text:
    Marta Gonzalez, Individually and as Administratrix of the Estate of Maria Freire, Deceased, Respondent, v New York City Housing Authority, Appellant.
    Argued March 19, 1991;
    decided April 25, 1991

      POINTS OF COUNSEL

      Craig P. Murphy, Raymond T. Munsell and Richard Paul Stone for appellant.

      Brian J. Shoot and Gary S. Ehrlich for respondent.
   OPINION OF THE COURT

Kaye, J.

Plaintiffs — the two grown grandchildren of a woman murdered in an apartment leased from defendant, New York City Housing Authority — were awarded damages for their grandmother’s wrongful death, and for her conscious pain and suffering. Contesting neither liability nor the dollar amount of the award, defendant challenges the availability of wrongful death damages on the ground that plaintiffs have not established that they suffered any "pecuniary injuries” (EPTL 5-4.3 [a]), and it challenges any award for conscious pain and suffering as lacking evidentiary basis. We conclude that damages for both wrongful death and conscious pain and suffering were properly allowed, and therefore affirm the Appellate Division order in plaintiff’s favor.

I.

Then 76 years old, decedent was murdered in March 1984 in her apartment in the Isaac Homes Housing Project at First Avenue and 92nd Street, New York City. She was discovered with her hands tied behind her back, a gag wrapped around her jaw and mouth, and her right foot tied to the leg of a bureau. An autopsy revealed fractures of her neck and eight ribs, bleeding where teeth had been knocked out, and bruises on the back of her head and hand. The cause of death was described in the autopsy report as "Asphyxia by gagging. Contusions of scalp, fractures of ribs and cervical spine.” Her assailant was subsequently convicted of the murder, and of raping and robbing two other women in the building.

Decedent was survived by her daughter-in-law and two grandchildren: plaintiffs Marta Gonzalez, 21 years old at the time of the murder, and her brother Antonio Freire, then 19. Decedent had raised them both, because their father (her son) had died in 1965 and their mother (her daughter-in-law) was mentally ill; as the Appellate Division observed, decedent had for many years been a "mother” to her grandchildren. At the time of the murder, however, both plaintiffs were financially independent and they no longer lived with her. The granddaughter lived separately with her husband, and the grandson had a construction job and an apartment a few blocks away.

Although decedent had retired from her job as a housekeeper several years before the crime, she remained active. She prepared dinner every night for her daughter-in-law, who was unable to cook for herself. Marta Gonzalez went to her mother’s house every day, and frequently had her meals with them. She testified that her grandmother had more patience with her mother than she did, and would help her cope with her mother’s condition. Antonio Freire testified that he visited his grandmother every other day, and that she frequently prepared his meals as well.

The decedent also helped her granddaughter in other ways. The month before the crime, when her granddaughter was having marital problems, decedent permitted her to live with her for a week until she could return home. At the time of the murder, Marta Gonzalez was pregnant, and together she and her grandmother planned that the grandmother would care for the child while she returned to school.

After trial, a jury awarded plaintiffs $1,250,000 for wrongful death and $1,000,000 for conscious pain and suffering, which the trial court reduced to $100,000 and $350,000. Defendant appealed to the Appellate Division solely on the damages issues. That court unanimously affirmed the plaintiffs’ award, as do we.

II.

Under the common law of England, it was not possible to maintain a damages action for wrongful death. This was the law in New York and other American jurisdictions as well (Liff v Schildkrout, 49 NY2d 622, 631-632; Moragne v States Mar. Lines, 398 US 375, 381-386). "The result was that it was cheaper for the defendant to kill * * * than to injure [the plaintiff], and that the most grievous of all injuries left the bereaved family of the victim, who frequently were destitute, without a remedy.” (Prosser and Keeton, Torts § 127, at 945 [5th ed].)

That inequity was ameliorated in England in 1846 by passage of the Fatal Accidents Act, creating a remedy for wrongful death. New York was the first State to follow suit, and in 1847 adopted a statutory cause of action for wrongful death, now embodied in EPTL 5-4.1 (Speiser, Recovery for Wrongful Death § 1:9, at 29 [2d ed]). The statute authorizes the personal representative of a decedent survived by distributees to maintain an action for wrongful death. Since the statute is in derogation of common law, it must of course be strictly construed (Farrar v Brooklyn Union Gas Co., 73 NY2d 802, 804; D’Andrea v Long Is. R. R. Co., 70 NY2d 683, affg for reasons stated at 117 AD2d 10).

The measure of damages obtainable in a wrongful death action "may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought.” (EPTL 5-4.3 [a].) In 1862, 15 years after enactment of the statute, we held that the statutory word rtpecuniary was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes, also, those losses which result from the deprivation of the society and companionship of relatives, which are equally incapable of being defined by any recognized measure of value.” (Tilley v Hudson Riv. R. R. Co., 24 NY 471, 476.)

While other States now permit recovery for loss of society (Sea-Land Servs. v Gaudet, 414 US 573, 587, n 21 [listing jurisdictions]), New York since its first wrongful death statute has steadfastly restricted recovery to "pecuniary injuries,” or injuries measurable by money, and denied recovery for grief, loss of society, affection, conjugal fellowship and consortium (Liff v Schildkrout, 49 NY2d, at 633-634, supra). Thus, the essence of the cause of action for wrongful death in this State is that the plaintiffs reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent’s death (Loetsch v New York City Omnibus Corp., 291 NY 308, 310-311). Loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death, are injuries for which damages may be recovered (Parilis v Feinstein, 49 NY2d 984, 985).

The "pecuniary injuries” caused by a wage earner’s death may be calculated, in part, from factors relevant to the decedent’s earning potential, such as present and future earnings, potential for advancement and probability of means to support heirs, as well as factors pertaining to the decedent’s age, character and condition, and the circumstances of the distributees (Parilis v Feinstein, supra; Franchell v Sims, 73 AD2d 1, 5-6; Freeman v Corbin Ave. Bus Co., 60 AD2d 824, 825; Kraus v Ford Motor Co., 55 AD2d 851, 852, appeal dismissed 42 NY2d 1093; Lyons v De Vore, 48 AD2d 943, 944, affd 39 NY2d 971; Tenczar v Milligan, 47 AD2d 773, 775, lv denied 36 NY2d 645; Zaninovich v American Airlines, 26 AD2d 155, 161; Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 5-4.3, at 497-498). In the case of a decedent who was not a wage earner, "pecuniary injuries” may be calculated, in part, from the increased expenditures required to continue the services she provided, as well as the compensable losses of a personal nature, such as loss of guidance (see, De Long v County of Erie, 60 NY2d 296, 307).

Applying these principles to the facts before us, we first conclude that plaintiffs’ status as adult financially independent grandchildren does not, of itself, preclude their recovery.

While defendant asks us to restrict recovery for loss of guidance to a decedent’s children, the statute defines the class entitled to recover in a wrongful death action as distributees (see, EPTL 5-4.1 [1]; 5-4.4 [a]). There is no question that decedent’s grandchildren were her distributees, and thus that they are members of the class the Legislature intended should be permitted to maintain this action (EPTL 5-4.4 [a]; 1-2.5, 4-1.1 [a] [6]; 1-2.10; see also, Liff v Schildkrout, 49 NY2d, at 634, supra).

Nor is recovery barred solely because plaintiffs were self-supporting adults at the time of their grandmother’s death. The argument that an adult distributee cannot state a claim for pecuniary injuries based on the loss of a parent’s guidance was long ago rejected by this court. In Tilley v Hudson Riv. R. R. Co. (29 NY 252), a wrongful death action brought on behalf of the decedent’s five surviving children, the oldest child was 23 and married at the time of her mother’s death, and the next oldest 21. We held that the Trial Judge properly declined to limit damages to the minority of the children, finding in the wrongful death statute no "peremptory injunction to confine the damages absolutely to the minority of the children” (id., at 288; see also, McIntyre v New York Cent. R. R. Co., 37 NY 287, 295-296 [whether three adult, self-supporting children sustained pecuniary injuries from their mother’s death was a question for the jury]; Countryman v Fonda, Johnstown & Gloversville R. R. Co., 166 NY 201, 209-210 [whether 25-year-old son and 22-year-old daughter sustained pecuniary injuries from mother’s death was a jury question]; and Gross v Abraham, 306 NY 525, 529-531 [an adult, self-supporting son who provided a home for his father could recover for the father’s wrongful death]).

