text:
    [644 NE2d 1004, 620 NYS2d 313]
    The People of the State of New York, Respondent, v Abdolhosein Baghai-Kermani, Appellant.
    Argued October 20, 1994;
    decided December 6, 1994

      POINTS OF COUNSEL

      Newman & Schwartz, New York City (Richard A. Greenberg and Robert Hill Schwartz of counsel), and Fischetti & Russo for appellant.
    I. A Rosario violation occurring at a trial on a multicount indictment vitiates all counts of conviction, at least when the prosecutor argues to the fact finder that all counts were part of a pattern and were factually interrelated and the fact finder announces that all counts were "tainted” by the argument. (People v Jackson, 78 NY2d 638; People v Ranghelle, 69 NY2d 56; People v Banch, 80 NY2d 610; People v Watt, 179 AD2d 697, 81 NY2d 772, 192 AD2d 65, 82 NY2d 760.) II. Dr. Baghai-Kermani was denied his right to the effective assistance of counsel under the New York and United States Constitutions when his assigned counsel called an unqualified expert as a defense witness without knowing what the expert testimony would be, and the "expert” proceeded to bury Dr. Baghai-Kermani. (People v Baldi, 54 NY2d 137; Strickland v Washington, 466 US 668; People v Mirenda, 57 NY2d 261.)

      Edward J Kuriansky, Deputy Attorney-General, New York City (Arthur G. Weinstein, Donald H. Zuckerman and Arlene S. Osterer of counsel), for respondent.
    I. There was no Rosario violation as to the eight counts about which Ken Karp gave no testimony. (People v Lipton, 54 NY2d 340; People v Rosario, 9 NY2d 286, 368 US 866; People v Jones, 70 NY2d 547; People v Banch, 80 NY2d 610; People v Kanefsky, 50 NY2d 162; People v Renner, 80 AD2d 705; People v Watt, 192 AD2d 65;
      People v Kelly, 76 NY2d 1013; People v Ranghelle, 69 NY2d 56; People v Gerks, 243 NY 166.) II. Appellant is responsible for the consequences, if any, of his "foolish” decision to forego counsel. (Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; Matter of Director of Assigned Counsel Plan, 159 Misc 2d 109; McKaskle v Wiggins, 465 US 168; People v Baldi, 54 NY2d 137; Matter of Hynes v Axelrod, 116 AD2d 830; People v Scala, 128 Misc 2d 831; Strickland v Washington, 466 US 668; People v Flores, 84 NY2d 184; People v Vivenzio, 62 NY2d 775.)
   OPINION OF THE COURT

Titone, J.

Defendant, a psychiatrist, was found guilty, after trial, of 10 separate counts of criminal sale of a prescription for a controlled substance (Penal Law § 220.65). The primary issue in this appeal is whether the People’s failure to disclose a witness’s pretrial statements within the time prescribed by CPL 240.45 requires reversal of the conviction on all 10 counts even though the witness gave evidence pertaining to only two. Rejecting any notion that the Rosario per se rule of reversal automatically and necessarily extends to all counts that were simultaneously tried, we conclude that the Rosario violation here vitiates the convictions only on the two discrete counts as to which the witness in question gave testimony.

The charges against defendant arose out of a series of visits to his Manhattan office by four individuals posing as "patients.” Three of these visitors, James Dawson, Ruth Kirton and Barbara Williams, were "shoppers” employed by the Special Prosecutor for Medicaid Fraud Control. The fourth, Ken Karp, was an investigator with the New York State Bureau of Controlled Substances (BCS).

The witnesses told similar tales regarding their visits to defendant’s office. Upon arriving, these "patients” would generally initially "register” with one of defendant’s receptionists, "Richie” Pearce or Michelle Rosario, and hand over a cash "fee” of $80 or $90, along with some photo identification and a Medicaid card. The "patient’s” file and cash payment were then taken to defendant, and defendant would conduct a brief "session” lasting no more than 5 or 10 minutes. First-time "patients” would first be asked for a medical history. The remainder of the "session” would consist of a discussion of what controlled substance the "patient” wanted. Typically, there would be no discussion of the "patient’s” medical complaints or psychiatric symptoms. Beginning in late 1990, "sessions” between defendant and his "patients” were conducted through a plexiglass partition with the use of a telephone. At the close of these "sessions,” defendant would give the "patient” a prescription for the agreed-upon substances.

On more than one occasion, the "shopper” Dawson presented two or more Medicaid cards under different names, and defendant agreed to write separate prescriptions for each name. According to the testimony of both receptionists, the "fee” charged for such visits was determined on a per card basis. Michelle Rosario testified, for example, that the fee was a fixed amount for prescriptions under each card, so that if the "going” fee at the time was $100 and the "patient” presented three Medicaid cards, the total price would be $300. During one visit, defendant told a "patient” that his price had increased because the number of controlled substance prescription forms that he was authorized to issue had been limited.

Following a bench trial at which defendant represented himself with the assistance of standby counsel, defendant was convicted of 10 counts of criminal sale of a prescription for a controlled substance in violation of Penal Law § 220.65. Eight of those counts concerned sales made to the three "shoppers” employed by the Special Prosecutor’s office. The remaining two concerned sales made to Ken Karp, the BCS investigator, during his two visits on March 12 and May 22, 1990.

After sentence was imposed, defendant’s newly retained attorney learned through a colleague that Karp, who was also involved in an investigation of a different doctor, had discussed his March 12, 1990 visit to defendant’s office in that other physician’s waiting room in a conversation that had been memorialized on tape. Specifically, Karp had been recorded telling the other physician’s receptionist that defendant’s office was closed, that "[the] place is crazy,” that defendant’s "worker [receptionist] wasn’t there last time,” that he (Karp) was afraid to go back because he "heard that story about [defendant] getting ripped off.” In a second previously undisclosed tape, it was revealed that Karp had made a third visit to defendant’s office which had not been mentioned in his testimony, but that he had been turned away without seeing defendant because defendant had depleted his supply of rationed prescription forms.

Citing these tape recorded statements, defendant moved under CPL 440.10 to set aside the judgment of conviction on the ground that his rights under CPL 240.45 had been violated by the nondisclosure of these pretrial statements made by an individual who had appeared as a prosecution witness at his trial. The trial court granted the requested relief and vacated the convictions on all 10 of the counts. While agreeing with the prosecution that Rosario violations do not always require the reversal of all jointly tried counts, the court concluded that the violation here had tainted all of the convictions because the prosecutor had argued that all of the evidence should be considered as a whole to establish the absence of good faith on defendant’s part (see, Penal Law § 220.65).

On the People’s appeal from this decision, the Appellate Division modified by reinstating the conviction on the eight counts that were not directly predicated on investigator Karp’s testimony. The Court stated that there might be cases in which an argument such as that made by the prosecutor here might warrant reversal of all counts for a Rosario violation pertaining only to some. Here, however, reversal of all of the counts was not required because the tainted counts did not represent "a substantial proportion of the total evidence on a disputed issue” (199 AD2d 36, 40). In a separate order disposing of defendant’s direct appeal from the judgment of conviction, the Appellate Division affirmed the judgment of conviction, as modified in the CPL 440.10 proceeding. Having obtained the permission of a Judge of this Court, defendant has appealed from both Appellate Division orders.

With regard to defendant’s Rosario claim, it is undisputed that the undisclosed tape recorded material included statements by a trial witness about his criminal transactions with defendant and that, accordingly, the material was subject to disclosure under CPL 240.45. It is also undisputed that the People’s failure to turn the material over to the defense constituted a violation of defendant’s Rosario rights and that this violation required reversal of the two convictions for selling prescriptions to that witness without regard to case-specific harmless-error analysis (see, e.g., People v Banch, 80 NY2d 610; People v Jones, 70 NY2d 547). Thus, the only remaining issue before us is whether the prosecution’s failure to disclose investigator Karp’s taped pretrial statements also taints the eight convictions on the counts for which Karp gave no testimony.

Initially, we note that nothing in our per se rule of reversal for Rosario error compels automatic reversal of all counts that happened to be tried jointly with the counts to which the undisclosed Rosario material pertained (see generally, People v Kanefsky, 50 NY2d 162). The Rosario rule itself is simply one of fundamental fairness (see, e.g., People v Banch, supra, at 615). Similarly, the corollary rule requiring reversal without regard to harmless-error analysis is premised on the pragmatic recognition that traditional harmless-error inquiry "would necessarily require weighing the potential impeachment value of the withheld material” — an exercise best left to the single-minded devotion of counsel for the accused (People v Banch, supra, at 615; People v Perez, 65 NY2d 154, 160; see, People v Novoa, 70 NY2d 490, 499).

These postulates have persuaded this Court to dispense with considering actual prejudice where a witness whose pretrial statement has been improperly withheld has given evidence probative of a particular charged crime. However, they need not be extended to situations where the defendant has also been convicted of other charges that are unrelated to that crime. Indeed, in those situations, the handicap visited on the defense as a result of the nondisclosure cannot reasonably or logically be said to have had any impact at all on the manner in which the unrelated charges were litigated. Hence, extension of the per se reversal rule to convictions on the unrelated charges would be an unwarranted expansion of what was essentially "a policy decision” into an area in which that policy choice has no meaningful application (see, People v Jackson, supra, at 641, 645).

The foregoing explains our refusal to adopt a reflexive rule requiring reversal of all jointly tried counts regardless of their relationship to the counts to which the Rosario violation pertained. However, it does not wholly dispose of the remedy question presented here. As an alternative approach, defendant contends that we should reverse the jointly tried counts in his case because the two tainted counts may have had a "spillover” effect arising from the prosecutor’s summation argument that the evidence of each sale had a "cumulative value” for rebutting any claim of mistake or coincidence (see, e.g., People v Brown, 83 NY2d 791; People v Kelly, 76 NY2d 1013). We reject defendant’s argument as unpersuasive under the particular facts presented here.

Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis, with due regard for the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome. Here, defendant was convicted of 10 counts of having unlawfully sold prescriptions for controlled substances "other than in good faith in the course of his professional practice” (Penal Law § 220.65). Each count involved a discrete and separate sale conducted in the presence of a single buyer-witness and each buyer-witness gave evidence that directly related only to the sales made to him or her. The error in question — a violation of defendant’s Rosario rights — may have had some impact on his ability to defend against the two counts involving the sales to investigator Karp, but its potential effect on the counts involving Dawson, Kirton and Williams is considerably more difficult to pinpoint. The only real disputed issue on all of the counts was whether defendant had issued the prescriptions in the good-faith pursuit of his profession. On this point, the evidence on each of the 10 counts may have had some tangential effect on the others, since, as the prosecutor argued, "the mass [of evidence] has a cumulative value” and "repetition [of the conduct] reduces the likelihood of mistake.” However, in view of the number of counts, the relative uniformity of the evidence pertinent to each and the strength of the independent proof bearing on defendant’s culpable mental state, there was no reasonable possibility that the evidence supporting the two tainted counts influenced the guilty verdicts on the other eight.

In this regard, it is noteworthy that, apart from the extremely weak linkage supplied by the repetition factor, the counts were not "factually related” in any meaningful way (see, People Kelly, supra, at 1015; People v Cohen, 50 NY2d 908, 911). Further, the sales to investigator Karp did not figure prominently in the prosecution’s "cumulative value” argument. On the contrary, after making some general assertions about the need to "consider the facts surrounding the issuance of all [of] the prescriptions in this case,” the prosecutor argued that "the first throws light upon the last[,] * * * the last throws light upon the first[, a]nd the last prescription in this case * * * [, which was issued to James Dawson,] we submit [throws] considerable light upon all the others” (emphasis supplied). Thus, to the extent that the People urged the fact finder to use evidence of some counts as support for others, the emphasis was on the counts concerning the sales to James Dawson, not the sales to investigator Karp. Under these circumstances, reversal of the eight counts on which Karp did not testify is not required.

Defendant’s remaining argument regarding a purported deprivation of his right to effective assistance of counsel requires only brief mention. Defendant’s complaint about the assistance he received concerns the decision to call an expert whom he characterizes as "unqualified” and who ultimately gave testimony that could be construed as more damaging than helpful to the defense. The short answer to defendant’s grievance is that, having voluntarily and intelligently undertaken to represent himself, defendant cannot now complain about the quality of the decisions made in the conduct of his defense. As was noted in somewhat different context, "[t]here comes a point where a defendant must bear the consequences of his conduct, in a courtroom as well as out of it” (People v Kelly, 60 AD2d 220, 224, affd on opn of Silverman, J. 44 NY2d 725, quoted in People v Smith, 68 NY2d 737, 743).

To be sure, defendant had the assistance of standby counsel and standby counsel, in fact, argued for the admission of the expert witness’s evidence and conducted his examination. Nonetheless, given the limited role ordinarily played by standby counsel (see, McKaskle v Wiggins, 465 US 168, 174; People v Rosen, 81 NY2d 237, 244-245; cf., People v Cabassa, 79 NY2d 722, 731; see also, People v Mirenda, 57 NY2d 261), it must be assumed in the absence of contrary evidence that defendant was the one who made the critical strategic decisions, including the decision to call the purported expert. We note that the absence of any meaningful evidence regarding the standby’s role in that decision makes it unnecessary for us to decide the extent to which incompetent assistance by standby counsel could, in a proper case, support a valid ineffective assistance of counsel claim.

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

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.

Orders affirmed.

      . Karp had testified at defendant’s trial that his March 12 and May 22 visits were "the only two dates [he had] visited with Dr. Kermani.”

      . See, People v Rosario, 9 NY2d 286, cert denied 368 US 866.

      . Defendant made his Rosario claim the subject of his direct appeal as well as of his CPL 440.10 motion. Consequently, the People have not argued for the application of the prejudice test that is applicable to Rosario claims asserted only after direct appeal has been exhausted (see, People v Jackson, 78 NY2d 638, 649).

      . The prosecution’s case was also supported by the testimony of defendant’s two receptionists, who provided additional information about his modus operandi.


source: Caselaw Access Project

author: ClPABICK, J.

license: Public Domain

text:
    [644 NE2d 1009, 620 NYS2d 318]
    Carolyn Ackerman et al., Respondents, v Price Waterhouse, Appellant. (And One Other Action and a Third-Party Action.)
    Argued October 27, 1994;
    decided December 6, 1994

      POINTS OF COUNSEL

      Debevoise & Plimpton, New York City (David W. Rivkin, John G. Koeltl and Loma G. Schofield of counsel), and Rod-man W. Benedict for appellant.
    I. The Court below’s adoption of the Atkins rule is contrary to settled principles of New York law. Fleet Factors Corp. v Werblin, 114 AD2d 996; Credit Alliance Corp. v Andersen & Co., 101 AD2d 231, 65 NY2d 536; Meinhard-Commercial Corp. v Sydney, 109 AD2d 678; Cohen v Abrahams, 751 F Supp 472; Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399; Snyder v Town Insulation, 81 NY2d 429; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212; White v Guarente, 43 NY2d 356.) II. The Court below erred in its application of the Atkins rule. Fidelity & Deposit Co. v Peat, Marwick, Mitchell & Co., 135 Misc 2d 936, 143 AD2d 613; Albert v Grant Thornton, 735 F Supp 1443, 926 F2d 717; Quinn v County of Nassau, 162 AD2d 514; New York Seven-Up Bottling Co. v Dow Chem. Co., 96 AD2d 1051, 61 NY2d 828; TMG-II v Price Waterhouse & Co., 175 AD2d 21, 79 NY2d 752.)

      Stamell, Tobacco & Schager, New York City (Richard J. Schager, Jr., Jared B. Stamell and Michelle Rago of counsel), Levy Sonet & Siegel and Camhy Karlinsky & Stein for respondents.
    I. The service of an amended complaint moots the appeal of a motion to dismiss because the original complaint is no longer pending before this Court. (Matter of Hearst Corp. v Clyne, 50 NY2d 707; Video Corp. v Flatto Assocs., 58 NY2d 1026; Sears, Roebuck & Co. v Enco Assocs., 43 NY2d 389; Abrams v Community Servs., 76 AD2d 765; Guibor v Manhattan Eye, Ear & Throat Hosp., 56 AD2d 359.) II. Injury is caused by negligent tax return preparation not when the return is filed, but when the IRS makes a final determination that additional taxes, interest and penalties are due. (Martin v Edwards Labs., 60 NY2d 417; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Kronos, Inc. v AVX Corp., 81 NY2d 90; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169; McDermott v

      City of New York, 50 NY2d 211; City of New York v State of New York, 40 NY2d 659; Fidelity & Deposit Co. v Peat, Marwick, Mitchell & Co., 135 Misc 2d 936, 143 AD2d 613; Jacobson v Peat, Marwick, Mitchell & Co., 445 F Supp 518; Barninger v National Mar. Union, 372 F Supp 908; Fleet Factors Corp. v Werblin, 114 AD2d 996.) III. The limited partners suffered injury only when they received the IRS 90-day notice of deficiency, which was the first notice to require the payment of additional taxes, interest and penalties. (Olsen v Helvering, 88 F2d 650; Scar v Commissioner of Internal Revenue, 814 F2d 1363; McDonnell v United States, 59 F2d 290, 288 US 420; Thomaston Cotton Mills v Rose, 62 F2d 982, 289 US 754; United States v Williams, 161 F Supp 158; Heinemann Chem. Co. v Heiner, 92 F2d 344; Luhring v Glotzbach, 304 F2d 560; Cleveland Trust Co. v United States, 421 F2d 475, 400 US 819; Rosenberg v Commissioner of Internal Revenue, 450 F2d 529; Albert v Grant Thornton, 735 F Supp 1443.) IV. If the 90-day notice is not the date on which plaintiffs-respondents’ cause of action accrues, then the continuous representation doctrine would apply. (Zaref v Berk & Michaels, 192 AD2d 346; White v Guarente, 43 NY2d 356; Credit Alliance Corp. v Andersen & Co., 65 NY2d 536; Borgia v City of New York, 12 NY2d 151; Wilkin v Dana R. Pickup & Co., 74 Misc 2d 1025; In re Investors Funding Corp., 523 F Supp 533; Cohen v Goodfriend, 642 F Supp 95; Shochat v Weizs, 757 F Supp 189; Hall & Co. v Steiner & Mondore, 147 AD2d 225; Zaref v Berk & Michaels, 192 AD2d 346.)

      Willkie Farr & Gallagher, New York City (Louis A. Craco, Richard L. Klein, James H. Bicks and Joanne Chormaski of counsel), and Richard I. Miller for American Institute of Certified Public Accountants, amicus curiae.

    The decision below is contrary to well-established principles of New York law governing the Statute of Limitations against accountants. (Fleet Factors Corp. v Werblin, 114 AD2d 996; Meinhard-Commercial Corp. v Sydney, 109 AD2d 678; Credit Alliance Corp. v Andersen & Co., 101 AD2d 231, 65 NY2d 536; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Snyder v Town Insulation, 81 NY2d 429; White v Guarente, 43 NY2d 356; Iselin & Co. v Mann Judd Landau, 71 NY2d 420; Goldsmith v Howmedica, Inc., 67 NY2d 120; Gilbert Props, v Millstein, 40 AD2d 100, 33 NY2d 857; Thornton v Roosevelt Hosp., 47 NY2d 780.)

      Vedder, Price, Kaufman, Kammholz & Day, New York City
      (Dan L. Goldwasser, Michael J. Crisafulli and Salvatore G. Gangemi of counsel), for New York State Society of Certified Public Accountants, amicus curiae.

    I. The decision of the Court below will have a great impact on accounting and other tax professionals, for whom tax preparation and advice represent a large portion of their practice. II. There is no need for the Court to fashion a separate limitations rule for professional tax services. III. Extending the effective limitations period for tax services will have a negative impact on the judicial system and impose undue social costs. Duffy v Horton Mem. Hosp., 66 NY2d 473; Connell v Hayden, 83 AD2d 30.)
   OPINION OF THE COURT

ClPABICK, J.

In a malpractice action against an accountant, the Statute of Limitations begins to run on the date the accountant’s work product is received by the client since this is the first time the client can rely on the alleged negligent work product. Therefore, in this case, we conclude that only those claims relating to defendant’s negligence in connection with its advice and preparation of plaintiffs’ limited partnerships’ financial statements and tax returns, including Schedules K-l, arising in the three years prior to the commencement of this action are timely under CPLR 214 (6).

