text:
    Suzanne Martin, as Executrix of Michael Martin, Deceased, Appellant, v Edwards Laboratories, Division of American Hospital Supply Corporation et al., Respondents, et al., Defendant. Joyce Lindsey et al., Respondents-Appellants, v A. H. Robins Company, Inc., Appellant-Respondent, et al., Defendant.
    Argued October 17 and October 25, 1983;
    decided December 1, 1983

      POINTS OF COUNSEL

      Joseph F. Gervase, Jr., and Joseph R. Connelly for appellant in the first above-entitled action.
    I. The injury occurred and plaintiff-appellant’s cause of action for personal injury based upon negligence and strict products liability accrued, not upon the implantation of an artificial aortic heart valve, but rather upon the subsequent breakdown. (Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Thornton v Roosevelt Hosp., 47 NY2d 780; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 1073, 374 US 808; Matter of Steinhardt v Johns-Mancille Corp., 54 NY2d 1008; Lindsey v Robins Co., 91 AD2d 150; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Murphy v St. Charles Hosp., 35 AD2d 64; Klein v Dow Corning Corp., 661 F2d 998.) II. A reassessment of Thornton and Steinhardt is required. (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Thornton v Roosevelt Hosp., 47 NY2d 780; Matter of Steinhardt v Johns-Mancille Corp., 54 NY2d 1008.)

      Brian M. Zorn for American Hospital Supply Corporation, respondent in the first above-entitled action.
    The personal injury cause of action, based upon alleged negligence and strict products liability, accrued when decedent’s body was invaded by implantation of the allegedly defective prosthetic aortic heart valve, not at a later indeterminate date when its alleged deleterious effects became apparent. (Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Matter of Steinhardt v Johns-Manville Corp., 78 AD2d 577, 54 NY2d 1008, 456 US 967; Thornton v Roosevelt Hosp., 47 NY2d 780; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 374 US 808; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Lindsey v Robins Co., 91 AD2d 150; Klein v Dow Corning Corp., 661 F2d 998.)

      Herman Schmertz for appellant-respondent in the second above-entitled action.
    I. This action is clearly barred by the Statute of Limitations. (Martin v Edwards Labs., 91 AD2d 1172; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008; Thornton v Roosevelt Hosp., 47 NY2d 780; Florio v Cook, 48 NY2d 792; Immediate v St. John’s Queens Hosp., 48 NY2d 671; Merced v New York City Health & Hosps. Corp., 44 NY2d 398; McKnight v New York City Health & Hosps. Corp., 70 AD2d 587; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Piracci Constr. Co. v Skidmore, Owings & Merrill, 490 F Supp 314, 646 F2d 562.) II. The court below’s affirmance of the denial of plaintiffs’ motion to amend their complaint involves discretion of a type which cannot be reviewed by this court. In any event, the order of affirmance was absolutely correct. (Krichmar v Krichmar, 42 NY2d 858; De Pinto v O’Donnell Transp. Co., 293 NY 32; Smith v Sarkisian, 63 AD2d 780; Rutland House Assoc. v Danoff, 37 AD2d 828; Pinchback v City of New York, 51 AD2d 733.)

      Walter T. Reardon for respondents-appellants in the. second above-entitled action.
    I. The court below’s order that the action was timely instituted was correct and should be affirmed. (Thornton v Roosevelt Hosp., 47 NY2d 780; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212; Schmidt v Merchants Desp. Transp. Co., 270 NY 287; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008; Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Ehret v Village of Scarsdale, 269 NY 198; Gile v Sears, Roebuck & Co., 281 App Div 95; Manno v Levi, 94 AD2d 556; Brown v

      Bullock, 17 AD2d 424.) II. The court below was in error in denying leave to serve an amended complaint. (Harriss v Tams, 258 NY 229; Caffaro v Trayna, 35 NY2d 245; Citibank v Suthers, 68 AD2d 790; Deiso v Mobil Oil Corp., 56 AD2d 621; Erbe v Lincoln Rochester Trust Co., 3 NY2d 321; Loomis v Civetta Corinno Constr. Co., 54 NY2d 18.)

      Arthur N. Seiff and Anthony L. Schiavetti for defendant in the second above-entitled action.
   OPINION OF THE COURT

Meyer, J.

The Statute of Limitations for personal injury caused by the malfunctioning of a prosthetic or contraceptive device implanted or inserted into the human body runs from the date of the injury resulting from the malfunction, not necessarily from the date of implantation or insertion. In Martin v Edwards Labs, the order of the Appellate Division should, therefore, be reversed and the order of the Supreme Court on reargument reinstated; in Lindsey v A. H. Robins Co. the order of the Appellate Division should be affirmed.

I

In Martin, an artificial aortic valve was implanted in the plaintiff’s decedent, Michael Martin, on June 7, 1976. The valve was manufactured by defendant Edwards Laboratories from materials supplied by the remaining defendants. Michael Martin died on May 15, 1979. The action was commenced on June 1, 1981.

The complaint asserted causes of action for personal injury and for wrongful death, based on product liability, breach of implied warranty and negligence. The wrongful death causes of action are not involved in this appeal. The personal injury cause of action alleged that Teflon particles originating in the artificial heart valve lodged in the decedent’s brain, causing or contributing to the cerebral infarctions and hemorrhages, which ultimately resulted in his death.

Defendants moved to dismiss the complaint as time barred. Supreme Court granted the motion, but plaintiff moved for reargument, presenting as part of her papers the examination before trial of the pathologist who performed the autopsy on Michael Martin, in which the doctor testified that Teflon material identical to that in the valve had been found in Martin’s brain and that in his opinion the breakdown of the valve and accumulation of Teflon in decedent’s brain began within months of his death. On reconsideration, Supreme Court reinstated the complaint, holding that the personal injury action accrued on the date the valve began to disintegrate. On appeal, the Appellate Division modified the Supreme Court order and dismissed the personal injury cause of action, holding that it accrued on implantation of the valve. The Appellate Division order is final (Ratka v St. Francis Hosp., 44 NY2d 604, 609-610) and is before us as a result of the Appellate Division’s modification on the law.

In Lindsey, a Daikon Shield, manufactured by defendant A. H. Robins Company, Inc., was inserted by defendant Dr. Joel Ullman into the uterus of plaintiff Joyce Lindsey on March 29, 1971. The shield is a plastic circle to which is attached a braided string. The shield serves the continuing function, so long as it remains in the uterus, of preventing conception. The braided string protrudes from the cervix to let the user know that the shield remains in place and for use in removal of the shield.

In March, 1973, Ms. Lindsey developed a pelvic infection, resulting in permanent damage to her ovaries and fallopian tubes and in consequence can no longer bear children.

In October, 1975, she began an action in the Federal court against the doctor and the manufacturer but discontinued it on consent. The present action brought in State court on behalf of plaintiff and her husband was begun by service on defendant Robins on February 5, 1976 and on defendant Ullman on February 13, 1976. In April, 1981, defendants moved to dismiss the complaint as barred by limitations. Plaintiffs cross-moved for leave to serve an amended complaint including a cause of action for fraud on the part of Robins in concealing the defective and dangerous nature of the shield and in opposition to the motion to dismiss presented the affidavit of a physician who had reviewed X rays and medical and hospital reports of Ms. Lindsey and stated as his opinion that her “injury first occurred in the beginning of March 1973, a few days or weeks before” her pelvic infection was diagnosed, that the shield permitted entrance of bacteria into the uterus in March, 1973 and that until then no injury had occurred to plaintiff due to the shield.

Special Term granted the motion to dismiss as to Robins but as to Ullman granted it only with respect to acts occurring more than three years prior to service of the Federal complaint. It denied plaintiffs’ cross motion for leave to serve an amended complaint. Plaintiffs appealed to the Appellate Division, which modified by denying Robins’ motion to dismiss but affirmed the denial of plaintiffs’ cross motion. Plaintiffs and Robins appeal to us by leave of the Appellate Division.

The two cases thus present a common question: on what date does the three-year period of limitations applicable to product liability actions (CPLR 214, subd 5; Victorson v Bock Laundry Mach. Co., 37 NY2d 395) begin to run with respect to a product inserted or implanted in but not assimilated by the body and intended to have a continuing function? Defendants argue that the action accrued on implantation or insertion of the device, as in cases where a harmful substance is injected, ingested or inhaled into the body (Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, app dsmd and cert den 456 US 967 [inhalation of asbestos]; Reis v Pfizer, Inc., 48 NY2d 664 [ingestion of oral polio vaccine]; Thornton v Roosevelt Hosp., 47 NY2d 780 [injection of carcinogenic chemical compound]; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, cert den 374 US 808 [injection of carcinogenic substance]; see Schmidt v Merchants Desp. Transp. Co., 270 NY 287 [inhalation of dust]). Plaintiffs argue that the time to sue commences when the injury from the breakdown of the product occurs, as is the case with a product not implanted or inserted in the body (Victorson v Bock Laundry Mach. Co., 37 NY2d 395, supra).

The Lindsey appeal raises the additional questions whether plaintiffs’ evidentiary proof is sufficient, in any event, to establish a malfunction within three years prior to suit and whether plaintiffs’ motion to amend the complaint should have been granted.

