author: Titone, J.

text:
    [669 NE2d 472, 646 NYS2d 492]
    Howard Desmond, Respondent, v City of New York, Appellant.
    Argued May 2, 1996;
    decided June 6, 1996

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Barry P. Schwartz, Leonard Koerner and Stephen J. McGrath of counsel), for appellant.
    I. The Court below erred, as a matter of law, in holding that plaintiff proved a prima facie case of General Municipal Law § 205-e liability, because section 205-e does not authorize lawsuits, like the one here, brought against an injured police officer’s municipal employer based on the line-of-duty conduct of the injured officer’s fellow officer. (Santangelo v State of New York, 71 NY2d 393; Murphy v City of New York, 202 AD2d 407, 83 NY2d 758; Damiani v City of Buffalo, 198 AD2d 814, 83 NY2d 757; Sledge v City of New York, 207 AD2d 338; Matter of DePoalo v County of Schenectady, 85 NY2d 527; Matter of Sutka v Conners, 73 NY2d 395; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463; New York State Bankers Assn. v Albright, 38 NY2d 430; Catlin v Sobol, 77 NY2d 552; Zappone v Home Ins. Co., 55 NY2d 131; Bragg v Genesee County AgriC. Socy., 84 NY2d 544.) II. Assuming, arguendo, that General Municipal Law § 205-e encompasses lawsuits based on fellow officer conduct, the Court below nonetheless still erred, as a matter of law, in not reversing the lower court’s judgment and dismissing the complaint on the ground that the Chief of Operations Memo No. 3 on vehicular pursuits does not constitute the "requirements” of a governmental statute, ordinance, rule, order or requirement whose violation is a necessary element of a cause of action under section 205-e. That memorandum is not an invariable code of conduct, promulgated pursuant to the City’s formal and public participatory rule-making process, which has the force and effect of law, as is requisite to a section 205-e claim, but, rather, is a purely internal memorandum which serves only as a guidepost for a police officer’s exercise of expert judgment and discretion in effectuating departmental policy on police car chases. (Plunkett v Emergency Med. Serv., 165 MisC 2d 418; Sledge v City of New York, 207 AD2d 338; Crosland v New York City Tr. Auth., 68 NY2d 165; Rivera v New York City Tr. Auth., 77 NY2d 322; Pascarella v City of New York, 146 AD2d 61; Ruotolo v State of New York,
      83 NY2d 248; Hoehn v Consolidated Edison Co., 205 AD2d 734; Alberti v Eastman Kodak Co., 204 AD2d 1022; Santangelo v State of New York, 193 AD2d 25; Constantini v Benedetto, 190 AD2d 888.)

      Alexander J. Wulwick, New York City, and Newman, O’Malley & Epstein, P. C., for respondent.
    I. General Municipal Law § 205-e does not prohibit recovery for injury to or death of a police officer at the hands of a negligent fellow officer. (Rohring v City of Niagara Falls, 84 NY2d 60; Santangelo v State of New York, 71 NY2d 393; Ruotolo v State of New York, 83 NY2d 248; Buckley v City of New York, 56 NY2d 300; Poniatowski v City of New York, 14 NY2d 76; Sega v State of New York, 60 NY2d 183; People v Finnegan, 85 NY2d 53; People ex rel. Harris v Sullivan, 74 NY2d 305; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Matter of Duell v Condon, 84 NY2d 773.) II. Chief of Operations Memo No. 3, governing high-speed automobile pursuits, is a requirement of the Police Department of the City of New York, for the violation of which an action may be maintained under General Municipal Law § 205-e, since it requires an officer to consider specific factors before, and in the process of, engaging in high-speed pursuits. (Kenavan v City of New York, 70 NY2d 558; McCormack v City of New York, 80 NY2d 808; Mercado v Vega, 161 AD2d 365, 77 NY2d 918; Tango v Tulevech, 61 NY2d 34; Rottkamp v Young, 21 AD2d 373, 15 NY2d 831; Malsky v Towner, 196 AD2d 532; Constantini v Benedetto, 190 AD2d 888; Saarinen v Kerr, 84 NY2d 494; Haddock v City of New York, 75 NY2d 478; Marigliano v City of New York, 196 AD2d 533.)

      Kramer, Dillof, Tessel, Duffy & Moore, New York City (Norman Bard and Matthew Gaier of counsel), for New York State Trial Lawyers’ Association, amicus curiae.

    General Municipal Law § 205-e does not contain a fellow servant rule or fellow officer rule. (Rothstein v Tennessee Gas Pipeline Co., 204 AD2d 39, 87 NY2d 90; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Pajak v Pajak, 56 NY2d 394; Matter of Erie County Agric. Socy. v Cluchey, 40 NY2d 194; Parochial Bus Sys. v Board of Educ., 60 NY2d 539; Matter of Scopelliti v Town of New Castle, 210 AD2d 339; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Ruotolo v State of New York, 83 NY2d 248; Santangelo v State of New York, 71 NY2d 393; Pane v City of New York, 177 AD2d 688, 80 NY2d 752.)

      Lysaght, Lysaght & Kramer, P. C., Lake Success (Raymond

      E. Kerno of counsel), for Patrolmen’s Benevolent Association of the City of New York, amicus curiae.

    The only "absurd” and "unjust” construction of General Municipal Law § 205-e is one that deprives police officers of a cause of action under the prescribed circumstances. (Matter of Jewish Home & Infirmary v Commissioner of N. Y. State Dept. of Health, 84 NY2d 252; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; People v Shepard, 50 NY2d 640; Bryant Westchester Realty Corp. v Board of Health, 91 Misc 2d 56; Matter of Bliss v Bliss, 66 NY2d 382; Jiggetts v Grinker, 75 NY2d 411; Sanders v Winship, 57 NY2d 391; Chamberlain v Western Transp. Co., 44 NY 305; People v Ryan, 82 NY2d 497.)

      Dennis C. Vacco, Attorney-General, Albany; Charles S. Turner, Albany; John Zagame, Albany; Charles S. Turner, County Attorney of Monroe County, Rochester; Robert Murphy, Corporation Counsel of City of Binghamton; Edward D. Peace, Corporation Counsel of City of Buffalo (Susan P. Wheatley of counsel); William Ketcham, Corporation Counsel of City of Newburgh; Robert Merino, Corporation Counsel of City of Niagara Falls; Peter McGinnis, Corporation Counsel of City of Poughkeepsie; Linda S. Kingsley, Corporation Counsel of City of Rochester; Diane M. Martin, Corporation Counsel of City of Rome; Michael Brockbank, Corporation Counsel of City of Schenectady; Joseph E. Lamendola, Corporation Counsel of City of Syracuse; Patrick Morphy, Corporation Counsel of City of Troy; Joseph Hobika, Corporation Counsel of City of Utica; Jeffrey Schanback, New York City; Wallace Gossett, Brooklyn; and Christina Lomolino, Corporation Counsel of City of Yonkers, for State of New York and others, amici curiae.

    I. General Municipal Law § 205-e does not provide a cause of action against an officer’s employer or fellow employee for fellow officer conduct. (Quinn v Nadler Bros., 92 AD2d 1013, 59 NY2d 914; Carroll v City of New York, 37 Misc 2d 563, 25 AD2d 841, 18 NY2d 583; Nykanen v City of New York, 14 NY2d 697; Matter of Ryan v City of New York, 228 NY 16; Kircher v City of Jamestown, 74 NY2d 251; Damiani v City of Buffalo, 198 AD2d 814, 83 NY2d 757.) II. General Municipal Law § 205-e liability should, at a minimum, be limited to violations of statutes, ordinances, rules and orders that call for mandatory / ministerial types of action. (Santangelo v State of New York, 71 NY2d 393; Ruotolo v State of New York, 141 Misc 2d 111, 157 AD2d 452, 75 NY2d 710, 76 NY2d 773; Tango v Tulevech, 61 NY2d 34; Damiani v City of Buffalo, 198 AD2d 814, 83 NY2d 757; Clark

      v DeJohn, 164 Misc 2d 107; Crosland v New York City Tr. Auth., 68 NY2d 165; Rivera v New York City Tr. Auth., 77 NY2d 322; Velez v City of New York, 157 AD2d 370, 76 NY2d 715; Rodriguez v City of New York, 189 AD2d 166; McCormack v City of New York, 80 NY2d 808.) III. General Municipal Law § 205-e liability cannot be predicated on violations of statutes and ordinances that merely embody, acknowledge or incorporate common-law standards of care, and that do not increase risks inherent in police work, requirements that exclude typical municipal sidewalk maintenance schemes from the reach of the statute. (Kenavan v City of New York, 70 NY2d 558; Mullen v Zoebe, Inc., 86 NY2d 135; Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; City of New York v Kalikow Realty Co., 71 NY2d 957; D'Ambrosio v City of New York, 55 NY2d 454; Poirier v City of Schenectady, 85 NY2d 310; MacMullen v City of Middletown, 187 NY 37.)
   OPINION OF THE COURT

Titone, J.

Plaintiff police officer brought this action against defendant New York City to recover for injuries he sustained as a result of a high-speed automobile chase that was allegedly conducted by his partner in violation of internal Police Department guidelines. The sole question before us in this appeal by defendant New York City is whether the particular departmental directive in issue was within the class of "statutes, ordinances, rules, orders and requirements” whose violation can sustain a cause of action under General Municipal Law § 205-e. Concluding that the particular directive in issue is not the kind of "requirement” that the statute contemplates, we hold that plaintiff’s statutory cause of action cannot be upheld.

In the early morning hours of November 6, 1982, plaintiff and his partner, Officer Signoreli, were riding in a radio motor patrol car in Brooklyn when they observed a Cadillac drive across two lanes of traffic and through a gas station located at a nearby intersection in an apparent attempt to avoid the intersection’s red light. The Cadillac made a turn at the intersection, with Officer Signoreli, who was driving the patrol car, following closely behind.