Defendant points to Bumpurs v New York City Hous. Auth. (139 AD2d 438) as support for its contention that adults cannot claim pecuniary injuries from loss of a parent’s guidance. There, adult children were denied recovery for loss of their mother’s "companionship, comfort and assistance” on the ground that such injuries were not pecuniary in nature, citing Liff v Schildkrout; the court went on to note that the adult claimants could not state a claim for loss of their mother’s nurture. However, the Bumpurs decision was properly distinguished by the Appellate Division in the present case: unlike the decedent here, the decedent in Bumpurs had provided no services to her adult children (161 AD2d, at 359; see also, Hartman v Dermont, 89 AD2d 807 [no proof of pecuniary injury]).

Plaintiffs’ status being no bar to recovery, the question then becomes whether the damages they have shown fall within the statutory confines of "pecuniary injuries.”

Defendant urges that the only service decedent rendered to plaintiffs was the preparation of occasional meals outside their residences, which was not a compensable injury both because it was occasional and gratuitous and the plaintiffs therefore had no reason to rely on it, and because the service was not performed in their own households and plaintiffs therefore would not need to replace it.

As the record establishes, however, decedent contributed far more than "occasional meals,” and her grandchildren relied upon her contributions. Decedent provided shelter for her granddaughter during a marital crisis, and helped both grandchildren cope with their mother’s condition. The child care plan was more than occasional. Even the meals she furnished cannot accurately be called occasional — Marta Gonzalez testified that she ate dinner with her mother and grandmother every other day, while Antonio Freire testified that he visited his grandmother every other day and she frequently prepared his meals.

Nor is it significant that the decedent prepared meals in her daughter-in-law’s home rather than in plaintiffs’ homes. Wherever provided, the decedent’s services would have to be replaced by plaintiffs. The same is equally true of her counseling, the shelter she provided for her granddaughter, and the meals she regularly prepared for both grandchildren.

Based upon this record, therefore, we conclude that plaintiffs presented evidence of "pecuniary injuries” they suffered by reason of their grandmother’s wrongful death.

III.

Defendant’s remaining argument is addressed to the award of damages for decedent’s conscious pain and suffering. Defendant contends that there was no showing that it was more likely than not that she suffered any pain before she died, because two of the causes of death noted by the medical examiner — contusion of the scalp and fracture of the cervical spine — were equally consistent with a simultaneous loss of consciousness and death.

We agree with the Appellate Division that there was sufficient circumstantial evidence to support the conclusion that decedent was conscious when most of the injuries were inflicted. As the Appellate Division noted, if she had been unconscious at the outset of the assault there would have been no reason for the murderer to have bound and gagged her elaborately and injured her as he did. Defendant’s speculation that those other injuries might have been caused by a fall, or that they might have caused immediate unconsciousness, finds no support in the medical testimony or anywhere else in the record.

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

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

Order affirmed, with costs.

       Marta Gonzalez brought this action individually and as her grandmother’s administratrix. Her brother, Antonio Freire, is not a named plaintiff, but for ease of reference both grandchildren are called "plaintiffs.”


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Rodney E., Appellant.
    Argued March 20, 1991;
    decided April 30, 1991
    POINTS OF COUNSEL

      J. Scott Porter for appellant.

      Robert E. Wildridge, District Attorney (James P. Maxwell of counsel), for respondent.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Siobhan Shanks of counsel), for New York State Division of Probation and Correctional Alternatives, amicus curiae.

   OPINION OF THE COURT

Chief Judge Wachtler.

The question on this appeal is whether a court can place a defendant on "interim probation” after conviction but before sentence.

In 1989, the defendant, then 14 years old, pleaded guilty to robbery in the first degree. Prior to accepting the plea the court informed the defendant that sentencing would be postponed for three months. During this period the defendant would be placed on "interim probation,” and if he complied with all the conditions imposed by the court he would be sentenced at the end of the term as a youthful offender to five years’ probation. The court further advised the defendant of the conditions of the interim probation and directed the Probation Department to supervise the defendant’s activities and report periodically on his conduct.

Several weeks later the Probation Department filed a progress report containing hearsay allegations that the defendant had violated the conditions of the interim probation in several respects. The court immediately scheduled the case for sentencing and directed the defendant to appear. The defendant through counsel denied the allegations and requested a hearing which a court is required to hold before revoking a probationary sentence for an alleged violation of the conditions (CPL 410.70 [1]). In this case the court denied the defendant’s hearing request, noting that the defendant was on interim probation and had not been sentenced to a probationary term. However, counsel was afforded the limited right to state his objections to the hearsay allegations in the probation report before sentence was pronounced. The court then terminated the interim probation and sentenced the defendant as a youthful offender to IVs to 4 years at a State Division of Youth facility. The court acknowledged that this sentence was based, at least "partially,” on the alleged violations of the terms of the interim probation.

The defendant appealed to the Appellate Division, claiming that the sentence was illegal because interim probation was not authorized by statute. The Appellate Division affirmed stating: "While it appears that the interim probation program is not expressly authorized by law, the Probation Department, nevertheless, is required to include in its presentence report 'any matter the court directs to be included’ (CPL 390.30 [1]; see also, 9 NYCRR 350.7 [a]). That the Department complied with the court’s directive provides no basis for disturbing the sentence imposed upon defendant.” (162 AD2d, at 1014.)

The defendant appeals, presenting the issue left open by this Court in Matter of Jacobs v Altman (69 NY2d 733): Whether a court may place a defendant on interim probation after conviction but prior to sentence. We now reverse.

Courts have power to sentence persons convicted of specified crimes to serve a period of probation (Penal Law § 65.00), but as the Appellate Division recognized and the prosecutor concedes, there is no express statutory authority for "interim probation” pending the sentence. Nor can such authority be inferred from the court’s power to prescribe the contents of a presentence probation report. The court, of course, may consider the defendant’s activities after conviction in determining the appropriate sentence, and may direct the Probation Department to include such information in the presentence report (CPL 390.30 [1]). But probation involves more than reporting; it also requires the Probation Department to supervise the defendant’s activities to insure compliance with the conditions of probation imposed by the court, as indeed the court ordered the agency to do in this case. The Probation Department’s supervisory powers, however, are conferred by the Legislature (Executive Law §§243, 255), and under the existing statutes the Department only assumes this supervisory role with respect to persons convicted of a crime, after the defendant has been sentenced to a term of probation and not before (CPL 410.50 [2]; Penal Law § 65.10 [3]). Thus in this State, probation is only available as a sentencing option; there is no statute which, expressly or by implication, permits a court to place a person convicted of a crime on probation before sentence is imposed.

Nevertheless, the prosecutor urges that interim probation is a necessary and inherent adjunct to the court’s sentencing powers because it is often difficult for the court to be informed adequately of the defendant’s current activities, habits and ability to benefit from a probationary sentence. The prosecutor contends that in some cases the only way the court can make such an assessment intelligently is by placing the defendant on probation for a short trial period before the court determines an appropriate sentence and finally sentences the defendant. These are legitimate concerns, but they have been taken into account in the existing statutory scheme relating to probationary sentences.

Unlike sentences of incarceration which the court may not alter or revoke once the defendant has begun the sentence (CPL 430.10; see also, Matter of Campbell v Pesce, 60 NY2d 165), a probationary sentence is by its nature and statutory definition a "revocable sentence [which] shall be deemed a tentative one to the extent that it may be altered or revoked” by the court during the probationary term (Penal Law § 60.01 [2] [b]). Although the Probation Department is responsible for providing immediate supervision of a person sentenced to probation (CPL 410.50 [2]), the defendant remains in the court’s custody (CPL 410.50 [1]) and is subject to the court’s continuing jurisdiction throughout the probationary term. At any time after sentence is pronounced, the court may adjust the conditions to suit the current circumstances by eliminating conditions imposed at sentence or adding new ones as the court considers necessary and appropriate (CPL 410.20 [1]; Penal Law § 65.00 [2]). The court may also revoke probation and sentence the defendant to a term of incarceration if the defendant commits another crime or if the court determines after a hearing that the defendant violated one or more conditions of probation (CPL 410.70 [1]; Penal Law § 65.00 [2]). Conversely, the court may discharge the defendant from probation before completion of the term if the court finds that continuous supervision is no longer necessary (CPL 410.90).