I.

By complaint dated April 10, 1990, plaintiffs, individuals who purchased limited partnership tax shelters in real property partnerships sponsored by Commercial Properties Group, Inc. (CPG), instituted this action against defendant, an accounting partnership, alleging negligence and professional malpractice in the preparation of annual returns for the tax years 1980-1987 for their limited partnership interests. CPG engaged defendant to render annual accounting services and prepare the partnerships’ tax returns and Schedules K-l, which reported each limited partner’s pro rata share of partnership income and expenses. Defendant transmitted the annual tax returns to CPG, and was aware that each limited partner received such tax documents, including Schedules K-l, for filing with their Federal and State income tax returns.

Plaintiffs assert that since 1979 they relied on defendant’s advice regarding the availability of an accrued interest deductian, calculated under the "Rule of 78’s”, which was employed in the tax returns prepared by defendant and submitted by plaintiffs for each tax year from 1980-1988. Plaintiffs contend that defendant’s use of the Rule of 78’s caused each limited partner to report a tax deduction far in excess of the actual allowable deduction. Plaintiffs allege that from the outset, defendant knew, or reasonably should have known, that use of the Rule of 78’s was improper, since it was not approved by the Internal Revenue Service (IRS) for long-term transactions, such as limited partnerships.

Indeed, plaintiffs claim that, in 1983, after the IRS released Revenue Ruling 83-84, which specifically barred the use of the Rule of 78’s in cases where the resulting deduction exceeded the true economic accrual of interest, defendant ceased using the Rule of 78’s to calculate accrued interest on all real estate partnerships, except CPG partnerships. Plaintiffs aver that included in their tax documents for the 1983 tax year was an opinion letter, dated March 1984, stating that interest expense deductions pursuant to the Rule of 78’s comports with

"the existing case law and Revenue Rulings in effect at the time the transaction was entered into. * * * [I]t is the practice of the [IRS] that [Revenue R]ulings are generally not retroactive with respect to transactions entered into prior to the effective date of the ruling, particularly where, as here, the transaction was structured in accordance with the existing ruling policy. Notwithstanding this, [defendant] has * * * been furnished with an opinion of tax counsel * * * that it is more likely than not that the interest deductions, as reported, will be upheld if challenged by the IRS based on research which indicates that the Commissioner cannot properly assert that Revenue Ruling 83-84 has retroactive effect”.

Nevertheless, plaintiffs allege that defendant, in breach of "its duty to exercise the skill and knowledge normally possessed by members of its profession,” continued to utilize the Rule of 78’s in preparing the tax returns and Schedules K-l for each limited partner for the years 1984-1988.

In 1983, the IRS began auditing partnerships in which plaintiffs held interests. In 1984, plaintiffs began receiving 30- or 60-day letters, advising them of tax deficiencies for specified years, and requiring either remittal of the deficiency amounts or commencement of an administrative challenge within the time period specified. Plaintiffs elected to administratively protest. By 1986, however, the avenues of administrative review were exhausted and no settlements were reached. Accordingly, the IRS instituted the last phase in the deficiency assessment process and issued 90-day statutory notices of deficiency to the limited partners. Upon receipt of this notice, plaintiffs had 90 days to satisfy one of two options: pay the deficiency sum or protest the determination to the United States Tax Court. Some plaintiffs filed petitions in the United States Tax Court, while others stayed the protest period pending a decision by the Tax Court on a test case. Subsequently, in December 1988, the United States Tax Court upheld the retroactive application of Revenue Ruling 83-84 by the IRS (see, Prabel v Commissioner of Internal Revenue, 91 TC 1101). In August 1989, the Third Circuit Court of Appeals affirmed this determination (see, Prabel v Commissioner of Internal Revenue, 882 F2d 820). Consequently, this action ensued.

Plaintiffs characterize defendant’s extended use of the Rule of 78’s in calculating their limited partnerships’ interest deduction as negligent and reckless and in breach of the duty of care owed by an accountant to its clients. They allege that defendant failed to warn them of the risks and consequences of interest deductions calculated under the Rule of 78’s and reported on Schedules K-l for the years 1980-1988. Plaintiffs seek damages, including the amount of penalty interest assessed by the IRS, and legal fees.

Defendant moved to dismiss the complaint, inter alla, as barred by the Statute of Limitations. In an interim order, Supreme Court, inter alia, directed the parties to consider application of the limitations period articulated in the Texas Supreme Court case of Atkins v Crosland (417 SW2d 150 [1967]), which held that a cause of action against an accountant for negligent preparation of a tax return accrues at the time the IRS assesses a tax deficiency. Thereafter, by decision dated November 10, 1992, Supreme Court departed from established New York principles and adopted the rule articulated in Atkins v Crosland holding that "the Statute of Limitations on a claim of negligence and malpractice against an accountant for acts relating to Federal income tax preparatian shall commence upon a reference point based on IRS action” (156 Misc 2d 865, 873).

The Appellate Division affirmed on the decisions below, with one Justice dissenting (see, Ackerman v Price Waterhouse, 198 AD2d 1). The Appellate Division granted leave to appeal and certified the following question: "Was the order of the Supreme Court, as affirmed by this Court, properly made?” For the reasons that follow, we now reverse the order of the Appellate Division and answer the certified question in the negative.

II.

A cause of action charging that a professional failed to perform services with due care and in accordance with the recognized and accepted practices of the profession is governed by the three-year Statute of Limitations applicable to negligence actions (see, CPLR 214 [6]). A malpractice cause of action sounds in tort and, therefore, absent fraud, accrues when an injury occurs, even if the aggrieved party is then ignorant of the wrong or injury (see, Kronos, Inc. v AVX Corp., 81 NY2d 90, 94; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 216, 218; Schmidt v Merchants Desp. Transp. Co., 270 NY 287, 300-301, rearg denied 271 NY 531). As a general proposition, it is upon injury that a legal right to relief arises in a tort action and the Statute of Limitations begins to run (see, CPLR 203 [a]; see also, Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175). We see no reason to depart from the settled and reliable limitations period applicable to actions involving claims of professional negligence.

In the context of a malpractice action against an accountant, the claim accrues upon the client’s receipt of the accountant’s work product since this is the point that a client reasonably relies on the accountant’s skill and advice and, as a consequence of such reliance, can become liable for tax deficiencies (see, Carr v Lipshie, 8 AD2d 330, affd on opn below 9 NY2d 983; Sosnow v Paul, 43 AD2d 978, affd on opn below 36 NY2d 780; Chemical Bank v Sternbach & Co., 91 AD2d 518, appeal dismissed 58 NY2d 1086). This is the time when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court (see, Snyder v Town Insulation, 81 NY2d 429, 432).

We reject plaintiffs’ proposition on this appeal that a Statute of Limitations can only accrue in a malpractice action against an accountant when the IRS assesses a deficiency, a date that necessarily varies depending on the type of deficiency notice received by the taxpayer. The policies underlying a Statute of Limitations — fairness to defendant and society’s interest in adjudication of viable claims not subject to the vagaries of time and memory — demand a precise accrual date that can be uniformly applied, not one subject to debate or negotiation. As evidenced by Supreme Court’s treatment of this case, no uniform date is readily identifiable as commencing the limitations period, rather it is only after the facts are scrutinized with reference to the particular IRS action that the appropriate limitations period can be established. Such a formula stands in marked contrast to the definiteness embodied in our statutory limitations periods (see, Duffy v Horton Mem. Hosp., 66 NY2d 473, 476-477; Caffaro v Trayna, 35 NY2d 245, 251; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429). Indeed, to base a limitations period on the potentiality of IRS action defies the essential premise of temporal finality embodied in Statutes of Limitation.

We are regularly confronted with claims by plaintiffs seeking to expand the breadth and scope of statutes of limitation against professionals in cases involving negligence in the discharge of their services (see, Goldsmith v Howmedica, Inc., 67 NY2d 120; Ossining Union Free School Disk v Anderson LaRocca Anderson, 73 NY2d 417; New Castle Siding Co. v Wolfson, 63 NY2d 782, rearg denied 64 NY2d 755). By advocating adoption of an expanded limitations period in this case, plaintiffs argue in favor of an accrual date that coincides with the date IRS determines additional taxes are due, invoking a limitations period triggered upon discovery of the accountant’s error. However, as identified by Supreme Court with reference to Atkins (supra), there are at least eight potential dates that could trigger a Statute of Limitations in a case involving negligent advice and/or preparation of tax documents by an accountant which can result in a deficiency assessment. Added to these dates is the possibility of stays, extensions or postponements. What this establishes with reasonable probability is that the limitations period is subject to manipulation, rendering it inconsistent with the definite statutory period governing negligence actions intended to bar adjudication of stale and groundless claims.

The utter lack of predictability inherent in a Statute of Limitations based on the date the IRS assesses a deficiency is apparent from the fact that defendant would remain liable for work performed a decade ago even though traditional principles governing negligence actions instruct that plaintiff was injured, and any claim accrued upon performance of the professional service. As Justice Wallach stated in his dissenting memorandum "[f]or us to adopt th[e] minority [Atkins] rule would mean turning our backs on certainty and predictability, and proceeding along an indistinct trail with random and uncertain markings” (see, Ackerman v Price Waterhouse, 198 AD2d, at 3, supra). We therefore adhere to a limitations period measured from the date the taxpayer receives and, as a consequence, relies on the accountant’s advice and/or work product.

III.

As applied to the instant case, plaintiffs suffered no injury until they received the tax forms and schedules prepared by defendant; only upon receipt of the alleged negligently prepared tax documents could plaintiffs, as limited partners, rely upon defendant’s professional skill and advice to their detriment (see, Fleet Factors Corp. v Werblin, 114 AD2d 996, 997; Meinhard-Commercial Corp. v Sydney, 109 AD2d 678, 678-679). Thus, pursuant to CPLR 214 (6), the statute has run on all claims except those relating to the New York plaintiffs’ limited partnerships’ tax returns for the 1987 tax year.

