author: Simons, J.

text:
    Sylvia Rosenberg, Individually and as Administratrix of the Estate of Sidney Rosenberg, Deceased, Respondent, v Equitable Life Assurance Society of the United States, Appellant.
    Argued May 5, 1992;
    decided June 11, 1992

      POINTS OF COUNSEL

      Margretta J. Bowen and Norman L. Tolle for appellant.
    I. The application of the "inherently dangerous” exception to this case is an unwarranted extension of existing law. (Matter of Villa Maria Inst., 54 NY2d 691; Matter of Morton, 284 NY 167; Matter of Beach v Velzy, 238 NY 100; Whitaker v Norman, 75 NY2d 779; McDonald v Shell Oil Co., 20 NY2d 160; Hatpin v Prudential Ins. Co., 48 NY2d 906; Mrachek v Sunshine Biscuit, 308 NY 116; Schneider v New York Tel. Co., 249 App Div 400, 276 NY 655.) II. The trial court’s erroneous charge that the jury should consider whether Equitable had a duty to warn Rosenberg of the risk in having a stress EKG is in conflict with existing case law and statute. (Zeleznik v Jewish Chronic Disease Hosp., 47 AD2d 199; Darrah v Kite, 32 AD2d 208; Fogal v Genesee Hosp., 41 AD2d 468; Brandon v Karp, 112 AD2d 490; Hill v Seward, 122 Misc 2d 375.) III. The judgment is excessive as a matter of law where the jury verdict includes an inflation factor for the period from the date of death to the date of trial and interest is also awarded from the date of death to the date of trial. (Schmertz v Presbyterian Hosp., 79 NY2d 26.) IV. The issues on appeal were preserved for review. (Meagher v Long Is. R. R. Co., 27 NY2d 39; Arbegast v Board of Educ., 65 NY2d 161; Zito v New York State Elec. & Gas Corp., 122 AD2d 499; Freidus v Eisenberg, 71 NY2d 981; Up-Front Indus, v U. S. Indus., 63 NY2d 1004.)

      Henry Grubel and Susan R. Nudelman for respondent.
    I. The court below did not err in affirming that Equitable was liable for its own negligence in proximately causing the wrongful death of Sidney Rosenberg. (Besner v Central Trust Co., 230 NY 357; Nelson v Times Sq. Stores Corp., 110 AD2d 691, 67 NY2d 645; Rohlfs v Weil, 271 NY 444; Lynch v Bay Ridge Obstetrical & Gynecological Assocs., 72 NY2d 632; Dediarian v Felix Contr. Corp., 51 NY2d 308; Broderick v Cauldwell-Wingate Co., 301 NY 182; Ketcham v Newman, 141 NY 205; Hanley v Central Sav. Bank, 255 App Div 542, 280 NY 734; Matter of Morton, 284 NY 167; Matter of Beach v Velzy, 238 NY 100.) II. The trial court’s charge that the jury should consider whether Equitable had a common-law duty to warn the decedent of the risks in having an exercise EKG applied established case law to the evidence adduced at trial and does not conflict with any statutes, including Public Health Law § 2805-d. (Schloendorff v Society of N. Y. Hosp., 211 NY 125; Fiorentino v Wenger, 19 NY2d 407.) III. The jury verdict of $400,000 for pecuniary loss plus interest is not excessive, is based on sufficient evidence and was formulated in accordance with New York State law. (Milbrandt v Green Refractories Co., 79 NY2d 26; Gambardelli v Allstate Overhead Garage Doors, 150 Misc 2d 395; Moore v Leaseway Transp. Corp., 49 NY2d 720; Swensson v New York, Albany Desp. Co., 309 NY 497; Commercial Cas. Ins. Co. v Roman, 269 NY 451; McDonald v Metropolitan St. Ry. Co., 167 NY 66; Herring v Hayes, 135 AD2d 684; Parilis v Feinstein, 49 NY2d 984; Flores v Bliss, 18 AD2d 1058, 14 NY2d 708; Lyman v Village of Potsdam, 204 App Div 528.) IV. The issues that defendant is appealing are beyond the scope of this Court’s subject matter jurisdiction because they were not timely and properly preserved at trial and because they involve nonreviewable issues of fact and affirmed findings of fact. (Horton v Smith, 51 NY2d 798; People v Ross, 21 NY2d 258; Stern v Waldbaum, Inc., 109 AD2d 789; Ryan v Samarco, 30 AD2d 767; Merrill v Albany Med. Center Hosp., 71 NY2d 990; Barry v Manglass, 55 NY2d 803; De Long v County of Erie, 60 NY2d 296; Meagher v Long Is. R. R. Co., 27 NY2d 39; Arbegast v Board of Educ., 65 NY2d 161; Harris v Armstrong, 64 NY2d 700.) V. Equitable’s chief medical director testified that it was a departure from standard insurance company practice and procedure to have a company medical examiner perform an exercise EKG on a prospective insured who the company knew had had a prior heart attack.

      Brian J. Shoot and Gary S. Ehrlich for The New York State Trial Lawyers’ Association, amicus curiae.

    I. This Court’s decision in Milbrandt did not require that damages be discounted to date of death and did not preclude jury consideration of the impact of inflation upon the decedent’s probable earnings. (Milbrandt v Green Refractories Co., 79 NY2d 26; Woodling v Garrett Corp., 813 F2d 543; Shu-Tao Lin v McDonnell Douglas Corp., 742 F2d 45; Hudson v Manhattan & Bronx Surface Tr. Operating Auth., 150 Misc 2d 283; Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523; Doca v Marina Mercante Nicaraguense, 634 F2d 30; DeChico v Metro-North Commuter R. R., 758 F2d 856; Culver v Slater Boat Co., 688 F2d 280; Dennis v Dachs, 85 AD2d 223; Spadaccini v Dolan, 63 AD2d 110.) II. The so-called Woodling rule adopted in Milbrandt is contrary to the settled construction of the wrongful death statute, patently inequitable to wrongful death plaintiffs, inconsistent with the new statutes governing damages and manifestly impractical to implement. (Woodling v Garrett Corp., 813 F2d 543; St. Louis Southwestern Ry. Co. v Dickerson, 470 US 409; Chesapeake & Ohio Ry. v Kelly, 241 US 485; Gonzalez v New York City Hous. Auth., 77 NY2d 663; Kilberg v Northeast Airlines, 9 NY2d 34; Matter of Meng, 188 App Div 69, 227 NY 264; Morrison v Long Is. R. R. Co., 3 App Div 205; Hinsdale v New York, New Haven & Hartford R. R. Co., 81 App Div 617; Mix v Hamburg-American S. S. Co., 85 App Div 475; Fajardo v New York Cent. & Hudson Riv. R. R. Co., 84 App Div 354.)
   OPINION OF THE COURT

Simons, J.