Although Signoreli signalled with his siren for the Cadillac to pull over, the vehicle sped up. In response, Signoreli turned on his turret light and pursued the Cadillac as it gained speed, made numerous turns and went through traffic lights and stop signs. At one point during the chase, the Cadillac drove into an oncoming traffic lane causing another car in that lane to swerve onto the sidewalk. According to plaintiff, Signoreli followed the Cadillac "at least” once in the wrong direction on a one-way street.

Approximately three or four minutes after the chase began, the Cadillac left the road, went through a gate and drove onto a high school football field. The officers’ car chased the Cadillac as it drove "erratically” and "in circles” at a speed of approximately 15 to 30 miles per hour. The chase then continued back out onto the street. When the patrol car finally reached the Cadillac and drove alongside it, the Cadillac "rammed” the officers’ vehicle, forcing it over two concrete medians. The chase, which had included speeds of up to 70 miles per hour, finally ended when a second collision forced the two vehicles to come to a stop. The Cadillac’s two occupants were arrested on a number of charges, including second degree assault, reckless endangerment and possession of stolen property.

Having sustained injuries as a result of the chase, plaintiff commenced the present action against New York City, his and Signoreli’s employer, alleging that Signoreli had acted in violation of Vehicle and Traffic Law §§ 1111, 1127 (a) and § 1142 (a), as well as of the New York City Police Department’s Chief of Operations Memo No. 3. That internal memorandum, which concerns "high speed auto pursuit,” stated:

"1. Police action frequently requires the pursuit of an automobile at high speed. Due to the inherent dangers in such action, the safety of all persons must be considered before the pursuit decision is reached. Therefore, it is paramount that each officer weigh the seriousness of the offense committed, against the danger to himself and others who may be affected by the pursuit.
"2. Department policy requires an officer to TERMINATE A HIGH SPEED AUTOMOBILE CHASE WHENEVER THE RISKS TO HIS OWN SAFETY AND THE SAFETY OF OTHERS OUTWEIGH THE DANGER TO THE COMMUNITY IF THE SUSPECT IS NOT IMMEDIATELY APPREHENDED.”

The remainder of the memorandum lists the procedures to be followed and a series of "guidelines” for "the information of members of the service who may be required to become involved in a high speed auto chase.” These guidelines mandate consideration of such nonexclusive factors as the "nature of the offense,” the "time of day,” the "weather conditions,” the "location and population density” of the area, the officer’s "familiarity with the area,” and the "capability and reliability of the vehicle.”

Plaintiff alleged that Signoreli had violated the internal departmental memorandum as well as the cited Vehicle and Traffic Law provisions by engaging in a dangerous, high-speed chase to apprehend the perpetrator of a minor traffic infraction. In support of his theory of liability, plaintiff offered testimony by a veteran police officer, who stated that Memo No. 3’s purpose was "to emphasize” that high-speed pursuit should be undertaken only when there is a' "compelling need for an immediate apprehension,” a formula that does not encompass the apprehension of traffic offenders. Defendant City moved for dismissal, in part on the ground that Memo No. 3 is not a proper predicate for liability under General Municipal Law § 205-e because its only purpose is to provide loose guidelines for discretionary field decisions by police officers. The trial court denied the motion.

The trial culminated in a jury finding that Signoreli had not violated the Vehicle and Traffic Law but had been guilty of violating Chief of Operations Memo No. 3. Echoing its earlier arguments, defendant City moved to set aside the verdict on the ground that the internal memorandum was merely a guideline that "allowed the officerfs] to exercise their discretion.” The trial court denied the motion, and, following a separate trial on the issue of damages, judgment was entered against the City.

On cross appeals, the Appellate Division affirmed the judgment, rejecting the City’s contention that Memo No. 3 was not the kind of departmental rule that General Municipal Law § 205-e contemplates. The City appealed by leave of this Court. We conclude that the Appellate Division’s rejection of the City’s argument was error and that its order should be reversed.

In its appeal to this Court, the City has tendered two discrete arguments, one addressed to the co-worker relationship between plaintiff and the tortfeasor and the other addressed to the type of regulation that the tortfeasor Signoreli is alleged to have breached. The City’s first argument — that General Municipal Law § 205-e’s cause of action does not extend to' injuries caused by a fellow officer’s negligence — is unpreserved and is therefore not cognizable in this appeal. The remaining preserved issue the City proffers is whether an internal departmental memorandum that provides guidelines for the exercise of due care is the type of governmental "requirement” that can lead to liability under General Municipal Law § 205-e. Resolution of this question requires a brief foray into the history of the "firefighters’ rule” and its recent extension to police officers.

Under the common-law rule, firefighters injured in the line of duty could not recover against the property owners or occupants whose négligence occasioned the fire emergency to which they were responding (see, Kenavan v City of New York, 70 NY2d 558; McGee v Adams Paper & Twine Co., 20 NY2d 921, affg on opn below 26 AD2d 186). A limited avenue of relief was made available in 1935, however, when the Legislature enacted General Municipal Law § 205-a, which gave firefighters and their survivors a statutory cause of action for line-of-duty injuries "occur[ring] * * * as a result of any * * * culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements” of any level of government and of any governmental department, division or bureau (L 1935, ch 800, § 2, as amended by L 1936, ch 251, § 1).

In Santangelo v State of New York (71 NY2d 393), this Court applied the common-law "firefighters’ rule” to police officers injured in the line of duty. We reasoned that the modern public policy rationale for the rule is as applicable to the hazards of police work as it is to the dangers that firefighters face. The members of these uniformed services are employed "precisely because special skills and expertise are required to confront certain hazards * * *, these hazards often arise from negligence, and as a matter of public policy firefighters [and police officers] trained and compensated to confront such dangers must be precluded from recovering damages for the very situations that created a need for their services” (id., at 397; see also, Cooper v City of New York, 81 NY2d 584 [holding the San-tangelo rule applicable to claims arising out of fellow officer’s negligence and out of negligent acts that are "separate and distinct” from the negligence that occasioned the emergency]).

In the wake of the Santangelo decision, the Legislature enacted General Municipal Law § 205-e in an avowed effort to afford police officers parity with firefighters (L 1989, ch 346; see, id., Sponsor’s Mem in Support, 1989 NY Legis Ann, at 180; Governor’s Mem approving L 1989, ch 346, 1989 NY Legis Ann, at 182). The new law, which essentially tracked the language of General Municipal Law § 205-a, was intended to "be identical to” that statute (see, Sponsor’s Mem, op. cit.). Thus, wherever practical and sensible, sections 205-a and 205-e should be construed and applied in the same way.

Of course, the precise identity that section 205-e sponsors apparently envisioned may not always be possible, since the differing natures of firefighters’ and police officers’ work may dictate some variations in application. In the context of a section 205-a claim by a firefighter, for example, we have held that only conduct by property owners relating to the maintenance of premises in a safe condition for firefighters is actionable (Kenavan v City of New York, supra, at 566-567). Such a restriction is obviously not appropriate in actions by police officers arising under section 205-e, since police officers’ duties are not as closely tied to "premises” and, in fact, their duties routinely expose them to a host of nonpremises related hazards. It was for this reason that the Legislature amended the statute in 1992 to make clear that it applies to actions for line-of-duty injuries occurring "at any time or place” (L 1992, ch 474; see, id., § 1; Ruotolo v State of New York, 83 NY2d 248, 255-256).

Nonetheless, despite their minor dissimilarities, the cases construing section 205-a are highly instructive in the construction and application of its sibling provision, section 205-e. One critical interpretive point common to both statutes is that, despite their underlying remedial purposes, neither statute can reasonably be applied literally in accordance with its broad language. As we made clear in Kenavan v City of New York (supra, at 565-567), these ameliorative provisions of the General Municipal Law must be construed and applied in light of their specific history and purposes as well as their language (see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Ferres v City of New Rochelle, 68 NY2d 446, 451).

Assuming without deciding that an internal departmental policy memorandum can constitute a "requirement” of a governmental department, division or bureau under General Municipal Law § 205-e in a proper case, we conclude that the particular memorandum at issue here is not within that category. As is plain from the statute’s legislative history, section 205-e was not enacted to give police officers an unrestricted right to recover for all negligently caused line-of-duty injuries. Nor was it intended to give police officers a right to sue for breaches of any and all governmental pronouncements of whatever type and regardless of how general or specific those pronouncements might be. Rather, the 1989 enactment was intended to provide police officers with an avenue of recourse "where injury is the result of negligent non-compliance with well-developed bodies of law and regulation” which "impose clear duties” (Mem of State Executive Dept, reprinted in 1989 McKinney’s Session Laws of NY, at 2140, 2141).

Memo No. 3, the governmental pronouncement on which plaintiff relies, does not impose any such "clear [legal] duties.” Nor is it part of a "well-developed bod[y] of law and regulation” with positive commands that mandate the performance or nonperformance of specific acts. Rather, Memo No. 3 merely establishes a general policy against the use of high-speed vehicular pursuit in cases where the safety risks outweigh the law enforcement goal to be served. As such, the policy pronouncement contains no particularized mandates, but instead simply authorizes the officer to exercise a measure of guided discretion within certain specific criteria.

It is true, as plaintiff points out, that Memo No. 3 states that Department policy "requires” an officer to terminate a high-speed pursuit under certain conditions. However, when considered in context, this mandatory term does not convert the fundamentally discretionary nature of the Memo’s instruction into a "requirement” within the meaning of General Municipal Law § 205-e. Although the term "require” is used, the Memo makes the "required” action, i.e., termination of the chase, depend on the pursuing officer’s individual judgment about the relative safety risks and their relationship to the "danger to the community if the suspect is not immediately apprehended.” Thus, despite its reference to a "required” termination of the chase, the Memo does not actually "require” any particular action, nor does it impose a "clear legal duty” on the officers whose conduct it purports to regulate.