In view of the procedural posture of this case, there is an insufficient basis for this Court to address the continuous representation doctrine.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant’s motion to dismiss the complaint dated April 10, 1990 granted to the extent that all claims of negligence and malpractice for tax years prior to 1987 are dismissed, and the certified question answered in the negative.

Judges Simons, Titone, Bellacosa, Smith and Levine concur; Chief Judge Kaye taking no part.

Order reversed, etc.

      . The Rule of 78’s is an accounting convention that allocates greater interest deductions to the early years of a debt.

      . Included are the dates of (1) the initial deficiency report; (2) the audit or examination of books; (3) the 30-day letter; (4) the 60-day letter; (5) the 90-day letter; (6) the actual assessment date; (7) the settlement date; or (8) the judgment of the United States Tax Court.


author: Simons, J.

text:
    [644 NE2d 1013, 620 NYS2d 322]
    Ronald Bragg, Appellant, v Genesee County Agricultural Society et al., Respondents.
    Argued October 18, 1994;
    decided December 8, 1994

      POINTS OF COUNSEL

      Nicholas, Perot & Strauss, Akron (Kevin J. Bauer, Buffalo, of counsel), for appellant.
    I. Respondents are not entitled to the immunity provided by General Obligations Law § 9-103 because the property in question was not suitable for off-road motorcycle operation. (Farnham v Kittinger, 83 NY2d 520; Basso v Miller, 40 NY2d 233; Iannotti v Consolidated Rail Corp., 74 NY2d 39; Bragg v Genesee County Agrie. Socy., 198 AD2d 794, 83 NY2d 754; McGregor v Middletown School Dist. No. 1, 190 AD2d 923; Pulis v T. H. Kinsella, Inc., 156 Misc 2d 499; Sega v State of New York, 60 NY2d 183; People v Scott, 79 NY2d 474; Ferres v City of New Rochelle, 68 NY2d 446; Jacobs v Northeastern Indus. Park, 181 AD2d 720.) II. Respondents are not entitled to the immunity provided by the General Obligations Law because of a willful and/or malicious failure to warn of a dangerous condition. (Farnham v Kittinger, 83 NY2d 520; Sega v State of New York, 60 NY2d 183; Le Roux v State of New York, 307 NY 397; Finch v Swingly, 42 AD2d 1035.)

      O’Shea, Reynolds & Cummings, Buffalo (Erin M. Peradotto of counsel), for respondents.
    I. Summary judgment was properly granted to respondents since the property at issue was the type of property which was physically conducive to appellant’s activity and appropriate for public use. (Farnham v

      Kittinger, 83 NY2d 520; Iannotti v Consolidated Rail Corp., 74 NY2d 39; Fenton v Consolidated Edison Co., 165 AD2d 121; Wiggs v Panzer, 187 AD2d 504; Bowles v Kawasaki Motor Corp. USA, 179 AD2d 299; Jacobs v Northeastern Indus. Park, 181 AD2d 720; Gardner v Owasco Riv. Ry., 142 AD2d 61, 74 NY2d 606; Clark v State of New York, 178 AD2d 908; Reid v Kawasaki Motors Corp., U.S.A., 189 AD2d 954; Obenauer v Broome County Beaver Lake Cottagers Assn., 170 AD2d 739.) II. Despite the proper application of the Iannotti suitability test by the Court below, that test should be abandoned since it is not supported by the language of or intent behind General Obligations Law § 9-103. (Farnham v Kittinger, 83 NY2d 520; Iannotti v Consolidated Rail Corp., 74 NY2d 39; Ferres v City of New Rochelle, 68 NY2d 446; Baisley v State of New York, 163 AD2d 502; Sega v State of New York, 60 NY2d 183; Wilkins v State of New York, 165 AD2d 514; Hardy v Gullo, 118 AD2d 541, 69 NY2d 601; Cutway v State of New York, 60 NY2d 183; Bloom v Brady, 171 AD2d 910; Ackermann v Town of Fishkill, 201 AD2d 441.) III. Appellant failed to show a willful or malicious failure to warn. (Farnham v Kittinger, 83 NY2d 520; Sega v State of New York, 60 NY2d 183; Fenton v Consolidated Edison Co., 165 AD2d 121; Bowles v Kawasaki Motor Corp. USA, 179 AD2d 299.)
   OPINION OF THE COURT

Simons, J.

Defendant Genesee County Agricultural Society is the owner of an abandoned railway bed that runs from Batavia to Lockport. In 1988 defendant Lathan, the Society’s president, made an oral agreement with a trucking company to excavate gravel from the railbed. Lathan selected the site for the excavation and, though aware that off-road vehicles used the property, did not instruct the contractor to post warning signs or barriers in the area. By September 1990, when this accident occurred, the contractor’s activities had left an opening in the railbed which was 10 feet deep and dropped from the trail at an angle of approximately 80 degrees. Plaintiff Bragg was injured while traveling on the railbed when he drove his motorbike into the excavation.

Plaintiff instituted this action seeking damages for his injuries and defendants responded by asserting the provisions of General Obligations Law § 9-103 as a defense. That statute grants immunity for ordinary negligence to landowners who permit members of the public to come on their property to engage in several enumerated recreational activities, including motorbiking. Plaintiff moved to dismiss the defense but Supreme Court denied his motion and granted defendants’ cross motion for summary judgment. It concluded that the statute applied and that plaintiff had failed to present evidence to support his further claim that defendants had acted willfully or maliciously and had therefore lost the statutory immunity (see, General Obligations Law § 9-103 [2] [a]). The Appellate Division affirmed.

Plaintiff contends that defendants are not entitled to the protection afforded by the statute because the property was not suitable for motorbiking under the rule set forth in Iannotti v Consolidated Rail Corp. (74 NY2d 39). He implicitly concedes that the property was “suitable” for motorbiking when he drove over it five months earlier but, alleging that intervening excavating activity had altered the property, contends that the test of suitability must be applied to the property as it existed at the time of his accident irrespective of its suitability at an earlier time.

Defendants maintain that the statute applies because the property was suitable for motorbiking as measured by its general characteristics, not by the presence of a dangerous condition that made the property unsuitable at some specific time. Alternatively, defendants contend that the suitability rule fashioned by the Iannotti plurality has been applied inconsistently by other courts and urge the Court to reconsider it.

Plaintiff also contends, and defendants deny, that the statutory immunity is not available because defendants willfully and maliciously failed to guard against or warn of a dangerous condition.

I

General Obligations Law § 9-103 (1) (a) provides that "an owner, lessee or occupant of premises * * * owes no duty to keep the premises safe for entry or use by others for [specified recreational activities] or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes.” In effect, the statute grants landowners (and lessees and occupants) immunity from liability based on ordinary negligence if a person engaged in a listed recreational activity is injured while using their land. When confronted with categorical questions, we have interpreted the statute liberally to apply it to public and private land (see, Sega v State of New York, 60 NY2d 183), to rural or urban property whether developed or undeveloped (Iannotti, supra, at 42-45), and even to property used for commercial purposes (id.). In Iannotti v Consolidated Rail Corp. (supra), the Court was asked for the first time to address whether the characteristics of the property are relevant to the owner’s immunity from suits by injured recreationists. We held that they are, that the statute does not apply in all cases. The land must be "suitable” for a permitted activity before immunity under the statute attaches. The test formulated by the Iannotti plurality is whether the premises are the "type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation” (Iannotti, at 45).

The primary issue submitted on this appeal is whether the inquiry into the suitability of the property should focus exclusively on the condition of the land at the time when plaintiff’s accident occurred. In view of the parties’ submissions, however, we conclude that we should preliminarily reexamine the Iannotti holding establishing the suitability standard.

A

The "recreational use” statute has been with us, in one form or another, since 1956. When it was originally enacted as part of the Conservation Law, it applied only to hunting, fishing, trapping and training dogs and immunized landowners from liability for negligent acts resulting in injury to persons coming on their lands to engage in those activities. Although the original statute applied broadly to "premises” (see, L 1956, ch 842), what little legislative history there is indicates that when the Legislature enacted the statute it intended the immunity to extend only to those lands "suitable” for the four enumerated activities (see, Bill Jacket, L 1956, ch 842 [adding Conservation Law § 370], at 18). In the years following 1956 the Legislature amended the statute several times, primarily to transfer the section to the General Obligations Law and to greatly expand the recreational activities to which the statute applies. The description of property subject to the statute remained unchanged, however, and nothing in the amendments, or the history surrounding their adoption, suggests a legislative intention to broaden the statute’s application to premises other than those "suitable” for the enumerated activities.

In Iannotti, the plurality opted for a rule (accepted generally by the two dissenters) which applied the exemption for ordinary negligence only to land that was suitable and appropriate for the activity undertaken. Relying on reasoning contained in an earlier unanimous decision, the plurality held that the purpose of the statute was to induce landowners to make their land available for certain types of recreation and that unless it was suitable there was no public purpose in inducing the owners to open their land to recreational activities (Iannotti, at 45; see also, Ferres v City of New Rochelle, 68 NY2d 446, 452). In a concurring opinion two Judges urged that the statutory immunity be applied to all lands, without exception, if the plaintiff was engaged in a listed recreational activity. The Judges’ views differed insofar as the plurality concluded that the proper focus was the appropriateness of the land for recreation and the concurring Judges looked primarily at the activity of the recreater. Nonetheless, an examination of the writings indicates that neither view was quite as narrow as it might appear. The plurality opinion also considered the nature of plaintiff’s activity at the time of the accident and whether it was among those identified as recreational by the statute (Iannotti, at 45). Similarly, the concurred acknowledged that the statute could not be read literally to apply to all premises. They recognized, for example, that the Legislature could not have intended the statute to apply to municipal playgrounds because the statute provided no inducement to the municipality to open an existing public facility: under those circumstances there could be no quid pro quo for granting the statutory protection (see, Iannotti, at 51, referring to Ferres, supra). Moreover, the concurrers acknowledged, hypothetically, that the Legislature probably did not intend to grant immunity to induce the public use of property such as urban backyards (Iannotti, at 51-52).