These provisions indicate the Legislature’s awareness of the difficulties courts face in deciding whether a person convicted of a crime is a suitable candidate for probation, as well as the need to allow the courts to consider as determinative the defendant’s áctual performance on probation. However, the statutes also reflect the legislative judgment that, in a doubtful case, these determinations are best made after the defendant has been "tentatively” sentenced to probation pursuant to a statute which sets forth in some detail, the rights and responsibilities of the court, the Probation Department and the person on probation. Although the prosecutor claims that "interim probation” alone provides the degree of flexibility required by a sentencing court, it is not clear how the present statutory scheme is deficient. To the extent that reform is called for, it is a matter within the province of the Legislature.

In sum, the court erred in placing the defendant on probation prior to sentence and in basing the sentence in part on allegations that the defendant had violated the conditions of the interim probation. Thus the sentence should be set aside and the defendant should be resentenced. We note that if the court finds that it is unable to impose the sentence which was agreed upon when the defendant pleaded guilty, the defendant should be permitted to withdraw the plea (People v Selikoff, 35 NY2d 227, 238-239).

Accordingly, the order of the Appellate Division should be reversed, the sentence vacated and the case remitted to the trial court for resentencing.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed and case remitted to Onondaga County Court for further proceedings in accordance with the opinion herein.


author: Simons, J.

text:
    In the Matter of New York State Society of Surgeons et al., Appellants, v David M. Axelrod, as Commissioner of Health of the State of New York, et al., Respondents.
    Argued March 19, 1991;
    decided May 2, 1991

      POINTS OF COUNSEL

      Bartley J. Costello, III, and Paula Fitz Battiste for appellants.

      Robert Abrams, Attorney-General (Evelyn M. Tenenbaum, O. Peter Sherwood, Lawrence S. Kahn and Susan L. Watson of counsel), for respondents.

      Thomas B. Stoddard, David G. Keyko, Robert F. Bacigalupi, Carroll Doyle, Wilfredo Fernandez, Armen H. Merjian, of the Connecticut Bar, admitted pro hac vice, Michael T. Isbell, Evan Wolfson and Herbert Semmel for AIDS Action Council and others, amici curiae.

      William B. Rubenstein, of the Pennsylvania and District of Columbia Bars, admitted pro hac vice, Arthur N. Eisenberg and Robert M. Levy for the American Civil Liberties Union and another, amici curiae.

   OPINION OF THE COURT

Simons, J.

Petitioners are four medical organizations whose membership consists of New York State physicians. Respondents are the Commissioner of Health and the New York State Public Health Council. In February of 1988, petitioners sent a letter to the Commissioner of Health requesting that infection with the human immunodeficiency virus (HIV infection) be added to the lists of communicable and sexually transmissible diseases pursuant to Public Health Law § 225 (5) (h) and § 2311. The Commissioner denied the request on the ground that designation would be contrary to the health of the public because it would discourage cooperation of affected individuals and would lead to the loss of confidentiality for those infected with the disease. Petitioners then commenced this CPLR article 78 proceeding contending that the statutes imposed a duty on respondents to add HIV infection to the lists or, alternatively, if designation was a matter of discretion, that respondents’ refusal to list HIV infection was arbitrary and capricious.

Supreme Court dismissed the petition, holding that designation was discretionary with respondents and that their decision was reasonable. A divided Appellate Division affirmed. The court agreed that designation of a disease as communicable or sexually transmissible is within respondents’ discretion but two Justices concluded in dissent that respondents’ determination was arbitrary and capricious. We now affirm.

I

The Commissioner of Health is appointed by the Governor with the consent of the Senate and is charged with the responsibility of taking "cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto” (Public Health Law § 204 [1]; § 206 [1] [a]). The statute provides that the appointee shall be a practicing physician skilled and experienced in public health duties (Public Health Law § 203). The Public Health Council consists of the Commissioner and 14 members appointed by the Governor with the consent of the Senate. It has the duty, at the request of the Commissioner, to consider any matter relating to the preservation and improvement of public health and it may also advise the Commissioner and recommend action concerning matters of public health (Public Health Law § 225 [1]). The Council establishes health and health-related regulations, known as the Sanitary Code of the State of New York, subject to approval by the Commissioner (Public Health Law §225 [4]).

The list of communicable diseases is promulgated by the Council with the approval of the Commissioner pursuant to Public Health Law § 225 (4) and (5) (h). The list of sexually transmissible diseases is promulgated by the Commissioner pursuant to Public Health Law § 2311. Both are set forth in the Sanitary Code (see, 10 NYCRR 2.1, 23.1). Once a disease is designated as a communicable or sexually transmissible disease, statutory provisions requiring isolation and quarantine, reporting, testing and contact tracing apply to persons infected with it.

HIV infection is a communicable disease. It is transmitted by sexual contact, intravenous drug use or transfusions of infected blood. It can also spread from an infected mother to her infant during pregnancy or at the time of birth. Studies show no evidence that the infection is transmitted by casual contact. Individuals with HIV infection may or may not develop signs of infection and the disease can lead to AIDS. AIDS is a disease which damages the individual’s immune system: those who develop it are vulnerable to unusual infections and cancers that do not generally pose a threat to anyone whose immune system is intact. At the present time there is no known cure for AIDS and the percentage of HIV infected individuals who will develop it is not known.

II

Petitioners contend first that the provisions of section 225 (5) (h) and section 2311 require respondents to list HIV infection as a communicable and sexually transmissible disease. We do not construe those sections as imposing a flat, unvarying duty on respondents to designate as such every communicable or sexually transmissible disease in the Sanitary Code.

Section 225 (5) (h) of the Public Health Law provides that "[t]he sanitary code may * * * designate the communicable diseases which are dangerous to the public health.” Petitioners noting that HIV infection is both "communicable” and "dangerous to the public health”, contend that the statute requires respondents to list it. The Legislature’s use of the permissive word "may”, however, supports the conclusion that designation is left to the discretion of respondents. Indeed, we find no language in Public Health Law § 225 (5) (h) that arguably could be construed as mandating that they list all communicable diseases.

Our construction of the statute is confirmed by the language found in section 225 (4) and (5) (a) of the Public Health Law. Section 225 (4) authorizes the Council, with the approval of the Commissioner, to "establish, and from time to time, amend and repeal sanitary regulations, to be known as the sanitary code of the state of New York.” Subdivision (5) of the same section provides that the Sanitary Code "may”, "deal with any matters affecting the security of life or health or the preservation and improvement of public health in the state of New York” (Public Health Law § 225 [5] [a]). We addressed the scope of respondents’ powers under section 225 in Chiropractic Assn. v Hilleboe (12 NY2d 109, 120) and stated that "the Sanitary Code in general presents a situation where flexibility and the adaptation of the legislative policy to infinitely variable conditions constitute the essence of the program”. That observation is pertinent to respondents’ powers to amend and adapt the Sanitary Code in order to deal with changing public health concerns regarding HIV infections.

The Commissioner of Health is vested with similar discretion under section 2311 of the Public Health Law. That section provides that the Commissioner shall promulgate a list of sexually transmissible diseases, "such as gonorrhea and syphilis.” In determining the diseases to be included in such list, the Commissioner "shall consider those conditions principally transmitted by sexual contact and the impact of particular diseases on individual morbidity and the health of newborns” (Public Health Law § 2311).

