts to obtain appropriate treatment for respondent” and “does not indicate when, if ever, the agency had any discussion with respondent regarding her need for psychiatric treatment.”

Yet the record shows that after the June 17, 1975 reunion with her children, respondent met with the Director of Foster Care and the social worker, who recommended that she be evaluated by the agency’s psychiatric consultant and that respondent agreed with that recommendation and accepted an appointment for July 18, that despite the fact that a letter was sent on July 14 reminding respondent of the appointment, she failed to keep it, that she was told on October 17 that another reunion would not be scheduled until she had seen the doctor and agreed to another appointment on October 23, but on that date called the doctor and canceled the appointment. On December 18, 1975 respondent wrote the agency doctor and social worker advising that she had been in a New Jersey psychiatric hospital and asking that a new appointment be made for her with the agency doctor, yet when an appointment was scheduled for March 19, 1976, she canceled it and requested one for May or June. On April 15 the Director of Foster Care wrote respondent expressing concern that a permanent plan had not yet been made, that she had missed the 1975 and 1976 appointments with the agency doctor which were necessary “[to] help you to make the most appropriate plan for your children” and stressing how “extremely important” it was that she see the doctor on the new appointment date arranged, May 11. The psychiatric evaluation which occurred on May 11 resulted in a diagnosis of schizophrenia and the conclusion that it would be “very risky to have her youngest children return to her.” In October, 1976, the agency requested approval of the Bureau of Child Welfare to begin a termination proceeding. Approval was granted on March 4, 1977, but for reasons which do not appear from the record the fact-finding hearing was not held until June 12, 1979 and decision was not rendered until March 20, 1980.

At various times during the above chronology respondent was in South Beach Psychiatric Center, Ancora Hospital and Staten Island State Hospital and upon discharge was referred by the hospital for outpatient consultation. Prior thereto, in 1974, she had been in Kings Park State Hospital and at Elmhurst Hospital, all in relation to her mental condition. Hospitalized again in South Beach on August 15,1977, where she was responding to medication, respondent in late September left on a hospital pass and never returned. The agency worker either wrote to or spoke with the personnel of the various hospitals in an effort to follow-up.

While the problem is, in good part, a result of a legislative standard which requires “diligent efforts” but defines those efforts in terms of “reasonable attempts,” I conclude with the dissenting Justices below that “diligent” and “reasonable” do not mean relentless. While respondent was being hospitalized for her mental problems the many times she was during the period in question and offered outpatient follow-up by them, the agency would have acted unreasonably had it sought to impose upon respondent a separate, different and possibly confusing regimen of consultation. That it did bring to respondent’s attention the necessity for treatment even to the extent of withholding visitation with the children and through correspondence, only to have respondent by one device or another delay for two years conference with the agency psychiatrist, is detailed above. To hold that what was done was not “diligent efforts” is to ignore the words “reasonable attempts” in the statutory definition, to impose upon such agencies an impossible burden not intended by the Legislature, and to do so to the detriment of the children in foster care.

Stanley U. A. was born July 20, 1971 and Star A. on July 6,1972. They have been in foster care since November 2, 1972, and under appellant’s oversight since September 25, 1973. As the Supreme Court noted in Smith v Organization of Foster Families (431 US 816, 836, 837), “many children, particularly those that enter foster care at a very early age and have little or no contact with their natural parents during extended stays in foster care, often develop deep emotional ties with their foster parents” and experience “ ‘high rates of psychiatric disturbance.’ ” During the four years from 1973 through 1977, respondent visited the children but nine times, canceling other visits on nine other occasions despite earlier confirmation. While expressing her unwillingness to free the children for adoption, respondent has several times suggested that they remain in foster care until they complete college, or otherwise indicated her indifference to them, an indifference which is emphasized by the Family Court Judge’s notation that “Respondent did not testify” and “failed to keep the appointments scheduled” for the psychiatric examination ordered by the court.

As we noted in Matter of Orlando F. (40 NY2d 103, 111): “When the natural parent fails to accept the parental role, even though the result of shortcomings for which he or she may not be fully responsible, the ‘best interests’ of the child, the pivotal consideration underlying all of these proceedings, dictates that the right to custody be terminated.” Surrogate Midonick put it even more strongly in Matter of Tyease “J” (83 Misc 2d 1044, 1048), a decision of which the Legislature was presumably aware when it enacted section 384-b and its definition of diligent efforts: “These infants of tender years have rights as human beings, rights of equal stature to those of their parents, rights that are emerging as of constitutional dimension, rights to a permanent home so fundamental as to negate any parent’s veto of adoption, statutory or otherwise, if the circumstances provide a factual showing strong enough.”

An incorrect standard having been applied by the courts below, there should be a reversal and the matter should be remanded to the Family Court for a dispositional hearing.

Chief Judge Cooke and Judges Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judge Meyer dissents and votes to reverse in a separate opinion in which Judges Jasen and Fuchsberg concur.

Order affirmed, with costs.

      . The only issues of merit before the Family Court were whether respondent had failed to plan for the future of her children and whether the agency had undertaken diligent efforts to strengthen and encourage the parental relationship. It is not disputed that the mother, during the children’s placement, had maintained contact with the agency and the children through visits, consistent correspondence and telephone calls.

      . Contrary to the view expressed in the dissenting opinion, we do not today apply a test which is inconsistent with the legislative standard for the termination of parental rights. It is clear that the term “diligent efforts” is defined by statute as requiring reasonable attempts to develop and encourage a meaningful relationship between parent and child and making provision for services and other assistance to the parent so that problems preventing discharge of the child from care may be resolved (Social Services Law, § 384-b, subd 7, pars [a], [f]). Where we are presented with an affirmed finding of fact that the legislative standard was not met, it is beyond the power of this court to make new factual findings to support a result contrary to the determinations below.

      . The Family Court Judge seized upon the caseworker’s testimony that because respondent would not take her medication and walked out of the hospitals in which she was being treated, efforts to refer her would have been “futile”. But the issue is not the word used by the caseworker or, as the majority in this court put it, “diligent efforts” as a matter of law, but whether the agency had made “reasonable attempts”, which is all that the statute requires.