Accordingly, we conclude that a claimed "violation” of Memo No. 3 cannot serve as a basis for a cause of action under General Municipal Law § 205-e. Indeed, the contrary conclusion would lead to a situation in which the trier of fact would be called upon to sit in judgment of the wisdom of a police officer’s decision that the pursuit and immediate apprehension of a crime suspect was necessary to the community’s safety. In the absence of a clear legislative expression, we cannot infer that the Legislature intended such a startling result. Nor can we infer that in enacting General Municipal Law § 205-e the Legislature intended to abrogate the general rule that liability for a colleague’s conduct will not be imposed "where the * * * conduct involves the exercise of professional judgment[, including] * * * making tactical decisions that, in retrospect show poor judgment” (Kenavan v City of New York, supra, at 569).

For the foregoing reasons, we hold that the Appellate Division erred in upholding plaintiffs judgment under General Municipal Law § 205-e based on a claimed violation of a governmental "requirement”. Since the departmental directive on which plaintiff relied did not impose any "requirements” and was, in fact, nothing more than a guide for the exercise of an officer’s professional discretion, plaintiff’s statutory cause of action should have been dismissed.

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

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

Order reversed, etc.

       Plaintiff appealed claiming that the damage award was inadequate, but the Appellate Division dismissed his appeal.


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [669 NE2d 799, 646 NYS2d 641]
    The Symphony Space, Inc., Respondent, v Pergola Properties, Inc., et al., Appellants.
    Argued May 2, 1996;
    decided June 13, 1996

      POINTS OF COUNSEL

      Stroock & Stroock & Lavan, New York City (Charles G. Moerdler, Burton N. Lipshie, Kenneth Pasquale and Karen Leo of counsel), for Pergola Properties, Inc., and another, appellants.
    I. The Rule against Perpetuities does not apply to the option agreement. (Anderson v 50 E. 72nd St. Condominium, 119 AD2d 73, 69 NY2d 743; Wildenstein & Co. v Wallis, 79 NY2d 641; Morrison v Piper, 77 NY2d 165; Payne v Palisades Inter

      state Park Commn., 204 AD2d 787; Buffalo Seminary v McCarthy, 86 AD2d 435, 58 NY2d 867; Matter of Lyons, 271 NY 204; Matter of Fischer, 307 NY 149; Matter of Schirmer, 45 Misc 2d 1063; Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156.) II. The exercise of the option does not violate Symphony’s right to redeem the mortgage. (Mooney v Byrne, 163 NY 86; Sakow v Bossi, 30 Misc 2d 110; Donohue v First Trust Co., 1 AD2d 573.) III. The conveyance of fee title of the option parcel to Symphony should be rescinded based upon the parties’ undisputed mutual mistake. (Anita Founds. v IL-GWU Natl. Retirement Fund, 902 F2d 185; Gullo v Gullo, 46 AD2d 991; Matter of Gould v Board of Educ., 81 NY2d 446; D'Antoni v Goff, 52 AD2d 973.)

      Nathan M. Ferst, New York City, for Casandium Ltd. and another, appellants.

      Carter, Ledyard & Milburn, New York City (Jean M. McCarroll and Joanna G. Blattberg of counsel), for respondent.
    I. The courts below correctly held that the option agreement violates New York’s Rule against Perpetuities. (Buffalo Seminary v McCarthy, 86 AD2d 435, 58 NY2d 867; Witt v Disque, 79 AD2d 419; Smith v Smith, 116 AD2d 810; Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156; Oliver v Wells, 229 App Div 356, 254 NY 451; Bright Homes v Wright, 8 NY2d 157; Matter of Walker, 64 NY2d 354; People v Kupprat, 6 NY2d 88; Matter of Martin v School Bd., 301 NY 233; Wildenstein & Co. v Wallis, 79 NY2d 641.) II. The lower court correctly held that the option agreement is void because it clogs the equity of redemption. (Polish Natl. Alliance v White Eagle Hall Co., 98 AD2d 400; First Fed. Sav. & Loan Assn. v Smith, 83 AD2d 601; Boyarsky v Froccaro, 125 Misc 2d 352; Mooney v Byrne, 163 NY 86; Wallace v McCabe, 41 Misc 2d 483; Sakow v Bossi, 30 Misc 2d 110; Baugham v Slane, 181 Misc 1041; Lee v Beagell, 174 Misc 6; Mann v Sterling Holding Corp., 14 Misc 2d 818; Gitlin v Schneider, 42 Misc 2d 230.) III. The courts below properly held that rescission would be inappropriate in this case. (Church v Wilson, 152 App Div 844, 209 NY 553; Hadley v Rinke, 39 F Supp 207; Carrier v Carrier, 226 NY 114; Gitlin v Schneider, 42 Misc 2d 230; Matter of Morrison, 173 Misc 503; Bankers Trust Co. v Topping, 180 Misc 596; Matter of Maybaum, 296 NY 201; Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418; Matter of Robida v Mirrington, 1 Misc 2d 968; Matter of Gould v Board of Educ., 81 NY2d 446.)
   OPINION OF THE COURT

Chief Judge Kaye.

This case presents the novel question whether options to purchase commercial property are exempt from the prohibition against remote vesting embodied in New York’s Rule against Perpetuities (EPTL 9-1.1 [b]). Because an exception for commercial options finds no support in our law, we decline to exempt all commercial option agreements from the statutory Rule against Perpetuities.

Here, we agree with the trial court and Appellate Division that the option defendants seek to enforce violates the statutory prohibition against remote vesting and is therefore unenforceable.

I. FACTS

The subject of this proceeding is a two-story building situated on the Broadway block between 94th and 95th Streets on Manhattan’s Upper West Side. In 1978, Broadwest Realty Corporation owned this building, which housed a theater and commercial space. Broadwest had been unable to secure a permanent tenant for the theater — approximately 58% of the total square footage of the building’s floor space (see, Matter of Symphony Space v Tishelman, 60 NY2d 33, 35, n 1). Broadwest also owned two adjacent properties, Pomander Walk (a residential complex) and the Healy Building (a commercial building). Broadwest had been operating its properties at a net loss.

Plaintiff Symphony Space, Inc., a not-for-profit entity devoted to the arts, had previously rented the theater for several one-night engagements. In 1978, Symphony and Broadwest engaged in a transaction whereby Broadwest sold the entire building to Symphony for the below-market price of $10,010 and leased back the income-producing commercial property, excluding the theater, for $1 per year. Broadwest maintained liability for the existing $243,000 mortgage on the property as well as certain maintenance obligations. As a condition of the sale, Symphony, for consideration of $10, also granted Broadwest an option to repurchase the entire building. Notably, the transaction did not involve Pomander Walk or the Healy Building.

The purpose of this arrangement was to enable Symphony, as a not-for-profit corporation, to seek a property tax exemption for the entire building — which constituted a single tax parcel — predicated on its use of the theater. The sale-and-leaseback would thereby reduce Broadwest’s real estate taxes by $30,000 per year, while permitting Broadwest to retain the rental income from the leased commercial space in the building, which the trial court found produced $140,000 annually. The arrangement also furthered Broadwest’s goal of selling all the properties, by allowing Broadwest to postpone any sale until property values in the area increased and until the commercial leases expired. Symphony, in turn, would have use of the theater at minimal cost, once it received a tax exemption.

Thus, on December 1, 1978, Symphony and Broadwest — both sides represented by counsel — executed a contract for sale of the property from Broadwest to Symphony for the purchase price of $10,010. The contract specified that $10 was to be paid at the closing and $10,000 was to be paid by means of a purchase-money mortgage.

The parties also signed several separate documents, each dated December 31, 1978: (1) a deed for the property from Broadwest to Symphony; (2) a lease from Symphony to Broad-west of the entire building except the theater for rent of $1 per year and for the term January 1, 1979 to May 31, 2003, unless terminated earlier; (3) a 25-year, $10,000 mortgage and mortgage note from Symphony as mortgagor to Broadwest as mortgagee, with full payment due on December 31, 2003; and (4) an option agreement by which Broadwest obtained from Symphony the exclusive right to repurchase all of the property, including the theater.

It is the option agreement that is at the heart of the present dispute. Section 3 of that agreement provides that Broadwest may exercise its option to purchase the property during any of the following "Exercise Periods”:

"(a) at any time after July 1, 1979, so long as the Notice of Election specifies that the Closing is to occur during any of the calendar years 1987, 1993, 1998 and 2003;
"(b) at any time following the maturity of the indebtedness evidenced by the Note and secured by the Mortgage, whether by acceleration or otherwise;
"(c) during the ninety days immediately following any termination of the Lease by the lessor thereof other than for nonpayment of rent or any termination of the Lease by the lessee thereof * * *
"(d) during the ninety days immediately following the thirtieth day after Broadwest shall have sent Symphony a notice specifying a default by Symphony of any of its covenants or obligations under the Mortgage.”

Section 1 states that "Broadwest may exercise its option at any time during any Exercise Period.” That section further specifies that the notice of election must be sent at least 180 days prior to the closing date if the option is exercised pursuant to section 3 (a) and at least 90 days prior to the closing date if exercised pursuant to any other subdivision.

The following purchase prices of the property, contingent upon the closing date, are set forth in section 4: $15,000 if the closing date is on or before December 31, 1987; $20,000 if on or before December 31, 1993; $24,000 if on or before December 31, 1998; and $28,000 if on or before December 31, 2003.

Importantly, the option agreement specifies in section 5 that "Broadwest’s right to exercise the option granted hereby is * * * unconditional and shall not be in any way affected or impaired by Broadwest’s performance or nonperformance, actual or asserted, of any obligation to be performed under the Lease or any other agreement or instrument by or between Broadwest and Symphony,” other than that Broadwest was required to pay Symphony any unpaid rent on the closing date. Finally, section 6 established that the option constituted "a covenant running with the land, inuring to the benefit of heirs, successors and assigns of Broadwest.”

Symphony ultimately obtained a tax exemption for the theater. In the summer of 1981, Broadwest sold and assigned its interest under the lease, option agreement, mortgage and mortgage note, as well as its ownership interest in the contiguous Pomander Walk and Healy Building, to defendants’ nominee for $4.8 million. The nominee contemporaneously transferred its rights under these agreements to defendants Pergola Properties, Inc., Bradford N. Swett, Casandium Limited and Darenth Consultants as tenants in common.