We conclude that the limitations period begins with the injury-causing malfunction of the product; in Martin, when the fragments separated from the valve; in Lindsey, when the bacteria which caused the infection entered the uterus. In Lindsey we hold further that the physician’s affidavit was sufficient to establish a triable issue of fact and that plaintiffs’ motion to amend the complaint was untimely.

II

When limitations begin to run “depends on a nice balancing of policy considerations” (Victorson v Bock Laundry Mach. Co., 37 NY2d, supra, at p 403) reflecting the manufacturer’s interest in defending a claim before his ability to do so has deteriorated through passage of time, on the one hand, and, on the other, the injured person’s interest in not being deprived of his claim before he has had a reasonable chance to assert it (id.; Caffaro v Trayna, 35 NY2d 245, 250-252; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 429-431).

In Schmidt v Merchants Desp. Transp. Co. (270 NY 287, 300, 301, supra), we recognized that “a cause of action accrues only when the forces wrongfully put in motion produce injury. Otherwise, in extreme cases, a cause of action might be barred before liability arose”, but held that when substantial injury may result from the wrong, liability accrues even though the injured party be ignorant of the existence of the wrong or injury and, therefore, that a cause of action for negligence in causing plaintiff to inhale dust and, as a result, to contract a lung disease more than three years later, accrued upon inhalation.

Schwartz v Heyden Newport Chem. Corp. (12 NY2d 212, supra) applied the Schmidt rationale to the insertion of a radiopaque but carcinogenic substance into plaintiff’s nostrils some 14 years before the cancer developed, notwithstanding arguments predicated on defendant’s continuing duty to warn and for a discovery rule. The Schwartz opinion posited that “perhaps the possibility of feigned cases against unprepared defendants and the difficulties of proof in meritorious cases led to a [legislative] decision that society is best served by complete repose after a certain number of years even at the sacrifice of a few unfortunate cases” (12 NY2d, at p 218). And in Thornton v Roosevelt Hosp. (47 NY2d 780, supra), Reis v Pfizer, Inc. (48 NY2d 664, supra) and Matter of Steinhardt v Johns-Manville Corp. (54 NY2d 1008, supra) we have reaffirmed the rule that the time to sue for injuries resulting from inhalation, ingestion or injection of harmful substances runs from the last exposure to the substance, not from discovery of the injury.

In Flanagan v Mount Eden Gen. Hosp. (24 NY2d 427, supra), however, confronted with the claimed negligence of a physician in leaving in his patient’s body foreign objects (surgical clamps) not assimilated by the body as are inhaled, ingested or injected materials, we adopted a discovery rule, notwithstanding that had the Schmidt substantial injury rationale been applied the cause of action would have been held to accrue at the time of the negligent failure to remove the objects. We did so because a fair assessment of the policy balance dictated the result: the clamps retained their identity within the patient’s body, so that plaintiff could not feign the claim {id., at p 430) and the defendant was not unduly handicapped in defending though the claim was otherwise stale {id., at p 431); there was no possible causal break between negligence and injury {id., at p 430); and the claim did not raise questions of credibility or rest on professional diagnostic judgment or discretion {id., at p 431). Under those circumstances the burden of defending a “stale” claim was not sufficient justification for the harsh consequences to the injured claimant were the Schmidt rationale applied.

The third line of cases germane to the determination here to be reached deals with products which remain entirely outside the body but through defect cause personal injury to a remote user long after being sold by the manufacturer. Our conclusion in Victorson v Bock Laundry Mach. Co. (37 NY2d 395, supra), that the Statute of Limitations ran not from the date of sale but from the time of injury, was predicated upon two considerations. Prior to the injury, the user of the product had no cause to complain, nor, lacking privity with the manufacturer, any ground upon which a claim could be made {id., at p 403). “To hold that it somehow came into being prior thereto would defy both logic and experience” (id.). Furthermore, the age of the claim and consequent problems of proof disadvantaged not only the manufacturer but also the plaintiff who to succeed had to prove that the defect existed at the time it left the manufacturer’s plant (id., at p 404).

In the instant cases we deal with products intended to be implanted or inserted in, but not to be assimilated by, the human body and there to remain, until removed for repair or other reason, in order to perform a continuing function. There is no need on the recipient’s side of the equation for a discovery rule as in foreign objects cases, for the implantation or insertion is with the recipient’s knowledge and consent, knowledge which he or she can pass on to a physician seeking to diagnose the cause of later developing bodily problems and which, under normal circumstances, will include instructions concerning when repairs may be required or replacement parts have to be inserted. But, on the other hand, to protect the manufacturer by a date of insertion or implantation rule is both unrealistic and unnecessary. In the inhaled, ingested or injected substance cases in which such a rule does apply, the forces of harm are inexorably set in motion when the substance enters and is assimilated into the body. An implanted or inserted device intended to perform a continuing function, to the contrary, causes no injury until the product malfunctions. Until that time the recipient, like the remote user in Victorson (supra), has no cause to complain. If through malfunction the product is thought to have caused harm, it can in most cases be removed and examined to ascertain whether in fact it malfunctioned and, if so, whether that was the cause of the harm. Thus, again like the remote user situation considered in Victorson, the age of the claim is no greater disadvantage to the manufacturer than it is to the recipient. Credibility thus plays a lesser part in the determination of the claim than it does with assimilated substances, and though complicated medical questions may be involved and professional diagnostic judgment implicated, that normally will concern only recent events rather than the remote implantation. Moreover, because of the availability of the product, the danger of feigned or frivolous claims will be much less.

We conclude, therefore, that the proper rule to be applied with respect to products implanted or inserted in the human body is neither time of implantation or insertion nor time of discovery, but Victorson’s date of injury rule, which will most often be the date when the product malfunctions. Thus, in Martin, the injury-causing malfunction is the disintegration of the artificial heart valve and the entry of its Teflon particles into the bloodstream; in Lindsey, the unintended introduction of infectious bacteria into the uterus. In each case the plaintiff asserts that the critical event occurred less than three years prior to the commencement of the action and has presented proof in evidentiary form sufficient to establish a triable issue of fact. The complaints should not have been dismissed, therefore.

Ill

Defendant in Lindsey argues that plaintiffs made an inadequate showing that the injury occurred less than three years prior to suit. The argument overlooks the fact that it is defendant’s obligation to prove that the injury occurred more than three years prior to commencement of the action (CPLR 3018, subd [b]; Los Angeles Inv. Securities Corp. v Joslyn, 279 NY 734, affg 254 App Div 711, affg 158 Misc 164, 169-170, mot for rearg den 280 NY 570; Connell v Hayden, 83 AD2d 30, 39; Beugger v Ashley, 161 App Div 576, 581; Lindsay v Ortho Pharm. Corp., 637 F2d 87, 95; see 3 Weinstein-Korn-Miller, NY Civ Prac, par 3018.14; 2 Carmody-Wait 2d, NY Prac, § 13.287; 1 Weinberger, NY Products Liability, § 11.10). The physician’s affidavit establishes an injury causally related to defendant’s product and sufficiently meets plaintiffs’ obligation in response to the motion of going forward with evidence that injury occurred within three years before suit. Defendant may be able on trial to establish that the infection-causing bacteria entered plaintiff’s uterus more than three years before suit or through some other cause but is not in the present posture of the action entitled to summary judgment (Lindsay v Ortho Pharm. Corp., supra; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, 1010, supra).

IV

In Lindsey, plaintiffs’ cross motion to amend by adding a fraud cause of action was properly denied. The motion was made more than two years after plaintiffs obtained evidence which in the exercise of reasonable diligence should have apprised them of the claimed fraud (CPLR 203, subd [f]; 213, subd 8). It was also made more than six years after the claimed fraud (CPLR 213, subd 8) and, because the original complaint did not sufficiently state circumstances constituting fraud (CPLR 3016, subd [b]) to give adequate notice of the claimed fraudulent transaction, is not saved by the relation back provision of CPLR 203 (subd [e]) (cf. Caffaro v Trayna, 35 NY2d 245, 251, supra).

For the foregoing reasons, the order of the Appellate Division in Martin v Edwards Labs, should be reversed, with costs, and the order of Supreme Court made on reargument reinstated, and in Lindsey v Robins Co., the order of the Appellate Division should be affirmed, with costs to plaintiffs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Kaye concur; Judge Simons taking no part.

In Martin v Edwards Labs.: Order reversed, with costs, and order of Supreme Court, Erie County, made on reargument reinstated.

In Lindsey v Robins Co.: Order affirmed, with costs to plaintiffs. Question certified answered in the affirmative.