      . She was finally examined by a court psychiatrist before the hearing began but only to ascertain her competence to participate in the trial. During that examination she conceded that she had refused to appear for previously scheduled appointments for psychiatric examination.


author: Meyer, J.

text:
    Joyce Bichler, Respondent, et al., Plaintiff, v Eli Lilly and Company, Appellant, et al., Defendants.
    Argued March 31, 1982;
    decided May 11, 1982

      POINTS OF COUNSEL

      Russel H. Beatie, Jr., Blair C. Fensterstock, Colin W. Ewing and Helen E. Hoens for appellant.
    I. Errors in the charge on concerted action require a new trial. (Finn v Morgan, 46 AD2d 229; People v Grund, 14 NY2d 32; Theatre Enterprises v Paramount, 346 US 537; Venzie Corp. v United States Min. Prods. Co., 521 F2d 1309; Independent Iron Works v United States Steel Corp., 177 F Supp 743, 322 F2d 656, 375 US 922; De Carvalho v Brunner, 223 NY 284; Hanrahan v Cochran, 12 App Div 91; Williams v Sheldon, 10 Wend 654; Crane v Long Is. Coll. Hosp., 43 NY2d 984; Graddy v New York Med. Coll., 19 AD2d 426.) II. The trial court refused to include the duty to warn in its charge. (Basko v Sterling Drug, 416 F2d 417; Wolfgruber v Upjohn Co., 72 AD2d 59, 52 NY2d 768; Donigi v American Cyanamid Co., 57 AD2d 760, 43 NY2d 935; Friedman v Medtronic, Inc., 42 AD2d 185; Kaempfe v Lehn & Fink Prods. Corp., 21 AD2d 197, 20 NY2d 818.) III. No evidence supports the jury’s finding of “concerted action”. (Interstate Circuit v United States, 306 US 208.) IV. No evidence supported the finding of foreseeability. (O’Hare v Merck & Co., 381 F2d 286; Imperial v Central Concrete, 1 AD2d 671, 2 NY2d 939.) V. Lilly did not have a fair trial. (Adams v Acker, 57 AD2d 741, 42 NY2d 965; Nicholas v Island Ind. Park of Patchogue, 46 AD2d 804; Cherry Creek Nat. Bank v Fidelity & Cas. Co., 207 App Div 787; Horton v Terry, 126 App Div 479; Tassello v Adley Express Co., 158 Misc 836; People v Davis, 43 NY2d 17; Hoag v Wright, 174 NY 36; Gray v Metropolitan St. Ry. Co., 165 NY 457; Millintgon v New York City Tr. Auth., 54 AD2d 649.)

      Alfred S. Julien for respondent.
    I. The court’s charge on concert of action, without appropriate exception, became the law of the case. The jury held Lilly acted in concert with others in testing and marketing DES for use for accidents of pregnancy. There was evidence to support the jury’s finding; every favorable inference favoring plaintiff is to be employed. This court does not make fact findings. (Knobloch v Royal Globe Ins. Co., 38 NY2d 471; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Barbagallo v Americana Corp., 25 NY2d 655; Dement v Olin-Mathieson Chem. Corp., 282 F2d 76; De Carvalho v Brunner, 223 NY 284; Kalish v Krieger, 42 AD2d 955; Norfleet v Isthmian Lines, 355 F2d 359; Finn v Morgan, 46 AD2d 229; Hall v Du Pont de Nemours & Co., 345 F Supp 353.) II. Lilly’s point III that “no evidence supports the jury’s finding on concerted action” really speaks to the weight of evidence, not the absence of evidence. (Tinnerholm v Parke Davis & Co., 285 F Supp 432; Roginsky v Richardson-Merrell, Inc., 378 F2d 832; Woods v Lancet, 303 NY 349.) III. The duty to warn is not involved in this case either by appropriate exception and request or by the facts themselves. (Wolfgruber v Upjohn Co., 52 NY2d 768; Spadaccini v Dolan, 63 AD2d 110; Delehite v United States, 346 US 15; Needham v White Labs., 639 F2d 394.) IV. The harm of some danger to the fetus was foreseeable when DES was brought to the market and so found the jury. (Matter of Altschuller v Bressler Cap Co., 289 NY 463.) V. Lilly’s complaint of an unfair trial is based upon irrelevancies, matters dehors the record, and alleged unconstitutional infirmities.

      Robert J. Sisk, Naomi F. Sheiner and Julian S. Millstein for Merck & Co., Inc., amicus curiae.

    The trial court’s instructions to the jury on concerted action were erroneous legally, and unsupported factually, and constitute reversible error. (Theatre Enterprises v Paramount, 346 US 537; Schoenkopf v Brown & Williamson Tobacco Corp., 637 F2d 205; Modern Home Inst. v Hartford Acc. & Ind. Co., 513 F2d 102; Levitch v Columbia Broadcasting System, 495 F Supp 649; Independent Iron Works v United States Steel Corp., 177 F Supp 743, 322 F2d 656, 375 US 922; De Carvalho v Brunner, 223 NY 284; Hanrahan v Cochran, 12 App Div 91; Finn v Morgan, 46 AD2d 229; Ryan v Lilly & Co., 514 F Supp 1004; Payton v Abbott Labs, 512 F Supp 1031.)

      Timothy L. Harker, Jeffrey N. Martin, William E. Blasier, GaryD. Lipkin, Michael W. Faber and Lewis A. Rivlin, of the Washington, D.C. Bar, admitted pro hac vice, for National Association of Manufacturers, amicus curiae.

    I. The trial court erred in its instruction on concerted action. (Weinberg v Johns-Manville Prods. Corp., 67 AD2d 640; Sawyer v New York Seven-Up Bottling Co., 63 AD2d 893; Shanks v Oneita Knitting Mills, 58 AD2d 741; Miller v Steinfeld, 174 App Div 337; Picker X-Ray Corp. v Frerker, 405 F2d 916; Rekasie v Bucyrus-Erie Co., 262 F2d 804; Finn v Morgan, 46 AD2d 229; People v Grund, 14 NY2d 32; De Carvalho v Brunner, 223 NY 284.) II. The trial court erroneously refused to instruct the jury about the elements of strict liability for a prescription drug. (Borel v Fibreboard Paper Prods. Corp., 493 F2d 1076, 419 US 869; Basko v Sterling Drug, 416 F2d 417; Davis v Wyeth Labs., 399 F2d 121; Wolfgruber v Upjohn Co., 72 AD2d 59, 52 NY2d 768; Donigi v American Cyanamid Co., 57 AD2d 760, 43 NY2d 935; Friedman v Medtronic, Inc., 42 AD2d 185; Kaempfe v Lehn & Fink Prods. Corp., 21 AD2d 197, 20 NY2d 818; Reyes v Wyeth Labs., 498 F2d 1264, 419 US 1096; Schenebeck v Sterling Drug, 423 F2d 919.) III. The rulings below will have inequitable and adverse economic and social consequences. (Douglas v California, 372 US 353; Roberts v La Vallee, 389 US 40; Harper v Virginia State Bd. of Elections, 383 US 663; Reiter v Sonotone Corp., 579 F2d 1077, 442 US 330; Abbott Labs. v Gardner, 387 US 136.)

      Karen S. Burstein and Kathy Ann Bennett for New York State Consumer Protection Board, amicus curiae.