Subsequently, defendants initiated a cooperative conversion of Pomander Walk, which was designated a landmark in 1982, and the value of the properties increased substantially. An August 1988 appraisal of the entire blockfront, including the Healy Building and the unused air and other development rights available from Pomander Walk, valued the property at $27 million assuming the enforceability of the option. By contrast, the value of the leasehold interest plus the Healy Building without the option were appraised at $5.5 million.

Due to Symphony’s alleged default on the mortgage note, defendant Swett served Symphony with notice in January 1985 that it was exercising the option on behalf of all defendants. The notice set a closing date of May 6, 1985. Symphony, however, disputed both that it was in default and Swett’s authority to exercise the option for all of the defendants. According to Symphony, moreover, it then discovered that the option agreement was possibly invalid. Consequently, in March 1985, Symphony initiated this declaratory judgment action against defendants, arguing that the option agreement violated the New York statutory prohibition against remote vesting and clogged its equity of redemption under the mortgage.

Defendant Pergola subsequently served Symphony with separate notice of default dated April 4,1985, informing Symphony that it was exercising the option on behalf of all defendants pursuant to sections 1, 3 (b) and 3 (d) of the option agreement and setting the closing date for July 10, 1985. Pergola further notified Symphony that it was alternatively exercising the option under section 3 (a) of the option agreement, which was not contingent upon Symphony’s default, with the closing date scheduled for January 5, 1987. Symphony did not appear for any of the closing dates contained in Swett’s or Pergola’s notices.

A dispute among the defendants over Swett’s authority to serve the initial notice developed into a separate litigation, culminating in the trial court authorizing Pergola to exercise the option on behalf of all defendants. In March 1987, Pergola thus served Symphony with another notice that it was exercising the option pursuant to section 3 (a), with the closing scheduled for September 11, 1987. The trial court’s judgment was stayed, however, and Symphony did not appear at the March closing.

Thereafter, the parties cross-moved for summary judgment in the instant declaratory judgment proceeding. The trial court granted Symphony’s motion while denying that of defendants. In particular, the court concluded that the Rule against Perpetuities applied to the commercial option contained in the parties’ agreement, that the option violated the Rule and that Symphony was entitled to exercise its equitable right to redeem the mortgage. The trial court also dismissed defendants’ counterclaim for rescission of the agreements underlying the transaction based on the parties’ mutual mistake.

In a comprehensive writing by Justice Ellerin, the Appellate Division likewise determined that the commercial option was unenforceable under the Rule against Perpetuities and that rescission was inappropriate. The Appellate Division certified the following question to us: "Was the order of the Supreme Court, as affirmed by this Court, properly made?” We conclude that it was and now affirm.

II. STATUTORY BACKGROUND

The Rule against Perpetuities evolved from judicial efforts during the 17th century to limit control of title to real property by the dead hand of landowners reaching into future generations. Underlying both early and modern rules restricting future dispositions of property is the principle that it is socially undesirable for property to be inalienable for an unreasonable period of time. These rules thus seek "to ensure the productive use and development of property by its current beneficial owners by simplifying ownership, facilitating exchange and freeing property from unknown or embarrassing impediments to alienability” (Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d 156, 161, citing De Peyster v Michael, 6 NY 467, 494).

The traditional statement of the common-law Rule against Perpetuities was set forth by Professor John Chipman Gray: "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest” (Gray, The Rule Against Perpetuities § 201, at 191 [4th ed 1942]).

In New York, the rules regarding suspension of the power of alienation and remoteness in vesting — the Rule against Perpetuities — have been statutory since 1830. Prior to 1958, the perpetuities period was two lives in being plus actual periods of minority (see, Real Property Law former § 42). Widely criticized as unduly complex and restrictive, the statutory period was revised in 1958 and 1960, restoring the common-law period of lives in being plus 21 years (see, L 1958, ch 153; L 1960, ch 448).

Formerly, the rule against remote vesting in New York was narrower than the common-law rule, encompassing only particular interests (see, Real Property Law former §§ 46, 50; Buffalo Seminary v McCarthy, 86 AD2d 435, 440, affd 58 NY2d 867). A further 1965 amendment enacted a broad prohibition against remote vesting (see, L 1965, ch 670, § 1). This amendment was intended to make clear that the American common-law rule of perpetuities was now fully in force in New York (see, 1965 NY Legis Ann, at 206-207).

New York’s current statutory Rule against Perpetuities is found in EPTL 9-1.1. Subdivision (a) sets forth the suspension of alienation rule and deems void any estate in which the conveying instrument suspends the absolute power of alienation for longer than lives in being at the creation of the estate plus 21 years (see, EPTL 9-1.1 [a] [2]). The prohibition against remote vesting is contained in subdivision (b), which states that "[n]o estate in property shall be valid unless it must vest, if at all, not later than twenty-one years after one or more lives in being at the creation of the estate and any period of gestation involved” (EPTL 9-1.1 [b]). This Court has described subdivision (b) as "a rigid formula that invalidates any interest that may not vest within the prescribed time period” and has "capricious consequences” (Wildenstein & Co. v Wallis, 79 NY2d 641, 647-648). Indeed, these rules are predicated upon the public policy of the State and constitute nonwaivable, legal prohibitions (see, Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 161).

In addition to these statutory formulas, New York also retains the more flexible common-law rule against unreasonable restraints on alienation. Unlike the statutory Rule against Perpetuities, which is measured exclusively by the passage of time, the common-law rule evaluates the reasonableness of the restraint based on its duration, purpose and designated method for fixing the purchase price. (See, Wildenstein & Co. v Wallis, 79 NY2d at 648; Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 161-162, supra)

Against this background, we consider the option agreement at issue.

III. VALIDITY OF THE OPTION AGREEMENT

Defendants proffer three grounds for upholding the option: that the statutory prohibition against remote vesting does not apply to commercial options; that the option here cannot be exercised beyond the statutory period; and that this Court should adopt the "wait and see” approach to the Rule against Perpetuities. We consider each in turn.

A. Applicability of the Rule to Commercial Options

Under the common law, options to purchase land are subject to the rule against remote vesting (see, Simes, Future Interests § 132 [2d ed 1966]; Simes and Smith, Future Interests § 1244 [2d ed]; Leach, Perpetuities in a Nutshell, 51 Harv L Rev 638, 660; see also, London & S. W. Ry. Co. v Gomm, 20 Ch D 562). Such options are specifically enforceable and give the option holder a contingent, equitable interest in the land (Dukeminier, A Modem Guide to Perpetuities, 74 Cal L Rev 1867, 1908; Leach, Perpetuities in Perspective: Ending the Rule’s Reign of Terror, 65 Harv L Rev 721, 736-737). This creates a disincentive for the landowner to develop the property and hinders its alienability, thereby defeating the policy objectives underlying the Rule against Perpetuities (see, Dukeminier, A Modern Guide to Perpetuities, 74 Cal L Rev 1908; 5A Powell, Real Property ¶ 771 [1]).

Typically, however, options to purchase are part of a commercial transaction. For this reason, subjecting them to the Rule against Perpetuities has been deemed "a step of doubtful wisdom” (Leach, Perpetuities in Perspective: Ending the Rule’s Reign of Terror, 65 Harv L Rev 737; see also, Dukeminier, A Modern Guide to Perpetuities, 74 Cal L Rev 1908; Note, Options and the Rule Against Perpetuities, 13 U Fla L Rev 214, 214-215). As one vocal critic, Professor W. Barton Leach, has explained,

"[t]he Rule grew up as a limitation on family dispositions; and the period of lives in being plus twenty-one years is adapted to these gift transactions. The pressures which created the Rule do not exist with reference to arms-length contractual transactions, and neither lives in being nor twenty-one years are periods which are relevant to business men and their affairs” (Leach, Perpetuities: New Absurdity, Judicial and Statutory Correctives, 73 Harv L Rev 1318, 1321-1322).

Professor Leach, however, went on to acknowledge that, under common law, "due to an overemphasis on concepts derived from the nineteenth century, we are stuck with the application of the Rule to options to purchase,” urging that "this should not be extended to other commercial transactions” (id., at 1322; see also, Simes and Smith, Future Interests § 1244).

It is now settled in New York that, generally, EPTL 9-1.1 (b) applies to options. In Buffalo Seminary v McCarthy (86 AD2d 435, supra), the court held that an unlimited option in gross to purchase real property was void under the statutory rule against remote vesting, and we affirmed the Appellate Division decision on the opinion of then-Justice Hancock (58 NY2d 867). Since then, we have reiterated that options in real estate are subject to the statutory rule (see, e.g., Wildenstein & Co. v Wallis, 79 NY2d at 648, supra).

Although the particular option at issue in Buffalo Seminary was part of a private transaction between neighboring landowners, the reasoning employed in that case establishes that EPTL 9-1.1 (b) applies equally to commercial purchase options. In reaching its conclusion in Buffalo Seminary, the court explained that, prior to 1965, New York’s narrow statutory rule against remote vesting did not encompass options (86 AD2d at 443). A review of the history of the broad provision enacted in 1965, however, established that the Legislature specifically intended to incorporate the American common-law rules governing perpetuities into the New York statute (id., at 441-442).

Because the common-law rule against remote vesting encompasses purchase options that might vest beyond the permissible period, the court concluded that EPTL 9-1.1 (b) necessarily encompasses such options (id., at 443). Inasmuch as the common-law prohibition against remote vesting applies to both commercial and noncommercial options, it likewise follows that the Legislature intended EPTL 9-1.1 (b) to apply to commercial purchase options as well.

Consequently, creation of a general exception to EPTL 9-1.1 (b) for all purchase options that are commercial in nature, as advocated by defendants, would remove an entire class of contingent future interests that the Legislature intended the statute to cover. While defendants offer compelling policy reasons — echoing those voiced by Professor Leach — for refusing to apply the traditional rule against remote vesting to these commercial option contracts, such statutory reformation would require legislative action similar to that undertaken by numerous other State lawmakers (see, e.g., Cal Prob Code § 21225; Fla Stat Annot ch 689.225; Ill Stat Annot ch 765, para 305/4).