Petitioners assert that because HIV infection is principally transmitted by sexual contact and has an impact on individual morbidity and the health of the newborns, respondents must include it on the list of sexually transmissible diseases. However, the statute does not require that every sexually transmitted disease be listed. It identifies the type of diseases to be covered, "such as gonorrhea and syphilis”, and directs the Commissioner to "consider” conditions transmitted by sexual contact. Under the terms of the statute, the Commissioner has the discretion to "determin[e] the diseases to be included in such list.” The discretionary nature of the power conferred is confirmed by the legislative history of the statute. As originally proposed, section 2311 could have been read as requiring that all sexually transmitted diseases be listed. Governor Carey vetoed it for that reason (see, Bill Jacket, L 1980, ch 878). The bill was subsequently amended to vest discretion in the Commissioner by limiting its provisions to only those diseases "principally transmitted by sexual contact” (emphasis added; see, Bill Jacket, L 1980, ch 878, Governor’s Mem in approval, dated Nov. 26, 1980, 1981 McKinney’s Session Laws of NY, at 2559, 2560 [list would "include such other sexually transmissible diseases as may be determined by the Commissioner of Health”]).

There are valid reasons for giving the Commissioner discretion in these matters. Placement of any disease on the communicable or sexually transmitted disease lists triggers statutory provisions relating to isolation and quarantine, reporting, mandatory testing and contact tracing (see, Public Health Law arts 21, 23; 10 NYCRR parts 2, 23) — provisions which, for public health reasons, may not be appropriate in dealing with every type of communicable or sexually transmissible disease. The Commissioner has determined, for example, that no public health purpose is served by placing influenza, a communicable disease, and chlamydia, a sexually transmissible disease, on the lists. Whether HIV infection should be listed or not involves a similar determination by respondents after considering the circumstances attendant to the disease.

ra

Petitioners urge alternatively that if respondents have discretion in these matters, their determination in this case is arbitrary and capricious because they failed to consider the pervasive and serious effect of the disease on the public as a whole and petitioners in particular. They argue that the reporting, mandatory testing and contact tracing requirements contained in the communicable and sexually transmissible disease statutes are crucial in controlling the spread of HIV infection and necessary to allow them to determine whether patients are infected with the disease so that they can take appropriate precautions during treatment.

Our review is limited to whether respondents’ determination is rationally based, i.e., whether it is unreasonable, arbitrary or capricious (see, Matter of Society of N Y. Hosp. v Axelrod, 70 NY2d 467, 473; Matter of Sigety v Ingraham, 29 NY2d 110, 114; Grossman v Baumgartner, 17 NY2d 345, 349). We cannot substitute our judgment for that of qualified experts in the field of public health unless their judgment is "without justification.” (See, Grossman v Baumgartner, supra, at 350; Chiropractic Assn. v Hilleboe, 12 NY2d 109, supra.) We conclude that in this case the evidence in the record provides a rational basis for respondents’ determination.

Respondents have declined to add HIV infection to the lists because the provisions triggered by that designation — isolation and quarantine, reporting, mandatory testing and contact tracing — are, in their opinion, ineffective and impractical in dealing with it. Petitioners acknowledge that isolation and quarantine would not be appropriate for HIV infection because there is no evidence that it is spread by casual contact. Their argument is directed to the provisions of the statute requiring reporting, testing and contact tracing.

Under existing requirements, New York State and New York City health officials already have access to reported cases of HIV infection, including most confirmatory test results (compare, Public Health Law §§ 2102, 2103; 10 NYCRR 2.10, 2.11, 2.12, 23.3, 23.4, with 10 NYCRR 24-1.1, 58-1.1 [f] [2]). Thus, the inquiry narrows to whether respondents’ determination to forego contact tracing and mandatory testing of those infected with HIV is rational. In support of their decision, respondents note that, as a practical matter, mandatory testing and contact tracing will not lead to control and prevention because many persons infected with HIV are not tested until their symptoms become apparent and symptoms may not develop for many years. In the interim, between infection and the appearance of symptoms, an individual may have multiple needle sharing, sexual contacts or both. These factors would make contact tracing, without the voluntary cooperation of the infected individuals, an almost impossible task. Moreover, HIV antibodies may take months to develop and infected individuals who have not yet developed antibodies may be capable of carrying and transmitting the disease. Thus, while contact tracing has historically been a useful public health tool in stemming epidemics of readily discoverable communicable diseases which have a short incubation period, that is not the nature of HIV infections.

In addition to these practical limitations, respondents argue that mandatory testing and contact tracing would prevent individuals with HIV infection from cooperating with public health officials. This is so because of the fatal and incurable nature of HIV infection and the segment of the population which has in the past been most affected by that disease. Respondents note that most people affected have strong reasons to avoid disclosing that they have AIDS or HIV infection and confidentiality is critical to them. Intravenous drug users, who make up an ever increasing percentage of new AIDS cases, are engaged in behavior which is illegal and there is little reason to believe they will cooperate with health authorities in identifying their needle sharing contacts. Similar disincentives exist for homosexuals and others at risk of HIV infection because disclosure can result in discrimination in housing, employment and health care. Respondents contend that counseling and active voluntary cooperation are essential to alter private sexual and drug abuse practices which spread HIV infection and they maintain that infected individuals will come ° forward for counseling and testing only if they are assured that testing will not be coerced and that their test results will remain confidential.

Respondents’ approach is in accord with the State policy underlying article 27-F of the Public Health Law, a statute enacted to promote voluntary testing for HIV infection. As the Governor emphasized in approving the act, "[b]y enacting this bill, New York rejects coercive measures. As experience in other states has shown, mandatory testing of broad population groups is neither effective nor desirable” (see, Bill Jacket, L 1988, ch 584, Governor’s Mem in approval, dated Sept. 1, 1988, 1988 McKinney’s Session Laws of NY, at 2284).

The relief petitioners seek is inconsistent with that legislation. In article 27-F, the Legislature has mandated that written informed consent must be obtained from an individual prior to the performance of any HIV-related test (see, Public Health Law § 2781 [1]). By contrast, informed consent is not required to test for communicable or sexually transmissible diseases generally (see, Public Health Law §§ 2100, 2304; 10 NYCRR 2.5, 2.6, 23.2). Moreover, article 27-F sets strict limits on contact tracing. For example, it permits physicians to warn an identified contact if they believe the contact is in danger, but precludes the physician from revealing the subject’s identity (see, Public Health Law § 2782 [4]). Any individual who does not want a physician to notify contacts can obtain anonymous testing pursuant to section 2781 of the Public Health Law. No such limitations exist on contact tracing once a disease is listed as communicable (see, 10 NYCRR 2.6). Finally, article 27-F provides a mechanism for assuring anonymity and confidentiality of test results (see, Public Health Law § 2781 [4]). No comparable protections are provided to an individual once the disease has been listed as communicable or sexually transmissible.

Finally, respondents’ approach to the problem is supported by leading health authorities. The United States Centers for Disease Control has adopted guidelines for dealing with HIV infection which include voluntary testing, counseling and confidentiality of personal information (see, Public Health Service Guidelines for Counseling and Antibody Testing to Prevent HIV Infection and AIDS, Centers for Disease Control Morbidity and Mortality Weekly Report, vol 36, No. 31, at 509 [Aug. 14, 1987]). Similarly, the Institute of Medicine, National Academy of Sciences, has concluded that mandatory testing and contact tracing are inappropriate, at this stage, to deal with the spread of HIV infection (see, Confronting AIDS— Directions for Public Health, Health Care, and Research, Institute of Medicine, National Academy of Sciences, at 218-249 [1986]; see also, Eisenstat, An Analysis of the Rationality of Mandatory Testing for the HIV Antibody: Balancing the Governmental Public Health Interests with the Individuals Privacy Interest, 52 U Pitt L Rev 327). We conclude, therefore, that respondents’ determination that designating HIV infection as a communicable or sexually transmissible disease would be detrimental to the public health is rational.

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

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

Order affirmed, with costs.

      . Petitioners originally requested that respondents designate AIDS as a communicable and a sexually transmitted disease. They subsequently expanded the request to include any status of HIV seropositivity (see, Public Health Law § 2780 [definitions]).