Plaintiff is the widow of Sidney Rosenberg and the administratrix of his estate. She seeks damages from defendant for her husband’s wrongful death from cardiac failure resulting, as the jury found, from a stress electrocardiogram administered during a physical examination ordered by defendant as a precondition to his obtaining life insurance. The examination was performed by Dr. R. Arora, a private physician, who maintained offices in New Jersey and was paid by defendant on a case-by-case basis. He is not a party to this action.

The plaintiff advances two theories for recovery. First, she contends that defendant is vicariously liable for the negligence of Dr. Arora, although he was an independent contractor, because the examination as administered was "inherently dangerous.” Second, plaintiff asserts that defendant is liable for its own negligence in ordering the stress exam and in failing to obtain decedent’s informed consent to it. The jury agreed with plaintiff on both grounds, awarding her a substantial verdict, and the Appellate Division affirmed. We conclude that defendant is not legally responsible to plaintiff on either ground and, therefore, reverse the judgment and dismiss the complaint.

When he applied to defendant for life insurance, decedent was 51 years of age, a diabetic, and had an eight-year history of heart disease. At the age of 44, he had suffered a heart attack. Because of decedent’s medical history, defendant required an independent evaluation of his condition before issuing the policy and referred decedent to Dr. Arora, a physician of the company’s choosing, for examination.

At the trial plaintiff produced evidence that Dr. Arora was informed by one of defendant’s insurance agents that an EKG before and after exercise (known as a stress EKG or an exercise EKG), would be required to complete decedent’s application for insurance. She also placed on the record a form letter sent by defendant to examining physicians, apparently as a regular practice, requesting stress EKG’s and explaining the type of stress test the company desired. Plaintiff’s expert testified at trial that for a person such as decedent, who had suffered a prior heart attack, a stress EKG was potentially dangerous and "contraindicated.” Although there was no direct evidence that Dr. Arora performed the test, decedent’s wife testified that when decedent came out of the doctor’s office after completing the examination, he was pale, perspiring and did not appear well. One month later, decedent suffered a fatal heart attack while talking on his home telephone.

On this evidence the jury found that decedent underwent a stress EKG during his examination by Dr. Arora and that it was the proximate cause of his death.

The general rule is that an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts (Gravelle v Norman, 75 NY2d 779, 782; McDonald v Shell Oil Co., 20 NY2d 160, 166; Besner v Central Trust Co., 230 NY 357, 362). There are exceptions, however. For reasons of public policy, the employer’s duty is sometimes held to be nondelegable and, though blameless, it is liable for the independent contractor’s negligence. The exceptions generally recognized involve situations where the employer (1) is under a statutory duty to perform or control the work, (2) has assumed a specific duty by contract, (3) is under a duty to keep premises safe, or (4) has assigned work to an independent contractor which the employer knows or has reason to know involves special dangers inherent in the work or dangers which should have been anticipated by the employer (see, May v 11 1/2 E. 49th St. Co., 269 App Div 180, 182, affd 296 NY 599; see also, Restatement [Second] of Torts §§ 416-429 [1965]; 1 Lee and Lindahl, Modern Tort Law — Liability and Litigation § 8.02, at 221 [rev ed]).

In such instances, the employer cannot insulate itself from liability by claiming that it was not negligent: the employer is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated (see, Schwartz v Merola Bros. Constr. Corp., 290 NY 145, 152; Besner v Central Trust Co., 230 NY 357, 362-363, supra; Hermance v Daddy-O’s Rest. Corp., 159 AD2d 924, 924-925; see also, 1 Speiser, Krause and Gans, The American Law of Torts § 4:32 [1983]; 1 Lee and Lindahl, Modern Tort Law — Liability and Litigation § 8.02 [rev ed]). We are concerned in this case with the fourth exception involving "inherently dangerous” work.

The trial court instructed the jury that Dr. Arora was an independent contractor and that, generally, an employer is not liable for the acts of an independent contractor. It also told the jury of the exception to that general rule fixing liability on the employer "when danger to others is inherent in the acts.” The jury was instructed that if it found that defendant should have anticipated the consequences of the negligent acts performed by Dr. Arora, then it could consider defendant responsible for those acts. Although these instructions accurately reflect the rules of vicarious liability when inherently dangerous work is delegated to an independent contractor, we conclude the issue should not have been submitted to the jury in this case but should have been decided as a question of law.

The nature of those acts qualifying as "inherently dangerous” has been stated in a number of ways, not always with perfect consistency. The Restatement explains the rule and the acts within it as follows:

"One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in of normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.” (Restatement [Second] of Torts § 427; see also, McDonald v Shell Oil Co., 20 NY2d 160, 166, supra; Rohlfs v Weil, 271 NY 444, 448.)

Thus, before the exception applies, it must appear not only that the work involves a risk of harm inherent in the nature of the work itself, but also that the employer recognizes, or should recognize, that risk in advance of the contract (see, Restatement [Second] of Torts § 427, comments a, b). Prosser and Keeton illustrate the exception with two illustrations. First, they consider the employment of a trucker to haul goods. If the trucker drives at excessive speed, he presents a danger to others, but the danger is not one that is inherent in the nature of the contract work and there is no vicarious liability on the part of the employer for the trucker’s negligence. If an owner hires an independent contractor to excavate an area next to a thoroughfare, however, the work obviously presents inherent dangers to those who must use the thoroughfare. The employer of the independent contractor retained for such work cannot avoid vicarious liability for the contractor’s negligence because the work was performed by another (see generally, Prosser and Keeton, Torts § 71, at 514-515 [5th ed 1984]). The exception has been applied similarly in a variety of circumstances (see, e.g., Wright v Tudor City Twelfth Unit, 276 NY 303 [employer liable where danger to pedestrians inherent in work involving placing mats on sidewalk and cleaning them with soap and water]; Rohlfs v Weil, 271 NY 444, supra [work of independent contractor performing work on scaffolding on outside of building inherently dangerous when warning signs are not placed on sidewalk below]; Besner v Central Trust Co., 230 NY 357, supra [employer liable for negligence of contractor’s employee because it was inherently dangerous to request independent contractor to install fireproof doors to elevator shaft while elevator was still being used by tenants]; State of New York v Schenectady Chems., 103 AD2d 33, 38 [disposal of hazardous waste may be considered as inherently dangerous]). Whether the work is inherently dangerous is normally a question of fact to be determined by the jury (see, Wright v Tudor City Twelfth Unit, 276 NY 303, 307, supra; see also, 1 NY PJI2d 579).