B

Manifestly, the Judges were searching for the intent underlying the statute and attempting to fashion a judicial test which furthered the Legislature’s purpose. The Iannotti plurality, relying on the language contained in the Bill Jacket of the original Conservation Law provision attempted to fashion a standard which focused on whether the land, because of its physical characteristics, was "suitable” for recreational activity. The concurrers, relying on the language of the statute, believed that the activity of the recreater was key. They supported this expansive interpretation of the statute as necessary to encourage landowners to make their land available to the public and provide certainty in the application of the statute (see, Iannotti, at 52).

C

Against this background, and with the benefit of subsequent experience of the courts in applying the statute, we reconsider Iannotti to determine if the construction we have given it comports with the legislative intent. We do so bearing in mind that "we must * * * examine the language of the statute and its underlying purpose to determine its intended effect [b]ut we may also look beyond the words of the statute” to give effect to the legislative intent (see, Ferres, supra, at 451; New York State Bankers Assn. v Albright, 38 NY2d 430, 434-437; People v Ryan, 274 NY 149, 152).

The premise underlying section 9-103 is simple enough: outdoor recreation is good; New Yorkers need suitable places to engage in outdoor recreation; more places will be made available if property owners do not have to worry about liability when recreationists come onto their land. As the concurring Judges in Iannotti recognized, the statute implicitly contemplates a trade off for the public use: recreationists, if permitted to use the lands of others, must assume the risks of doing so (see, Iannotti, at 51; see also, Farnham v Kittinger, 83 NY2d 520, 525). However, immunity is extended only to owners of property suitable for statutory activities because there is no social value in opening private or public lands generally, and the Legislature did not intend to do so by this statute.

In some cases no public purpose can be served by extending immunity to the owner even though its land is suitable for listed activities (see, e.g., Ferres, supra). In such cases, the absence of a quid pro quo helps explain the unavailability of the statutory immunity. Nonetheless, the application of section 9-103 does not depend on whether the landowner was induced to open his land or acquiesced in the recreational use. By its terms, the statute applies alike to landowners who open their land to recreationists and also to those who seek to prevent others from using their lands by posting them pursuant to ECL 11-2111. Thus, whether the landowner has consented or has been induced to consent to the use of the land by the provisions of the statute is usually irrelevant. In short, if the plaintiff is engaged in a recreational activity enumerated in the statute and the land is conducive and appropriate for the chosen type of recreation, the statutory purpose is fully realized because suitable land is opened up to those who engage in activities deemed worthy of pursuit.

Our reading of the decisions applying the Iannotti suitability test leads us to conclude that the courts are having little difficulty with the rule and that it is generally succeeding in furthering the Legislature’s purpose. The suitability test does produce anomalous results in some cases by denying a landowner immunity when a recreationist is injured while on unsuitable property. But the denial of immunity in such cases does not result in the automatic imposition of liability: fault must still be established under common-law principles. The problem seems inherent in the statute and we are satisfied that a different rule would provide immunity to owners of properties which the Legislature could not possibly have intended unless the Court recognized ad hoc exceptions not legally reconcilable with any general rule.

In sum, we conclude the legislative purposes are satisfied and the statute properly applied when (1) the plaintiff is engaged in one of the activities identified in section 9-103 and (2) the plaintiff is recreating on land suitable for that activity. Whether a parcel of land is suitable and the immunity available is a question of statutory interpretation, and is, therefore, a question of law for the Court (see, Iannotti, supra, esp dissent, at 52).

II

Plaintiff Bragg was engaged in motorbiking, an activity included within section 9-103, and thus defendants have satisfied the first requirement for obtaining immunity under the statute. The remaining issue before us is whether defendants’ land was suitable for that activity. As noted, plaintiff concedes that the land was suitable in April; the question is whether suitability must be determined by looking solely at the characteristics of the land as it existed in September.

The statute removes any obligation on the landowner "to keep the premises safe * * * [and] to give warning of any hazardous condition * * * to persons entering for [recreational] purposes” (General Obligations Law § 9-103 [1] [a]). If this language is to have any force, suitability must be judged by viewing the property as it generally exists, not portions of it at some given time. Any other test, which requires the owner to inspect the land, to correct temporary conditions or locate and warn of isolated hazards as they exist on a specific day, would vitiate the statute by reimposing on the owner the common-law duty of care to inspect and correct hazards on the land.

Ill

Finally, plaintiff contends that defendants’ motion for summary judgment was improperly granted because defendants’ conscious disregard and failure to warn of the obvious hazard is sufficient to invoke the "willful and malicious” exception to landowners’ immunity (see, General Obligations Law § 9-103 [2] [a]; see, Farnham, supra, at 529; Sega, supra, at 192). The record fails to present evidence of malice or willful intent on defendants’ part which would exempt them from the immunity provided by General Obligations Law § 9-103.

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

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs.

      . For example, the parties rely on two cases similar to the one before us in which plaintiffs rode vehicles upon the land of companies engaged in the business of digging sand and gravel. In each case, a portion of the defendant’s land was used for excavating, and the remainder of the land was "suitable” for recreational use. In one, Hoffman v Joseph R. Wunderlich, Inc. (147 AD2d 807 [3d Dept], lv denied 74 NY2d 612), plaintiff was injured riding in the larger, "suitable” portion of the property that had been used for recreational riding for over 10 years. His complaint was dismissed, the court holding that defendant was entitled to the immunity provided by General Obligations Law § 9-103. In the other, Palis v T. H. Kinsella, Inc. (156 Misc 2d 499, affd on opn below 204 AD2d 976 [4th Dept]), plaintiff was injured while driving his ATV in the excavation pit, an obviously unsuitable portion of the property. The court held defendant property owner was not immune from suit because of the "unsuitable” nature of the land upon which plaintiff was injured took defendant out of the provisions of General Obligations Law § 9-103.

      . By way of contrast, some State statutes deny immunity to landowners who deny access or who do not either explicitly or implicitly invite recreationists on their lands (see, e.g., Gibson v Keith, 492 A2d 241, 246-248 [Del] [the court catalogued four different types of statutes]; see also, Crawford v Tilley, 780 P2d 1248 [Utah]).

      . With one exception, plaintiffs engaged in any of the enumerated activities are presumed to be doing so for recreational purposes. As to those uses "subjective intent [is] irrelevant” (see, Farnham v Kittinger, supra, at 528). However, in the case of "motorized vehicle[s]” which can be used for a number of purposes, a question of fact may be presented as to the plaintiff’s recreational purpose in using the vehicle (id., at 527).


author: Ciparick, J.

text:
    [644 NE2d 1019, 620 NYS2d 328]
    In the Matter of William McEniry, Appellant, v Anthony M. Landi, as Commissioner of the Department of Environmental Facilities of the County of Westchester, et al., Respondents.
    Argued October 18, 1994;
    decided December 8, 1994

      POINTS OF COUNSEL

      James M. Rose, White Plains, for appellant.
    I. Mr. McEniry is regarded as having a physical or mental impairment under the law and was discriminated against because of it. It is an abuse of discretion and in violation of public policy to terminate a public employee because of his disability. (New York Tr. Auth. v Beazer, 440 US 568; School Bd. of Nassau County v Arline, 480 US 273; McElrath v Kemp, 714 F Supp 23; Callicotte v Carlucci, 698 F Supp 944; Walker v Weinberger, 600 F Supp 757; Whitlock v Donovan, 598 F Supp 126, affd sub nom. Whitlock v Brock, 790 F2d 964; Burka v New York City Tr. Auth., 680 F Supp 590; Teahan v Metro-North Commuter R. R. Co., 951 F2d 511; Tinch v Walters, 765 F2d 599.) II. The New York State Human Rights Law prevents discrimination on the basis of handicap and protected Mr. McEniry as a rehabilitated alcoholic from termination for his disability. (Kroboth v Sexton, 160 AD2d 126; Doe v Roe, Inc., 143 Misc 2d 156; Matter of Miller v Ravitch, 60 NY2d 527; Matter of Perez v New York State Human Rights Appeal Bd., 70 AD2d 558; Burka v New York City Tr. Auth., 680 F Supp 590.) III. The penalty of termination is harsh, shocking and excessive given the circumstances of this case. (Kroboth v Sexton, 160 AD2d 126; Matter of Pell v Board of Educ., 34 NY2d 222.)

      Marilyn J. Slaatten, County Attorney of Westchester County, White Plains (Vincent M. Cascio and Carol L. Van Scoyoc of counsel), for respondents.
    I. The record below is devoid of any facts establishing appellant’s alleged alcoholism or that same caused his numerous attendance violations. (People v Bleakley, 69 NY2d 490; Le Roux v State of New York, 307 NY 397; Schneider v Phelps, 41 NY2d 238; Patron v Patron, 40 NY2d 582; Bossout v Rome, Watertown & Ogdensburg R. R. Co., 131 NY 37; New York Post Corp. v Kelley, 296 NY 178; England v Sanford, 78 NY2d 928.) II. Appellant’s dismissal does not violate the Rehabilitation Act of 1973. (Doe v New York Univ., 666 F2d 761; Serrapica v City of New York, 708 F Supp 64, 888 F2d 126; School Bd. of Nassau County v Arline, 480 US 273; Cook v United States Dept. of Labor, 688 F2d 669, 464 US 832; Brookhart v Illinois State Bd. of Educ., 697 F2d 179; Southeastern Community Coll. v Davis, 442 US 397; Teahan v Metro-North Commuter R. R. Co., 951 F2d 511; Cushing v Moore, 970 F2d 1103.) III. Appellant’s dismissal did not violate the New York State Human Rights Law. (Smith v Ortiz, 136 Misc 2d 110; Matter of Silk v Huck Installation & Equip. Div., 109 AD2d 930; McAuliffe v Taft Furniture Warehouse & Showroom, 116 AD2d 774, 67 NY2d 609; Pugach v Liggett Group, 81 AD2d 552, 55 NY2d 922; Matter of Lamarre v Granville Cent. School, 106 AD2d 838; Matter of Caminiti v New York City Tr. Auth. Police Dept., 125 AD2d 306; Matter of Antonsen v Ward, 77 NY2d 506; Doe v Roe, Inc., 143 Misc 2d 156, 160 AD2d 255; Kroboth v Sexton, 160 AD2d 126; Matter of Miller v Ravitch, 60 NY2d 527.) IV. There was substantial evidence to support the findings of misconduct and the penalty of termination of employment was not excessive. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Santarella v New York City Dept. of Correction, 53 NY2d 948; Matter of Williams v Police Dept., 50 NY2d 956; Matter of Ahsaf v Nyquist, 37 NY2d 182; Matter of Stolz v Board of Regents, 4 AD2d 361; Matter of Turner v Simpson, 60 NY2d 959; Matter of Dougherty v Degenhart, 154 AD2d 898; Matter of Purdy v Kreisberg, 47 NY2d 354.)
   OPINION OF THE COURT

Ciparick, J.