    I. Lilly acted as a tort-feasor in manufacturing and distributing Stilbestrol for use in pregnancy and should be required to respond in damages to those injured. (Codling v Paglia, 32 NY2d 330; Baker v St. Agnes Hosp., 70 AD2d 400.) II. The doctrine of concert of action was properly applied by the court below. (Baker v St. Agnes Hosp., 70 AD2d 400; Schoenkopf v Brown & Williamson Tobacco Corp., 637 F2d 205; Hall v Du Pont de Nemours & Co., 345 F Supp 353.) III. The decision is not unfair, and will not precipitate untoward consequences. (Baker v St. Agnes Hosp., 70 AD2d 400; Dole v Dow Chem. Co., 30 NY2d 143.)
   OPINION OF THE COURT

Meyer, J.

To the extent the issue has been preserved for our review, the trial court’s instructions concerning defendant pharmaceutical manufacturer’s liability on a concerted action theory for injuries caused by prenatal exposure to diethylstilbestrol (DES) were not erroneous as a matter of law. Evaluating the evidence in light of those instructions, which became the governing law, we cannot say that the jury’s verdict is without a sufficient factual foundation. The order of the Appellate Division should, therefore, be affirmed.

I

DES is a powerful synthetic substance that duplicates the activity of estrogen, a female sex hormone naturally present in all women and, in lesser amounts, present also in men. Invented in 1937 by British researchers, DES was never patented. As a result, it was available for production and marketing to any pharmaceutical manufacturer who obtained Federal Food and Drug Administration (FDA) approval.

DES was first approved for use in the United States in 1941. In that year, 12 pharmaceutical manufacturers, including defendant Eli Lilly and Company, submitted separate new drug applications (NDA’s) to the FDA requesting approval of the marketing of DES for the treatment of vaginitis, engorgement of the breasts, excessive menstrual bleeding and symptoms of menopause. Each separate application, however, relied upon a master file of reports and studies compiled by a committee of four drug companies, known as the “Small Committee,” which was chaired by Lilly. Three years later the FDA approved several additional NDA’s for use of DES in treating cancer of the prostate in males. DES continues to be used to treat some of these non-pregnancy-related medical problems today.

Not until 1947 did the FDA approve DES for the treatment of human miscarriage. Lilly’s NDA was the second such application to be approved. Five years later, in 1952, the FDA did away with the need for additional NDA’s, at least for previously approved uses, when it declared DES to be “generally recognized * * * as safe.” In 1971, however, in the face of mounting evidence that DES was ineffective in preventing miscarriage and dangerous to the unborn child as well, the FDA reversed itself and banned the use of DES for the treatment of problems of pregnancy. By that time DES had been taken by perhaps several million pregnant mothers.

In the past decade the link between prenatal DES exposure and the later development in female offspring of clear cell cervical or vaginal adenocarcinoma, a hitherto rare disease involving cancerous growth in glandular tissue, has been unquestionably confirmed (see L 1978, ch 715, § 1; Note, Market Share Liability: An Answer to the DES Causation Problem, 94 Harv L Rev 668, 669, n 8, and authorities cited therein). In addition, the FDA estimated in 1975 that 30 to 90% of these offspring develop vaginal adenosis, a noncancerous condition in which glandular tissue normally found only in the cervix is also found in the vagina (Sheiner, DES and a Proposed Theory of Enterprise Liability, 46 Ford L Rev 963, 965, n 10). Because of the “paramount public importance” of identifying, screening, diagnosing, caring for and treating the estimated more than 100,000 New York women whose health has been endangered by prenatal exposure to DES (L 1978, ch 715, § 1), the Legislature has enacted section 2500-c of the Public Health Law aimed at locating, monitoring and establishing special programs for these young women.

Plaintiff Joyce Bichler is a DES daughter. Stricken by cervical and vaginal cancer at age 17, she brought suit against Lilly in 1974 for damages sustained in surgically arresting the disease. All of plaintiff’s internal reproductive organs and more than half of her vagina were removed. As a result, she can never bear children and will never enjoy normal sexual relations.

In her complaint plaintiff alleged that her 1953 prenatal exposure to DES, ingested by her mother while pregnant with plaintiff, was the proximate cause of the cancer that developed 17 years after her birth in 1954. Lilly, a major American manufacturer of DES, was the only pharmaceutical manufacturer named as defendant, although the pharmacist who filled plaintiff’s mother’s 1953 prescription stocked DES supplied by at least three of the other 147 drug companies then manufacturing and marketing DES for pregnancy-related problems.

At Lilly’s request, the trial was conducted in two stages. The first stage of the trial concerned the identity of the manufacturer of the DES tablets taken by plaintiff’s mother. The jury found that plaintiff had not established by a preponderance of the evidence that Lilly was that manufacturer. The second stage of the trial concerned Lilly’s liability upon a theory of concerted action. The jury determined that Lilly and other DES manufacturers wrongfully marketed the drug for use in preventing miscarriage without first performing laboratory tests upon pregnant mice. Had those tests been performed, the jury found, the pharmaceutical companies would have learned that DES was capable of causing cancer to develop in female offspring and would not have marketed the drug for problems of pregnancy. The jury awarded plaintiff $500,000 and the Appellate Division unanimously affirmed the judgment entered upon the jury’s verdict.

We dismissed Lilly’s appeal taken as of right on constitutional grounds (54 NY2d 752), but granted its motion for leave to appeal to our court (54 NY2d 610). Lilly seeks reversal on two principal grounds: that the trial court’s instructions on concerted action liability were erroneous, and that the evidence before the jury was legally insufficient to support a verdict in plaintiff’s favor on the issue of concerted action. For the reasons which follow, we reject these arguments.

II

In the wake of knowledge about the devastation wrought by DES upon the female offspring of the several million pregnant women who ingested the drug over a 25-year period, an estimated 1,000 individual or class action products liability lawsuits have been lodged against pharmaceutical manufacturers (Note, 94 Harv L Rev, at p 669). Where the identity of the drug company that manufactured the DES which caused plaintiff’s injuries is known, these lawsuits can be prosecuted within well-established principles of products liability as those principles have been adapted to the manufacturing and marketing of prescription drugs. It is, however, the far more usual case that the identity of the drug company whose DES tablets were taken by a plaintiff’s mother is unknown and can never accurately be determined. This is because all DES prescribed for pregnant mothers was produced under the identical chemical formula and most of this DES was manufactured and prescribed generically. With the passage of the many years needed for DES-caused vaginal tract abnormalities to appear in prenatally exposed offspring, the patient, physician, pharmacist and drug company records which could have identified the source of the DES have usually disappeared. This same lapse of time has commonly obliterated the individual recollections of those surviving witnesses of any underlying DES transaction. The result is that as a group DES daughters face a dilemma: They have, if their claim is upheld, been injured by parallel conduct of a group of pharmaceutical manufacturers. But the practical impossibility for most victims of pinpointing the manufacturer directly responsible for their particular injury threatens to bar any recovery.