The Appellate Division affirmed the jury’s determination here, concluding that the inherently dangerous exception applied "in light of evidence that the doctor was mandated to follow defendant’s strict protocol” (169 AD2d 533, 534). Although the record supports the finding that defendant requested Dr. Arora to perform the test, defendant could not have "mandated” him to do so because Dr. Arora had not assumed any contractual obligation to do as it bid. In the form letter which was presumably sent to the doctor, it was stated that a stress EKG was required to complete decedent’s application for life insurance. However, the letter also stated: "If you cannot complete the test according to our protocol, please return this letter immediately to enable us to make alternate arrangements.” More to the point, however, the issue here is not the degree of control exercised over Dr. Arora but whether the act involved was inherently dangerous.

Generally speaking, performing an EKG is not an inherently dangerous activity and plaintiff’s evidence that certain dangers accompanied performance of a stress EKG under the circumstances presented was not sufficient to take the case to the jury. Although the stress EKG was ordered for a person with serious heart problems, performance of it, as a matter of law, did not constitute an inherently dangerous activity because defendant’s independent contractor was a medical professional under no duty to perform the examination in a manner contrary to his legal and professional responsibilities. That being so, there were no apparent risks involved in defendant requesting him to do so.

Stated another way, the inherently dangerous exception cannot be applied unless a risk inherent in the nature of the procedures is apparent or contemplated by the employer. Dr. Arora, in addition to his professional responsibility embodied in the Hippocratic Oath "to do no harm”, had a legal duty common to both New York and New Jersey authority to disclose to his patients inherent risks to them and to perform dangerous procedures only with the patient’s consent (see, New York Public Health Law § 2805-d; Largey v Rothman, 110 NJ 204, 540 A2d 504 [physician has a duty to disclose to patient information as will enable patient to make an evaluation of the nature of the treatment and of any attendant substantial risks]; see also, NJ Stat Annot § 26:2H-12.8 [right of hospital patient to receive from physician information necessary to give informed consent]). Defendant could not reasonably anticipate that Dr. Arora would disregard these responsibilities and administer a stress EKG to decedent if decedent’s condition foreclosed doing so safely and it could reasonably expect that the potential risks posed by a stress EKG would be explained to decedent and that he would either give his informed consent or decline to undergo the test. Under the circumstances, the inherent danger exception does not apply and the employer could not be answerable for the negligence of the independent contractor.

It is also worth emphasizing that these exceptions imposing vicarious liability on an employer are grounded on public policy and should have no role when public policy is not served by applying them. In this case, plaintiffs seek to hold defendant liable for requiring Dr. Arora to conduct a stress EKG. However, no medical doctor can be required to render services which, in the doctor’s professional judgment, are dangerous or contraindicated and public policy is not served by imposing liability for the doctor’s fault in doing so on the insurer. High risk life insurance is an integral part of personal and commercial financial planning. When applicants seek such coverage, insurers must be free, before issuing a policy, to test them in a manner calculated to evaluate the risk presented. In the process, they necessarily rely on members of the medical profession, not only to provide the information required but, also, to perform their duty by refusing to conduct dangerous tests unless the patient is fully apprised of the risks and consents to their administration.

Finally, defendant had no common-law duty to explain the risks of the medical exam to decedent and obtain his consent before referring him to Dr. Arora. Decedent was aware of the reasons a physical exam was required by defendant, and properly should have relied on Dr. Arora to explain to him any potential health risks before exposing himself to them.

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

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

Order reversed, etc.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Joel Steinberg, Also Known as Joel Barnet Steinberg, Appellant.
    Argued April 29, 1992;
    decided June 11, 1992