      . Respondents maintain that HIV infection is principally transmitted by intravenous drug use now rather than sexual contact.


author: Kaye, J. Opinion per Kaye, J.

text:
    In the Matter of ISCA Enterprises, Individually and as Successor in Interest and Assignee of Greater New York Savings Bank et al., Appellant, v City of New York et al., Respondents. Linton Campbell et al., Respondents, v City of New York, Appellant.
    Argued March 27, 1991;
    decided May 2, 1991

      POINTS OF COUNSEL

      Herbert Rubin, Michael A. Drobenare, David B. Hamm, and Miriam Skolnik for appellant in the first above-entitled proceeding.

      Victor A. Kovner, Corporation Counsel (Pamela Seider Dolgow, Leonard Koerner and Gary Marion of counsel), for respondents in the first above-entitled proceeding.

      Victor A. Kovner, Corporation Counsel (Pamela Seider Dolgow, Leonard Koerner and Gary Marton of counsel), for appellant in the second above-entitled action.

      Richard Jankell and Paul L. Beck for respondents in the second above-entitled action.

      Stuart M. Fischman and Jill F. Hunter for New York State Land Title Association, amicus curiae in the second above-entitled action.
   OPINION OF THE COURT

Kaye, J.

A former mortgagee in the first appeal and former property owners in the second, challenge the constitutionality of New York City’s "notice-by-request” procedure for in rem tax foreclosure actions, asking that the tax deeds on the subject properties be declared void and their interests restored. We resolve both appeals in the City’s favor, the first on the ground that petitioner mortgagee had actual notice in time to bring suit, and the second on the ground that the City’s statutory scheme for giving notice to property owners met the requirements of due process. The factual record in the first case makes it unnecessary for us to consider whether the City’s notice provisions would also meet due process requirements as to mortgagees.

The "In Rem” Procedure in General

Title 11 of the New York City Administrative Code makes available a summary tax foreclosure procedure whenever an outstanding tax lien has been unpaid for more than one year (Administrative Code § 11-404 [a]), and it sets forth the mechanics for notifying interested parties that this procedure has been initiated.

In rem actions are commenced by the filing of duplicate lists of delinquent taxes in the office of the clerk of the county in which the parcels are located (Administrative Code § 11-405 [d]). Publication of a notice of foreclosure must be made at least once a week for six successive weeks in the City Record and in two newspapers published and circulated within the relevant county (Administrative Code § 11-406 [a]). In addition to publication, the Commissioner of Finance must mail a copy of the notice to all owners, mortgagees, and lienors who have filed "owner’s registration” or "in rem” cards (Administrative Code § 11-406 [c]).

Owner registration cards must include the owner’s name and mailing address, and are designed to enable the Commissioner to mail bills for taxes and other charges, as well as foreclosure notices, to the proper party in interest (Administrative Code § 11-416). In rem cards purport to provide mortgagees, lienors and others having an interest in the property —but not authorized to receive tax bills — with a means of receiving notice of any foreclosure action initiated by the Commissioner (Administrative Code § 11-417).

If no owner registration or in rem card is on file, the Commissioner must mail the notice to the name and address, if any, listed on the latest annual record of assessed valuations (Administrative Code § 11-406 [c]).

For a period of 10 weeks from the date of first publication of the notice of foreclosure, any person claiming an interest in a parcel listed in that notice has the opportunity to redeem it by paying all delinquent taxes, interest and penalties (Administrative Code § 11-407 [a]). Upon expiration of this 10-week period (the last date for redemption), any interested party may still redeem a parcel by payment of a 5% penalty in addition to the other charges. This window for redemption is open until the Commissioner is notified by Corporation Counsel that the preparation of the judgment of foreclosure has been commenced (Administrative Code § 11-407 [c]).

An interested party may serve a verified answer within 20 days of the last date for redemption, thereby severing the action as to any parcel in which the defendant has pleaded an interest (Administrative Code § 11-409 [a]). If no answer is interposed — and none was in respect to any of the parcels involved in these appeals — the court, after satisfying itself that the City has complied with all procedural requirements, is directed to enter final judgment awarding the City possession of the parcels listed (Administrative Code § 11-412). The judgment must also contain a direction to the Commissioner of Finance to prepare, execute and record a deed conveying title to all affected parcels to the City.

For a period of two years from the date the tax deed is recorded, an owner or mortgagee may apply for release of the property (Administrative Code § 11-424 [a]). If this application is made within four months of the filing date — and includes all requisite taxes, charges and penalties — the City must grant the release. If an application is made after this four-month period, but prior to the expiration of the two-year limitation, release of the property is within the discretion of the Board of Estimate.

Opinion per Kaye, J.

Finally, title 11 contains what is in effect a Statute of Limitations, providing that, after a period of two years from filing, a tax foreclosure deed raises a conclusive presumption that the in rem foreclosure proceeding was conducted in accordance with all provisions of law relating thereto (Administrative Code § 11-412 [c]). No action to set aside the tax deed may be commenced after the expiration of this two-year period.

Challenge by ISCA Enterprises

In May 1981, the City commenced an action to foreclose on all real property located in Kings County with tax delinquencies of more than one year. Approximately .17,000 parcels were involved.

ISCA Enterprises, at that time, was the mortgagee on two of those parcels, its interests duly recorded, but it did not receive any actual notice of the foreclosure action. It is uncontested that notice was published according to the provisions of title 11 and that the proper filing was made in the Kings County Clerk’s office.

On July 28, 1983, the City acquired title to the two ISCA parcels under a deed executed by the Commissioner of Finance pursuant to a judgment of foreclosure. Tax deeds were recorded at this time. In addition, prior to July 1983, ISCA had become the owner of a third parcel that was also among those subject to the judgment of foreclosure.

ISCA became aware of the tax foreclosure, and the recording of the tax deeds, in December 1983, with more than a year and a half left to run on the two-year Statute of Limitations. Instead of commencing an action to set aside the tax deeds, however, ISCA elected to pursue an application for release with the Board of Estimate, making the required filing in October 1984. Release was denied in October 1987, after which ISCA brought the present action — a full four years after learning of the foreclosure. The petition alleged that ISCA had been denied due process in that it was not given notice reasonably calculated to apprise it of the pendency of the foreclosure action.

Supreme Court granted the City’s motion to dismiss, finding that the cause of action accrued on December 1, 1983 at the latest. On that basis, the court concluded that the instant action, commenced more than four years later, was time barred. The ruling was affirmed by the Appellate Division.

We now affirm the Appellate Division order. ISCA’s actual notice of the foreclosure action well within the two-year limitation period precludes that party from challenging the conclusive presumption raised by the properly recorded foreclosure deed (see, Administrative Code § 11-412 [c]). Having itself delayed commencement of its action for nearly four years from notice, ISCA cannot be heard to complain of a constitutional infirmity in the original notice procedure (see, Town of Somers v Covey, 2 NY2d 250, 257-258, cert denied 354 US 916).

Nor is there merit in ISCA’s two additional arguments. First, ISCA asserts that the suit could not have been brought prior to the exhaustion of administrative remedies. A claim that a statute is unconstitutional may be raised in a judicial proceeding without first exhausting the administrative review process (see, Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375). Matter of Tax Foreclosure No. 35 (71 NY2d 863) is not to the contrary. There, the property had been released to its former owner on payment of taxes, interest and penalties, which the owner elected not to make; in those circumstances, the owner could claim no deprivation of due process.

Second, ISCA asserts that the Board of Estimate procedure tolled the Statute of Limitations on the constitutional claim. There is no support for this position in the Administrative Code, which sets up the release procedure as a means of paying off all taxes and charges on the forfeited property. ISCA was free to bring its constitutional challenge regardless of its decision to pursue a release, and pursuit of that course should therefore have no tolling effect (see, Board of Regents v Tomanio, 446 US 478, 486-487; see also, Craig v Township of Ewing, 678 F Supp 1106,1108 [D NJ]).

For these reasons we affirm the order of the Appellate Division upholding the dismissal of ISCA’s petition without reaching the constitutional issues tendered for our review. While we understand that the adequacy of the City’s "notice-by-request” provision has been a vexing issue particularly with respect to mortgagees, the posture of the present case does not permit us to reach that issue.