We must determine in this case whether petitioner, a recovering alcoholic, was terminated from his employment in violation of the New York State Human Rights Law. We conclude that he was.

I.

Petitioner William McEniry, a laborer employed by respondent Westchester County Department of Environmental Facilities (DEF), experienced an alcohol dependency problem in approximately 1985 or 1986. In 1988, DEF charged petitioner with 31 specifications of time and attendance abuses. The charges were settled by stipulation and petitioner accepted a 15-day suspension. Petitioner performed his job properly until early 1989 when he again manifested attendance and lateness problems. In July 1990, petitioner sought assistance from the Westchester County Employees’ Assistance Program (EAP). EAP arranged for petitioner’s admission to a 28-day in-patient detoxification program, followed by a two-week out-patient alcohol abuse program. At EAP’s request, DEF gave permission for petitioner to be absent from work during treatment and agreed to charge the time to petitioner’s accrued leave and to grant a leave of absence to cover the balance of the time requested.

On August 31, 1990, while petitioner was still participating in the rehabilitation program, DEF charged him with 47 separate specifications of misconduct stemming from absenteeism, lateness, and failure to provide requested documentation for absences between March 13, 1989 and June 18, 1990. Petitioner was discharged from the rehabilitation program on September 9, 1990, and returned to work the next day. Petitioner’s over-all job performance after he returned to work was rated satisfactory by DEF.

On December 13, 1990, at a hearing conducted pursuant to Civil Service Law §75, petitioner admitted all the charges against him, but argued that, as a rehabilitated alcoholic, he could not be fired under the New York State Human Rights Law (Executive Law art 15) and the Federal Rehabilitation Act of 1973 (29 USC § 701 et seq.) for misconduct occurring prior to rehabilitation. The Hearing Officer found petitioner guilty of all 47 specifications of misconduct, recommended that he be suspended for 60 days, and suggested that any further infraction by petitioner, however slight, should result in his dismissal. The Hearing Officer stated that petitioner had far exceeded the protective scope of the antidiscrimination statutes cited by him, and that the laws enacted to protect rehabilitated individuals "were not intended to shield them from the rules and regulations of the workplace as they apply to those not so handicapped. There are many documented instances whereby an alcoholic can and may stay 'dry’ for three, four, five months or so before going 'off on a toot’ so to speak. How many attempts have to be made by an employer to allow that person to seemingly rehabilitate himself?”

On March 22, 1991, the Commissioner of DEF adopted the Hearing Officer’s findings of fact and decision. However, the Commissioner departed from the recommendation of suspension and instead terminated petitioner’s employment. Petitioner commenced this CPLR article 78 proceeding seeking to annul the Commissioner’s determination and to be reinstated with back pay and benefits. The Appellate Division confirmed the determination and dismissed the proceeding, opining that the record did not "clearly establish a connection between the petitioner’s attendance abuses and his alleged alcoholism” (198 AD2d 417, 418). The Court observed that the State Human Rights Law "would not bar the dismissal of one whose disability prevents him from performing his assigned duties” (id., at 418, citing Matter of Miller v Ravitch, 60 NY2d 527, 532), and that petitioner failed to demonstrate that the Federal Rehabilitation Act was applicable or would warrant a different result if applicable.

We granted petitioner leave to appeal.

II.

The New York State Human Rights Law prohibits an employer from discriminating against an employee because of a disability (Executive Law § 296 [1]). A complainant states a prima facie case of discrimination if the individual suffers from a disability and the disability caused the behavior for which the individual was terminated. Once a prima facie case is established, the burden of proof shifts to the employer to demonstrate that the disability prevented the employee from performing the duties of the job in a reasonable manner or that the employee’s termination was motivated by a legitimate nondiscriminatory reason (see, Matter of Miller v Ravitch, 60 NY2d 527, 532, supra; Matter of Maloff v City Commn. on Human Rights, 46 NY2d 908, 910).

The Human Rights Law broadly defines the term "disability” as "a physical, mental or medical impairment resulting from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques” (Executive Law § 292 [21] [a]). Alcohol-

ism is considered a "mental disability” under the Mental Hygiene Law, which defines "alcoholism” as a "chronic illness in which the ingestion of alcohol usually results in the further compulsive ingestion of alcohol beyond the control of the sick person to a degree which impairs normal functioning” (Mental Hygiene Law § 1.03 [3], [13]; see, Matter of Francis [New York City Human Resources Admin. — Ross], 56 NY2d 600, 602 [alcoholism is an illness]). Manifestly, alcohol dependency qualifies as a disability within the meaning of the Human Rights Law.

This record, under our limited review, supports the conclusion that petitioner suffered from the disability of alcoholism. We are also satisfied on this limited review that petitioner was terminated solely because of his alcohol-related chronic absenteeism. Although the Appellate Division concluded that petitioner failed to establish a causal connection between his alcoholism and his attendance problems, petitioner testified at the hearing that his absenteeism was caused by his alcoholism and that an EAP representative had repeatedly urged him to enter an Alcoholics Anonymous program. Significantly, DBF neither challenged the truthfulness of these statements nor offered any evidence to the contrary at the hearing. Indeed, it should be noted that the Commissioner of DBF expressly adopted the findings of fact and decision of the Hearing Officer, who, in recommending petitioner’s suspension, specifically stated that petitioner "has had a problem with alcohol which has prevented him from coming to work, coming to work on time, or failing to make the proper notifications for those days he was off duty.” Thus, all the evidence in the record indicates that the conduct which formed the stated basis for petitioner’s firing was causally related to his alcoholism and does not support the Appellate Division’s contrary conclusion.

Petitioner having established a prima facie case, the burden rests with DBF to establish that petitioner’s disability renders him incapable of "performing in a reasonable manner the activities involved in the job” (Executive Law § 292 [21]; Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106). The inquiry here is individualized. DBF must demonstrate that petitioner’s alcoholism prevents him from performing the duties of the job, failing which, his alcohol dependency may not serve as the basis for his termination (see, Granelle, 70 NY2d, at 106, supra; Miller, 60 NY2d, at 532, supra).

Respondents have failed to establish on this record that, as of the time of termination, petitioner was unable to perform the duties of the job because of his alcoholism (see, Miller, 60 NY2d, at 532, supra). The evidence indicates that petitioner was recovering and performing his job satisfactorily at the time he was terminated. A DEF employee evaluation form dated December 5, 1990, nearly three months after petitioner completed the rehabilitation program, rated his job performance as satisfactory or above average in 20 of 21 categories. Although petitioner was rated "sometimes below average” in punctuality, his performance was not considered unsatisfactory or below average in any other respect. Indeed, the DEF supervisor who evaluated petitioner indicated that "encouragement may be the answer. * * * There are some areas that may need a little more attention but I think giving him a chance and a clean slate is all the incentive he needs.”

Furthermore, we cannot accept the Appellate Division’s conclusion that petitioner could be fired because his alcoholism prevented him from coming to work "on an inordinate number of occasions” (198 AD2d, at 418). Although, in an appropriate case, alcohol-related chronic absenteeism may be found to prevent an employee from reasonably performing the duties of the job, the inquiry must focus on petitioner’s status as of the time of actual termination and not earlier (see, Teahan v Metro-North Commuter R. R. Co., 951 F2d 511, 518-519, cert denied — US —, 113 S Ct 54; Kroboth v Sexton, 160 AD2d 126, 130-131). The legislative purpose of preventing discrimination against employees with disabilities is best served by pinpointing the time of actual termination as the relevant time for assessing the employee’s ability to perform. It would defeat the goal of the Human Rights Law to permit an employer to justify terminating an employee based on past alcohol abuse problems that the employee has presently overcome. Where, as here, the employee enters a rehabilitation program and then performs his job in a satisfactory manner, and does so without relapse, he should not be fired for prerehabilitation alcohol-related absenteeism (see, Teahan, supra; Burka v New York City Tr. Auth., 680 F Supp 590, 597; see also, Kroboth v Sexton, 160 AD2d 126, supra).

Our holding is not intended to create a safe haven for individuals who resort to recovery programs as a pretext for avoiding otherwise legitimate disciplinary action, nor do we imply that in every case where an alcoholic is purportedly rehabilitated all disciplinary action is prohibited. The review is individualized (see, Miller, 60 NY2d, at 532). Thus, in the appropriate case, an alcoholic who is found not to be actually rehabilitated, or who is shown to have an established propensity to relapse may be found unable to perform the job in a reasonable manner. That was not the case here. In light of our holding, this matter must be remanded to the Commissioner of DEF for reinstatement of petitioner with back pay and other benefits due.

Given our conclusion that petitioner’s protections under the New York State Human Rights Law were violated, it is unnecessary to address the Federal Rehabilitation Act of 1973.