Products liability law cannot be expected to stand still where innocent victims face “inordinately difficult problems of proof” (Caprara v Chrysler Corp., 52 NY2d 114, 123). Thus, courts as well as commentators have proposed means which permit recovery by prenatally exposed DES daughters. The proposals involve the application of already accepted tort principles of “concerted action” and “alternative liability” to the unusual DES fact pattern as well as resort to more novel theories of “enterprise” and “market share” liability. Here, because only concerted action was pleaded and submitted to the jury, we address only this basis of liability. We expressly leave for another day consideration of whether other theories of liability may in the DES context establish a cause of action.

Concerted action liability rests upon the principle that “[a]ll those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him” (Prosser, Torts [4th ed], § 46, at p 292; see, also, Restatement, Torts 2d, § 876). An injured plaintiff may pursue any one joint tortfeasor on a concerted action theory (see Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551). Such tort-feasor may, in turn, seek contribution from others who acted in concert with him (see Dole v Dow Chem. Co., 30 NY2d 143). The clearest example of concerted action liability is the drag race. Where two drivers agree to race and one collides with and injures a third party, the other driver is fully responsible for the third party’s injuries even though there was no contact between that driver’s car and the injured person (see, e.g., De Carvalho v Brunner, 223 NY 284; and NY PJI 2:265, and Comment).

Although Lilly claims it is jurisprudentially unsound to permit full recovery on a concerted action theory against one DES manufacturer for injuries probably sustained by ingestion of DES manufactured by another manufacturer, no motion was ever made by Lilly to dismiss the complaint for failure to state a cause of action, for partial summary judgment limiting plaintiff’s recovery to a percentage amount of her injuries corresponding to Lilly’s market share, or to join other DES manufacturers as necessary parties. Nor were these issues raised in Lilly’s motions to dismiss for failure to make out a prima facie case or for a directed verdict. Rather, Lilly proceeded to trial on a complaint seeking full recovery against Lilly alone among the manufacturers on the basis of concerted action. This, then, has become the controlling law and we look only to the trial court’s instructions on concerted action to determine whether, to the extent the issue has been preserved, those instructions were erroneous.

The totality of the trial court’s instructions on concerted action was as follows:

“[B]y ‘concerted action,’ we mean one of two things. First, action taken jointly by the drug companies as a result of an express or implied understanding. In this case, other than in connection with the original New Drug Application submitted in 1941 by some twelve companies, in which they expressly agreed to joint submission of clinical data, plaintiff contends that the joint action of the defendant and other drug companies, in testing and marketing D. E. S. for use in accidents of pregnancy was by implied or tacit agreement or understanding. That is, it was unspoken, and that this was reflected by the consciously parallel conduct of the companies in these activities.

“By the second definition of concerted action, we mean persons acting independently of each other in committing the same wrongful act, but although acting independently, their acts have the effect of substantially encouraging or assisting the wrongful conduct of the other, which, in this case, was the alleged failure to adequately test.

“Thus, if you find that defendant and the other drug companies either consciously paralleled each other in failing to test D. E. S. on pregnant mice, as a result of some implied understanding, or that they acted independently of each other in failing to do such testing, but that such independent actions had the effect of substantially aiding or encouraging the failure to test by the others, then you should find that the defendant wrongfully acted in concert with the other drug manufacturers in the testing and marketing of D. E. S. for use in accidents of pregnancy. Of course, you must also have found that it was wrongful for the defendant and the other drug companies not to have tested D. E. S. in pregnant mice because of the state of knowledge that was available to them in 1953.”

Lilly’s challenge to these instructions separately addresses concerted action by agreement and concerted action by substantial assistance, the two branches of the court’s quoted charge. With respect to concerted action by agreement, Lilly contends that the jury should have been instructed that (1) direct evidence or some “plus factor” was needed in addition to conscious parallelism to support a finding of agreement; (2) concerted action liability required every drug company that might have manufactured the DES tablets taken by plaintiff’s mother be a party to such agreement; and (3) no such agreement could be a predicate for concerted action liability unless it concerned either affirmative commission of a negligent act or intentional omission of a nonact. With respect to concerted action by substantial assistance, Lilly contends that the jury should have been instructed that (1) a finding of agreement was necessary to impose liability; and (2) Lilly must itself have inflicted some injury upon plaintiff. In addition, Lilly claims the court inadequately defined “substantial assistance.”

We need not decide the merits of these claims, for none has been preserved for our review by appropriate request or exception. Before the court delivered its charge, Lilly handed up a series of more .than 20 requests to charge, including one on concerted action, covering virtually every aspect of the case. The court accepted this submission without ruling on what requests, if any, were accepted and what, if any, were rejected. At the conclusion of the charge, which covered the same ground as many of Lilly’s requests, Lilly’s trial counsel was given an opportunity to make specific requests and note specific exceptions. Several specifically numbered requests previously handed up, not including the concerted action request, were thus expressly brought to the trial court’s attention. Each was expressly denied. We can only conclude that any request previously handed to the court which was not at this time specifically renewed, including the concerted action request, was either abandoned or withdrawn. As for exceptions, the only exception taken to the concerted action portion of the charge was as follows: “[0]n the issue of concerted action. In accordance with our specific request to charge, and I’m sorry, Your Honor, I don’t have the number, I believe there must be proof of intent.”

The request to charge apparently referred to by this remark was the concerted action request already mentioned. It is quoted in its entirety in the margin. In our opinion, the portions of this numbered request which concern intent do not even arguably relate to any of the six claimed errors in the trial court’s concerted action charge that are now urged in support of reversal. Accordingly, the court’s charge on concerted action is the law governing this case under which the legal sufficiency of the evidence to support the jury’s finding of concerted action must be assessed (see Knobloch v Royal Globe Ins. Co., 38 NY2d 471, 477; Martin v City of Cohoes, 37 NY2d 162, 165; CPLR 4110-b).

Ill

Because the trial court submitted two theories of concerted action upon which Lilly’s liability for plaintiff’s injuries could be premised — concerted action by agreement and concerted action by substantial assistance — and we do not know which theory was accepted by the jury, we must evaluate the sufficiency of the evidence to support recovery under either (Davis v Caldwell, 54 NY2d 176, 179-180). As we read the trial court’s instructions on concerted action by agreement, the jury is permitted to infer from evidence of consciously parallel behavior that an implied agreement existed between Lilly and other drug companies to market DES for problems of human pregnancy without first conducting tests with DES upon pregnant mice. No “direct evidence” or “plus factor” is required. Consciously parallel conduct by itself is enough. Similarly, the trial court’s charge on concerted action by substantial assistance required the jury to find only that Lilly’s failure to test DES on pregnant mice before marketing the drug for use by pregnant women substantially aided or encouraged other DES manufacturers to do the same. No express agreement is required. Nor is it necessary for the jury to find that Lilly itself was responsible for the manufacture of the DES tablets taken by plaintiff’s mother.