      POINTS OF COUNSEL

      Perry S. Reich, Steven M. Schapiro and Mel Sirkin for appellant.
    I. Defendant could not be convicted of intentional homicide by omission to obtain medical attention: the applicable mens rea in this instance is recklessness or negligence. (People v Cobos, 57 NY2d 798; People v Jennings, 69 NY2d 103; People v Malagon, 50 NY2d 954; People v Bell, 48 NY2d 913; People v Tucker, 55 NY2d 1; People v Sullivan, 173 NY 122; United States v Runnels, 833 F2d 1183, 842 F2d 909, 877 F2d 481; People v Zackowitz, 254 NY 192; People v Caruso, 246 NY 437; People v Roe, 74 NY2d 20.) II. The trial court’s refusal to answer the jury’s question concerning the drawing of an inference of intent and refusal to permit the jury to consider lesser counts until they unanimously voted to acquit defendant of the higher count was erroneous and violated defendant’s State and Federal constitutional rights. (People v Patterson, 39 NY2d 288, 432 US 197; People v Almodovar, 62 NY2d 126; People v Lourido, 70 NY2d 428; People v Malloy, 55 NY2d 296, 459 US 847; People v Gonzalez, 293 NY 259; People v Mezzacapo, 105 AD2d 808; People v Flynn, 290 NY 220; People v Gezzo, 307 NY 385; People v Miller, 6 NY2d 152; People v Lupo, 305 NY 448.) III. Diminished capacity is a recognized defense. (People v Jennings, 69 NY2d 103; People v Segal, 54 NY2d 58; People v Moran, 249 NY 179; People v Colavecchio, 11 AD2d 161; People v Westergard, 113 AD2d 640, 69 NY2d 642; Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505; Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190.) IV. Defendant was deprived of a fair trial in violation of his State and Federal constitutional rights by the gross misconduct of the prosecution. (People v Bailey, 58 NY2d 272; People v Wood, 66 NY2d 374; People v Balls, 69 NY2d 641; People v Bagarozy, 132 AD2d 225; People v Jorge, 171 AD2d 498; People v Taylor, 162 AD2d 175; People v Morales, 147 AD2d 381; People v Lewis, 140 AD2d 714, 72 NY2d 920; People v Canty, 31 AD2d 976; People v Fields, 27 AD2d 736.) V. The trial court’s evidentiary rulings violated defendant’s State and Federal constitutional rights. (People v Stevens, 76 NY2d 833; People v Pobliner, 32 NY2d 356, 416 US 905; People v Blake, 139 AD2d 110; People v Mercado, 120 AD2d 619; People v Harris, 150 AD2d 723; Bram v United States, 168 US 532; People v Messina, 278 App Div 592; People v Vidal, 155 AD2d 307; People v Alvino, 71 NY2d 233; People v Correal, 160 AD2d 85.) VI. Defendant was deprived of his State and Federal constitutional rights by the jury foreman’s use of an outside source during deliberations and apparent premature jury deliberations. (Parker v Gladden, 385 US 363; People v Brown, 48 NY2d 388; People v Marrero, 83 AD2d 565; People v Ciaccio, 47 NY2d 431; Remmer v United States, 347 US 227, 350 US 377; United States v Moten, 582 F2d 654, 620 F2d 13; People v Rukaj, 123 AD2d 277; People v Lavender, 117 AD2d 253, 68 NY2d 995; United States v Beach, 296 F2d 153; People v Gordon, 77 AD2d 662.) VII. Defendant was deprived of his State and Federal constitutional rights to a fair trial by the trial court’s ex parte interview with the media and its failure to take proper steps to shield him from the adverse effects of massive publicity. (Gardner v Florida, 430 US 349; Williams v New York, 337 US 241; Matter of National Broadcasting Co. v Cooperman, 116 AD2d 287; Sheppard v Maxwell, 384 US 333; Chandler v Florida, 449 US 560; Estes v Texas, 381 US 532; Matter of People v Solomon, 138 Misc 2d 587; Matier of Ladone v Lerner, 135 AD2d 535; People v Brensic, 136 AD2d 169; Matter of Poughkeepsie Newspapers v Rosenblatt, 92 AD2d 232.)

      Robert M. Morgenthau, District Attorney (Mark Dwyer, Patricia Curran, Alan Gadlin, Paula Milazzo and Donald J. Siewert of counsel), for respondent.
    I. Defendant’s guilt of manslaughter in the first degree was proven beyond a reasonable doubt. (People v Logan, 74 NY2d 859; People v Bynum, 70 NY2d 858; People v Stahl, 53 NY2d 1048; People v Dekle, 56 NY2d 835; People v Karabinas, 63 NY2d 871, 470 US 1087; People v Jennings, 69 NY2d 103; Matter of Eichner [Fox] 73 AD2d 431, mod on other grounds sub nom. Matter of Eichner v Dillon, 52 NY2d 363, cert denied sub nom. Storar v Storar, 454 US 858; Matter of Hofbauer, 47 NY2d 648; People v Pierson, 176 NY 201; People v Henson, 33 NY2d 63.) II. The Trial Justice responded correctly to the jury’s request for supplemental instructions on intent. Moreover, the Judge properly instructed the jury not to consider the count of manslaughter in the second degree until they had acquitted defendant of manslaughter in the . first degree. (People v Getch, 50 NY2d 456; People v Gonzalez, 293 NY 259; People v Jackson, 76 NY2d 908; People v Malloy, 55 NY2d 296, 459 US 847; People v Cooke, 292 NY 185; People v Flynn, 290 NY 220; People v Boettcher, 69 NY2d 174; People v Karabinas, 63 NY2d 871, 470 US 1087; People v Hoke, 62 NY2d 1022; People v Chin, 67 NY2d 22.) III. The trial court correctly determined that diminished capacity is not recognized as an independent defense in New York, and did not preclude defendant from making proper arguments in summation that bore on his criminal intent. (People v Segal, 54 NY2d 58; People v Moran, 249 NY 179; People v Colavecchio, 11 AD2d 161; People v Westergard, 113 AD2d 640, 69 NY2d 642.) IV. The prosecutors’ conduct was fair and proper. (People v Balls, 69 NY2d 641; People v Galloway, 54 NY2d 396; People v Bagarozy, 132 AD2d 225; People v Fields, 27 AD2d 736; People v Jorge, 171 AD2d 498; People v Tutt, 38 NY2d 1011; People v Fleming, 70 NY2d 947; People v Lovello, 1 NY2d 436; People v Rosario, 9 NY2d 286, 368 US 866; People v Simonds, 73 NY2d 945.) V. The trial court’s evidentiary rulings were entirely proper. (People v Ventimiglia, 52 NY2d 350; People v Gines, 36 NY2d 932; People v Berrios, 71 NY2d 905; People v Hudy, 73 NY2d 40; People v Alvino, 71 NY2d 233; People v Carter, 77 NY2d 95; People v Brown, 160 AD2d 440, 78 NY2d 874; People v Montanez, 41 NY2d 53; People v Green, 35 NY2d 437.) VI. The jury foreman’s conduct was entirely proper. (People v Brown, 48 NY2d 388; People v De Lucia, 20 NY2d 275; People v Sprague, 217 NY 373; Stein v New York, 346 US 156; McDonald v Pless, 238 US 264; People v Hentley, 155 AD2d 392; People v Morales, 121 AD2d 240, 68 NY2d 766; People v Crimmins, 26 NY2d 319; People v Redd, 164 AD2d 34.) VII. The Trial Justice conducted defendant’s trial in a fair and impartial manner. (Matter of New York Times Co. v Rothwax, 143 AD2d 592; People v Moore 42 NY2d 421, 434 US 987; Sheppard v Maxwell, 384 US 333; Matter of Oliver v Postel, 37 AD2d 498, 30 NY2d 171; Nebraska Press Assn. v Stuart, 427 US 539; People v Boudin, 90 AD2d 253; People v Harris, 84 AD2d 63, 57 NY2d 335; Murphy v Florida, 421 US 794; People v DiPiazza, 24 NY2d 342; Stephens v People, 19 NY 549.).
   OPINION OF THE COURT

Kaye, J.

Defendant’s appeal from a conviction of first degree manslaughter, involving the death of six-year-old Lisa Steinberg, centers on his contention that only a person with medical expertise can form the requisite intent to cause serious physical injury to a child by failing to obtain medical care. We conclude that this contention, as well as the several others defendant advances, lack merit, and that the Appellate Division order sustaining the conviction should be affirmed.