Challenge by the Campbell Plaintiffs

Plaintiffs, owners of Manhattan real estate, brought this consolidated action to compel the determination of claims to that property pursuant to article 15 of the Real Property Actions and Proceedings Law. The action originally involved 23 parcels as to which ownership had been transferred to the City pursuant to tax foreclosure deeds. This appeal concerns only 13 of those parcels.

At the time the in rem foreclosure actions were commenced by the City, each parcel had an outstanding tax delinquency of at least 18 months; the City’s tax deeds were recorded in the period from May 1977 to September 1980, and the original article 15 actions were commenced by plaintiffs in September 1986. As to the 13 parcels before us, Supreme Court granted plaintiffs’ cross motion for summary judgment, declaring the judgment and deeds for those parcels void. The Appellate Division’s affirmance of that portion of Supreme Court’s decision forms the basis of this appeal. We now reverse and grant summary judgment to the City.

Preliminarily, the City again urges dismissal of the action because it was not brought within the two-year Statute of Limitations. The City’s argument must be rejected.

Unlike the ISCA appeal, there is no evidence in this case that plaintiffs had actual notice in time to bring their action. Contrary to the City’s assertions, a challenge to the constitutionality of a notice provision, where the party had no timely notice, is not barred by the Statute of Limitations; the City’s cited cases do not hold otherwise (see, e.g., Weaver Sons Co. v Burgess, 7 NY2d 172; Meigs v Roberts, 162 NY 371). That principle, an eminently fair one at least implicit in this Court’s prior decisions, is followed in the majority of jurisdictions (see, Benoit v Panthaky, 780 F2d 336, 338-339 [3d Cir] [and cases cited therein]; see also, Schroeder v City of New York, 371 US 208, 210).

As an alternative Statute of Limitations argument, the City claims that plaintiffs, chargeable with the knowledge that taxes must be paid on real property, should be deemed to have had actual knowledge of the foreclosure action because such action is the logical sequel to tax delinquency. That argument also must fail.

It is no longer true that an owner is chargeable with knowledge of all events affecting its property, a view exemplified by the rejected "caretaker” theory of property ownership (see generally, Matter of McCann v Scaduto, 71 NY2d 164, 174-176). Instead, the burden is on the party charged with giving notice, regardless of whatever "fault” may be assigned to the delinquent taxpayer. As the Supreme Court made clear: "knowledge of delinquency in the payment of taxes is not equivalent to notice that a tax sale is pending.” (Mennonite Bd. v Adams, 462 US 791, 800.) The status of owner may still have some relevancy in determining whether the notice is adequate, but it is immaterial to the Statute of Limitations analysis (see, Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, 423; see also, Sheehan v County of Suffolk, 67 NY2d 52, 58-59, cert denied sub nom. MacKechnie v County of Sullivan, 478 US 1006).

Thus, in this case we reject the City’s Statute of Limitations arguments and reach the issue whether the notice provision of Administrative Code § 11-406 (c) comports with the requirements of due process. Because of the scheme of the code relating to property owners, we conclude that, as applied to the plaintiffs, it does.

In Mullane v Central Hanover Trust Co. (339 US 306, 314), the Supreme Court, balancing the interest of the State against the individual interest sought to be protected by the Due Process Clause, formulated the test we apply for determining the adequacy of notice: notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.”

In the circumstances presented, notice by publication alone would unquestionably be insufficient. In Mennonite Bd. v Adams (462 US 791, 800, supra), where the Mullane balancing test was applied to real property tax proceedings, it was determined that notice by mail is a constitutional precondition to a proceeding that will adversely affect the property interest of any party whose name and address are reasonably ascertainable. Here, where the owner’s name could be obtained through City records, it seems clear that constructive notice alone would be constitutionally deficient (see, Matter of McCann v Scaduto, 71 NY2d, at 176, supra).

But the code provides for more than notice by publication— it permits a property owner to file an "owner’s registration card.” The constitutionality of such a procedure — what plaintiffs characterize as the "notice-by-request” procedure — presents us with an issue explicitly left open by the United States Supreme Court in Mennonite (462 US, at 793, n 2 [the Indiana statute in issue was subsequently amended to provide for notice to interested parties who filed an annual registration card and paid an annual registration fee, and the Supreme Court declined to pass on the constitutionality of the amendment]). That issue has generated considerable litigation — with mixed results — both within this State and throughout the country.

Of key importance in those cases where the notice-by-request procedure was held invalid was the language in Mennonite (462 US 791, 799, supra) that "a party’s ability to take steps to safeguard its interests does not relieve the State of its constitutional obligation.” (See, e.g., Wylie v Patton, 111 Idaho 61, 65, 720 P2d 649, 653; Seattle-First Natl. Bank v Umatilla County, 77 Ore App 283, 290, 713 P2d 33, 37.) As applied in the notice-by-request context, that language has been held to prohibit the State from shifting the burden of providing adequate notice to the interested party (see, Small Engine Shop v Cascio, 878 F2d 883, 884 [5th Cir]).

Unlike the notice-by-request statutes involved in the cited cases, however, the City Administrative Code provides for additional procedures by which property owners actually receive notice — by mail to the name and address appearing on the latest annual record of assessed valuations, the key record for the tax billing purposes (see, Administrative Code § 11-210 et seq.; see also, RPTL 502 [2]; Cooper v Makela, 629 F Supp 658, 661 [WD NY]). Plaintiffs do not contest the City’s assertion that notice was mailed to the names and addresses listed on the assessment roll entries pertaining to their properties; rather they allege that such information was not properly updated. There is no support for that contention in the record. More importantly, plaintiffs’ challenge to the constitutionality of the statute itself must fail in light of this additional statutory mechanism for providing that property owners receive actual notice of a foreclosure.

In determining that these provisions are constitutionally adequate, we note that searching property records (at least in the form maintained at the time these actions were commenced), as plaintiffs request, would unquestionably impose a very substantial burden on the City; some 17,000 properties were involved in Kings County alone. Of course, the imposition of a burden on a municipality does not excuse it from taking reasonable steps to provide actual notice to owners whose interests have been duly recorded. But it is among the circumstances that may be taken into account, under Mullane and Mennonite, in determining whether the steps taken to give notice are reasonable.

Finally, it is also relevant that it is the delinquent owners themselves who are involved here. Some responsibility for maintaining current records is reasonably assigned to the owners, who should be alerted to the need to update their records by a failure to receive timely billing notices (see, Administrative Code § 11-416). Although that does not relieve the City of its burden to provide adequate notice, again it is a circumstance that may be considered in balancing the interests of the parties and determining whether notice provisions are reasonable.

Under all of the circumstances presented in this case— where the burden of individually searching the title records would be onerous for the City, and where the City publishes notices, sends notices to those who have filed request cards and if no cards are filed, mails notices to the names and addresses on the assessment record — we conclude that the City Administrative Code notice provisions satisfy the minimum requirements of due process. We therefore reverse the Appellate Division order and award summary judgment to the City as against plaintiff property owners.

Accordingly, as to ISCA Enterprises the order of the Appellate Division should be affirmed, with costs. As to the Campbell plaintiffs, the order of the Appellate Division should be reversed, with costs, the City’s motion for summary judgment granted and the City declared to be the owner of the 13 subject parcels.

Chief Judge Wachtler and Judges Simons, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

In Matter of ISCA Enters. v City of New York: Order affirmed, with costs.

In Campbell v City of New York: Order reversed, with costs, defendant’s motion for summary judgment granted, and defendant declared to be the owner of the 13 subject parcels.

      . Compare, Matter of Foreclosure of Tax Liens by County of Erie, 103 AD2d 636, 639-640 (4th Dept) (the constitutional obligation to provide adequate notice to mortgagees cannot be abrogated by requiring those parties to request notice) and Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 133 AD2d 30 (1st Dept), affd on other grounds 70 NY2d 831 (the procedure is constitutionally inadequate where the City had actual notice of mortgagee’s interest, identity and whereabouts through status as named party in prior foreclosure action brought by that mortgagee), with Matter of Tax Foreclosure No. 35, 127 AD2d 220, 226 (2d Dept), affd without reaching constitutional issue 71 NY2d 863 (procedure is a "simple, efficient, and eminently fair” method of providing notice — but owner had actual notice within the two-year limitations period).