        Murphy v St. Charles Hosp. (35 AD2d 64, 67) was based in part on that rationale. Accord Klein v Dow Corning Corp. (661 F2d 998 [mammary prosthesis]); Kristeller v Robins Co. (560 F Supp 831 [Daikon Shield]). Nor does CPLR 214-a proscribe our adoption of a date of injury rule as to a product liability action against the manufacturer of a device to be implanted or inserted in the body, for it does no more than exclude prosthetic devices from the discovery rule it enacts for medical malpractice cases (Matter of Beary v City of Rye, 44 NY2d 398; Rockwell v Ortho Pharm. Co., 510 F Supp 266; see Thornton v Roosevelt Hosp., 47 NY2d 780; Mclaughlin, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR 214-a, 1982-1983 Pocket Part, p 170). Indeed the Report of the Committee on Medicine and Law of the Association of the Bar of the City of New York, which was before the Legislature when chapter 109 of the Laws of 1975, which enacted CPLR 214-a, was under consideration (NY Legis Ann, 1975, p 225), stated with respect to the discovery provision (at p 29): “The Court of Appeals’ limited exception in Flanagan, supra, was its attempt at balancing the need of the physician for repose with that of the patient who can lose a cause of action before he had discovered it. Subsequent decisions can be expected to allow the common law to develop as the courts believe is fair.”


source: Caselaw Access Project

author: Kaye, J. Chief Judge Cooke and Wachtler and Simons, JJ.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Michael Cronin, Appellant.
    Argued September 20, 1983;
    decided November 1, 1983

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (Peter D. Braun of counsel), for appellant.
    Where appellant asserted the defense of intoxication, the trial court improperly precluded a defense psychiatrist from giving his opinion on the effect of appellant’s drug and alcohol induced stupor on his state of mind and ability to form the intent to commit the crimes charged. (People v Allweiss, 48 NY2d 40; Dougherty v Milliken, 163 NY 527; People v Jackson, 10 NY2d 510; People v Reed, 40 NY2d 204; People v Segal, 54 NY2d 58; People v Moran, 249 NY 179; People v Colavecchio, 11 AD2d 161; People v Stone, 35 NY2d 69; Matter of Lee v County Ct, 27 NY2d 432.)

      Howard R. Relin, District Attorney {Wendy Evans Lehman of counsel), for respondent.
    I. The trial court properly refused to permit expert testimony regarding defendant’s intent or his ability to have an intent to commit the crimes with which he was charged. (Kulak v Nationwide Ins. Co., 40 NY2d 140; People v Creasy, 236 NY 205; People v Paschall, 91 AD2d 645; People v Graydon, 43 AD2d 842; People v Buffington, 29 AD2d 229; People v Roff, 67 AD2d 805; People v Ciaccio, 47 NY2d 431.) II. In the circumstances of this case, the trial court’s holding that the defense expert witness’s statement of what defendant would be like in a stuporous condition, be stricken, did not constitute reversible error. (People v Roff, 67 AD2d 805; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Kaye, J.

During the early hours of June 27, 1979, defendant, one of a group of youths, entered a Radio Shack store by running through a plate glass window; and several items were stolen. The evidence in this prosecution for burglary and related offenses showed that prior to the break-in, defendant had consumed up to a case of beer, smoked several marihuana cigarettes, and ingested 5 to 10 Valium tablets. The key issue for the jury’s determination was whether defendant could have formed the requisite intent for the crimes charged.

The trial court permitted the defense to introduce the expert testimony of a forensic psychiatrist skilled in drug and alcohol abuse, but announced in advance that it would not allow inquiry about defendant’s state of mind, his intent or ability to have intent, or blackouts, because those were the ultimate questions to be decided by the jury. Additionally, the court struck expert testimony perceived to be approaching, by indirection, these ultimate questions, indicating that such testimony would pre-empt the jury’s function.

Because the wrong standard was applied, the testimony of defendant’s expert on the key issue was erroneously circumscribed. We therefore reverse the conviction and order a new trial.

In a sense, opinion testimony of an expert witness necessarily enters upon the jury’s province, since the expert — and not the jury — draws conclusions from the facts, which the jury is then asked to adopt. Such testimony, however, is admissible where the conclusions to be drawn from the facts “depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence.” (Dougherty v Milliken, 163 NY 527, 533; De Long v County of Erie, 60 NY2d 296.) Both sides may of course cross-examine and impeach the opposition’s experts, and adduce different opinions through their own experts. (Selkowitz v County of Nassau, 45 NY2d 97, 103.)

While controversy about opinion testimony going to the ultimate questions has brewed elsewhere, in this State the test has been different. For testimony regarding both the ultimate questions and those of lesser significance, admissibility turns on whether, given the nature of the subject, “the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable.” (Van Wycklen v City of Brooklyn, 118 NY 424, 429; Noah v Bowery Sav. Bank, 225 NY 284, 292.)

The admissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court, and review beyond the intermediate appellate level is generally unwarranted. (Selkowitz v County of Nassau, 45 NY2d 97, supra.) It is for the trial court in the first instance to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefited by the specialized knowledge of an expert witness. Here, the trial court permitted a psychiatrist to testify generally on the subject of defendant’s condition given his drug and alcohol consumption, but felt constrained to draw the line at the expression of an opinion regarding the defendant’s ability to form intent, only because such an opinion went to the ultimate question and would usurp the jury’s function. The court failed to exercise its discretion because it erroneously perceived that it had no discretion to exercise. This was not a proper application of the test for expert testimony, and presents a legal issue for review by us. (People v Williams, 56 NY2d 236.)

Had the trial court exercised its discretion with respect to expert testimony on the subject of intent it could have found such evidence admissible. While jurors might be familiar with the effects of alcohol on one’s mental state, the combined impact of a case of beer, several marihuana cigarettes and 5 to 10 Valium tablets on a person’s ability to act purposefully cannot be said as a matter of law to be within the ken of the typical juror.

Despite considerable latitude permitted in questioning the expert, the blanket preclusion of testimony regarding intent was not harmless error. The announced imposition of limits on the expert’s testimony, and the striking of testimony, denied defendant the opportunity to elicit opinions going directly to the issue of intent. The jury was left with the expert’s generalized observations about the effects of alcohol and drug consumption, without his application of these observations, in the form of opinion testimony, to the element of purposeful activity. Further, expert testimony regarding the ability of a person, though stuporous, to answer simple questions, was stricken because it was perceived to be reaching the ultimate question, yet defendant’s ability to answer simple questions shortly after the crime was emphasized by the People as a mark of his ability to have formed the requisite intent. Finally, the fact that defendant’s counsel in summation argued from testimony that would have been given by the doctor, but was disallowed, does not eliminate the prejudice; lawyers’ argument is not the equivalent of expert medical testimony.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Cooke and Wachtler and Simons, JJ.

(concurring). We agree with the majority that the trial court failed to exercise its discretion and therefore the matter must be remitted for a new trial (People v Williams, 56 NY2d 236). However, we cannot join the majority in that portion of its opinion in which it attempts to determine what the trial court “might” have done had it exercised discretion. That is unnecessary and would practically direct the discretion which the trial court should be free to exercise for itself at the new trial. In addition, the hypothetical discussion focuses only on those factors favoring admission of the expert’s opinion. A review of the record shows that there were competing factors which might have justified the court to limit the expert’s testimony in the exercise of discretion if the court had, in fact, exercised discretion.

An expert’s opinion is only as sound as the facts upon which it is based and there is some question as to whether this defendant established a sufficient foundation to support the doctor’s testimony. The only evidence of the quantities of drugs and alcohol consumed by the defendant came from the testimony of codefendant Carl Silva, who had previously pleaded guilty. Silva admitted that he was intoxicated that night and he testified that he could not recall who the other youths with them were or how much alcohol and Valium he had consumed during the evening.

In short had the court exercised discretion it might just as correctly be said that it did not abuse its discretion as a matter of law by limiting the expert to general testimony about the properties of the substances consumed and their probable effect on defendant when the only facts submitted to support the expert’s opinion were found in the testimony of a codefendant who was too drunk to remember what he had had to drink the same night.

Judges Jasen, Jones and Meyer concur with Judge Kaye; Chief Judge Cooke and Judges Wachtler and Simons concur in result in a memorandum.

Order reverséd, etc.

      . (See Advisory Committee’s Note, Federal Rules of Evidence, rule 704 [US Code, tit 28]; Proposed Code of Evidence for State of New York, § 704.)