I.

In the evening of November 1, 1987, defendant and Hedda Nussbaum were at home in their one-bedroom Greenwich Village apartment, with their two "adopted” children, Lisa, then six years old, and Mitchell, 16 months old. Nussbaum was in the kitchen with Lisa while defendant dressed in the bedroom for his dinner appointment with a friend. Lisa went into the bedroom to ask defendant to take her with him. Moments later, defendant carried Lisa’s limp body out to Nussbaum, who was then in the bathroom, and they laid the child on the bathroom floor. Lisa was unconscious, having experienced blunt head trauma of great force, and her breathing was raspy. According to Nussbaum, defendant later admitted that he had "knocked [Lisa] down and she didn’t want to get up again.”

While Nussbaum attempted to revive Lisa, defendant continued dressing. Defendant told Nussbaum to let her sleep, promised to awaken the child upon his return, and then left for dinner. Nussbaum did not seek medical care for Lisa because she believed defendant had supernatural healing powers, and felt that calling for assistance would be considered a sign of disloyalty.

Defendant returned about three hours later, at 10:00 p.m., retrieved a file relating to his oil well investments, and left again. When he came back a few minutes later, Nussbaum urged him to revive the still-unconscious child. Defendant declined — explaining that they "ha[d] to be relating when she wakes up” — and he instead freebased cocaine for the next several hours. Finally, at 4:00 a.m., after Nussbaum’s repeated urgings, defendant carried Lisa from the bathroom floor to the bedroom, where her breathing seemed to sound better. Defendant rested his arm on Lisa, and continued talking to Nussbaum.

At 6:00 a.m., when Nussbaum left the room, defendant called out that Lisa had stopped breathing. Defendant initially rejected Nussbaum’s offer to call 911, but finally acceded when his attempts to resuscitate the child failed. Police and paramedics arrived shortly after being summoned, administered oxygen, and rushed Lisa to the hospital.

At the hospital, defendant explained that Lisa had gone to bed complaining of a stomach ache, and had vomited during the night, but that he believed she was otherwise all right until he checked on her around 6:00 a.m. and discovered that her breathing was coarse. In fact, the doctors determined that Lisa, who was in a coma, was suffering from severe head injuries — a result of blunt trauma — and placed her on life support equipment. Lisa’s condition did not improve, and neurological tests performed on November 3 indicated that she was brain dead. Life support was discontinued on November 5.

Defendant was indicted for second degree (depraved indifference) murder, first degree manslaughter, and seven charges that were severed or dismissed. Defendant was acquitted of murder but convicted of manslaughter, and the Appellate Division affirmed the conviction. We find no error and accordingly also affirm.

II.

First degree manslaughter requires proof that defendant, with intent to cause serious physical injury, caused death (Penal Law § 125.20 [1]). The People’s theory, as charged to the jury, was that defendant performed both acts of commission (striking Lisa) and acts of omission (failure to obtain medical care), each with intent to cause serious physical injury, and that such acts caused Lisa’s death. Defendant contends that failure to obtain medical care for a child cannot, as a matter of law, support the mens rea element of first degree manslaughter — intent to cause serious physical injury —unless defendant has medical expertise, and would thereby know that serious injury will result from a lack of medical attention. That contention — which he characterizes as the core question on this appeal — is meritless.

The Penal Law provides that criminal liability may be based on an omission (see, Penal Law § 15.05), which is defined as the failure to perform a legally imposed duty (Penal Law § 15.00 [3]). Parents have a nondelegable affirmative duty to provide their children with adequate medical care (Matter of Hofbauer, 47 NY2d 648, 654-655; Family Ct Act § 1012 [f] [i] [A]). Thus, a parent’s failure to fulfill that duty can form the basis of a homicide charge (see, People v Flayhart, 72 NY2d 737; People v Henson, 33 NY2d 63).

Although Flayhart and Henson involved prosecutions for reckless manslaughter and criminally negligent homicide, the failure to obtain medical care can also support a first degree manslaughter charge, so long as there is sufficient proof of the requisite mens rea — intent to cause serious physical injury.

The revised Penal Law, in accord with the modern trend (see, 1 LaFave and Scott, Substantive Criminal Law § 3.5 [b], at 305 [1986]), distinguishes between "intent” and "knowledge” (see, Penal Law § 15.05 [1], [2]; People v Kaplan, 76 NY2d 140). A person acts intentionally when there is a "conscious objective” to cause the result proscribed by statute (Penal Law § 15.05 [1]; People v Gallagher, 69 NY2d 525, 529). By contrast, a person acts knowingly when there is an awareness that a particular element of a crime is satisfied (see, Penal Law § 15.05 [2]; People v Kaplan, 76 NY2d, at 144, n 3, supra). Thus, if intent is the governing mens rea (as it is here), the focus is on the defendant’s conscious aim or purpose — the objective — in doing particular acts. Defendant’s knowledge or awareness that the result will occur — while a factor the jury may take into consideration to infer intent — is itself not a prerequisite of intent.

Contrary to defendant’s claim, even a person without specialized medical knowledge can have the intent to cause serious physical injury by withholding medical care. If the objective is to cause serious physical injury, the mental culpability element of first degree manslaughter is satisfied— whether or not defendant had knowledge that the omission would in fact cause serious injury or death.

Defendant argues that "everyone” knows that failure to supply food to a child will lead to death, and thus intentional homicide is a proper charge under those circumstances (see, e.g., Zessman v State, 94 Nev 28, 573 P2d 1174; Harrington v State, 547 SW2d 616 [Tex Grim App]), but that the need for medical care is often a matter of opinion, and a layperson could not be expected to know the gravity of the situation. The distinction defendant would have us draw, as a matter of law, between defendants who have a medical background and those who do not, is unsupportable.

Putting aside defendant’s attempt to import a knowledge requirement into a statute that has none, and putting aside that the mens rea for first degree manslaughter is intent to cause serious physical injury, not death — it is plain that defendant’s argument centers on factual, not legal, distinctions. Certainly there are situations where the need for prompt medical attention would be obvious to anyone — a child bleeding profusely, for example, or a six-year-old girl laying unconscious after a blunt head trauma. Thus, defendant’s argument that the failure to obtain medical care for a child may not, as a matter of law, support a homicide charge that requires intent must be rejected.