      . See, e.g., Small Engine Shop v Cascio, 878 F2d 883 (5th Cir) (County Treasurer was constitutionally required to provide notice to mortgagees of record, whether or not they requested it); Seattle-First Natl. Bank v Umatilla County, 77 Ore App 283, 713 P2d 33, review denied 300 Ore 704, 716 P2d 758 (State’s constitutional duty to provide notice cannot be abrogated by requiring mortgagee to request notice); Wylie v Patton, 111 Idaho 61, 720 P2d 649 (Idaho Ct App) (same); Township of Jefferson v Block 447A, Lot 10, 228 NJ Super 1, 548 A2d 521 (App Div) (holder of prior tax sale certificate entitled to actual notice despite failure to comply with request procedure); and United States v Malinka, 685 P2d 405, 408-409 (Okla Ct App) (Mennonite places the onus on the State to provide notice notwithstanding availability of request/notice procedures); but see, Note, The Constitutionality of Request Notice Provisions in In Rem Tax Foreclosures, 56 Fordham L Rev 1209 (1988) (request notice provisions strike a reasonable balance between the interests of the State and the rights of property owners).

      . No filing fee is required, and no renewal is necessary.


author: Bellacosa, J.

text:
    In the Matter of William J. Grinker, as Commissioner of Social Services of the City of New York, Respondent. Seena Rose, as Proposed Conservatee, Appellant.
    Argued March 20, 1991;
    decided April 30, 1991

      POINTS OF COUNSEL

      Robert Epstein for appellant.

      Victor A. Kovner, Corporation Counsel (Alan G. Krams and Fay Leoussis of counsel), for respondent.

      Cliff Zucker for Alliance of Psychiatrically Labelled Persons, Inc., and others, amici curiae.

   OPINION OF THE COURT

Bellacosa, J.

Seena Rose (Respondent) is a 59-year-old artist who has lived and worked in the same New York City apartment for 25 years. The Commissioner of Social Services of the City of New York (Commissioner) brought this proceeding to appoint a conservator of Respondent’s property pursuant to article 77 of the Mental Hygiene Law after she fell behind in her rent and utility payments. Relying essentially on testimony that Respondent suffers from a mental illness, Supreme Court, New York County, appointed a conservator with authority to manage her assets and to commit her to a nursing home "when medically indicated”.

On her appeal to the Appellate Division, Respondent argued that Mental Hygiene Law § 77.19, which sets forth the powers and duties of conservators, does not authorize empowering conservators to commit their wards to nursing homes. She also argued that a conservator should not have been appointed for her because the Commissioner failed to prove that her ability to care for her property was substantially impaired. The Appellate Division modified the Supreme Court order only to the extent of requiring court approval prior to commitment to a nursing home, and otherwise affirmed. This Court granted Respondent leave to appeal. We now reverse and dismiss the petition. Section 77.19 of the Mental Hygiene Law does not authorize conservators to take the profound action of committing their wards to nursing homes. Moreover, the Commissioner did not satisfy the procedural and evidentiary requirements of Mental Hygiene Law § 77.01 (1) for the appointment of a conservator of Respondent’s property.

Like many artists the world over and across the centuries, Respondent has managed her life on a limited income. Her only sources of income are monthly Social Security benefits supplemented by a small sum from her ex-husband. The stabilized rent on her six-room Manhattan apartment is $671 per month. Her works of art, composed in various media, virtually fill her apartment. Because her oeuvre has never been publicly shown or sold, appraisal of the value of the whole or individual items is apparently impossible.

For undeveloped reasons, Respondent fell four to five months behind in her rent and utility bills in early 1987. A caseworker from the Department of Social Services (DSS) Protective Services of Adults visited her and arranged to pay the arrears by obtaining "special rent” from the DSS. At some point, her landlord had agreed to participate in a Federal program to subsidize a portion of her rent, but he later refused (see, United States Housing Act of 1937, ch 896, § 8; 42 USC § 14370.

Respondent apparently paid her rent in a timely manner from mid-1987 until May 1988, when she again fell into arrears. On July 28, 1988, the Commissioner petitioned Supreme Court for an order pursuant to article 77 of the Mental Hygiene Law "appointing a conservator of the property of Seena Rose on the grounds that she is no longer able to manage her property.” The petition suggested that "the appointed conservator should negotiate the appraisal and sale of her artwork and manage her finances for their protection and best use. Placement in a protective setting will be needed if no financial arrangements can be made so that [she] can remain in her current apartment, and she refuses to accept other housing.” Attached to the petition was an affirmation by Grace Gorham, M.D., a psychiatrist who interviewed Respondent in her home on June 25 and October 1, 1987 at the request of the DSS. In her affirmation, Dr. Gorham describes Respondent’s medical condition and current psychiatric treatment, diagnoses her as a schizophrenic, and concludes that she is "entirely unable to manage the ’system’ ” and is "unable to find housing on her own, unable to handle court proceedings, unable to apply for entitlements or any activity requiring long range planning.”

Dr. Gorham also testified at the hearing held on October 20, 1988 and repeated the allegations made in her affirmation: that Respondent is a schizophrenic who is "incapable of managing any kind of activities requiring long-range planning, such as her finances, promoting herself.” The guardian ad litem appointed by Supreme Court recommended that a conservator be appointed because Respondent "seems incapable of making any decision of what to do with [her] art work”, is "unable to do anything to generate any income for herself, or to attempt to do it, that is, to sell her art work,” and "is not self-supporting”. The guardian admitted that if Respondent were "capable of getting out of her apartment to try to sell her art work or perhaps to get a job” there would be no need for a conservator.

The DSS caseworker who visited Respondent on a monthly basis testified that her ability to pay her rent was "a constant problem” and that unsuccessful efforts had been made to obtain funding from several agencies and to arrange a showing for the artwork. She testified that Respondent told her on several occasions that she could not part with her work because it would be "like parting with a limb of her body.” The DSS had concluded that appointment of a conservator with "the legal power to go out and to get those people who could appraise the work, who could see if it could be converted to cash * * * would enable her to stay in the apartment”.

Respondent was present at the conservatorship hearing but was not represented by counsel. She testified that she had been "consistently reassured” that she would obtain a "section 8” Federal rent subsidy, and that if she had not anticipated the subsidy, she would have fixed up a room in her apartment and rented it to supplement her income.

Based on the petition papers and the hearing testimony, the Supreme Court concluded that Respondent "has suffered substantial impairment of her ability to care for her property and has become incapable of managing her affairs” and appointed a conservator for an indefinite duration. The court granted the conservator authority to oversee "all of the property, assets and income of Seena Rose, both real and personal; including the following provisions for the necessary personal and social protective services to the conservatee: the conservator will marshal the assets of the conservatee and administer, conserve or reinvest them as is appropriate.” Apparently in response to the Commissioner’s suggestion that placement in a "protective setting” might become necessary, the court added that "[t]he conservator shall have the power to, when medically indicated, transfer the conservatee to an appropriate nursing care facility. The conservator shall make sure that the conservatee receives the necessary and adequate skilled medical service, treatment and attention required by her diagnosed mental condition. The conservator shall also have the power to execute on behalf of the conservatee any admission form or any other documentation required to accomplish the acts which are herein required from it in behalf of the conservatee.”

The Appellate Division agreed with the nursing home commitment authorization, but modified it only to require additional court approval prior to nursing home placement. The Appellate Division also agreed with the Supreme Court that the "record amply demonstrates that [Respondent] needs help in managing her property” and is "unable to cope with her financial peril by taking advantage of the potential value of her artwork”, and affirmed the order appointing the conservator (162 AD2d 253, 254).