      . We do not suggest that questions to such an expert could properly have been framed in terms of “intent,” since his perception of that term might differ dramatically from the statutory definition.


author: Kaye, J. Simons, J. Chief Judge Cooke

text:
    In the Matter of the City of New York et al., Appellants, v City Civil Service Commission et al., Respondents. In the Matter of the Department of Personnel of the City of New York et al., Appellants, v City Civil Service Commission et al., Respondents. In the Matter of the City of New York et al., Appellants, v City Civil Service Commission et al., Respondents.
    Argued October 18, 1983;
    decided December 1, 1983

      POINTS OF COUNSEL

      Frederick A. 0. Schwarz, Jr., Corporation Counsel {Paul T. Rephen and Leonard Koerner of counsel), for appellants in the first, second and third above-entitled proceedings.
    I. The Civil Service Law and the city charter make the city Personnel Director responsible for establishing civil service policy and administering the Civil Service Law in New York City. The City Civil Service Commission, which is a neutral, independent body performing a quasi-judicial function, was not intended to have final and unreviewable authority over determinations of the city Personnel Director. Accordingly, he, the City of New York, and his department are empowered and have standing to seek judicial review of determinations of the commission. (Matter of Rahill v Bronstein, 32 NY2d 417; Matter of B. T. Prods. v Barr, 44 NY2d 226; People ex rel. Municipal Gas Co. v Public Serv. Comm., 224 NY 156; Matter of Burke v Sugarman, 35 NY2d 39; Matter of Cash v Bates, 301 NY 258; Matter of Andresen v Rice, 277 NY 271; Chittenden v Wurster, 152 NY 345; Matter of Broncelli v Bahou, 57 AD2d 682; Boryszewski v Brydges, 37 NY2d 361; Matter of Flacke v Freshwater Wetlands Appeals Bd., 53 NY2d 537.) II. Respondent Lombardi is not entitled to veterans’ preference credit on account of his three-hour mobilization during the postal workers’ strike of March, 1970. The determination of the court below to affirm the award of such credit directly conflicts with determinations by this court in Matter of Rahill v Bronstein (32 NY2d 417) and Matter of Rubin v Conway (273 App Div 559, affd 298 NY 711). (Mitchell v Cohen, 333 US 411.) III. Petitioners are authorized and have standing to seek judicial review of adverse determinations of the City Civil Service Commission. The individual respondents in the second and third above-entitled proceedings are not entitled to veterans’ preference credit.

      Raymond E. Kerno and Richard Hartman for respondents in the first and second above-entitled proceedings.
    I. Appellants lacked both standing and statutory authority to commence the instant proceeding. (Matter of Pooler v Public Serv. Comm., 58 AD2d 940, 43 NY2d 750; Matter of Beaudoin v Toia, 45 NY2d 343; Matter of Clemente v Fahey, 45 NY2d 756; Matter of Patterson v Blum, 86 AD2d 893; Matter of Flacke v Freshwater Wetlands Appeals Bd., 53 NY2d 537; Matter of Parker v Fahey, 74 AD2d 669; Matter of Flynn v New York City Police Dept. Retirement System, 95 Misc 2d 876.) II. The decision of respondent Civil Service Commission to grant veterans’ preference to respondent Lombardi, was neither arbitrary, capricious, nor unlawful. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Nadel v New York City Civ. Serv. Comm., 85 AD2d 567; Hornstein v Laird, 327 F Supp 993; Matter of Lore v Forbes, 173 Misc 1066, 259 App Div 806, 283 NY 778; Matter of Silberglitt v McNamara, 300 NY 465; Matter of Walling v Schechter, 9 Misc 2d 621, 8 AD2d 605, 7 NY2d 814.) III. The Personnel Director is barred, pursuant to subdivision 4 of section 50 of the Civil Service Law, from revoking respondent Lombardi’s promotion based upon facts known to the Department of Personnel prior to respondent Lombardi’s appointment as sergeant. (Matter of Nadel v New York City Civ. Serv. Comm., 85 AD2d 567, 56 NY2d 505; Vega v Civil Serv. Comm., 385 F Supp 1376; Keyer v Civil Serv. Comm., 397 F Supp 1362; Matter of Kelliher v New York State Civ. Serv. Comm., 21 Misc 2d 1034.) IV. The Personnel Director is barred from terminating respondent Lombardi under the doctrine of estoppel. (Planet Constr. Corp. v Board of Educ., 7 NY2d 381; La Porto v Village of Philmont, 39 NY2d 7; Brennan v New York City Housing Auth., 72 AD2d 410.)

      Michael Washor for Warren Van den Houten, respondent in the third above-entitled proceeding, precluded.

      Kenneth J. Knuckles for City Civil Service Commission, respondent in the third above-entitled proceeding, precluded.
   OPINION OF THE COURT

Kaye, J.

On March 24,1970, respondent police officers, as Armed Forces reservists, were summoned to active duty to help maintain mail service during a postal workers’ strike, but released a few hours later because of their essential civilian occupations. Based solely on that service, they claimed veterans’ preference credits, which would place them ahead of other officers who achieved higher scores on police department promotional examinations. These related appeals raise two questions: first, whether appellant, the city Personnel Director, has standing to challenge the decisions of respondent City Civil Service Commission awarding the preference credits and second, assuming the challenge is procedurally proper, whether on the merits the commission’s decisions should be sustained.

Each case before us had its genesis in disallowance of the claimed veterans’ preference credits by appellant on the ground that, while respondent police officers were called for active duty, they were dismissed without having been used. On administrative appeal by the officers, respondent commission reversed and granted the applications, relying on an opinion of the Supreme Court, New York County, in Stendrini v D'Ambrose (NYU, Dec. 5, 1977, p 11, col 2) that reservists called for active duty during the postal strike were entitled to veterans’ preference credits without any minimum period of service. Appellant then brought article 78 proceedings challenging the commission’s decisions. Special Term dismissed the petitions, holding that appellant lacked standing to seek judicial review and that on the strength of Stendrini the commission’s decisions had rational bases and the Appellate Division affirmed, without opinion. We now reverse the orders below on both grounds. Appellant has standing to maintain these article 78 proceedings against respondent commission; the commission’s decisions awarding veterans’ preference credits to respondent police officers should have been annulled.

I

The conclusion that appellant lacked standing rested on the assumptions that this was merely an intra-agency dispute, that this court’s decisions setting forth the basis for standing apply only to private parties seeking review of agency action taken against them, and that appellant has no standing to sue in the absence of an express legislative grant of authority. These premises are incorrect.

Appellant’s challenge is not a mere intra-agency dispute. Under the legislative scheme for administering the civil service laws, it is appellant who is assigned the power and responsibility to set civil service policy in New York City, to enforce the civil service laws, and to assure the legality of appointments. Respondent commission has none of these duties, but instead functions, in prescribed circumstances, as a board to review determinations by appellant and by other agency heads.

Subdivision 4 of section 15 of the Civil Service Law empowers New York City to administer the provisions of the Civil Service Law through whatever form of administration it chooses to prescribe in its city charter. The New York City Charter provides that the Personnel Director “shall have all the powers and duties of a municipal civil service commission provided in the civil service law or in any other statute or local law” (NY City Charter, § 811). Among appellant’s responsibilities are to “preserve and promote merit and fitness in city employment” (NY City Charter, § 810, subd a), to establish and determine the appropriateness of eligible lists for civil service appointments (NY City Charter, § 813, subd a, pars [4], [5]), and to promulgate rules and regulations in furtherance of and consistent with the Civil Service Law (NY City Charter, § 813, subd c). In addition, in the exercise of the powers of a municipal civil service commission, appellant has the powers and duties to administer the provisions of the Civil Service Law (Civil Service Law, § 17), to prescribe and enforce rules for implementing the provisions of the Civil Service Law and section 6 of article V of the Constitution (Civil Service Law, § 20, subd 1), to investigate the qualifications of applicants both before and after appointment and to revoke appointments where there is a finding of any illegality in the appointment (Civil Service Law, § 50, subd 4), and to maintain actions in the Supreme Court to enjoin any violation of the Civil Service Law or rules and for such incidental relief as may be necessary (Civil Service Law, § 102, subd 3).

Respondent commission, by contrast, has not been delegated the general powers and responsibilities of a municipal civil service commission. The only powers reserved to respondent are those of an appeals board: to hear and decide appeals by persons aggrieved by appellant’s determinations (NY City Charter, § 812, subd c), and to hear and decide appeals in disciplinary proceedings (Civil Service Law, § 76).

It is thus clear that appellant, not respondent commission, has both policy-making authority and functional responsibility for civil service matters in New York City. Appellant is a municipal body separate from respondent commission. (Matter of Department of Personnel v City Civ. Serv. Comm., 94 AD2d 5, 8.) This is not a situation where appellant would lack standing to sue because the Legislature intended that one agency, as a mere agent of another, would be bound by the latter’s determinations. (See Matter of Beaudoin v Toia, 45 NY2d 343; Matter of Clemente v Fahey, 45 NY2d 756.) The fact that respondent may serve as an appeals board for appellant’s determinations does not preclude appellant from seeking review of those decisions by which appellant is aggrieved. (Matter of Flacke v Freshwater Wetlands Appeals Bd., 53 NY2d 537, 540.)

In Matter of Dairylea Coop. v Walkley (38 NY2d 6, 8-11) and Matter of Bradford Cent. School Dist. v Ambach (56 NY2d 158, 163-164), we set forth three criteria for standing. Special Term refused to apply the factors identified in Dairylea because it believed they were limited to “private parties seeking review of agency action taken against them.” Our subsequent decision in Bradford shows this belief was mistaken. Whether the challenge is raised by a private entity or, as here, by a governmental officer or agency with policy-making authority and functional responsibility in the subject area sought to be reviewed, the factors to be applied in determining standing to seek review of an administrative decision are the same: (1) the interest asserted must be arguably within the zone of interest to be protected by the statutory or constitutional provisions sought to be enforced; (2) the administrative decision for which review is sought must be shown to have a harmful effect upon the party asserting standing; and (3) there must be no clear legislative intent negating review. Appellant meets these criteria.