III.

Having found no defect in the prosecution’s legal theory, we next consider whether the evidence is legally sufficient to sustain the conviction. In undertaking this review, the evidence must be viewed in a light most favorable to the People (Pe ople v Contes, 60 NY2d 620, 621) to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt (People v Bleakley, 69 NY2d 490, 495). There is no need to replicate the Appellate Division’s extensive analysis of the record supporting its conclusion that the evidence was legally sufficient (170 AD2d 50, 65-70). It is adequate for our purposes to highlight the aspects of the case that demonstrate legal sufficiency.

There was no dispute at trial that Lisa’s death was a homicide. Even the defense expert agreed that the child’s death was caused by brain trauma as a result of abuse. The medical testimony, including Lisa’s treating physicians and the postmortem examination, confirmed beyond a reasonable doubt that Lisa’s death was a consequence of an assault and a failure to obtain prompt medical attention.

The evidence was also legally sufficient to support the jury’s determination that the assault was administered by defendant — and not Nussbaum, as the defense had argued. Nussbaum herself testified that she did not strike Lisa that night; that moments after Lisa went into the bedroom, defendant carried her unconscious body out; and that defendant admitted to knocking Lisa down. There was also evidence that defendant had physically abused Lisa several days before her death, and that defendant’s knuckles had fresh bruises on November 2. Moreover, there was evidence of Nussbaum’s debilitated physical condition on November 1 from which a jury could infer that she did not deliver the fatal injury. Thus, based on the evidence, a rational jury could have concluded, beyond a reasonable doubt, that it was defendant who caused the head trauma that led to Lisa’s death.

The evidence was also sufficient to support the jury’s determination that defendant struck Lisa and thereafter failed to summon medical assistance, each with the intent to cause serious physical injury. Intent may be inferred from conduct as well as the surrounding circumstances (see, People v Smith, 79 NY2d 309, 315; People v Bracey, 41 NY2d 296, 301). The expert testimony described the tremendous force necessary to inflict the head trauma that caused Lisa’s death. Moreover, after Lisa was rendered unconscious, defendant left for dinner, and when he returned three hours later, freebased cocaine while the child lay on the bathroom floor. Additionally, when defendant admitted to Nussbaum during the night that he knocked Lisa down, he explained that "the staring business had gotten to be too much for her.” This is relevant because there was evidence that defendant was convinced that the children were staring at him to induce hypnotic trances. Thus, the jury could have inferred from the evidence that defendant’s objective in assaulting Lisa and failing to summon medical assistance was to cause serious physical injury, perhaps in response to Lisa’s purported staring. That defendant acceded to Nussbaum’s request to telephone 911 when Lisa stopped breathing might demonstrate that defendant did not intend to cause the child’s death, but does not militate against the jury finding that he intended to cause serious injury.

In sum, the evidence was sufficient to establish the elements of first degree manslaughter.

Similarly, there is no merit in defendant’s claim that Nussbaum’s testimony was insufficiently corroborated. Although many States, and the Federal courts, permit a conviction to rest solely on the uncorroborated testimony of an accomplice (see, People v Moses, 63 NY2d 299, 310-311 [Jasen, J., dissenting]), our Legislature requires that accomplice testimony be corroborated by evidence "tending to connect the defendant with the commission” of the crime (CPL 60.22 [1]). The corroboration must be independent of, and may not draw its weight and probative value from, the accomplice’s testimony (People v Moses, 63 NY2d, at 306, supra; People v Hudson, 51 NY2d 233, 238). The corroborative evidence need only "tendQ to connect” the defendant to the crime; it need not establish all the elements of the offense (CPL 60.22 [1]; People v Hudson, 51 NY2d, at 238, supra; People v Cunningham, 48 NY2d 938, 940). Seemingly insignificant matters may harmonize with the accomplice’s narrative so as to provide the necessary corroboration (People v Bretti, 68 NY2d 929, 930; People v Moses, 63 NY2d, at 306, supra; People v Cunningham, 48 NY2d, at 940, supra). So long as the statutory minimum is met, it is for the jury to decide whether the corroboration satisfies them that the accomplice is telling the truth (see, People v Glasper, 52 NY2d 970, 971; People v Fiore, 12 NY2d 188, 201-202).

The Trial Judge enumerated specific items of independent, corroborative evidence for the jury’s consideration: (i) defendant’s presence at the apartment at 6:30 a.m. on November 2, as confirmed by police and paramedics; (ii) defendant’s own statements that placed him in the apartment during the hours prior to the 911 call, and indicated that he and Nussbaum were the only adults in the apartment; (iii) the medical testimony indicated that the injuries to Lisa were inflicted by a man of defendant’s stature, and that Nussbaum was so debilitated that she was physically incapable of inflicting the injuries; (iv) hairs, forcibly removed from Lisa’s head, were found on defendant’s clothing; and (v) defendant had fresh bruises on his hand.

This evidence, if credited by the jury — as was their prerogative — was sufficient to meet the "tending to connect” standard of CPL 60.22 (1). Thus, we reject defendant’s assertions that there was insufficient corroboration as a matter of law.

IV.

The final issue that warrants discussion concerns defendant’s claim that the trial court erred in its response to a jury note. As one of its numerous requests during deliberations, the jury asked for the following "clarification”: "If there was no apparent intention to cause injury, but the acts resulted in serious physical injury nonetheless, would that be grounds to conclude intent as spelled out by law?” Defense counsel suggested that the court simply respond in the negative, but the trial court, to alleviate possible juror confusion, instead chose to give a more expansive supplemental charge.

The trial court is generally in the best position to evaluate the jury’s request, and therefore is vested with discretion in framing an appropriate response (People v Malloy, 55 NY2d 296, 302, cert denied 459 US 847). In all instances, the court must "respond meaningfully” to an inquiry (People v Almodovar, 62 NY2d 126, 131). A meaningful response may, depending on the circumstances, include simply rereading the initial charge (see, People v Malloy, 55 NY2d, at 302, supra). The adequacy of the trial court’s response is gauged by the form of the jury question, the particular issue of which inquiry is made, the supplemental instruction actually given, and the prejudice (if any) to the defendant (People v Almodovar, 62 NY2d, at 131-132, supra, quoting People v Malloy, 55 NY2d, at 302, supra).