Accordingly, the judgment should be reversed, with costs, respondent’s determination annulled, the charges against petitioner dismissed, and the matter remitted to Supreme Court, Westchester County, with directions to remand to respondent for further proceedings in accordance with the opinion herein.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

Judgment reversed, etc.


author: Chief Judge Kaye.

text:
    [644 NE2d 1300, 620 NYS2d 744]
    Joan C. Lipin, Appellant, v Robert M. Bender, Jr., et al., Respondents.
    Argued September 22, 1994;
    decided November 1, 1994

      POINTS OF COUNSEL

      Wisehart & Koch, New York City (Arthur M. Wisehart of counsel), for appellant.
    I. Dismissal of the complaint was unauthorized and improper. (Matter of Rhonda T., 99 AD2d 758; Sackler v Sackler, 15 NY2d 40; Tabbi v Town of Tonawanda, 111 Misc 2d 641; Stagg v New York City Health & Hosps. Corp., 162 AD2d 595; People v Jones, 47 NY2d 528; United States v Jamil, 546 F Supp 646; People v Rossi, 154 Misc 2d 616; Fund of Funds v Andersen & Co., 567 F2d 225.) II. The decision below violated appellant’s constitutional rights. (Washington v James, 782 F2d 1134; Bounds v Smith, 430 US 817; Jackson v Procunier, 789 F2d 307; Boddie v Connecticut, 401 US 371; Morello v James, 810 F2d 344; McCoy v Goldin, 598 F Supp 310; Connick v Myers, 461 US 138; Stuart v Palmer, 74 NY 183; Matter of McBarnette v Sobol, 190 AD2d 229.) III. The law of privilege was violated. (Coastal Oil of N. Y. v Peck, 184 AD2d 241; Matter of Priest v Hennessy, 51 NY2d 62; In re Von Bulow, 828 F2d 94; In re Steinhardt Partners, 9 F3d 230; Bower v Weisman, 669 F Supp 602; Sackler v Sackler, 15 NY2d 40; Kleeman v Rheingold, 81 NY2d 270; In re Horowitz, 482 F2d 72, 414 US 867; Carter v Gibbs, 909 F2d 1450; Bras v Atlas Constr. Corp., 153 AD2d 914.) IV. The documents below fall within the intentional tort exception to privilege rule. (Matter of Priest v Hennessy, 51 NY2d 62; United States v United Shoe Mach. Corp., 89 F Supp 357; People v Beige, 59 AD2d 307; In re Heuwetter, 584 F Supp 119; In re International Sys. & Controls Corp. Sec. Litig., 693 F2d 1235; In re Doe Corp., 675 F2d 482; DiMichel v South Buffalo Ry. Co., 80 NY2d 184; Meritor Sav. Bank v Vinson, 477 US 57.) V. Notice and demand for remedial action given pursuant to 42 USC § 1986 is protected activity as a matter of Federal law. (Hardmon v County of Lehigh, 613 F Supp 649; Buck v Board of Elections, 536 F2d 522; Hampton v City of Chicago, 484 F2d 602, 415 US 917; Newsday, Inc. v Long Is. Typo. Union, 915 F2d 840; Stroehmann Bakeries v Local 776, Intl. Bhd. of Teamsters, 969 F2d 1436; Yates v Avco Corp., 819 F2d 630; Kriegbaum v Katz, 909 F2d 70; People v Pymm, 76 NY2d 511; Hines v Davidowitz, 312 US 52; Jews for Jesus v Jewish Community Relations Council, 968 F2d 286.) VI. Matter of Weinberg (129 AD2d 126) was misapplied. VII. The disqualification issue should have been addressed and decided by the courts below. (Chang v Chang, 190 AD2d 311; Schmidt v Magnetic Head Corp., 101 AD2d 268; Narel Apparel v American Utex Intl., 92 AD2d 913; Flushing Sav. Bank v FSB Props., 105 AD2d 829; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187; In re Acme Analgesics v Lemmon Co., 602 F Supp 306; Estates Theatres v Columbia Pictures Indus., 345 F Supp 93; Greene v Greene, 47 NY2d 447; Newsday, Inc. v Long Is. Typo. Union, 915 F2d 840; Stroehmann Bakeries v Local 776, Intl. Bhd. of Teamsters, 969 F2d 1436.) VIII. The court below improperly made new and modified findings of fact. (Loughry v Lincoln First Bank, 67 NY2d 369; York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128.) IX. Sanctions should have been imposed for the admitted spoliation of evidence by defendants. (INA Aviation Corp. v United States, 468 F Supp 695.) X. The decision below inconsistently characterized the disputed documents. (In re Murchison, 349 US 133.)

      Weil, Gotshal & Manges, New York City (Mark A. Jacoby, Kevin P. Hughes and Lawrence J. Baer of counsel), and Morgan, Lewis & Bockius for respondents.
    I. The Supreme Court is empowered with the discretionary authority to dismiss appellant’s complaint based upon her misconduct in pretrial proceedings. (Matter of Weinberg, 129 AD2d 126;

      Matter of Gris v Shainswit, 119 AD2d 418; Gabrelian v Gabrelian, 108 AD2d 445, 66 NY2d 741; Plachte v Bancroft, Inc., 3 AD2d 437; Levine v Bornstein, 13 Misc 2d 161, 7 AD2d 995, 6 NY2d 892; Jermosen v State of New York, 178 AD2d 810; Link v Wabash R. R. Co., 370 US 626; Roadway Express v Piper, 447 US 752; Aoude v Mobil Oil Corp., 892 F2d 1115; Brockton Sav. Bank v Peat, Marwick, Mitchell & Co., 771 F2d 5.) II. The Supreme Court did not abuse its discretion in ordering dismissal of appellant’s complaint under the circumstances of this case. (Matter of U. S. Pioneer Elees. Corp. v Nikko Elec. Corp., 47 NY2d 914; Matter of Weinberg, 132 AD2d 190.) III. The findings of the courts below, that the purloined documents were privileged and not subject to the disclosure, are amply supported by the record. (Matter of Kelly, 285 NY 139; Stiles v Batavia Atomic Horseshoes, 81 NY2d 950; Mangold v Neuman, 57 NY2d 627; Matter of Priest v Hennessy, 51 NY2d 62; Coastal Oil of N. Y. v Peck, 184 AD2d 241.) IV. The issue of appellant’s cross motion to disqualify respondent’s counsel is not properly before this Court. (Matter of Conforti & Eisele [William J. Scully, Inc.], 98 AD2d 646, 61 NY2d 606; Omowale v State of New York, 72 AD2d 955; Caponigri v Altieri, 165 NY 255.)

      Jay Carlisle, White Plains, amicus curiae.

    The trial court did not have jurisdiction to dismiss plaintiff’s complaint. (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1; Zletz v Wetanson, 67 NY2d 711.)
   OPINION OF THE COURT

Chief Judge Kaye.

At issue on this appeal is the propriety of dismissing plaintiff’s complaint as a remedy for misconduct that involved taking and use of the adversary’s privileged documents. In the circumstances presented, we affirm the Appellate Division order upholding dismissal as a proper exercise of the trial court’s discretion under CPLR 3103 (c).

The underlying facts, as found by the Supreme Court and affirmed by the Appellate Division, are essentially undisputed. In February 1988, plaintiff was terminated as Manager of Health Services for American Red Cross in Greater New York, where she had worked for more than two years. Plaintiff thereafter commenced an action for sexual harassment and discrimination pursuant to the Human Rights Law (Executive Law § 290 et seq.) and 42 USC §§ 1983 and 1985, against her former supervisor (Robert Bender) and her former employer. She alleged that her refusal of Bender’s unwelcome sexual overtures prevented her advancement at Red Cross, ultimately leading to her termination, and that Red Cross itself allowed an environment hostile to its women employees. Plaintiff was represented by Wisehart & Koch (Arthur Wise-hart), and defendants Bender and Greater New York Red Cross by Weil, Gotshal & Manges (WGM) (Mark Jacoby).

On Friday, June 28, 1991, during the course of increasingly acrimonious pretrial proceedings marked by mutual accusation of abusive tactics, plaintiff and Wisehart appeared at a hearing room in New York County Supreme Court to argue certain deposition issues before a Special Referee. Now employed as a salaried paralegal by her attorney, plaintiff took what she described as her customary place at the conference table. Already on the table at that spot was a stack of some 200 pages, the top sheet beginning:

"Well, Gotshal & Manges
MEMORANDUM
December 8,1989 To: File
From: Lawrence J. Baer
Re: Joan Lipin v American Red Cross * * *
Meeting with Mary Stanton 9/15/89”.

The page continued with a summary of counsel’s meeting with Stanton, a Red Cross employee, including Stanton’s candid impressions of plaintiff and her recounting of Jacoby’s legal advice regarding plaintiff’s termination.

While the attorneys — including the author of the file memorandum, WGM associate Lawrence Baer — were absorbed in heated exchanges regarding the deposition, plaintiff read the first few pages, then shifted the documents (which she concealed in a folder) to her lap and continued to read, undetected, for more than an hour. In plaintiff’s own words: "I wasn’t reviewing those papers, I was reading them.” Immediately, she recognized the documents as containing the lawyer’s interview notes of Red Cross personnel, including defendant Bender, as well as deposition digests.

At a break, plaintiff slipped the documents into a Redweld file "for [her] own protection,” determined to retain them as "material evidence,” and in the corridor told Wisehart about the documents and what she had done. Wisehart said that he would not himself read the documents until he had received a "second opinion.” Plaintiff told Wisehart that she would not give him the documents unless she could keep a copy. During the luncheon recess plaintiff returned to Wisehart’s office where she made three photocopies, "Bates-stamped” them, and — except for one copy she later took home with her— placed the documents in a locked filing cabinet to which she had a key.

According to plaintiff, Wisehart counseled her that if Baer discovered his documents missing, she must tell the truth: that she had picked them up by mistake. Plaintiff responded that she had not picked them up by mistake, but deliberately, and would not return the originals unless asked to do so by WGM. In consultation with the lawyer who had referred plaintiff’s case to him, Wisehart concluded that any claim of privilege as to the documents had been lost as a result of Baer’s careless handling of them, and on Sunday evening, June 30, he read through them.

Promptly the next morning, Wisehart wrote to Jacoby that "a recent development causes me to suggest that immediate attention should be given to the subject of settlement from all points of Anew.” At a meeting the following afternoon, Wise-hart confronted defense counsel with the documents and demanded immediate termination of defendant Bender, a "substantial” money settlement and other reparations. When Jacoby asked how he had obtained the documents, Wisehart demurred, citing attorney-client privilege, asserting only that plaintiff had obtained them legitimately. Wisehart further cautioned Jacoby that plaintiff had retained a copy "for her own protection” and he had no control over what she might do with the information, suggesting that she could release it to the press.

On Wednesday, July 3, 1991, defendants moved for a protective order pursuant to CPLR 3103, and that very day the parties appeared in court. Wisehart consented to WGM’s request for interim relief, including that plaintiff (herself present in the courtroom) turn over to her lawyer "everything in her possession,” and that he secure all copies in his vault. Over the Fourth of July holiday, however, plaintiff hand-cop-led parts of the documents from the set she retained at home, returning the documents to Wisehart on Friday, July 5. Even then, plaintiff kept her handwritten notes, and the documents were placed in the locked cabinet for which she had a key.