First, the very sections of the Civil Service Law and the New York City Charter which give appellant the power and responsibility to ensure that city personnel such as respondent police officers are appointed and promoted in accordance with a system of merit and fitness establish that appellant’s interest is within the zone of interest sought to be protected by the Civil Service Law. In Bradford, we held that a school board’s interest and responsibility for determining whether a teacher is properly certified was sufficient to fulfill the “zone of interest” test for standing to challenge the decision of the Commissioner of Education that overruled the school board’s determination and awarded certification to a teacher. (Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158, 163-164, supra.) Appellant’s interest is no less deserving of protection.

Second, respondent commission’s decisions have a harmful effect upon appellant. Those decisions requiring promotional preferences irrespective of length or type of service interfere with the authority and discretion given to appellant to enforce the Civil Service Law and, if allowed to remain in force, would result in a significant policy determination by one entity that is within the authority of another. This is sufficient injury to justify standing. (Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158, 164, supra; Matter of Department of Personnel v City Civ. Serv. Comm., 94 AD2d 5, 8, supra.)

Third, there is no clear legislative intent negating review. On the contrary, authority for appellant to seek judicial review of the commission’s decisions regarding preference credits may be implied from its statutory powers and responsibilities in this area. (See Matter of Flacke v Freshwater Wetlands Appeals Bd., 53 NY2d 537, 542, supra.) Appellant has both authority and responsibility to establish and determine the appropriateness of eligible lists for civil service appointments, including promotion, to revoke appointments where such were the result of illegality or irregularity, and to maintain actions for injunctive and other incidental relief against violations of the Civil Service Law. If, as appellant suggests, respondent commission’s decisions and awards were made in derogation of the requirements of the Civil Service Law, the promotions of respondent police officers are exactly the sort of illegal or irregular appointments appellant has the power and duty to revoke. Appellant’s authority to commence an article 78 proceeding is a necessary implication from its power and responsibility to police the legality and regularity of civil service appointments. “It is the duty of the appropriate administrative officers of the State or its civil divisions to discontinue an illegal employment when they note its illegality, and if rights based upon such employment are asserted in the courts, the legality of the appointment should not go unchallenged by public officers”. (Palmer v Board of Educ., 276 NY 222, 226.)

Matter of Pooler v Public Serv. Comm,. (58 AD2d 940, affd 43 NY2d 750) requires no different result. In Pooler the question presented was whether the State Consumer Protection Board had standing to bring an article 78 proceeding to review an order of the Public Service Commission in a rate case. Unlike appellant, the Consumer Protection Board is not a separate governmental body charged with the enforcement and administration of a body of laws and regulations, but rather a group charged with co-ordinating activities of State agencies performing consumer protection functions and reporting to the Governor and Legislature, with statutory power to “initiate, intervene in, or participate in any proceedings before the public service commission”. (Executive Law, § 553, subd 2, par c.) In denying the right to seek judicial review of a Public Service Commission order, the Appellate Division in Pooler concluded that the Consumer Protection Board did not have “the status of a separate legal being with the right to initiate litigation in pursuit of its purposes,” and that the authority to seek such review was not a “necessary implication from those powers which the Legislature saw fit to set forth” (58 AD2d 940, supra), and we affirmed on the Appellate Division memorandum (43 NY2d 750, supra).

But Pooler does not require that in every instance there be express legislative authority to sue before a public body may seek judicial review of administrative actions. Given the limited statutory authority of the Consumer Protection Board, the board in Pooler did not have functional responsibility within the zone of interest to be protected and, with respect to actions of the Public Service Commission in particular, the Legislature expressly restricted the board’s role to agency proceedings. Here there is no corresponding lack of identifiable interest, and no legislative intent to limit appellant’s role to the administrative arena.

II

Having determined that appellant has standing to bring these article 78 proceedings, we turn to the merits of the dispute.

Respondent police officers sought veterans’ credits pursuant to the New York State Constitution and the Civil Service Law. Section 6 of article V of the Constitution provides: “Appointments and promotions in the civil service * * * shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive; provided, however, that any member of the armed forces of the United States who served therein in time of war, who is a citizen and resident of this state and was a resident at the time of his entrance into the armed forces of the United States and was honorably discharged or released under honorable circumstances from such service, shall be entitled to receive * * * two and one-half points additional credit in an examination for promotion”. This constitutional provision is given effect by section 85 of the Civil Service Law. The term “veteran” is defined as “a member of the armed forces of the United States who served therein in time of war”. (Civil Service Law, § 85, subd 1, par [a].) The terms “time of war” and “armed forces of the United States” are in turn defined as follows:

“The term ‘time of war’ shall include the following wars for the periods herein set forth:

* * *

“Hostilities participated in by the military forces of the United States, from the first day of January, nineteen hundred sixty-three to the twenty-ninth day of March, nineteen hundred seventy-three.” (Civil Service Law, § 85, subd 1, par [c], cl [4].)

“ ‘Armed forces of the United States’ means the army, navy, marine corps, air force and coast guard, including all components thereof, and the national guard when in the service of the United States pursuant to call as provided by law. Pursuant to this definition no person shall be considered a member or veteran of the armed forces of the United States unless his or her service therein is or was on a full-time active duty basis, other than active duty for training.” (General Construction Law, § 13-a.)

In Stendrini v D Ambrose (NYLJ, Dec. 5, 1977, p 11, col 2, supra) the court held that New York City police officers in the Armed Forces reserves who spent four days on active duty during the 1970 postal strike were entitled to veterans’ credits because of that service. The rationale for that decision was a literal reading of the statutes to mean that the officers’ service was “in time of war” because it occurred within the dates of the Vietnam hostilities set forth in the Civil Service Law, and that the service was “in the armed forces” because the General Construction Law imposes no minimum period of service as a requirement.

The question of entitlement to veterans’ credits of employees who, as here, rendered brief service during dates which coincidentally fell within a “time of war” was addressed in both Matter of Rubin v Conway (273 App Div 559, affd 298 NY 711), where a policeman on part-time duty as a reservist for up to four days per month between October, 1942 and September, 1945 was denied veterans’ credits, and Matter of Rahill v Bronstein (32 NY2d 417), where veterans’ credits were denied to policemen who, as reservists, saw active duty in the Armed Forces for training purposes during a “time of war” specified in section 85 of the Civil Service Law. In those decisions it was held that the term “member of the armed forces” must be given a restrictive interpretation limited to those whose war-time service was significant, full-time duty. That rationale is dispositive of the present appeals.

Appointments and promotions by merit and fitness based on competitive examination are at the heart of the civil service system. Preferences such as veterans’ credits are antithetical to that competitive merit system. The constitutionality of such preferences has been insured only by a consistently restrictive construction, complying as fully as possible with the injunction of the Constitution that appointments and promotions be based on merit and fitness. (Matter of Rahill v Bronstein, 32 NY2d 417, 423, supra; Matter of Barthelmess v Cukor, 231 NY 435.) In the case of veterans, preferences are viewed as society’s expression of gratitude for their sacrifice and for the disruption of their lives that accompanies full-time military service. (Matter of Rubin v Conway, 273 App Div 559, 561, affd 298 NY 711, supra.) The intent of the Legislature in providing for veterans’ credits to “members of the armed forces” was to extend those preferences to persons who had been divorced from their civilian employment by reason of their full-time service, where re-employment and rehabilitation were considered necessary. (.Matter of Rahill v Bronstein, 32 NY2d 417, 424, supra.)

There was no intent to grant promotional preference to persons whose military service was performed without any interference with their normal employment or mode of life. To extend veterans’ credits to such persons would dilute the reward conferred on ex-servicemen who made full-scale sacrifices, at the direct expense of others who have demonstrated higher ability on competitive examinations. Such an inequitable result would create “a class * * * accorded preferential treatment which is unjustified by the ‘debt of gratitude’ which underlies the preferences given full-time, active-duty war veterans.” (Matter of Rahill v Bronstein, 32 NY2d 417, 425, supra.)

Respondent police officers, who were called up for assistance during a postal strike which fortuitously occurred during a “time of war,” were not divorced from their civilian lives. Indeed, they were dismissed within a matter of hours precisely so that their civilian occupations would suffer no disruption. In such circumstances, no justification exists for an award of veterans’ preference credits. The decisions of respondent commission to reverse the determinations of appellant and grant veterans’ credits to respondent police officers were, therefore, based on a misapprehension of legislative intent and a disregard of the prior rulings of this court. Stendrini v D Ambrose (supra), which is inconsistent with that intent and those rulings, cannot serve as a rational basis for the action taken by respondent commission, and should not be followed. Where, as here, the initial administrative determinations are based on an accurate interpretation of legislative intent, they should not be set aside. The decisions made by respondent commission should therefore have been annulled on appellant’s petitions.

In summary, we hold today that under section 6 of article V of the Constitution and section 85 of the Civil Service Law, veterans’ credits should be awarded for civil service appointments and promotions only where the applicant’s service as a “member of the armed forces” during a “time of war” was on a full-time basis evidencing a sacrifice in the form of disruption of civilian life and divorce from civilian occupation. It is not enough that an applicant’s service fall within the literal definitions of “member of the armed forces” and “time of war” if that service did not significantly interfere with the applicant’s normal employment and way of life. To the extent that Matter of Silberglitt v McNamara (300 NY 465) may be read to suggest otherwise, that decision should not be followed.