Intent can be a difficult issue to grasp, and thus the trial court cannot be faulted for giving a broader response than defendant would have liked. In substance, the trial court explained that the People had the burden of proving, beyond a reasonable doubt, that defendant had a conscious objective to cause serious physical injury; that intent is a mental operation that ordinarily must be inferred by an examination of all the facts and circumstances; and that the jury could infer that a person intended the natural and probable consequences of an act.

Nothing in the court’s supplemental charge was a misstatement of the law, nor did it suggest a positive response to the jury’s question. Indeed, as the Appellate Division noted, while a simple negative response would have informed the jury that it could not automatically infer intent to cause the injuries merely because the injuries occurred, such a response might have obscured the jury’s right to make a factual finding of intent based on the natural and probable consequences of defendant’s acts and the surrounding circumstances. For these reasons, the trial court’s supplemental charge was not erroneous.

Defendant’s remaining contentions, to the extent they are preserved for our review, are without merit.

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

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

Order affirmed.

       "Serious physical injury” is "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” (Penal Law § 10.00 [10].)


author: Bellacosa, J.

text:
    In the Matter of Pearlie Roberts et al., Appellants, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued May 5, 1992;
    decided June 11, 1992

      POINTS OF COUNSEL

      Gloria Ramakus and Arnold S. Cohen for appellants.
    The court below improperly found that respondents have the authority to determine that foster care is no longer temporary absence once children have been in foster care more than 180 days so they may terminate AFDC benefits attributable to such children. (Smith v Organization of Foster Families, 431 US 816; People ex rel. Ninesling v Nassau County Dept. of Social Servs., 46 NY2d 382; Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; Matter of Jewish Child Care Assn. [Sanders], 5 NY2d 222; Matter of Sheila G., 61 NY2d 368; Matter of Bennett v Jeffreys, 40 NY2d 543; Santosky v Kramer, 455 US 745; Murray v Lyng, 667 F Supp 668, 854 F2d 303; Foster v Celani, 683 F Supp 84, 849 F2d 91; Campfield v Perales, 169 AD2d 267.)

      Robert Abrams, Attorney-General (Robert J. Schack and Jerry Boone of counsel), for Cesar Perales, respondent.
    I. Federal and State law do not allow the provision of full benefits under the AFDC program to the original household for children absent more than temporarily in foster care. (Foster v Celani, 849 F2d 91.) II. Inasmuch as the children were in foster care with all of their needs met for over a year without a date for discharge, the decision after fair hearing correctly applied Federal and State law in determining that appellant was therefore not entitled to full benefits for herself and the absent children under the AFDC program. (Matter of Jessica XX, 54 NY2d 417, affd sub nom. Lehr v Robertson, 463 US 248.)
    O. Peter Sherwood, Corporation Counsel (Pamela Seider Dolgow and Leonard Koerner of counsel), for William J.
    Grinker, respondent. Under the pertinent statutes and regulations, both Federal and State,. it is a fact-specific question whether a child’s absence from a relative’s home is "temporary”, for purposes of continuing or reducing public assistance payments attributable to absent children. Thus, the court below properly rejected petitioners’ argument that the City must continue all such payments during a child’s residence in foster care, no matter how long or why the foster care has continued. In this case, substantial evidence supported the State and City factual determination that the children’s absence was longer than six months. Therefore, the court below properly dismissed the petition. (Matter of Curtis H., 112 Misc 2d 460; Matter of Lumpkin v Department of Social Servs., 45 NY2d 351; Ayres v Babcock, 867 F2d 296; Matter of Howard v Wyman, 28 NY2d 434; Matter of Damon A., 61 NY2d 77; Campfield v Perales, 169 AD2d 267; Smith v Organization of Foster Families, 431 US 816; Matter of Wilson v Lavine, 52 AD2d 562; Matter of Portugal v Webb, 91 AD2d 997; Grant v Cuomo, 73 NY2d 820.)
   OPINION OF THE COURT

Bellacosa, J.

The respondents, State and City Commissioners of Social Services, discontinued paying Aid to Families with Dependent Children (AFDC) benefits to petitioner-appellant Roberts for six children who had been removed from her home and placed in foster care. The issue is whether the Commissioners, after paying AFDC benefits and foster care maintenance payments for the same children for 11 months, had the authority to make the factual determination in this case that the children’s absence from the Roberts’ home for 11 months ceased to be a "temporary absence” for purposes of discontinuing AFDC shelter and utilities benefits with respect to the children at that point in time. We hold that the then-applicable statutes and regulations did not prohibit administrative reduction of these benefits and that the determinations are supported by substantial evidence.

Petitioners Roberts, her two minor children and four minor grandchildren resided in a Bronx apartment. They received AFDC, Medicaid and Food Stamp benefits for a family of seven. In June 1987, the children were removed to foster care after the City Social Services Department filed an abuse and neglect petition against Roberts as to all six children. Following a fact-finding hearing 10 months later in April 1988, Family Court made a finding of abuse as to three children and neglect as to all six. The children were continued' in foster care pending final disposition.

Roberts received public assistance benefits for a family of seven people throughout this period until May 6, 1988 — some 11 months after the children had been removed from the household and placed in foster care. On that date, the City Commissioner reduced her benefits proportionate to a household of one person. On August 11, 1988, after Roberts received her requested fair hearing, the respondent State Commissioner approved the City’s reduction of benefits. The stated grounds were that the children had not been residing in Roberts’ household for some time and all their needs during the extended period were being met by the separate foster care maintenance payments.

Earlier in August, Family Court, based on a dispositional hearing, ordered Roberts’ two children returned to her custody immediately; the four grandchildren were to be returned by fixed dates over a five-month period. Full public assistance benefits for each child were directed to be restored upon the return of each child to the AFDC household.

Petitioners commenced this CPLR article 78 proceeding challenging the determination that had reduced the AFDC benefits for a period of several months, and seeking a declaration of entitlement to full AFDC benefits for a household of seven people, retroactive to May 6, 1988. Supreme Court granted their petition and restored their benefits retroactive to the date of reduction on the ground that the children were only "temporarily absent” from the AFDC household and full, uninterrupted benefits were therefore required (144 Misc 2d 912, 913). The Appellate Division unanimously reversed, reinstated the respondents’ reduction determination and dismissed the petition, reasoning that Federal and State law and public policy do not compel indefinite continuation of AFDC benefits while children are out of the AFDC home and in foster care (169 AD2d 274). The Appellate Division rested its decision principally on its reasoning in Campfield v Perales (169 AD2d 267).