Following plaintiff’s testimony at a hearing commenced July 8, defendants amended their request for relief to include dismissal of the complaint. Defendants based their request on plaintiff’s testimony establishing her "knowing and purposeful course of conduct to misuse the wrongfully acquired information in a blatant violation of accepted moral, ethical and legal standards, and this Court’s directive.” Her intimate knowledge of these defense documents had caused "irreparable harm” and "forever tainted the conduct of this litigation and * * * severely prejudiced defendants’ ability to defend,” as "neither plaintiff’s memory, nor [Wisehart’s] memory can be purged.” Because the case was now "poisoned,” according to counsel nothing short of dismissal could remedy the wrongdoing.

In connection with a separate discovery dispute, on July 29 Wisehart filed a motion to compel disclosure with the Special Referee. Jacoby alerted the trial court that plaintiff’s memorandum exploited information derived from the disputed documents, contending that this violation of the court’s directive underscored the need for dismissal of the action. He pointed in particular to arguments made by Wisehart that Jacoby said could have come only from the interview notes. Throughout the autumn, the parties litigated plaintiff’s cross motion for disqualification of WGM (on grounds they were fact witnesses in the document dispute, and had conspired in plaintiff’s termination, a tort) and other disclosure controversies.

After reviewing the documents in camera, in January the court dismissed the complaint, rejecting plaintiff’s claim that careless placement of the papers waived their confidential nature. The court found that plaintiff, in retaining the documents and making notes of their contents, had acted contrary to the court’s order, concluding that:

"the actions of the plaintiff and her attorney were so egregious in taking this material that was clearly the attorney’s work product, clearly interviews with the defendant’s employees, clearly not for perusal by any other attorney or litigant in this litigation, so heinous that the only remedy, as much as I dislike to do this, is to dismiss the lawsuit. Otherwise, there is no meaning to privilege, there is no meaning to conduct among attorneys, and there is no rule of law.
"Whatever was in these papers was confidential. That confidentiality was broken. It was repeatedly broken by both the litigant and the attorney, and cannot be countenanced by the Court. Therefore, I am dismissing the lawsuit in its entirety.”

The Appellate Division sustained the trial court’s exercise of discretion, agreeing that plaintiffs own egregious conduct warranted the drastic sanction of dismissal. The highly improper manner in which plaintiff obtained the documents, coupled with their subsequent use, in the court’s view constituted sufficient basis for dismissal. Having ourselves reviewed the documents in camera, we now affirm.

I

In that plaintiff continues to defend the legitimacy of her behavior, analysis begins with that issue.

The trial court, and the Appellate Division, could hardly have been clearer in their conclusions, characterizing plaintiffs conduct — as well as that of her attorney — as "heinous” and "egregious,” a threat to the attorney-client privilege, to the concept of civilized, orderly conduct among attorneys, and even to the rule of law.

Moreover, there is ample support for the affirmed factual findings of wrongdoing by plaintiff, wholly apart from the conduct of her attorney that indisputably compounded it. Having deliberately taken the initial misstep of secretly reading what she recognized as attorneys’ confidential documents, plaintiff was presented with several opportunities to purge herself and minimize prejudice to defendants. At each juncture, however, she chose the course of action that exacerbated the harm. Having read the documents, she concealed and then took them. Having taken them, she photocopied them, kept them accessible at the office, and insisted on retaining a set for herself at home. Upon being ordered by the court to return "everything in her possession,” she made notes of the documents and, even after surrendering the final copy, held onto the notes. And although plaintiff was present when the trial court instructed Wisehart to secure the documents in his "vault,” she placed them in a cabinet to which she had free access.

While the Appellate Division made plain that it would reach the same result whether or not the documents were actually privileged, in fact both courts agreed as to the protected nature of the documents, which plainly fall within the ambit of work product and the attorney-client privilege (see, CPLR 3101 [b], [c]; see also, Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377, 380). Similarly lacking any basis in the record — as the trial court and Appellate Division further concluded — is plaintiff’s claim that defendants waived the privilege by leaving the documents on the hearing room table during argument before the Special Referee.

There can be no doubt that plaintiff’s conduct was — to say the least — a breach of the orderly disclosure scheme set forth in CPLR article 31. The question remains whether a proper response to that breach was outright dismissal of the complaint.

II

Plaintiff challenges dismissal of her complaint as both beyond the trial court’s power and an abuse of discretion. Neither contention withstands analysis.

Turning first to the issue of authority, we note that a good deal of the parties’ argument centers on courts’ inherent power to punish for contumacious conduct — understandably so, in that the trial court and Appellate Division both were concerned with intolerable behavior that, unredressed, threatens the entire litigation process. Whether there is power— inherent or otherwise — to close the courthouse doors to a plaintiff with "unclean hands” is not, however, the issue before us. Relief was sought under CPLR 3103 (c), which was the basis of both courts’ review, as it is of ours.

CPLR 3103 governs the subject of "protective orders” for disclosure abuses, and confers broad discretion upon a court to fashion appropriate remedies both where abuses are threatened (subd [a]) and where they have already occurred (subd M):

"(a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or witness, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.
"(b) Suspension of disclosure pending application for protective order. Service of a notice of motion for a protective order shall suspend disclosure of the particular matter in dispute.
"(c) Suppression of information improperly obtained. If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed.”

In seeking relief pursuant to CPLR 3103 (c), defendants alleged that plaintiff had violated their attorney-client privilege, and that her extensive knowledge of the contents of their private documents impaired the conduct of the defense.

There being no specific mention of dismissal in CPLR 3103 (c), plaintiff contends that courts lack that power where information is improperly obtained (contrast, CPLR 3126 [3], authorizing dismissal as penalty for refusal to comply with order to disclose). We read the statute, however, to confer authority to do exactly what the statute says — that is, to enter any order, including an order of dismissal, that is appropriate in the circumstances.

The lack of greater specificity in this statute designed to confer broad discretion is hardly surprising. Spelling out the remedies for the limitless potential discovery abuses would not only overwhelm the statute but also needlessly confine the discretion of courts to tailor the remedy to the problem. The Practice Commentaries to CPLR 3103 recognize that:

"If the recognition of possible abuse [of disclosure devices] were to take the form of special or detailed remedies built into different devices, with each one perhaps listing the possible abuses and attempting to remedy them seriatim, the disclosure article would be seriously encumbered with little resulting advantage. Experience has taught that the variations from case to case are too great and that when an article has as pervasive and important a mission as the disclosure article, the specific approach is unwise.” (Siegel, Practice Commentarles, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:l, at 356; see also, 3A Weinstein-Korn-Miller, NY Civ Prac 3103.02.)

As the drafters made clear, "[tjhere is no limit but the needs of the parties on the nature of the [protective] order or the conditions of discovery” (First Preliminary Report of Advisory Comm on Practice and Procedure, 1957 NY Legis Doc No. 6 [b], at 124). There being power in the trial courts to dismiss a complaint, the question remains whether in this case the remedy of dismissal was an "appropriate” order, or an abuse of the trial court’s discretion.

CPLR 3103 (c) does provide that "a substantial right of a party [must be] prejudiced” by the improper conduct, focusing attention on the statutory objective of redressing harm or prejudice to the party adversely affected by the conduct. Plainly this is a measure for remediation, not sanction. Obviously, the extreme measure of dismissal — likely the severest remedy that may be visited upon a plaintiff — would require serious prejudice to the affected party, irremediable by less drastic steps, a standard we agree was satisfied here.

Defendants urged dismissal because of assertedly irreparable prejudice to the conduct of their defense as a result of the knowledge plaintiff herself had gained through study, retention and copying of their privileged documents. There is no question that plaintiff knowingly and deliberately intruded herself into plainly private communications between defendants and their attorney, and by retaining and hand-copying the documents preserved the information gleaned for maximum advantage to herself (and maximum disadvantage to defendants) in the litigation. Similarly, there is no question that the information was used to that end. Defense counsel argue that within the first 100 hours after plaintiff obtained the information, it surfaced in "ten separate acts of misbehavior,” which they detail, including attempts to extract a "substantial” money settlement. Plaintiff’s own recognition that the information would yield significant litigation advantage to her, and consequent disadvantage to her adversary, undercuts any suggestion that the documents were immaterial. Plaintiff’s knowledge of course can never be purged.

In these circumstances, we conclude that dismissal was appropriate and not an abuse of the trial court’s discretion as a matter of law (see, Matter of U. S. Pioneer Elecs. Corp. v Nikko Elec. Corp., 47 NY2d 914). Clearly neither suppression of the documents nor suppression of the information was a realistic alternative. Nor would disqualification of plaintiffs counsel have ameliorated the prejudice, in that the wrongdoing and the knowledge were the client’s own, which she would carry into any new attorney-client relationship (cf., Matter of Weinberg, 129 AD2d 126, rearg denied 132 AD2d 190, lv dismissed sub nom. Matter of Beiny, 71 NY2d 994 [attorney disqualification an appropriate remedy where plaintiff was not infected by attorney’s misconduct]). While in Weinberg the court felt it sufficient to require the plaintiff to establish, once new counsel was in place, an independent source for any information that may have also been discoverable through the documents improperly obtained by disqualified counsel, the trial court here reasonably concluded that policing such an order in this instance would be inadequate. In reaching that determination, the nature of plaintiffs misconduct could properly be considered, and indeed the trial court emphasized, in concluding that dismissal was the only practicable remedy here, the persistence of plaintiffs misconduct.

Plaintiff’s remaining contentions are without merit.

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

Judges Simons, Titone, Bellacosa, Smith and Levine concur; Judge Ciparick taking no part.

Order affirmed, with costs.

       Plaintiff’s counsel thereafter simply recommenced the litigation in the United States District Court for the Southern District of New York, on the theory that — despite the tenor and substance of the trial court’s opinion— the dismissal was not "with prejudice.” That litigation has been stayed, pending determination of the present appeal. Counsel also tried, by subpoena, to obtain a copy of the documents for use on appeal, but this Court granted defendants’ motion to quash.