Appointment of a conservator significantly compromises individuals’ rights to manage and control their property. Consequently, the law imposes a high and heavy burden of clear and convincing proof on the person or governmental entity seeking such officially sanctioned interference (Mental Hygiene Law § 77.01 [1]; see, Matter of Waxman, 96 AD2d 906; Matter of Kraft, 60 AD2d 548). Mental Hygiene Law § 77.01 (1) (a) authorizes the appointment of a conservator of property only "for * * * residents] who [have] not been judicially declared incompetent and who by reason of advanced age, illness, infirmity, mental weakness, alcohol abuse, addiction to drugs, or other cause, [have] suffered substantial impairment of [their] ability to care for [their] property or [have] become unable to provide for [themselves] or others dependent upon [them] for support” (emphasis added).

We address at the threshold the Commissioner’s argument that Mental Hygiene Law article 77 authorizes courts to grant conservators the power to commit their wards to nursing homes where conservatees’ "well-being” so requires. Article 77 of the Mental Hygiene Law was passed in 1972 to establish "a procedure to preserve the property of persons who are unable to manage their own affairs either because of debilitating factors which create a condition falling short of incompetency or, if actual incompetency exists, where there is a disinclination to initiate a proceeding [under Mental Hygiene Law art 78] to declare such incompetency because of the stigma” that attaches (Mem of Joint Legis Comm on Mental and Physical Handicap, 1972 McKinney’s Session Laws of NY, at 3277, 3290 [emphasis added]). In their report to the Legislature, the drafters of the conservatorship statute stressed their intent that the "remedy [be] limited to the property of a conservatee and [have] no effect upon [the conservatee’s] person” (1966 Report of NY Law Rev Commn, at 263, 271, reprinted in 1966 McKinney’s Session Laws of NY, at 2842).

The enacted language of article 77 reflects the Legislature’s intent to limit the scope of a conservator’s power only to the conservatee’s property. Section 77.01 is entitled "Persons for whom a conservator of the property may be appointed”, and authorizes the appointment of "one or more conservators of the property” (§ 77.01 [1] [emphasis added]). Section 77.19 states that a conservator appointed under article 77 "shall have all of the powers and duties granted to or imposed upon a committee of the property” appointed under Mental Hygiene Law article 78, to be distinguished from a committee of the person (emphasis added).

The Commissioner argues, and the courts below agreed, that Mental Hygiene Law § 77.19 authorizes courts to empower conservators to involuntarily commit their wards to nursing homes. The statute states in part that "the court order appointing a conservator shall set forth * * * [a] plan for the preservation, maintenance, and care of the conservatee’s income, assets and personal well-being, including the provision of necessary personal and social protective services to the conservatee.”

The legislative history, however, does not support the Commissioner’s expansive reach. The quoted language was added to section 77.19 in 1974 in conjunction with the addition of language to Mental Hygiene Law § 77.03 to authorize social services officials and public agencies to petition for and serve as conservators. Prior to amendment, section 77.03 authorized only relatives, friends, certain hospital and school officers and conservatees themselves to commence a proceeding to appoint a conservator. The Legislature’s intent was to ensure that "older person[s] without close relatives or friends [are able to] function^ in the community,” while "protecting their independence and right to manage their own property and personal affairs to the greatest possible extent” (Mem of Senator Giuffreda, 1974 NY Legis Ann, at 176, 178). Upon signing the bill, the Governor stated that it would "enabled the conservator to assume a limited role in protecting the personal well being of the conservatee” (Governor’s Approval Messages, at 53-59, reprinted in 1974 NY Legis Ann, at 397, 399 [emphasis added]).

Assuming, without deciding, that Mental Hygiene Law § 77.19 authorizes a grant of limited power over a conservatee’s person incidentally related to the primary power over property (see, e.g., Matter of Evelyn P., 135 AD2d 716), we conclude that it clearly does not authorize the potent personal transformation of involuntary commitment of a conservatee to a nursing home (see, Matter of Detzel, 134 AD2d 205; see also, Moore, The Durable Power of Attorney as an Alternative to the Improper Use of Conservatorship for Health-Care Decision Making, 60 St John’s L Rev 631, 638-653 [1986]). The availability of such a significant involuntary displacement of personal liberty should be confined to a Mental Hygiene Law article 78 incompetency proceeding, with its full panoply of procedural due process safeguards (see, Rivers v Katz, 67 NY2d 485; Matter of Detzel, supra; Matter of Fisher, 147 Misc 2d 329, 339). Both courts below erred, therefore, in extending the beneficial reach of Mental Hygiene Law § 77.19 beyond its central property and incidental personal borders.

The courts below also erred in concluding that Respondent was substantially unable to manage her property and that a conservator was therefore needed. In this respect, we can examine only whether there is any evidence in the record to sustain that affirmed finding (Cohen and Karger, Powers of the New York Court of Appeals § 108, at 452 [rev ed]; Alpert v 29 Williams St. Corp., 63 NY2d 557, 574). We conclude that there was not.

The testimony at the hearing focused on the nature of Respondent’s alleged mental condition, how it manifested itself in her artwork, and what the proper treatment for the condition should be. The Supreme Court concluded that Respondent "requires severe medical treatment,” and "if I appoint a conservator and the conservator confers with you [Dr. Gorham], you can then tell [the conservator] she requires an examination by a psychiatrist, or by doctors to give a report, a hospital. That’s what a conservator is there for.” Mental illness, however, is relevant to the inquiry under Mental Hygiene Law § 77.01 (1) only to the extent the illness causes "substantial impairment of [consérvateos’] ability to care for [their] property or * * * provide for [themselves] [emphasis added].” That precise causal connection was not established here under the high "clear and convincing” evidentiary standard.

Critically, there was an absence of proof concerning Respondent’s spending patterns, her ability to budget and allocate her concededly limited resources, or her knowledge of her existing accounts payable, their balances, and her income. Nor was there any evidence of waste or mismanagement of resources. On the contrary, Respondent’s own testimony that she was relying on an expected Federal rent subsidy in lieu of other solutions shows her reflective competence, awareness and weighing of her precarious financial situation. The evidence of personal behavior and the nature of her artwork do not support a finding of substantial impairment. Indeed, Dr. Gorham’s suggestion that Respondent suffered from an inability to manage the "system” and to handle "court proceedings” seems oddly irrelevant and fatally general. In sum, the only evidence which was extrapolated to leap to the suggestion that Respondent needed help managing her property was her periodic failure to timely pay rent and utility bills. The evidence suggests, however, that this circumstance was more likely due to meager means, rather than to relevant mental incapacity of the level required by the statute.

The courts below further based their finding of impaired ability on Respondent’s failure to attempt to market her artwork to remedy her periodic financial deficiencies. An artist’s personal refusal to sell artwork, however, hardly warrants subjugation to a conservator when the artist happens to fall behind in rent payments or other bills. If that were the qualifying test, many people temporarily or regularly suffering penury might be threatened by the paternalism of the law and its well-intentioned ministers.

Respondent has survived for 25 years in the same apartment on her limited income. It may be true, as the Commissioner alleges, that her artwork is valuable and that selling it could alleviate some of her financial pressures. However, as the Supreme Court itself recognized, "a conservator is not [appointed] to peddle art around to see if it can be sold or to overcome the frustration of an artist * * *. That’s not the job of a conservator.” We note that alternatives short of appointing a conservator exist in this case to aid in preventing Respondent’s eviction, including possible participation in the United States Housing Act of 1937 section 8 Federal rent subsidy program. Appointment of a conservator, with its consequent affront to the integrity and independence of the individual, even where warranted, ought to be among the last alternatives in these dire circumstances and cases.

The Mental Hygiene Law represents the Legislature’s response to a perceived and empirically documented societal need. The vocation of individuals should neither immunize them from nor make them preferred candidates for protections afforded by the Mental Hygiene Law. On the record before us, however, Respondent was not proven to require the statute’s protective services. The Supreme Court and the Department of Social Services, despite their undoubtedly good intentions in this case, may not substitute themselves for Respondent’s muse and order her art sold against her wishes. While personal and artistic rights are not absolute, they may not be lightly trumped in this fashion. On this record and perhaps only for the time being, Respondent must be left alone with her art because the law’s evidentiary and procedural barriers have not been overcome.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the proceeding dismissed.

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

Order reversed, etc.