Appellants’ central argument is that Social Services officials lack authority to make a factual determination concerning when foster care ceases to be a “temporary absence” within the meaning of the AFDC entitlement regulations, and lack authority to terminate AFDC benefits attributable to children in foster care until there is a dispositional hearing under article 10 of the Family Court Act.

Additionally, appellants argue, and we recognize, that apart from fiscal concerns and management, governmental officials have a correspondingly significant obligation to provide services and resources and must make efforts within their powers to prevent dissolution of families and to reunite families from which children have been removed to foster care (see, Social Services Law § 131 [3]; § 384-b [1] [a]; see also, 42 USC § 671 [a] [15]). Where lack of adequate housing is the primary factor preventing reunification, “preventative services shall include, in addition to any other payments or benefits received by the family, special cash grants in the form of rent subsidies, including rent arrears, or any other assistance, sufficient to obtain adequate housing”. (Social Services Law § 409-a [5] [c].) Appellant contends, and the trial court agreed, that in this case respondents’ action in reducing her seven-person AFDC benefits package conflicts with the respondents’ obligations and undermined and inhibited the reunification of this family. We cannot agree on this record. As the Appellate Division recognized, in these circumstances petitioners have not made an adequate showing that the factual determination in this case based on the then-current policy was insufficient to prevent, or threatened, the breakup of this family (Matter of Roberts v Perales, 169 AD2d 274, 276, supra, quoting Campfield v Perales, 169 AD2d 267, 271, supra).

The Federal AFDC statutes, as they applied at the pertinent time, did not expressly compel States to make indefinite duplicative payments for both AFDC and foster care for the same child (see, 42 USC § 601 et seq.; § 678 [repealed by Pub L 101-508, tit V, § 5052 (b), eff May 1, 1991], recodified as 42 USC § 609; see also, § 672 [a]; Campfield v Perales, 169 AD2d 267, 271, supra; 56 Fed Reg 64195 [Dec. 9, 1991]). Nevertheless, the Federal AFDC regulations provide that a child remains part of the AFDC family home "even though [the child] is temporarily absent” from that home (45 CFR 233.90 [c] [1] [v] [B] [emphasis added]).

Correspondingly, State regulations provide for continued AFDC benefits during a child’s "temporary absence” from an AFDC home (18 NYCRR 369.4 [c] [1]; see also, Social Services Law § 344 [1]). Temporary absence "may include * * * temporary foster care” (18 NYCRR 369.4 [c] [2] [emphasis added]). State and Federal regulations do not go the next step to define "temporary absence” or "temporary foster care”. Nor do they set a temporal limitation for continuation or cessation of AFDC benefits keyed to any "temporary absence”. This is the pivotal focus of the instant case.

Prior to these proceedings, the State Department of Social Services had apparently issued a nonregulatory guideline letter permitting local Social Services districts to make the factual determination when a foster child’s absence from the AFDC home ceased to be "temporary”, and which benefits were to be continued and for what duration (see, Campfield v Perales, 169 AD2d 267, 271, supra; see also, 18 NYCRR 369.4 [c] [1]). Under respondents’ guideline, whether or not foster care is "temporary” is a determination to be reached on the particular facts and circumstances presented; the guideline did not command or presume the outcome. Thus, this is not inconsistent with New York’s implementing regulations which reflect that foster care — for purposes of avoiding continued AFDC benefits for children in foster care — may be prolonged and therefore is not always "temporary”. The rationale flows from the reality and administrative experience that foster care in individual cases may extend for lengthy periods such that AFDC benefits become inappropriate, duplicative and unnecessary because some of the child’s long-term needs are satisfied by the discrete foster care maintenance payments (see, 18 NYCRR 369.4 [c] [2]; Social Services Law § 371 [19]). This approach also appears consistent with the Federal statutory scheme providing for AFDC benefits for children "living * * * in” an AFDC home (42 USC § 606 [a]; §§ 601, 605).

The concept of foster care is, of course, by its nature, temporary in that parents and natural guardians retain rights and responsibilities (see, Smith v Organization of Foster Families, 431 US 816, 823; People ex rel. Ninesling v Nassau County Dept. of Social Servs., 46 NY2d 382; see also, Matter of Sheila G., 61 NY2d 368). That general proposition does not mean, however, that all foster care placements of whatever nature and duration are “temporary absencefs]” for purposes of continued AFDC entitlements (18 NYCRR 369.4 [c]; 45 CFR 233.90).

Importantly, Family Court Act § 1055 (g) is a notification provision and does not limit respondents’ authority to reduce AFDC benefits for children in foster care until only after a dispositional hearing has been held and Family Court has determined whether to return the child to the AFDC home. Nor does it expressly or implicitly forbid respondents’ regime for a case-by-case factual inquiry into whether a child’s predispositional-hearing-foster-care placement is still a “temporary absence” for purposes of determining how long AFDC benefits must be continued on behalf of that child. Moreover, the Family Court Act, while significant as a guide and tool in these complex matters, does not prescribe or fix entitlement to Social Services benefits; rather, AFDC eligibility is determined principally under the Social Services Law (see, Social Services Law § 131-a [1]).

We conclude on this record that the State Commissioner’s determination, after a fair hearing, affirming the City Commissioner’s reduction of Roberts’ AFDC benefits attributable to the six children who had been in foster care for 11 months, during which both AFDC and foster care payments were made, is supported by substantial evidence. It was established at a hearing that the children were removed due to abuse and neglect, and that after 11 months in foster care there was no plan for their return to the AFDC home. No one at the hearing could represent when the children would be returned; there was no discharge date. There was, significantly, no proof that the loss of shelter and utilities benefits threatened the family unit (see, Social Services Law § 409-a [5] [c]). In these circumstances, the benefits were properly brought to a halt. The respective statutory implementation by the agencies charged with administering the AFDC statutes, regulations and policies is not irrational in this case and is entitled to substantial deference where, as here, the implementation does not contravene State legislative or congressional intent (see, Matter of Howard v Wyman, 28 NY2d 434, 438).

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed, without costs.

       We express no opinion as to the effect on future cases of amendments to the relevant statutes and regulations.