Ill

Respondent Lombardi, who was initially granted veterans’ credits by appellant, makes the additional argument that appellant is barred from rescinding his credits and revoking his promotion under subdivision 4 of section 50 of the Civil Service Law and the doctrine of estoppel. This argument is unpersuasive. Respondent Lombardi received his promotion only as a result of the veterans’ credit awarded by respondent commission in violation of the provisions of the Civil Service Law. The very language of subdivision 4 of section 50 of the Civil Service Law empowers appellant to revoke appointments or promotions where, as here, there is a finding of illegality, whether or not the facts upon which the illegality was based were known prior to the appointment or promotion. (See Matter of Wolff v Hodson, 285 NY 197, 202.) Furthermore, estoppel may not be applied to preclude a State or municipal agency from discharging its statutory responsibility. (Public Improvements v Board of Educ., 56 NY2d 850.) This is particularly true where, as here, the estoppel is sought to be applied to perpetuate an appointment based on a misreading of constitutional and statutory requirements. (Matter of McLaughlin v Berle, 71 AD2d 707, affd 51 NY2d 917; Matter of Hauben v Goldin, 74 AD2d 804.)

Accordingly, the orders of the Appellate Division should be reversed, with costs, appellant’s petitions should be granted, and the decisions of respondent commission should be annulled.

Simons, J.

(concurring). I concur in the result because I

agree with the majority that the city Personnel Director has implied authority to maintain this action and therefore comes within the rule stated in Matter of Flacke v Freshwater Wetlands Appeals Bd. (53 NY2d 537, 540). In my judgment, however, the rules of standing set forth in Matter of Dairylea Coop. v Walkley (38 NY2d 6) are inapplicable to intra-governmental disputes (Matter of Pooler v Public Serv. Comm., 58 AD2d 940, affd 43 NY2d 750). Insofar as Matter of Bradford Cent. School Dist. v Ambach (56 NY2d 158) holds otherwise, that case involved a dispute between a local school board and a State agency, not two units within the same department of local government.

Chief Judge Cooke

(dissenting). I agree that the petitioner does have standing to challenge the determination of the commissioner. However, because the majority weighs the value of the service rendered by respondent police officers, I respectfully dissent and vote to affirm.

The majority opinion would deny veterans’ preference credits to these respondents because their brief period of service provides “no justification” for such an award. Veterans’ preference cannot be rationally denied to a soldier who served in the Army, Navy, Marine Corps, Air Force, Coast Guard, or National Guard on “full-time active duty” during “time of war” solely on the ground that he or she served less than one day (NY Const, art V, § 6; General Construction Law, § 13-a; Civil Service Law, § 85, subd 1, par [c], cl [4]). Neither the State Constitution nor any statute provides for qualitative evaluations to be made of the relative contributions and disruptions to civilian life of soldiers serving in various historical contexts (see Matter of Lore v Forbes, 173 Misc 1066, affd 259 App Div 806, mot for lv to app den 283 NY 778; see, also, Matter of Silberglitt v McNamara, 300 NY 465, affg without opn 275 App Div 801; Matter of Donohue v Huie, 285 NY 557; Hornstein v Laird, 327 F Supp 993 [SDNY, 1971]). Nor can such value judgments regarding what constitutes a “full-scale sacrifice” rationally be made. The yardstick of the Constitution and statutes is definite and not subject to varying or discretionary application. The majority’s approach does not provide a workable means of making such evaluations of what constitutes significant interference “with the applicant’s normal employment and way of life.” The insertion of a discretionary element could lead to instances of abuse by the officials charged with granting these veterans’ preference credits. Thus, there is good reason not to disregard or effectively overrule Matter of Silberglitt v McNamara, (300 NY 465, supra), because it serves the salutary and helpful purpose of recognizing and maintaining the nondiscretionary application of preference credits, which is required by the constitutional and statutory provisions in question.

The two cases relied upon by the majority are distinguishable. The police officers in Matter of Rahill v Bronstein (32 NY2d 417), were reservists who served in time of war but their “active duty” was only “active duty for training”, which is expressly excluded by the terms of section 13-a of the General Construction Law. In Matter of Rubin v Conway (273 App Div 559, affd 298 NY 711), the physician was denied preference credit because he only served as a reservist on a part-time basis, four days a month, which constituted service on a “temporary, intermittent * * * basis”.

Here, respondents were called to “full-time active duty” pursuant to an order of the President of the United States, during a “time of war.” They fulfilled the constitutional and statutory requirements for a veterans’ preference credit. When they reported for duty, respondents submitted themselves to the control of their superior officers for an indeterminate period of time for whatever duties would be required. As was aptly stated by a court which granted veterans’ preference credits to a soldier who served less than one day before dismissal, “[q]uite true, the petitioner did not risk his life or render ‘meritorious service.’ * * * The value of the service is not to be weighed or measured. No line is drawn between those * * * who did desk service * * * [and] those who saw service abroad * * * It was not the petitioner’s fault that his service was of brief and inconsequential duration. He did all he was commanded to do, which is all any soldier can do” (Matter of Lore v Forbes, 173 Misc 1066, 1068, affd 259 App Div 806, mot for lv to app den 283 NY 778, supra [emphasis in original]).

Judges Jasen, Jones, Wachtler and Meyer concur with Judge Kaye; Judge Simons concurs in result in a memorandum; Chief Judge Cooke dissents and votes to affirm in a separate opinion.

In each case: Order reversed, etc.

      . While the City of New York is also an appellant, no separate argument is made on its behalf. “Appellant” throughout this opinion refers to the city Personnel Director.

      . By contrast, the Legislature has specified that in disciplinary appeals the commission’s decisions are to be final and unreviewable. (Civil Service Law, § 76, subd 3; NY City Charter, § 812, subd c.)

      . The veterans’ credits awarded to respondent Lombardi, for example, allowed him to move ahead of almost 950 other police officers who achieved higher scores on the promotional examination for sergeant.


author:
Chief Judge Cooke Meyer, J.
      Kaye, J.

text:
    Cynthia B. et al., Respondents, v New Rochelle Hospital Medical Center et al., Defendants, and Mary M. Curtis et al., Respondents. New York Hospital, Appellant.
    Argued September 12, 1983,
    decided December 1, 1983

      POINTS OF COUNSEL

      Robert E. Crotty, Susan H. Rockford and Robert A. Horowitz for appellant.
    I. The hospital properly opposed the requests for the release of the record of Cynthia B.’s psychiatric treatment because of its inherent confidential nature. (Gotkin v Miller, 379 F Supp 859, 514 F2d 125; Project Release v Prevost, 551 F Supp 1298; People ex rel. Hickox v Hickox, 64 AD2d 412.) II. The court below erred in failing to consider the inherent confidential nature of psychiatric records and in holding that the record should be unconditionally disclosed because it is “relevant and material”.

      Paul F. McAloon and Abraham Fuchsberg for Cynthia B. and another, respondents.
    Where plaintiff voluntarily provided an authorization for defendants to examine the records of her psychiatric treatment, the unwarranted interference of a nonparty record keeper should not deprive her of her right to pursue a claim for aggravation of her psychiatric condition. (Major Chevrolet v Charles Pisacano, Inc., 58 Misc 2d 374; Bilhorn v Farlow, 54 AD2d 1120, 41 NY2d 899; Twining v Far Eastern Mfg. Co., 33 AD2d 807.)

      John J. Pilkington for Mary M. Curtis and another, respondents.
    The New York Hospital record is properly discoverable. (People v Al-Kanani, 33 NY2d 260; Mayer v Albany Med. Center Hosp., 56 Misc 2d 239; Matter of Trotta v Ward Baking Co., 21 AD2d 701; Greuling v Breakey, 56 AD2d 540; Friedlander v Morales, 70 AD2d 501; Koump v Smith, 25 NY2d 287; McDonnell v County of Nassau, 59 AD2d 550; Brooks v Hausauer, 51 AD2d 660; Daniele v Long Is. Jewish-Hillside Med. Center, 74 AD2d 814; Goldstein v Kamen, 73 AD2d 685.)
   OPINION OF THE COURT

Chief Judge Cooke

When a party moves to compel discovery of medical records, in this case psychiatric records, a treating hospital, physician or other institution who is custodian of the records may request a protective order on the ground that disclosure of all or part of the record may be seriously detrimental to the interests of the patient, to uninvolved third parties, or to an important program of the custodian of the records, notwithstanding a valid waiver of the physician-patient privilege. In the present case, the custodian hospital failed to establish any detriment to the patient, third parties or itself warranting issuance of a protective order. Thus, there was no basis for the exercise of the court’s discretion to grant a protective order. Full disclosure was properly ordered upon a finding that the records were material and relevant to the issues of the litigation and that plaintiff had waived the privilege of confidentiality.