Review of the evidence, solely on the basis of events beginning in 1947, shows that it was sufficient to support jury findings of both conscious parallelism and substantial assistance or encouragement under the jury instructions to which no exception was taken. The record shows that eight companies filed NDA’s to market DES for problems of pregnancy between April, 1947 and October, 1948. Lilly’s application was the second of these, filed only two weeks after the leader. Each of the eight applications relied substantially on the same studies of three research teams that were reported between 1941 and 1947. Each requested approval to market 25 milligram tablets, a dosage five times more powerful than the maximum five milligram tablets approved in 1941. For the jury to infer that this closely parallel conduct was conscious or that Lilly’s participation in this first wave of DES pregnancy-related NDA filings substantially encouraged the other 140 companies which were engaged in manufacturing and marketing DES for the same, purpose by 1953 is surely within the realm of the fact-finding function..

IV

Although this analysis disposes of Lilly’s principal contentions, there are two remaining issues raised by Lilly which merit brief discussion. First, Lilly claims that the evidence was insufficient to support a determination that cancer to the offspring was a foreseeable risk of prenatal DES exposure. Second, Lilly argues that the trial court erroneously declined to instruct the jury about Lilly’s duty to warn.

Concerning proof of foreseeability, Lilly conceded at trial that it was aware by 1947 that DES posed the threat of cancer to the user, that DES had been shown to cross the placental barrier and that DES had caused malformations in the offspring of pregnant mice to which the drug had been administered. Lilly contends, however, that because no human transplacental carcinogen was discovered until 1962, when the first thalidomide babies were born, it could not have foreseen the occurrence of DES-caused cancer in human offspring. Although Lilly’s experts supported this position, plaintiff’s experts testified to the contrary conclusion, which the jury accepted and which we have no reason to disturb. We note, moreover, that the proof shows that a researcher had in 1947 conducted an experiment in which pregnant mice were injected with urethane, an anesthetic administered to women during delivery, in order to determine if the offspring developed cancer from the drug. Obviously, this researcher was concerned about a human transplacental carcinogen.

Concerning the duty to warn, Lilly’s argument has two branches. First, Lilly contends that since all drugs are inherently unsafe, liability for a “side-effect” can only be imposed if the side-effect was foreseeable and if the manufacturer failed to include a warning about it in the literature accompanying the drug (see Restatement, Torts 2d, § 402A, Comment k). Second, Lilly contends that the jury should have been instructed that no liability can be found against a drug manufacturer if the physician did not rely upon or consider product literature and warnings in prescribing the drug (see Wolfgruber v Upjohn Co., 52 NY2d 768, affg on 72 AD2d 59). We have, however, no opportunity to consider the application of these principles to this case because plaintiff’s theory of liability went far beyond them. As the series of special interrogatories submitted to the jury demonstrates, plaintiff could only recover if knowledge that DES might cause cancer in the offspring of pregnant mothers would have caused a reasonably prudent drug manufacturer not to market DES for problems of pregnancy at all, as opposed to marketing the drug with appropriate warnings. This formulation of plaintiff’s burden was never objected to by Lilly. That being the case, whatever the merits of Lilly’s claims are to a products liability drug case brought on a duty to warn theory, they have no application to this case pleaded and proved exclusively on a failure to test theory.

We have considered Lilly’s remaining arguments and find them to be either unpreserved or without merit. The order of the Appellate Division should therefore be affirmed, with costs.

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

Order affirmed.

      . A “new drug” is defined as: “Any drug the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety of drugs, as safe for use under the conditions prescribed, recommended, or suggested in the labeling thereof” (Federal Food, Drug, and Cosmetic Act, ch 675, § 201, subd [p], par [1], 52 Stat 1040,1041-1042 [current version at US Code, tit 21, § 321, subd (p), par (1)]).

      . Plaintiff’s father’s derivative claims were dismissed as time barred and are not before us.

      . Also named as defendants were the physician who prescribed the DES for plaintiff’s mother in 1953 and the hospital where the 1972 surgery was conducted. In a separate action, subsequently consolidated with this action, plaintiff sued the pharmacist who filled the 1953 prescription. The action against the physician was settled. The action as against the hospital was voluntarily discontinued after a finding in favor of the hospital by a medical malpractice panel. The action as against the pharmacist was dismissed upon motion for summary judgment (see Bichler v Willing, 58 AD2d 331, app dsmd [May 12, 1978]). A third action for the same damages by plaintiff against Lilly and the three other companies whose DES products were sold by the pharmacist in 1953 is now pending in Supreme Court.

      . Reduced by the amount of the physician’s settlement (see n 3, supra), the verdict resulted in judgment for plaintiff of $492,842.39.

      . “Alternative liability,” like concerted action liability, is joint and several. It applies “[w]here the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it” (Restatement, Torts 2d, § 433B, subd [3]). In such a case, “the burden is upon each such actor to prove that he has not caused the harm” (id.). It is classically illustrated by Summers v Tice (33 Cal 2d 80) where two hunters negligently fired simultaneously in plaintiff’s direction, but plaintiff was struck by only one bullet (see, also, Hawkes v Goll, 256 App Div 940, affd 281 NY 808; and NY PJI 2:307). Recovery under an alternative liability theory requires joinder of all the parties who could have been responsible for a plaintiff’s injuries (Restatement, Torts 2d, § 433B, subd [3], Comment h). It has been accepted as a basis for proceeding to trial against DES manufacturers in a multidefendant products liability action (e.g., Abel v Lilly & Co., 94 Mich App 59). “Enterprise liability,” also joint and several, derives from the opinion in Hall v Du Pont de Nemours & Co. (345 F Supp 353). In that case, plaintiffs were unable to identify the manufacturers of allegedly unsafe blasting caps for the simple reason that the caps had been obliterated by explosion. Since the six defendants in that case did, however, comprise virtually the entire American blasting cap industry and since it appeared that their blasting caps were manufactured to meet industry-wide safety standards set by their own trade association, the court held that defendants could be liable for the joint control of the risk of accidental explosion. It has been suggested that this basis of liability is applicable to the DES cause (see 46 Ford L Rev 963). “Market share liability,” accepted by the Supreme Court of California in Sindell v Abbott Labs. (26 Cal 3d 588, cert den 449 US 912), is a hybrid of alternative and enterprise liability. Sindell held that a DES plaintiff need only join as defendants a sufficient number of DES manufacturers to embrace a “substantial share” of the DES market at the time plaintiff’s mother ingested the drug. Any defendant could avoid liability by proving that it could not have manufactured the tablets in question, but failing that, will be held liable only for that percentage of the plaintiff’s injuries that corresponds to its percentage share of the market, not for the entire damage suffered by plaintiff.