Our decision in Metropolitan Transp. Auth. v Bruken Realty Corp. (67 NY2d 156, supra) is not to the contrary. In Bruken, we held that EPTL 9-1.1 (b) did not apply to a preemptive right in a "commercial and governmental transaction” that lasted beyond the statutory perpetuities period. In doing so, we explained that, unlike options, preemptive rights (or rights of first refusal) only marginally affect transferability:

"An option grants to the holder the power to compel the owner of property to sell it whether the owner is willing to part with ownership or not. A preemptive right, or right of first refusal, does not give its holder the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the party holding the preemptive right so that he may meet a third-party offer or buy the property at some other price set by a previously stipulated method” (id., at 163).

Enforcement of the preemptive right in the context of the governmental and commercial transaction, moreover, actually encouraged the use and development of the land, outweighing any minor impediment to alienability (id., at 165-166).

Bruken merely recognized that the Legislature did not intend EPTL 9-1.1 (b) to apply to those contingent future interests in real property that encourage the holder to develop the property by insuring an opportunity to benefit from the improvements and to recapture any investment (see Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 165; Morrison v Piper, 77 NY2d 165, 170). In these limited circumstances, enforcement would promote the purposes underlying the rule.

Bruken, then, did not create a sweeping exception to EPTL 9-1.1 (b) for commercial purchase options. Indeed, we have since emphasized that options to purchase are to be treated differently than preemptive rights, underscoring that preemptive rights impede alienability only minimally whereas purchase options vest substantial control over the transferability of property in the option holder (see, Wildenstein & Co. v Wallis, 79 NY2d at 648, supra; Morrison v Piper, 77 NY2d at 169-170, supra). We have also clarified that even preemptive rights are ordinarily subject to the statutory rule against remote vesting (see, Morrison v Piper, 77 NY2d 165, supra). Only where the right arises in a governmental or commercial agreement is the minor restraint on transferability created by the preemptive right offset by the holder’s incentive to improve the property.

Here, the option agreement creates precisely the sort of control over future disposition of the property that we have previously associated with purchase options and that the common-law rule against remote vesting — and thus EPTL 9-1.1 (b) — seeks to prevent. As the Appellate Division explained, the option grants its holder absolute power to purchase the property at the holder’s whim and at a token price set far below market value. This Sword of Damocles necessarily discourages the property owner from investing in improvements to the property. Furthermore, the option’s existence significantly impedes the owner’s ability to sell the property to a third party, as a practical matter rendering it inalienable.

That defendants, the holder of this option, are also the lessees of a portion of the premises does not lead to a different conclusion here.

Generally, an option to purchase land that originates in one of the lease provisions, is not exercisable after lease expiration, and is incapable of separation from the lease is valid even though the holder’s interest may vest beyond the perpetuities period (see, Berg, Long-Term Options and the Rule Against Perpetuities, 37 Cal L Rev 1, 21; Leach, Perpetuities: New Absurdity, Judicial and Statutory Correctives, 73 Harv L Rev 1320; Simes and Smith, Future Interests § 1244). Such options— known as options "appendant” or "appurtenant” to leases— encourage the possessory holder to invest in maintaining and developing the property by guaranteeing the option holder the ultimate benefit of any such investment. Options appurtenant thus further the policy objectives underlying the rule against remote vesting and are not contemplated by EPTL 9-1.1 (b) (see, Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 165, supra; see also, Buffalo Seminary v McCarthy, 86 AD2d at 441, n 5, supra).

To be sure, the option here arose within a larger transaction that included a lease. Nevertheless, not all of the property subject to the purchase option here is even occupied by defendants. The option encompasses the entire building — both the commercial space and the theater — yet defendants are leasing only the commercial space. With regard to the theater space, a disincentive exists for Symphony to improve the property, since it will eventually be claimed by the option holder at the predetermined purchase price.

Furthermore, the option is not contained in the lease itself, but in a separate agreement. Indeed, section 5 of the option agreement specifies that the right to exercise the option is wholly independent from the lease, stating that it "shall not be in any way affected or impaired by * * * performance or nonperformance, actual or asserted, of any obligation to be performed under the Lease or any other agreement.” The duration of the option, moreover, exceeds the term of the lease. Consequently, defendants could compel Symphony to sell them the property even after they have ceased possession as lessee.

Put simply, the option here cannot qualify as an option appurtenant and significantly deters development of the property. If the option is exercisable beyond the statutory perpetuities period, refusing to enforce it would thus further the purpose and rationale underlying the statutory prohibition against remote vesting.

B. Duration of the Option Agreement

1. Duration Under Section 3 (a) of the Agreement

Defendants alternatively claim that section 3 (a) of the agreement does not permit exercise of the option after expiration of the statutory perpetuities period. According to defendants, only the possible closing dates fall outside the permissible time frame.

Where, as here, the parties to a transaction are corporations and no measuring lives are stated in the instruments, the perpetuities period is simply 21 years (see, Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 161, supra). Section 1 of the parties’ agreement allows the option holder to exercise the option "at any time during any Exercise Period” set forth in section three. Section 3 (a), moreover, expressly provides that the option may be exercised "ai any time after July 1, 1979,” so long as the closing date is scheduled during 1987, 1993, 1998 or 2003.

Even factoring in the requisite notice, then, the option could potentially be exercised as late as July 2003 — more than 24 years after its creation in December 1978. Defendants’ contention that section 3 (a) does not permit exercise of the option beyond the 21-year period is thus contradicted by the plain language of the instrument.

Nor can EPTL 9-1.3 — the "saving statute” — be invoked to shorten the duration of the exercise period under section 3 (a) of the agreement. That statute mandates that, "[ujnless a contrary intention appears,” certain rules of construction govern with respect to any matter affecting the Rule against Perpetuities (EPTL 9-1.3 [a]). The specified canons of construction include that "[i]t shall be presumed that the creator intended the estate to be valid” (EPTL 9-1.3 [b]) and "[w]here the duration or vesting of an estate is contingent upon * * * the occurrence of any specified contingency, it shall be presumed that the creator of such estate intended such contingency to occur, if at all, within twenty-one years from the effective date of the instrument creating such estate” (EPTL 9-1.3 [d]).

By presuming that the creator intended the estate to be valid, the statute seeks to avoid annulling dispositions due to inadvertent violations of the Rule against Perpetuities. The provisions of EPTL 9-1.3, however, are merely rules of construetian. While the statute obligates reviewing courts, where possible, to avoid constructions that frustrate the parties’ intended purposes (see, Morrison v Piper, 77 NY2d 165, 173-174, supra), it does not authorize courts to rewrite instruments that unequivocally allow interests to vest outside the perpetuities period (compare, EPTL 9-1.2 [reducing age contingency to 21 years, where interest is invalid because contingent on a person reaching an age in excess of 21 years]).

Indeed, by their terms, the rules of construction in EPTL 9-1.3 apply only if "a contrary intention” does not appear in the instrument. Thus, as the Practice Commentary explains, "[t]he court cannot validate an unambiguous disposition on the basis of the grantor’s probable intent, but where construction is needed [subd (b)] will be useful in helping to establish the creator’s intent” (Turano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17B, EPTL 9-1.3, at 543).

For example, where a deed contains contradictory phrases, one of which is valid under the Rule (see, Morrison v Piper, 77 NY2d 165, 173-174, supra), or where one of two possible interpretations of a term in an agreement would comply with the Rule (see, Payne v Palisades Interstate Park Commn., 204 AD2d 787), the court will adopt the construction validating the disposition (see also, Restatement of Property § 375 [1944]). By contrast, an option containing no limitation in duration demonstrates the parties’ intent that it last indefinitely, and EPTL 9-1.3 does not permit "an extensive rewriting of the option agreement * * * so as to make it conform to the permissible period” (see, Buffalo Seminary v McCarthy, 86 AD2d at 446, supra).

The unambiguous language of the agreement here expresses the parties’ intent that the option be exercisable "at any time” during a 24-year period pursuant to section 3 (a). The section thus does not permit a construction that the parties intended the option to last only 21 years.

Given the contrary intention manifested in the instrument itself, the saving statute is simply inapplicable.

2. Duration Under Sections 3 (b)-(d) of the Agreement

Section 3 (b), (c) and (d) of the agreement also allow the option to be exercised after the 21-year perpetuities period, which would expire in December 1999.

Section 3 (b) authorizes the option to be exercised "at any time” following the maturity of the mortgage note. The only limit on duration is found in section 4, which designates December 31, 2003, to be the latest possible closing date. The option could thus be exercised until October 2003 pursuant to section 3 (b).

Section 3 (c) and (d) each permits exercise of the option for a defined period following a specified contingency. Section 3 (c) is contingent upon termination of the lease; section 3 (d) is contingent upon Symphony’s default on the mortgage. Neither the lease nor the mortgage, however, expires until a date in 2003. The lease could therefore be terminated, or Symphony could default on the mortgage, some time prior to 2003 but after the 21-year period lapses in December 1999. Defendants, in turn, could potentially exercise the option during this interval.

Defendants urge that, under EPTL 9-1.3 (b), (d), we must presume the parties expected these contingencies to occur, if at all, within the 21-year period. A contrary intention, however, appears in the agreement itself. By specifying in section 4 that the closing date could be scheduled as late as December 31, 2003, the parties manifested their expectation that the contingency might occur and the option might be exercised as late as October 2003, well beyond December 1999.

Again, EPTL 9-1.3 (b), (d) cannot "save” these provisions.

C. "Wait and See” Approach

Defendants next urge that we adopt the "wait and see” approach to the Rule against Perpetuities: an interest is valid if it actually vests during the perpetuities period, irrespective of what might have happened (see, Dukeminier, A Modern Guide to Perpetuities, 74 Cal L Rev 1867, 1880). The option here would survive under the "wait and see” approach since it was exercised by 1987, well within the 21-year limitation.