In the summer of 1977, plaintiff was undergoing treatment at New Rochelle Hospital. During that stay she jumped from a hospital window in an alleged suicide attempt. About a year after leaving New Rochelle Hospital, plaintiff was voluntarily admitted to New York Hospital for alcohol detoxification and rehabilitation. She received psychiatric treatment there and was discharged, as improved, in September, 1978.

In July, 1979, plaintiff instituted the present malpractice action against New Rochelle Hospital and three physicians for injuries sustained when she jumped from the hospital window. Plaintiff alleged that defendants were negligent “in failing to take proper precautions with a suicidal patient; in failing to recognize and treat a psychiatric emergency; * * * [and in] failing to treat [an] underlying psychiatric condition.” She also claimed aggravation of prior conditions, including psychological problems.

In response to requests for discovery, plaintiff authorized the release of all her hospital and medical records, including those of New York Hospital, as specified in CPLR 3121 (subd [a]). Upon receiving defendants’ request and plaintiff’s authorization, however, New York Hospital refused to release the records directly to plaintiff or anyone other than a “qualified medical doctor.”

Two of the defendant doctors, relying on CPLR 3101, 3102 (subd [c]), 3121 (subd [a]), and section 33.13 of the Mental Hygiene Law, moved against New York Hospital for an order compelling disclosure of the psychiatric records on the ground that plaintiff had put both her physical and mental conditions in issue and, therefore, they were entitled to the records to prepare their defense against the claim of aggravation of a pre-existing mental condition. Plaintiff joined in defendants’ request. In opposing the motion, New York Hospital argued that it had an interest in maintaining the confidentiality of the records which existed notwithstanding plaintiff’s waiver of the privilege. It requested Special Term to examine the records to determine which portions, if any, were material and relevant to the issues in plaintiff’s suit; to supervise any disclosure; and to restrict access to counsel only. The court appointed a referee, who prohibited any discovery because the records contained such extensive “confidential and sensitive material, totally irrelevant to the issues in this action,” that redaction of those portions would make the remaining portions “of no consequence.” Special Term confirmed the referee’s finding.

The Appellate Division disagreed and ordered the records disclosed in their entirety. The court reasoned that plaintiff had expressly waived her privilege and should bear the ultimate responsibility for embarrassment resulting from disclosure. The court also found that the records were clearly material and relevant to the issue of aggravation of plaintiff’s mental condition as well as being necessary for both prosecuting and defending the action. Under these circumstances, it was concluded that New York Hospital, a nonparty, should not be allowed to frustrate the parties’ attempt to gain access to the plaintiff’s records. The Appellate Division granted leave to appeal on a certified question. This court now affirms.

It is well settled that a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR (see CPLR 3121, subd [a]) when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue (Prink v Rockefeller Center, 48 NY2d 309; Koump v Smith, 25 NY2d 287). In most of the reported cases where the right to disclosure was granted, however, the controversy centered on whether the party had waived the physician-patient privilege (see CPLR 4504) by placing his or her physical or mental condition in issue or on whether the records sought to be discovered were “material and necessary in the prosecution or defense of an action” (CPLR 3101; see, e.g., Daniele v Long Is. Jewish-Hillside Med. Center, 74 AD2d 814; Brooks v Hausauer, 51 AD2d 660; Mancinelli v Texas Eastern Transmission Corp., 34 AD2d 535). Patients also have been granted access to their records that were held by an opposing party, for purposes of litigation concerning the medical treatment rendered by that party (see Matter of Warrington [State of New York], 303 NY 129; Matter of Weiss, 208 Misc 1010).

This appeal presents a novel issue: when a patient, who is a party to a malpractice action, has waived the privilege of confidentiality, may a nonparty custodian of the medical records sought to be disclosed apply for a protective order prohibiting unconditional disclosure of those records?

New York Hospital’s opposition to the defendants’ motion and its request that the court examine the records itself to determine which portions were material and relevant will be treated as requesting a protective order pursuant to CPLR 3103. Such orders are discretionary and may be made at any time on the court’s own initiative or on the motion of any party or witness in order to deny, limit,. condition or regulate the use of any disclosure device (CPLR 3103). A protective order is designed to “prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (CPLR 3103, subd [a]). In support of its position, New York Hospital argues that psychiatric records must be accorded greater confidentiality than other types of medical records because of the highly sensitive nature of mental illness and treatment. The hospital warns that direct and unsupervised disclosure of psychiatric records may cause harm to the patient. Upon being confronted with the intimate information he or she has revealed or with doctors’ diagnoses and prognoses, it is contended that the patient may suffer a relapse. Moreover, it is argued that the technical medical terminology and shorthand used in the record may cause confusion or misunderstanding. Further, the patient’s relationships with other persons (such as family and friends) may also be harmed by revealing and disseminating the information in the record concerning them. These factors, it is argued, imbue the psychiatric record with an inherent confidentiality. For this reason, the hospital urges that the custodian or a court should have the discretion to withhold such records requested in the course of discovery even if the patient has waived the privilege of confidentiality. Moreover, the hospital contends that if disclosure is ordered, it should be made with adequate protective measures to ensure that only relevant material will be disclosed.

Defendants do not dispute that psychiatric records are particularly confidential in nature or that the hospital has the right to object to full disclosure on this basis. Rather, they assert that unconditional disclosure of the records was proper in this case because all parties to this litigation wished to examine the requested records that the court below found to be relevant. Defendants add that the non-party hospital failed to prove that any of the alleged dangers existed as to plaintiff. Finally, defendants note that the Appellate Division did follow the hospital’s suggested procedural safeguards by examining the record in camera before ordering full disclosure.

In order to evaluate defendants’ motion to compel full discovery and the hospital’s request to limit the scope of disclosure, the merits of the hospital’s assertion of its right to object must be addressed. The nature of medical records of a patient’s treatment must be examined in order to determine whether objections by a treating physician or hospital should be allowed to limit discovery when the patient has waived the privilege of confidentiality. Medical records will generally contain laboratory reports, nurses’ notes, consultations, and a wide range of speculation and observation that led to the diagnosis and prognosis, which “ ‘[i]f not properly explained * * * could be exceedingly disturbing to a patient already apprehensive’ ” (Gotkin v Miller, 379 F Supp 859, 866 [EDNY], affd 514 F2d 125 [2d Cir], citing Dept. of Health, Education and Welfare, Rep of Secretary’s Comm on Med Malpractice, at p 76; see Note, Patient Access to Medical Records in Washington, 57 Wash L Rev 697, 700 [need to protect patients from potentially disturbing material]). Medical records, particularly psychiatric records, will often contain intimate details of past acts, hopes, fantasies, shames, and doubts that were divulged during treatment (see Weiner, Discovering Mental Health Records in Divorce or Personal Injury Proceedings, 64 Chi Bar Rec 244, citing Guttmacher and Weilhofen, Psychiatry and the Law [1952], p 272). Clinical studies of patients’ reactions to reading their psychiatric records have cited the danger of misconceptions and misunderstandings about the material because of the technical medical terminology often employed in the records, and have suggested that knowledgeable staff should be available when a chart is read to provide explanations (Note, 57 Wash L Rev, op. cit., at p 700, citing Simonton, Neuffer, Stein & Furedy, The Open Medical Record: An Educational Tool, 15 J Psychiatric Nursing & Mental Health Services 25, and Stein, Furedy, Simonton & Neuffer, Patient Access to Medical Records on a Psychiatric Inpatient Unit, 136 Am J Psychiatry 327; see, also, Dubro, Your Medical Records. How Private are They?, 3 Cal Lawyer [No. 4], 33, 34).

It is obvious that the psychological response of a patient to reading his or her medical record is generally more critical in the context of mental illness than in treatments for physical ailments (see Note, 57 Wash L Rev, op. cit., at p 700). For example, misconceptions about the information in the record could lead a patient to treat the diagnosis as a “label” that might serve to reinforce the patient’s negative behavior or lead to feelings of hopelessness, which would impair treatment {id., citing 15 J Psychiatric Nursing and Mental Health Services 25). The danger of “self-fulfilling diagnoses” may be particularly evident in cases where homicidal or suicidal tendencies have been diagnosed {id., at pp 700-701). In addition, the unfettered disclosure of sensitive and confidential information relating to third parties, such as the patient’s family and friends, that the patient has revealed during therapy, may irreparably harm the patient’s relationship with these persons (Gotkin v Miller, 379 F Supp 859, 866 [EDNY], affd 514 F2d 125 [2d Cir], supra. Weiner, Discovering Mental Health Records in Divorce or Personal Injury Proceedings, 64 Chi Bar Rec 244, 246, citing 111 Rev Stat, ch 91x/2, par 810 [a] [1]).

Because of this potential of harm to a patient, medical records, particularly those of psychiatric treatment, should not be automatically and necessarily disclosed upon a patient’s waiver of the privilege of confidentiality under CPLR 4504. The treating doctor or hospital possessing such records should have the right to assert, by means of a motion for a protective order, reasons for preserving the confidentiality of all or portions of such records, notwithstanding a patient’s waiver, in order to protect a patient, third party, or the doctor, or hospital, from potential injury. Confronting the policy of preventing such harm, however, is the competing policy of liberal discovery, which must be considered by a court in deciding whether to exercise its discretion and issue an order compelling discovery under CPLR 3120 (subd [b]) or CPLR 3124, when, as in this instance, the records are sought for purposes of litigation.