      . “In order to impose liability on Lilly for ‘concerted action,’ you must find four separate things: (1) Lilly and other companies that have been specifically identified had a' common intention or an agreement by which the members of the group acted together to obtain approval to market stilbestrol for the treatment of accidents of pregnancy in 1947; (2) a member of this group manufactured the stilbestrol used by Joyce Bichler’s mother; (3) Lilly and the rest of the group substantially assisted the actual manufacturer and the injury would not have occurred without that assistance; and (4) Lilly intended to assist the conduct of the manufacturer whose drug caused the injury, or Lilly knew of the wrongful conduct of the actual manufacturer and was aware that its own acts furthered that conduct.
      “If you do not find all of these things, then you cannot find Lilly liable for ‘concerted action.’ Mere knowledge by Lilly of what the other manufacturers were doing is not sufficient to make Lilly liable for the acts of another manufacturer. You are further instructed that one who innocently and carefully does an act which furthers the wrongful purpose of another is not acting in concert with him.”

      . We agree with Lilly that its 1941 collaboration with other pharmaceutical manufacturers to secure initial FDA approval of DES for certain non-pregnancy-related conditions has no bearing upon the concerted action which plaintiff must establish in connection with Lilly’s 1947 supplemental application to produce and market DES for problems of pregnancy (see Morton v Abbott Labs., 538 F Supp 593; Ryan v Lilly & Co., 514 F Supp 1004; Payton v Abbott Labs, 512 F Supp 1031; Lyons v Premo Pharm. Labs., 170 NJ Super 183, certification den 82 NJ 267).

      . (Kamaky, Use of Stilbestrol for the Treatment of Threatened and Habitual Abortion and Premature Labor, 35 So Med J 838 [Sept., 1942]; Kamaky, Estrogenic Tolerance in Pregnant Women, 53 Amer J Obstet & Gynec 312 [Feb., 1947]; Rosenblum & Melinkoff, Preservation of the Threatened Pregnancy with Particular Reference to the Use of Diethylstilbestrol, 55 West. J Surg Obstet & Gynec 597 [1947]; Smith & Smith, Increased Excretion of Pregnanediol in Pregnancy from Diethylstilbestrol with Special Reference to the Prevention of Late Pregnancy Accidents, 51 Amer J Obstet & Gynec 411 [1946].)

      . (Larsen, Weed & Rhodes, Pulmonary Tumor Induction by Transplacental Exposure to Urethane, 8 J Nat Cancer Inst 63 [1947].)

      . The interrogatories, all of which were answered in plaintiff’s favor, were as follows: “(1) Was DES reasonably safe in the treatment of accidents of pregnancy when it was ingested by plaintiff’s mother in 1953? (2) Was DES a proximate cause of plaintiff’s cancer? (3) In 1953 when plaintiff’s mother ingested DES, should the defendant, as a reasonably prudent drug manufacturer, have foreseen that DES might cause cancer in the offspring of pregnant women who took it? (4) Foreseeing that DES might cause cancer in the offspring of pregnant women who took it, would a reasonably prudent drug manufacturer test it on pregnant mice before marketing it? (5) If DES had been tested on pregnant mice, would the tests have shown that DES causes cancer in their offspring? (6) Would a reasonably prudent drug manufacturer have marketed DES for use in treating accidents of pregnancy at the time it was ingested by the plaintiff’s mother if it had known that DES causes cancer in the offspring of pregnant mice? (7) Did defendant and the other drug manufacturers act in concert with each other in the testing and marketing of DES for use in treating accidents of pregnancy?”


author:
Jones, J.
      Meyer, J.

text:
    In the Matter of the Commissioner of Social Services of the City of New York, as Assignee of Guiliana S., Petitioner, v David R. S., Respondent. The Door — A Center of Alternatives, Appellant.
    Argued March 24, 1982;
    decided May 18, 1982

      POINTS OF COUNSEL

      Jonathan Sinnreich and James M. Morrissey for appellant.
    I. Ms. S’ patient records are within the scope of the privilege established by subdivision (a) of section 1175 of the United States Code. (United States v Graham, 548 F2d 1302.) II. Respondent has not shown “good cause" for production of Ms. S’ records. (United States v Graham, 548 F2d 1302.)

      Harvey S. Jacobs for respondent.
    I. Respondent has established that the restrictions of section 1175 of title 21 of the United States Code do not prevent disclosure as ordered. II. The Family Court was obligated to require and order disclosure of the record which related directly to the issue of credibility of the witness. (Burke v Burpo, 75 Hun 568; Matter of Rebmann v Muldoon, 23 AD2d 163; Matter of Stenzel v Bennett, 49 AD2d 1017; Matter of Moore v Murray, 63 Misc 2d 401; Matter of Hawthorne v Edward S., 31 AD2d 426; Matter of Morris v Canfield, 19 AD2d 942; Matter of Linda S. v James G., 52 AD2d 607; Gail M. v William P., 57 AD2d 859.)
   OPINION OF THE COURT

Jones, J.

Patient records maintained by a drug abuse treatment center which is assisted by an agency of the United States are not to be denied the shelter of statutory confidentiality where the center made a diagnosis for drug abuse, notwithstanding that the patient first sought non-drug-related services from the center and that the records sought to be disclosed pertain to other than a drug-related condition.

Incident to his defense in a paternity proceeding pending in Family Court of Kings County, respondent, David S., sought to subpoena records of The Door (a drug and alcohol abuse prevention and treatment facility receiving direct and indirect assistance from the National Institute on Drug Abuse) concerning Guiliana S., the mother on whose behalf the allegation of paternity had been made. The Door has resisted disclosure on the ground that the records are protected by the Federal Drug Abuse Prevention, Treatment and Rehabilitation Act (US Code, tit 21, § 1101 et seq.). Two questions are presented: whether the records demanded are within the coverage of the statute, and if so, whether the direction for their disclosure by the Family Court represents a proper exercise of the power conferred on courts of competent jurisdiction to make exceptions to the statutory proscription (US Code, tit 21, § 1175, subd [b], par [2], cl [C]). We conclude that the records do come within the coverage of the statute and that their disclosure was not authorized.

The paternity proceeding in which this controversy arises was commenced by the New York City Commissioner of Social Services as assignee of Guiliana. When the alleged father, David, served a subpoena duces tecum on The Door for its production of the “[mjedical record, pertaining to examinations, consultations, treatment, birth control, abortion, etc.” of Guiliana, and The Door indicated its unwillingness to comply, David moved in Family Court for an order directing compliance. His purpose was to use the records to impeach Guiliana’s credibility in the paternity proceeding by showing a prior pregnancy and abortion and sexual promiscuity which he expected those records would confirm.