This Court, however, has long refused to "wait and see” whether a perpetuities violation in fact occurs. As explained in Matter of Fischer (307 NY 149, 157), "[i]t is settled beyond dispute that in determining whether a will has illegally suspended the power of alienation, the courts will look to what might have happened under the terms of the will rather than to what has actually happened since the death of the testator” (see also, Matter of Roe, 281 NY 541, 547-548).

The very language of EPTL 9-1.1, moreover, precludes us from determining the validity of an interest based upon what actually occurs during the perpetuities period. Under the statutory rule against remote vesting, an interest is invalid "unless it must vest, if at all, not later than twenty-one years after one or more lives in being” (EPTL 9-1.1 [b] [emphasis added]). That is, an interest is void from the outset if it may vest too remotely (see, Turano, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17B, EPTL 9-1.1, at 481; see also, Metropolitan Transp. Auth. v Bruken Realty Corp., 67 NY2d at 163, supra ["(t)he validity of the provision must be judged by the circumstances existing at the time of the grant”]). Because the option here could have vested after expiration of the 21-year perpetuities period, it offends the Rule.

We note that the desirability of the “wait and see” doctrine has been widely debated (see, 5A Powell, Real Property ¶ 827F [1], [3]; see also, Waggoner, Perpetuity Reform, 81 Mich L Rev 1718 [describing “wait and see” as “(t)he most controversial of the reform methods”]). Its incorporation into EPTL 9-1.1, in any event, must be accomplished by the Legislature, not the courts.

We therefore conclude that the option agreement is invalid under EPTL 9-1.1 (b). In light of this conclusion, we need not decide whether the option violated Symphony’s equitable right to redeem the mortgage.

IV. REMEDY

As a final matter, defendants argue that, if the option fails, the contract of sale conveying the property from Broad-west to Symphony should be rescinded due to the mutual mistake of the parties. We conclude that rescission is inappropriate and therefore do not pass upon whether Broadwest’s claim for rescission was properly assigned to defendant Pergola.

A contract entered into under mutual mistake of fact is generally subject to rescission (see, Matter of Gould v Board of Educ., 81 NY2d 446, 453). CPLR 3005 provides that when relief against mistake is sought, it shall not be denied merely because the mistake is one of law rather than fact. Relying on this provision, defendants maintain that neither Symphony nor Broad-west realized that the option violated the Rule against Perpetuities at the time they entered into the agreement and. that both parties intended the option to be enforceable.

CPLR 3005, however, does not equate all mistakes of law with mistakes of fact (see, Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418, 427). Rather, the provision "removes technical objections in instances where recoveries can otherwise be justified by analogy with mistakes of fact” (id.). Indeed, this Court has held that the predecessor statute, Civil Practice Act § 112-f, did not mandate the court to grant relief where taxes had been paid on the assumption that a taxing statute subsequently found to be unconstitutional was valid (id.). Likewise, CPLR 3005 "does not permit a mere misreading of the law by any party to cancel an agreement” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3005, at 621).

Here, the parties’ mistake amounts to nothing more than a misunderstanding as to the applicable law, and CPLR 3005 does not direct undoing of the transaction (cf., Gimbel Bros. v Brook Shopping Ctrs., 118 AD2d 532 [lack of diligence in determining legal obligations under contract did not entitle party to restitution on the ground that it acted under a mistake of law]).

The remedy of rescission, moreover, lies in equity and is a matter of discretion (Rudman v Cowles Communications, 30 NY2d 1, 13). Defendants’ plea that the unenforceability of the option is contrary to the intent of the original parties ignores that the effect of the Rule against Perpetuities — which is a statutory prohibition, not a rule of construction — is always to defeat the intent of parties who create a remotely vesting interest. As explained by the Appellate Division, there is "an irreconcilable conflict in applying a remedy which is designed to void a transaction because it fails to carry out the parties’ true intent to a transaction in which the mistake made by the parties was the application of the Rule against Perpetuities, the purpose of which is to defeat the intent of the parties” (214 AD2d 66, 80).

The Rule against Perpetuities reflects the public policy of the State. Granting the relief requested by defendants would thus be contrary to public policy, since it would lead to the same result as enforcing the option and tend to compel performance of contracts violative of the Rule. Similarly, damages are not recoverable where options to acquire real property violate the Rule against Perpetuities, since that would amount to giving effect to the option (see, 5A Powell, Real Property ¶ 771 [3]).

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

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, etc.


author: Simons, J.

text:
    [669 NE2d 809, 646 NYS2d 651]
    The People of the State of New York, Respondent, v Richard Sinski, Appellant.
    Argued April 23, 1996;
    decided July 9, 1996

      POINTS OF COUNSEL

      Laurie S. Hershey, Garden City, for appellant.
    I. The conviction must be reversed and the indictment dismissed because the People’s case depended overwhelmingly on privileged physician-patient communications. (Dillenbeck v Hess, 73 NY2d 278; People v Murphy, 101 AD2d 126; People v Decina, 2 NY2d 133; People v Fuller, 24 NY2d 292; Matter of Grand Jury Investigation, 59 NY2d 130; Matter of Camperlengo v Blum, 56 NY2d 251; Matter of Grand Jury Subpoenas Duces Tecum v Kuriansky, 69 NY2d 232; People v Deutsch, 164 Misc 2d 182; United States v Zolin, 491 US 554; People v Mitchell, 58 NY2d 368.) II. Prosecutorial misconduct denied appellant a fair trial.
      (People v Pelchat, 62 NY2d 97; People v Rosario, 9 NY2d 286, 368 US 866; People v Martinez, 71 NY2d 937; People v Jones, 70 NY2d 547; People v Ranghelle, 69 NY2d 56; People v Consolazio, 40 NY2d 446; People v Washington, 86 NY2d 189; People v Blagrove, 183 AD2d 837; People v Poole, 48 NY2d 144; People v Ventimiglia, 52 NY2d 350.) III. The Public Health Law counts were erroneously cast as continuous crimes, were duplicitous, included unreasonably long-time periods, and violated the Statute of Limitations. (People v Sanchez, 84 NY2d 440; People v Keindl, 68 NY2d 410; People v Wittpen, 190 Misc 565; People v Coleman, 120 Misc 2d 691.) IV. The charge of falsifying business records should be dismissed because there was legally insufficient evidence of the existence of a business record. (People v Davis, 49 NY2d 910; People v Bel Air Equip. Corp., 46 AD2d 773, 39 NY2d 48; People v Brown, 140 App Div 591; People v McHugh, 271 App Div 135; People v Herzog, 47 Misc 50.)

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Michael J. Miller and Glenn Green of counsel), for respondent.
    I. The physician-patient privilege did not apply so as to warrant overturning the convictions in this case. (Dillenbeck v Hess, 73 NY2d 278; People v Decina, 2 NY2d 133; People v Osorio, 75 NY2d 80; People v Drelich, 123 AD2d 441; People v Schultz, 161 AD2d 970; People v Figueroa, 173 AD2d 156; People v Gearhart, 148 Misc 2d 249; Matter of Grand Jury Investigation, 59 NY2d 130; Matter of Camperlengo v Blum, 56 NY2d 251; Matter of Farrow v Allen, 194 AD2d 40.) II. Since defendant’s trial was fair he was not deprived of due process of law. (People v Martinez, 71 NY2d 937; People v Haupt, 71 NY2d 929; People v Jones, 70 NY2d 547; People v Novoa, 70 NY2d 490; People v Ranghelle, 69 NY2d 56; People v Poole, 48 NY2d 144; People v Rosario, 9 NY2d 286, 908, 368 US 866, 14 NY2d 876, 15 NY2d 765; People v Watkins, 157 AD2d 301; People v Perez, 65 NY2d 154; People v Rogelio, 79 NY2d 843.) III. Counts three and four of the indictment properly charged defendant with continuing crimes according to the Public Health Law. (People v Keindl, 68 NY2d 410; People v Morris, 61 NY2d 290; People v Iannone, 45 NY2d 589; People v Rogers, 141 AD2d 870; People v Grega, 72 NY2d 489; People v Charles, 61 NY2d 321; People v Spann, 56 NY2d 469; People v Di Noia, 105 AD2d 799; People v Del Pilar, 177 AD2d 642; People v Anderson, 173 AD2d 478.) IV. Defendant was properly convicted of falsifying a business record. (People v Bel Air Equip. Corp., 46 AD2d 773, 39 NY2d 48; People v Smithtown General Hosp., 93 Misc 2d 736;
      People v Sosnik, 158 AD2d 489; People v Pazos, 158 AD2d 479; People v Linardos, 104 Misc 2d 56; People v Coe, 131 Misc 2d 807, 126 AD2d 436, 71 NY2d 852; People v Schrag, 147 Misc 2d 517; People v Kase, 76 AD2d 532, 53 NY2d 989.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of several crimes, all based on evidence that he unlawfully obtained drug prescriptions from his dentists and physicians. He contends the judgment must be reversed because the evidence supporting them was privileged. The courts below held that the information was not privileged because of the exception contained in Public Health Law § 3373. We conclude that statute does not render the evidence admissible over defendant’s objection and therefore reverse and order a new trial.

I

Prior to his conviction on these charges, defendant was an officer in the Suffolk County Police Department. Between April 1990 and July 1992, he suffered major dental problems and a serious back condition. His treatment for these maladies included the use of drugs to relieve pain. In the spring of 1992, noting the number of insurance claims defendant had submitted for medicines, the Department’s Internal Affairs Bureau became suspicious that he was using drugs excessively. Accordingly, it initiated an investigation of defendant and, with the help of the Federal Drug Enforcement Administration, interviewed defendant’s physicians and dentists, obtained written statements from them and reviewed some of their records. Four dentists and three physicians were subsequently called to testify before the Grand Jury about their care and treatment of defendant and the medicines prescribed for his condition and some of defendant’s patient records were received in evidence.