The Legislature has indicated that parties to litigation are entitled to “full disclosure of all evidence material and necessary in the prosecution or defense of an action * * * by: (1) a party, or * * * a person authorized to practice medicine who has provided medical care or diagnosis to the party demanding disclosure” (CPLR 3101, subd [a], pars [1], [3]). The discovery provisions of the CPLR have traditionally been liberally construed to require disclosure “of any facts bearing on the controversy which will assist [parties’] preparation for trial” (see Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406). “The test is one of usefulness and reason” (id.). When a party’s mental or physical condition has been put in issue, the need for discovery of medical records in actions is usually clear (Prink v Rockefeller Center, 48 NY2d 309, supra; Koump v Smith, 25 NY2d 287, supra).

Thus, there exists here a situation where the need for discovery must be reconciled with the need to protect a patient from the potentially detrimental effects of disclosing her psychiatric records. In exercising its discretion regarding whether and to what degree a protective order under CPLR 3103 should issue, a court must strike a balance by weighing these conflicting interests in light of the facts of the particular case before it (cf. Gilbert-Frank Corp. v Guardsman Life Ins. Co., 78 AD2d 798 [need for discovery must be weighed against burden and expense imposed on defendant by disclosure]). This is a judicial function, but the resolution of the motions may be submitted to a referee pursuant to CPLR 3104. In order to balance the competing claims, an in camera inspection of the record will be advisable in most instances.

Inasmuch as no claim is advanced here of possible injury to third persons or to any programmatic or other pertinent interest of the hospital, we address only considerations of detriment to the patient. The balancing process begins by a court broadly determining whether the records are discoverable under CPLR article 31. If the records are found generally to be material under CPLR 3101 and the patient is found to have waived the privilege of confidentiality, either expressly by authorizing the record’s release or implicitly by placing his or her mental condition in issue, a strong presumption is created in favor of granting the motion to compel disclosure. This presumption may be rebutted, however, by a custodian hospital or physician in a request for a protective order limiting discovery upon a showing of exceptional circumstances. Such circumstances may be deemed present when the custodian establishes that nondisclosure, in whole or in part, is reasonably necessary to prevent imminent and serious physical or psychological damage to the patient. Failure to rebut the presumption requires the court to order disclosure of the entire record to all parties.

Should the custodian , meet this burden, the court must then weigh the objectionable information’s importance to the pending litigation against the harm that is claimed will occur by its disclosure. Among other things, factors such as the imminence and seriousness of the claimed harm, the materiality of the information to the litigation, and the potential conflicts of interest which the custodian may have in objecting to disclosure, should be considered in the exercise of a court’s discretion. After weighing all the circumstances, the court may then decide whether a protective order should be granted and, if so, whether it should extend to all or only a portion of the records. Whenever the custodian hospital or doctor has established potential harm to the patient but the need for disclosure is deemed paramount, the risk of harm to the patient should be minimized, if possible, by redacting the objectionable parts of the potentially harmful portions of the record (cf. Calcados Samello, S.A. v Intershoe Inc., 78 AD2d 796 [irrelevant portions of business records sought to be disclosed could be excised after in camera inspection]).

In the case at bar, the Appellate Division properly considered the objection to disclosure and request by the hospital to limit discovery to the relevant portions of the record. The court conducted an in camera examination of the psychiatric records in order to evaluate the hospital’s objection. It determined that the records were clearly material and relevant to the litigation and necessary to the parties. Plaintiff was found to have waived the physician-patient privilege. Therefore, a presumption of full disclosure existed under the discovery provisions of the CPLR. New York Hospital submitted no evidence that disclosure of all portions of the record would result in imminent, serious physical or psychological harm to the plaintiff. On the record here, the hospital failed to establish that full disclosure should be curtailed to “prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person” (CPLR 3103, subd [a]). Thus, no need for a protective order was established and it was a proper exercise of the court’s discretion to order full disclosure of the records.

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

Meyer, J.

(concurring). I am in accord with much of the majority opinion but share Judge Kaye’s misgivings with respect to the presumption created. I cannot, however, agree with her or with the majority that a sufficient showing of possible detriment to third parties was not made in the hospital’s moving papers. Those papers asked for in camera review of the records because they contained factual data and comments concerning third persons which “could do irreparable harm to those other persons mentioned.” To disclose more in the moving papers would constitute a violation of the privacy rights of those other persons.

The referee reported that the record contained highly sensitive and confidential material that could prejudice plaintiff and members of her family. Review of the hospital record satisfies me, however, that the record is relevant to this action and that its relevance is not outweighed by possible prejudice to third persons and that, therefore, the Appellate Division did not abuse its discretion as a matter of law in directing its unconditional release. I, therefore, concur.

Kaye, J.

(concurring). In effect a new category of discov-

erable documents — psychiatric records — has been created without any demonstration that the present rules and procedures are inadequate to protect against the perceived dangers to the patient, the hospital or to third parties. The disclosure of any records, psychiatric, medical or otherwise, may threaten interests deserving of protection. CPLR 3103 permits the court on its own initiative or on motion of any party or witness to issue a protective order denying, limiting, conditioning or regulating their production. The “novel issue” posed by the majority is thus fully accommodated within CPLR 3103, for it is clear that despite waiver of the privilege by the patient, a nonparty custodian of such records may seek a protective order to “prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” Indeed, that very process took place in the courts below under existing precedents.

Moreover, the new test articulated by the majority in application may be even less protective of the sensitive interests identified than existing law. A “strong presumption” in favor of production will arise where psychiatric records are generally material and the patient is found to have waived the privilege of confidentiality. Failure to rebut this presumption will require disclosure of the entire record to all parties, unless someone actually makes a motion for a protective order. But even if “exceptional circumstances” are shown to rebut the presumption, still the records may be subject to production, unless the harm is found to outweigh the need for the records. “Strong presumptions” and “exceptional circumstances” in the law may represent even more difficult tests for those seeking to maintain the confidentiality of records than existing standards for protective orders.

Appellant’s attempt to shield its records from disclosure was properly denied because appellant simply did not make a sufficient showing of need for protection under CPLR 3103.

Judges Jasen, Jones, Wachtler, Meyer and Simons concur with Chief Judge Cooke; Judge Meyer concurs in a concurring memorandum; Judge Kaye concurs in result in a separate opinion.

Order, insofar as appealed from, affirmed, etc.

      . References to the physician-patient privilege herein include the privilege of both a current patient and a former patient.

      . When a notice for discovery is served pursuant to CPLR 3120 (discovery and production of documents) or CPLR 3121 (physical or mental examination), “a party may serve a notice of motion for a protective order, specifying his objections” within 10 days of service of the notice for discovery (see CPLR 3122). The hospital argued that it was not barred from objecting for failure to move within 10 days under CPLR 3122 because in the present case the proper vehicle for discovery of the plaintiff’s records would have been to procure a court order, pursuant to CPLR 3120 (subd [b]), which regulates discovery and inspection of documents as against a nonparty. New York Hospital was never served with an order for such discovery nor did the defendants move for an order under CPLR 3120 (subd [b]). In addition, defendants did not move to compel disclosure under CPLR 3124. Thus, the 10-day limitation on moving for a protective order under CPLR 3122 never began to run and so New York Hospital is not barred from seeking such relief (cf. CPLR 3103 [general motion for a protective order may be made at any time]).

      . It should be noted that, in New York, although patients may exercise a considerable degree of control over their records, there is no statute that expressly allows them to obtain direct and complete access to their medical records regardless of whether litigation is pending (cf. Public Health Law, § 17; Mental Hygiene Law, § 33.13; CPLR 3101, 4504). This court has not had occasion to decide whether there is an absolute common-law right to unconditional disclosure of a patient’s medical or psychiatric records. Nor have other courts found such a right (see Matter of Gerkin v Werner, 106 Misc 2d 643 [patient has property right which affords reasonable access to medical records]; People v Cohen, 98 Misc 2d 874, 877 [dentist held records only as custodian for patient, not personal property]; Matter of Striegel v Tofano, 92 Misc 2d 113, 116 [doctor has primary custodial right to records but patient has right of reasonable access]; Matter of Culbertson, 57 Misc 2d 391, 393-395 [records were property of doctor]; see, also, Gotkin v Miller, 379 P Supp 859, 867 [EDNY], affd 514 F2d 125 [2d Cir] [patient has no common-law right to compel release of psychiatric records]).

      . Of course, the patient would also be free to move for a protective order under CPLR 3103 in order to prevent disclosure of intimate details contained in the record which are irrelevant to the issues.

      . No new category of documents is created by this writing for the purposes of discovery. Rather, the process advanced is within the CPLR frame for discovery and protective orders. It provides practical guidance to the courts to meet the unique situation in which a custodian of medical or psychiatric records refuses to produce them, notwithstanding the waiver of confidentiality by a patient-party, who would otherwise be entitled to the records under CPLR discovery provisions.