The motion was initially denied but, after hearing the mother’s testimony, Family Court reconsidered its decision and ordered The Door to produce the records for an in camera inspection the following day. After that inspection, Family Court held that the records came within the scope of the statute but, finding that good cause existed, directed that portions of the records be made available to David’s counsel. On appeal taken by The Door, the Appellate Division unanimously affirmed (83 AD2d 636). It concluded, however, that title 21 (§ 1175, subd [a]) of the United States Code was inapplicable because a review of the portion of the records that had been ordered to be disclosed revealed that Guiliana had contacted and continued to deal with the center “for purposes wholly unrelated to drug abuse counselling”. It had no occasion to consider whether, had the records come within the embrace of the statute, their disclosure should be authorized in the circumstances of this case.

We disagree with the Appellate Division’s conclusion that the Federal statutory provision addressed to protection of confidentiality is not applicable because Guiliana first came to The Door for one of its services other than drug counseling. The center attempts to respond to a variety of needs to which young people are exposed and thereby to gain their confidence and, it is hoped, their acceptance of drug and alcohol abuse counseling and treatment where appropriate. In Guiliana’s case, although her initial visit was for pregnancy evaluation and she continued to receive pregnancy counseling during the period to which the records ordered disclosed relate, the center thereafter expanded its assistance to her, providing diagnostic service with respect to drug abuse. By reason of such diagnostic service, Guiliana was a “patient” within the meaning of subdivision (a) of section 1175 as that term is defined by regulations adopted pursuant to authorization provided by subdivision (g) of the statute. Section 2.11 of the departmental regulations provides that “[t]he term ‘patient’ means any individual (whether referred to as a patient, client, or otherwise) who has applied for or been given diagnosis or treatment for drug abuse or alcohol abuse” (42 CFR 2.11 [i]). “Diagnosis” and “treatment” are defined broadly in subdivision (e) of the same regulation: “The terms ‘diagnosis’ and ‘treatment’ include interviewing, counselling, and any other services or activities carried on for the purpose of or as an incident to diagnosis, treatment, or rehabilitation with respect to drug abuse”.

The alleged father asserts however that the protection of confidentiality afforded by the statute does not extend to records maintained by The Door with respect to any pregnancy or abortion of Guiliana but is limited only to those pertaining to drug abuse diagnosis or treatment.

Such a narrow interpretation of the statute is not mandated by its language, is at variance with the expectations of “the strictest adherence” to the confidentiality provision of the statute expressed in the Congressional Conference Report issued in connection with the Federal legislation, and, in the case of centers like The Door which gain access to drug and alcohol abusers by offering a gamut of services, would be counterproductive to the accomplishment of drug and alcohol abuse diagnosis, treatment and rehabilitation. Records entitled to the protection of confidentiality under subdivision (a) of section 1175 are those which are “maintained in connection with the performance of any drug abuse prevention function conducted, regulated, or directly or indirectly assisted by any department or agency of the United States”; protection is not restricted to records of diagnosis and treatment for drug abuse. In the circumstances here presented we have no difficulty in concluding that the operation of The Door is a “drug abuse prevention function” within the language of the statute and that the records it kept with respect to this patient’s diagnosis, prognosis and treatment, whether for a drug-related condition or otherwise, are records “maintained in connection with the performance of” its drug abuse prevention function. A narrower interpretation of the statutory confidentiality protection would deter not only those, like Guiliana, who initially come for other services (as to which they may also desire confidentiality) and thereafter become drug abuse patients, but also youths whose only interest is in obtaining assistance with drug problems but who, not perceiving the line between what is and is not protected, will forego any aid rather than risk exposure. Broad interpretation furthers the objectives of the Federal statute addressing drug and alcohol abuse prevention, treatment and rehabilitation by not chilling the willingness or discouraging the readiness of individuals to come to facilities operated under the statute. Moreover, a comprehensively inclusive interpretation of subdivision (a) of section 1175 is invited by the addition of subdivision (b) providing, inter alia, for court ordered exceptions where “good cause” is shown.

Concluding that the records sought by this putative father are within the protection of subdivision (a), we turn then to whether there is present in this case “good cause” sufficient to allow their disclosure to be directed by court order pursuant to subdivision (b) (par [2], cl [C]). An examination not only of the statement of factors which the statute requires be considered in assessing good cause but also of the relevant departmental regulation satisfies us that there is no good cause in this instance.

In addition to repeating the statutory injunction that “the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services” the regulation includes a further guideline: “If there is evidence that disclosure would have an adverse effect upon successful treatment or rehabilitation of the patient or would impair the effectiveness of the program, or other programs similarly situated, in the treatment or rehabilitation of other patients, the application should be denied unless the court finds that the adverse effects are outweighed by other factors” (42 CFR 2.64 [f]). It is evident that it is a matter of high priority and prime concern that the effectiveness of drug abuse treatment programs offered by facilities receiving Federal support not be jeopardized by court-ordered disclosure of information gained about those who submit themselves to such facilities. With that principle in mind, weighing the factors set out in the statute, we can reach no conclusion but that, as a matter of law, an order could not properly be granted directing the disclosure sought in the present case.

Considering first the items on the one side of the statutory scale — the public interest and the need for disclosure — it may be recognized that in general there is a broad public interest in assuring the availability of all material and competent evidence for the proper resolution of litigated matters. This consideration, however, would be pertinent to every application for an exception and thus cannot be permitted to weigh heavily in the determination of “good cause” in individual cases. No other public interest in disclosure is identified. As to the “need for disclosure”, here that need is simply the desire of the putative father in private litigation for evidence in a particular form which he deems advantageous to him for use in attacking the credibility of the mother’s testimony. The evidence he hopes to obtain, while perhaps of greater probative worth to the extent that it may be perceived as coming from the lips of the mother herself, is nevertheless by his own admission cumulative only. As the father concedes, other proof is already available in the form of a witness who testified at the Family Court proceeding as to an abortion performed on Guiliana and of testimony given and letters written by Guiliana with respect to her relationships with other men. That being so, little weight is to be attached to the putative father’s “need for disclosure”, particularly in view of a provision in the implementing regulations that “[i]f other competent evidence or sources of information are available, the court should ordinarily deny the application” (42 CFR 2.64 [e]).

j On the other side of the scale are to be accounted “the injury to the patient, to the physician-patient relationship, and to the treatment services”. “[Ijnjury to the patient” and “to the treatment services” must be read in context. It is not alone that the information disclosed may be injurious, it is also that the disclosure may be injurious — either to the patient or to her relationship with the center. Thus, in this case, if evidence obtained from the center were put in David’s hands to be turned against Guiliana in his defense of the proceeding, disappointment of her expectations of confidentiality might lead her to leave the center. To encourage the understandably hesitant to come to drug abuse treatment centers in the first place and thereafter to continue to avail themselves of these services — and thus to advance the public interest as well — the statute protects patients against disclosures the threat of which might well deter their participation. Moreover, there are prospects of injuries to Guiliana: the injury to her personal dignity which may follow from making her medical and pregnancy records, normally thought to be confidential, available for public exposure, and injury in the form of loss of services provided to her by The Door if, as a consequence of the breach of the confidentiality which she was led to expect, she should elect to separate herself from the facility. While in this instance no independent injury to the physician-patient relationship can be identified, as has already been suggested injury to the treatment services may very well result, both as to Guiliana herself and as to other actual and potential patients not only of this but other facilities who, informed of other disclosures, may be dissuaded by fear that confidentiality will not be available to them at such facilities and that the assurances given them are not to be relied on.