At the conclusion of the presentation, the Grand Jury charged defendant with (1) criminal possession of a forged instrument in the second degree (Penal Law § 170.25), a felony, based on his possession of a prescription for the pain medication Percodan Demi obtained from one of his dentists, on which the number of capsules prescribed was allegedly altered from 20 to 120, (2) falsifying a business record in the first degree (Penal Law § 175.10), a felony, based upon his causing a dental assistant to make an alleged false entry on defendant’s patient intake form stating that he was allergic to codeine in order to receive stronger pain medication, and (3) two counts of violating Public Health Law § 3397 (1) (a) (i) and § 3397 (4), misdemeanors, based on defendant obtaining a large number of prescriptions for narcotic pain medications from several of his treating practitioners by misrepresenting or concealing the amount of similar medications he was receiving from other treating practitioners during the same period.

Defendant’s conviction of all four counts after trial was based upon similarly privileged communications. He was sentenced to six months in jail and five months probation on the felony counts and three years’ probation on the misdemeanor counts.

The dispositive question presented is whether the exception to the physician-patient privilege contained in section 3373 of the Public Health Law extends to the investigation and criminal prosecution of defendant in this case.

II

The present physician-patient privilege is purely a legislative creation (Dillenbeck v Hess, 73 NY2d 278, 283; Matter of Camperlengo v Blum, 56 NY2d 251, 254). The statute prohibits physicians, dentists and other medical personnel from revealing "any information which [they] acquired in attending a patient in a professional capacity, and which was necessary to enable [them] to act in that capacity” (CPLR 4504 [a]). The rationale supporting it is that the protection of confidential information from involuntary disclosure will promote uninhibited communication between patient and physician for the purpose of obtaining appropriate medical treatment. In the succinct words of one commentator, the statute presumes that "privilege in the courtroom will encourage disclosure in the sickroom” (see, Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4504:1, at 628 [1992]).

The privilege is not absolute, however. The Legislature has enacted a number of narrow exceptions abrogating it for various public policy reasons (see, e.g., CPLR 4504 [b] [respecting disclosure of dental identification data and information concerning a victim of crime under age 16]; id., 4504 [c] [respecting information as to the mental or physical condition of a deceased patient]; Family Ct Act § 1046 [a] [vii] [no privilege in proceedings for child abuse or neglect]; Social Services Law § 384-b [3] [h] [providing that the privilege affords no ground for exclusion of evidence in proceedings for guardianship and custody of destitute or dependent children]; id., §§ 413, 415 [providing that cases of suspected child abuse or maltreatment must be reported in writing and that such reports are admissible in any proceedings relating to child abuse or maltreatment]; Mental Hygiene Law § 81.09 [d] [allowing for inspection of medical records of an alleged incapacitated person]; Public Health Law § 2101 [1] [requiring disclosure of communicable disease]; id., § 2785 [2] [providing that a court may grant an order for the disclosure of HIV-related information upon an application showing a "compelling need” in judicial proceedings]; Penal Law § 265.25 [making it a misdemeanor for a doctor or hospital to fail to report a wound "caused by discharge of a gun or firearm” or "a wound which is likely to or may result in death and is actually or apparently inflicted by a knife, ice pick or other sharp or pointed instrument”]). We have also implied an exception under the Narcotics Control Act to further narcotics treatment designed to benefit the patient (see, People v Fuller, 24 NY2d 292).

Notwithstanding these many exceptions, we have frequently stated that the physician-patient privilege is to be given a " 'broad and liberal construction to carry out its policy’ ” (Matter of Grand Jury Investigation, 59 NY2d 130, 134, citing Matter of City Council v Goldwater, 284 NY 296, 300; and People v Decina, 2 NY2d 133). Accordingly, we have narrowly construed statutes limiting the privilege and rejected claims that there is a general public interest exception to CPLR 4504 (Matter of Grand Jury Investigation, supra, at 135; and see, People v Decina, supra; People v Murphy, 101 NY 126; cf., Matter of Camperlengo v Blum, 56 NY2d 251, supra).

The People maintain that section 3373 of the Public Health Law contains an exception to the physician-patient privilege and that properly interpreted, it applies in this case. The section provides:

"Confidential communications”
"For the purposes of duties arising out of this article, no communication made to a practitioner shall be deemed confidential within the meaning of the civil practice law and rules relating to confidential communications between such practitioner and patient.”

The only relevant duties imposed on practitioners by article 33 of the Public Health Law are found in sections 3372 and 3374. Section 3372 requires practitioners to report promptly "to the commissioner [of Health] or his duly designated agent” the name, address and other data required by the Commissioner of any person under treatment who is a suspected addict or habitual user of any narcotic drug. Such reports are, by statute, confidential and to be used only for statistical, epidemiological or research purposes. Section 3374 provides that article 33 licensees shall "promptly notify the department” of possible diversion or theft of controlled substances. The issue is whether an exception to the privilege can be implied from these sections which authorizes treating physicians to release confidential information to police authorities for criminal proceedings absent judicial process (see, Public Health Law § 3371 [1] [b]).

Article 33 of the Public Health Law was enacted in 1972. It is a recodification of prior articles 33, 33-A and 33-B recommended by the Temporary State Commission to Evaluate Drug Laws and is designed to prevent the diversion into illicit channels of potent medicinal drugs from the lawful stream of distribution. It generally complements the Federal Uniform Controlled Substance Act (see, Bill Jacket, L 1972, ch 878, Legis Mem, at 73).

One of the important purposes of article 33 is addressed in title VI. It provides for the maintenance of records and includes requirements for preparing prescriptions and reporting of drug addicts and habitual drug users to the Department of Public Health for the limited purposes set forth in section 3372. Title VI reenacted many of the prior provisions dealing with reports and records but in adopting it, the Legislature undertook to provide "additional safeguards” to ensure patient confidentiality so that the medical aspects of drug abuse could receive increased attention (see, Bill Jacket, L 1972, ch 878, Legis Mem, at 75, 77). To that end, the statute, as enacted, more narrowly defined the exception to confidentiality. When first enacted in 1953, it had provided that "For the purposes of this article” no communications would be deemed confidential (Public Health Law former § 3304 [2], L 1953, ch 879, § 1, repealed by L 1972, ch 878, § 1). In the 1972 recodification, however, the Legislature provided that "For the purposes of duties arising out of this article, no communication made to a practitioner shall be deemed confidential” (Public Health Law § 3373, L 1972, ch 878, § 2 [emphasis added]). Thus, the Legislature narrowed the exception to remove confidentiality for the limited purpose of permitting practitioners to submit the reports required by the statute.

The legislative intent to maintain patient confidentiality is also demonstrated by the limits the Legislature placed on access to patient information once reports are received by the department. Originally, the statute provided that reports and records could be released to any person "who by virtue of his office is entitled to obtain such information” (Public Health Law § 3371 [1] [a], L 1972, ch 878, § 2). In 1974, however, the Legislature, to "further tighten! ] the confidentiality protections afforded to patients receiving controlled substances” (Bill Jacket, L 1974, ch 965, Legis Mem, at 4), amended section 3371 to substitute the present language restricting disclosure to "another person employed by the department, for purposes of executing provisions of this article” (Public Health Law § 3371 [1] [a], as amended by L 1974, ch 965, § 17). The 1974 amendment also limited access to centralized computer data and added a provision authorizing destruction of the data after five years to protect patient confidentiality (Public Health Law § 3370, as amended by L 1974, ch 965, § 16; see, Bill Jacket, L 1974, ch 965, Legis Mem, at 6-7).

Thus, the disposition of the Legislature since 1972 has been to narrow the statutory exception allowing disclosure of confidential communications, not to expand it. The People’s suggestion that the Legislature intended section 3373 to generally abrogate the physician-patient privilege for the purpose of criminal prosecution is not only contrary to the rationale behind the physician-patient privilege — to encourage complete candor in order to secure appropriate treatment — but it is also contradicted by the language of the statute and the Legislature’s demonstrated concern over confidentiality in this area.

The People maintain on appeal that absent a crime fraud exception to the privilege, it will be impossible to prosecute one who consults a doctor solely to obtain drugs in violation of the fraud and deceit provisions contained in Public Health Law § 3397. Noting that we have interpreted section 3373 broadly in the past (see, Matter of Camperlengo v Blum, supra), they urge us to do so here.

The short answer to the People’s argument is that they did not try the case on the theory that defendant visited doctors solely to obtain drugs; they have never disputed the existence of his medical complaints or his need to obtain palliative drugs to mitigate his pain. Moreover, the Camperlengo case is clearly distinguishable. It involved charges of unlawful billing by a Medicaid provider. During an investigation by the Department of Social Services, the provider sought to quash office subpoenas seeking patient records. He maintained that the records and the patients’ treatment were privileged. We found an implicit exception to the physician-patient privilege, however, contained in the statutory provisions mandating extensive reporting and recordkeeping for Medicaid recipients. There is nothing similar in article 33 to sustain the claim that in enacting the statute the Legislature intended to override the physician-patient privilege contained in CPLR 4504 and make confidential information generally available to law enforcement agencies in drug cases.

We conclude, therefore, that any communications between defendant and his doctors in furtherance of his treatment were obtained in violation of defendant’s physician-patient privilege and improperly admitted at trial.

Finally, defendant contends that the indictment must be dismissed because the Grand Jury proceedings failed to conform to the requirements of CPL article 190 "to such a degree that the integrity thereof [was] impaired” (see, CPL 210.35 [5]). The Grand Jury proceedings were defective, he asserts, because the police and prosecutors used intimidation and coercion to obtain privileged information from his doctors. He moved before trial for a hearing to establish that misconduct.

Defendant’s allegations, even if established after a hearing, demonstrated no more than that the police and prosecutor mistakenly interpreted the law respecting confidential communications and the breadth of the exception contained in the Public Health Law. The Peopled position throughout these proceedings that the evidence was not privileged was not only colorable, it was sustained by the trial court and the Appellate Division. Thus, we find no basis to conclude that the use of such evidence, even though its reception violated defendant’s right to confidentiality, required dismissal under CPL 210.35 (5).