In sum we conclude that no arguments of merit are advanced in support of disclosure and that substantial considerations of the legitimate interests of both Guiliana and The Door, as well as other treatment centers, dictate as a matter of law that confidentiality of the records be preserved. That being so, the court order for disclosure under section 1175 (subd [b], par [2], cl [C]) was improperly granted.

For the reasons stated, the order of the Appellate Division should be reversed and the motion to compel compliance denied, with costs.

Meyer, J.

(concurring). I concur in all of the reasoning of the majority opinion except so much as discusses as an element for consideration the possibility that Guiliana might be deprived by disclosure of the benefits of a paternity adjudication (p 595). Congress has provided that in determining whether there is “good cause” for disclosure “the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services” (US Code, tit 21, § 1175, subd [b], par [2], cl [C]). As concerns the patient, what it sought to protect was his or her right to privacy and access to treatment (US Code Cong & Admin News, 1972, p 2072), not his or her right to a litigation advantage or a support order. By recognizing as an “injury to the patient” the outcome of the paternity litigation, public interest and the need for treatment are, in effect, accorded double significance, and a phrase intended to protect the personal and privacy interests, rather than the monetary interests, of the patient is given weight not intended for it.

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

Order reversed, etc.

      . The portions of the Federal statute relevant to the present appeal are the following:
      “§ 1175. Confidentiality of patient records — Disclosure authorization
      “(a) Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.
      “(b) ** * *
      “(2) Whether or not the patient, with respect to whom any given record referred to in subsection (a) of this section is maintained, gives his written consent, the content of such record may be disclosed as follows:
      * * *
      “(C) If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services.”

      . This statement is predicated on our in camera examination of Guiliana’s records at The Door.

      . Subdivision (g) of section 1175 provides: “(g) Except as provided in subsection (h) of this section, the Secretary of Health and Human Services, after consultation with the Administrator of Veterans’ Affairs and the heads of other Federal departments and agencies substantially affected thereby, shall prescribe regulations to carry out the purposes of this section. These regulations may contain such definitions, and may provide for such safeguards and procedures, including procedures and criteria for the issuance and scope of orders under subsection (b)(2)(C) of this section, as in the judgment of the Secretary are necessary or proper to effectuate the purposes of this section, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.”

      . “The conferees wish to stress their conviction that the strictest adherence to the provisions of this section is absolutely essential to the success of all drug abuse prevention programs. Every patient and former patient must be assured that his right to privacy will be protected. Without that assurance, fear of public disclosure of drug abuse or of records that will attach for life will discourage thousands from seeking the treatment they must have if this tragic national problem is to be overcome.” (HR Rep No. 92-920, 92d Cong, 2d Sess, p 33 [in US Code Cong & Admin News, 1972, p 2072].)

      . (US Code, tit 21, § 1175, subd [b], par [2], cl [C], n 1, supra; 42 CFR 2.64 [d].)

      . While it may appear uneven on its face to express concern for the interest of Guiliana in the paternity proceeding while declining to credit a similar concern for the putative father’s interest, this is consistent with the express statutory mandate that injury to the patient be considered in the balancing of factors; the statute contains no counterpart reference to the interests of the applicant in disclosure.

        The successful assertion of any of the several other privileges of confidentiality often results in the exclusion of relevant and probative proof which it is to the practical advantage of the beneficiary of the privilege to keep out of evidence. There, as here, the policy encouraging the beneficiary (whether penitent, client or patient) to make the original communication without fear of subsequent disclosure outweighs the general interest of society, and of an opposing litigant in particular, in the availability of relevant and material evidence.

      . The consent form furnished by The Door and executed by Guiliana at the inception of her relationship with the center contained the following statement: “I understand that all information will be kept confidential.”


text:
    In the Matter of Roslyn F. Seidner, Appellant, v Town of Colonie, Board of Zoning Appeals, Respondent.
    Argued October 16, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Ronald H. Sinzheimer for appellant.

      Susan Marie Tatro, Town Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the court below that petitioner’s article 78 proceeding is untimely. (Town Law, §267, subd 7.) The record does not support petitioner’s contention that the respondent Board of Zoning Appeals conducted a rehearing on her application for a variance. In this regard, there is no proof that a majority of the members of the respondent board ever voted on petitioner’s request for a rehearing (Town Law, §267, subd 6) or that a rehearing was held upon the notice required by subdivision 5 of section 267 of the Town Law. Although a letter from respondent’s counsel alludes to “rehearings” having been held on petitioner’s variance application, this statement, without more, does not establish that a rehearing actually took place. Thus, respondent’s determination of March 20,1979 was final for purposes of article 78, and the time within which to seek review thereof commenced when it was filed with the town clerk on March 21, 1979.

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

Order affirmed, with costs, in a memorandum.


text:
    Franco Costa, Appellant, v Fantasia Distributing Corporation et al., Respondents.
    Submitted October 19, 1981;
    decided November 17, 1981

      APPEARANCES OF COUNSEL

      Daniel L. Magida, Michael A. Lacher and Jill C. Lesser for appellant.

      Robert W. Cinque for respondent.
   OPINION OF THE COURT

Memorandum.

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

We cannot say, as a matter of law, given the facts of this case, that it was an abuse of discretion for the courts below to require plaintiff to post a bond pursuant to CPLR 2701. Plaintiff sought under the provisions of CPLR 2701 to compel defendants to return his art works held by them in conjunction with the contractual relationship now in dispute. CPLR 2701 authorizes the court to “order personal property capable of delivery which is the subject of the action, paid into court, or delivered to such person as it may direct, with such security as the court shall direct, and subject to its further discretion if: * * * 2. a party has such property in his possession, custody or control and it belongs or is due another party, where special circumstances make it desirable that payment or delivery to such other party should be withheld”. Since the court found that “special circumstances” existed, it was within its discretion to require plaintiff to post a bond.

Plaintiff’s contention that the requirement of a bond transforms the court’s action into a de facto attachment is without merit. The greatest right this bond could be construed to afford to the defendants would be something analogous to a possessory lien. As this court has stated, it was not the lien itself, but the subsequent ex parte sale executed pursuant to that lien which violated the requirements of due process. (Sharrock v Dell Buick-Cadillac, 45 NY2d 152.) Therefore, plaintiff is entitled to no greater due process than he received during the court’s consideration of his motion made pursuant to CPLR 2701.

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

Order affirmed, with costs, etc.