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

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

Order reversed, etc.


author: Bellacosa, J.

text:
    [670 NE2d 214, 646 NYS2d 974]
    The People of the State of New York, Respondent, v Thomas G. Steward, Appellant.
    Argued April 24, 1996;
    decided June 11, 1996

      POINTS OF COUNSEL

      Kimberly A. Jordan, Syracuse, for appellant.
    The lower court properly suppressed statements obtained in violation of appellant’s right to counsel. (People v West, 81 NY2d 370; People v Harris, 77 NY2d 434; People v Di Biasi, 7 NY2d 544; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Robles, 72 NY2d 689; People v Rogers, 48 NY2d 167; People v Taylor, 27 NY2d 327; People v Kazmarick, 52 NY2d 322; People v Dennis, 204 AD2d 812.)

      William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (Gary T. Kelder and James P. Maxwell of counsel), for respondent.
    The Court below correctly ruled that defendant’s statements were not obtained in violation of his indelible right to counsel. (People v Rogers, 48 NY2d 167; People v Bing, 76 NY2d 331, rearg denied sub nom. People v Cawley, 76 NY2d 890; People v Ruff, 81 NY2d 330; People v Bartolomeo, 53 NY2d 225; People v West, 81 NY2d 370; People v Ermo, 47 NY2d 863; People v Robles, 72 NY2d 689; People v Colwell, 65 NY2d 883; Dougherty v Equitable Life Assur. Socy., 266 NY 71.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn, and Steven A. Hovani, Riverhead, for New York State District Attorneys Association, amicus curiae.

    The Court below correctly held that defendant was not actually represented on a pending charge or on the charge for which he was in custody when he was questioned. (People v Rogers, 48 NY2d 167; People v Bing, 76 NY2d 331; People v Bartolomeo, 53 NY2d 225; People v Donovan, 13 NY2d 148; People v Failla, 14 NY2d 178; People v Gunner, 15 NY2d 226; People v Arthur, 22 NY2d 325; People v Miles, 23 NY2d 527, 395 US 948; People v Hetherington, 27 NY2d 242; People v Hobson, 39 NY2d 479.)
   OPINION OF THE COURT

Bellacosa, J.

Defendant appeals, by a grant of leave from a Judge of this Court, and raises one issue. The question is whether inculpatory statements relating to the murder indictment involved here, taken by the police from defendant after a waiver of and in the absence of counsel, should be suppressed. Defendant made the statements after arrest on a parole violation, and they were unrelated to a pending misdemeanor case against him as to which counsel had previously been assigned. County Court suppressed the statements; the Appellate Division reversed, denied suppression and remitted for proceedings on the indictment.

We hold that suppression is not required. Defendant-appellant’s right to counsel is not violated (People v Rogers, 48 NY2d 167) and no derivative right to counsel survives People v Bing (76 NY2d 331). Accordingly, we affirm the order of the Appellate Division.

On March 21, 1993, defendant was arrested and charged with criminal possession of a controlled substance in the seventh degree and resisting arrest, charges not at issue on this appeal. Defendant falsely identified himself and a warrant check on the name given revealed no outstanding warrants. While waiting to be processed on the misdemeanors, defendant volunteered information to the police pertaining to an unrelated homicide. Officers interviewed defendant, and he freely gave a statement containing significant information about the homicide.

The following day, defendant was arraigned in Syracuse City Court on the misdemeanors. Because he appeared without counsel, the court entered pleas of not guilty and recorded the assignment of counsel from the Hiscock Legal Aid Society under his alias name. Defendant was then released on his own recognizance.

A few days later, the police learned defendant’s true identity and he was arrested on a separate parole violation. After being advised of his Miranda rights, defendant waived his right to counsel and agreed again to discuss the homicide with the police. By this time, the interrogating officers were aware that defendant, under the given alias, had been assigned counsel in the pending misdemeanor case. During this concededly custodial interview — the one at issue on this appeal — defendant contradicted some of his earlier statement to the police about the homicide, but also made inculpatory statements. Based partly on these statements, defendant was then charged with two counts of murder in the second degree and other crimes associated with the homicide. This appeal relates solely to the inculpatory statements made in connection with this homicide indictment.

Following a Huntley hearing, Onondaga County Court granted defendant’s motion to suppress his statements based on its conclusion that defendant’s right to counsel was violated. The Appellate Division, Fourth Department, reversed and denied suppression, holding that the defendant was not actually represented on any pending charge at the time he made the challenged statements.

The sum and substance of appellant’s argument is that People v Rogers (48 NY2d 167, supra) contains a derivative right to counsel rule that is still operative after this Court’s holding in People v Bing (76 NY2d 331, 350, supra). While the Rogers holding is surely extant, its nature, scope and interpretation do not include the derivative right defendant advocates here.

In People v Rogers (supra), this Court held that "once an attorney has entered the proceeding, thereby signifying that the police should cease questioning, a defendant in custody may not be further interrogated in the absence of counsel” (supra, at 169). People v Bartolomeo (53 NY2d 225) built a different and significantly expanded right to counsel rule atop Rogers’ holding. After Bartolomeo, and until Bing, a duty to inquire was imputed to the police when a defendant was in custody and being questioned, and was represented by counsel on a prior, separate, unrelated charge. This legal fiction and consequent duty produced an across-the-board suppression as to all statements derived from questioning of a defendant in the absence of counsel in connection with any criminal conduct (id., at 231). Simply put, waiver of counsel in the absence of counsel could almost never be effective. People v Bing (76 NY2d 331, supra) put an end to that extreme restriction by overruling Bartolomeo.

The Bartolomeo right to counsel was properly characterized as "derivative” because the right piggy-backed solely on a defendant’s prior representation in unrelated proceedings; it did not hinge on or relate to the matter for which a defendant was then in custody and being questioned (see, People v West, 81 NY2d 370, 378; People v Bing, 76 NY2d 331, 342, supra). Under Bartolomeo, the police were charged with an affirmative duty to inquire whether a defendant was represented in any unrelated criminal matter of which they had knowledge and were chargeable with the knowledge of what such an inquiry would have revealed. Thus, even though the interrogating officers in Bartolomeo had no knowledge that the defendant was actually represented by counsel and the defendant had voluntarily waived the right to counsel, this Court held that testimony concerning the defendant’s statements had to be suppressed nonetheless (People v Bartolomeo, supra, 53 NY2d, at 231). The rationale was that the officers were aware that the defendant had been arrested earlier on an unrelated charge and were deemed to have knowledge of the defendant’s representation upon that charge (id.).

Soon after the promulgation of the Bartolomeo extension, this Court found it necessary to start reining it in (see, e.g., People v Bertolo, 65 NY2d 111, 118-119; People v Fuschino, 59 NY2d 91, 98; and People v Servidio, 54 NY2d 951, 952-953 [police must have actual knowledge of defendant’s representation on prior charge for right to counsel to be violated]; People v Rosa, 65 NY2d 380, 387 [defendant has burden of showing representation on pending charge]; People v Lucarano, 61 NY2d 138, 148 [police authorized to reasonably accept defendant’s disclaimer of prior representation]; see also, People v Robles, 72 NY2d 689, 699; and People v Mann, 60 NY2d 792, 794 [no derivative right to counsel exists where prior charges have been dismissed]). After eight years of experience, this Court determined that the Bartolomeo rule lacked any "principled basis which justifies its social cost” (People v Bing, 76 NY2d 331, 349, supra).

In People v Bing (three separate cases decided under one rubric) as in Bartolomeo, the defendants sought suppression of their otherwise voluntarily offered statements given after they had received Miranda warnings and waived their right to counsel in the absence of counsel. We held that the unworkability and lack of doctrinal justification for the Bartolomeo rule proved the need for its abandonment (People v Bing, 76 NY2d 331, 338, supra). The Court explained that Bartolomeo lacked justification for expanding the scope and nature of the prior Rogers holding "to protect a suspect against self-incrimination on the new crime unrelated to the matter upon which defendant actually obtained representation” (People v Bing, supra, at 341). To be sure, Rogers itself was expressly retained, while the Court declared that "there is little to be said for a [derivative] rule which is not firmly grounded on prior case law, cannot be applied uniformly, favors recidivists over first-time arrestees, and exacts such a heavy cost from the public” (People v Bing, supra, 76 NY2d, at 350).

The defendant grasps at the express preservation of Rogers in Bing as the basis for asserting the continued existence of a derivative right to counsel. On that basis alone, he urges suppression. This argument is not supportable, because Bing unequivocally eliminates any right to counsel derived solely from a defendant’s representation in a prior unrelated proceeding (People v Bing, 76 NY2d 331, 350, supra).

Indeed, People v Cawley (76 NY2d 331), decided with Bing, particularly demonstrates the operation, meaning and application of these principles. In Cawley, defendant was charged in New York with robbery in the second degree. Following an arraignment at which counsel was present, defendant was released on bail and thereafter absconded. Defendant was returned to New York on a bench warrant six months later. Upon interrogation by a police officer who was unaware of defendant’s prior representation, defendant waived his Miranda rights in the absence of counsel and gave inculpatory statements about crimes unrelated to the pending robbery charge, including two murders and a robbery. This Court noted that the Bartolomeo rationale could not be rationally applied to suppress the defendant’s otherwise entirely voluntary statements in a case such as Cawley, and held that there was no violation of the defendant’s counsel rights (People v Cawley, 76 NY2d 331, 347, supra).

The facts of the instant case contain significant similarities and even produce an a fortiori application to those resolved in Cawley as part of the Bing analysis. Defendant here was released on his own recognizance after providing an alias and was later arrested for a parole violation unrelated to the pending drug charges. Defendant not only failed to assert any right to counsel, but freely and voluntarily waived all such rights.

Thus, the salient facts of this case fit readily within Bing’s control, and the statements made by the defendant should not be suppressed based on any surviving derivative right to counsel. The reason is simple. There is no such right after Bing, because there was none before Bartolomeo; Rogers, as a precedent within its own class of counsel cases, never was about a derivative right to counsel.

Importantly, Rogers establishes and still stands for the important protection and principle that once a defendant in custody on a particular matter is represented by or requests counsel, custodial interrogation about any subject, whether related or unrelated to the charge upon which representation is sought or obtained, must cease (People v Rogers, 48 NY2d 167, 171, supra; see also, People v Cunningham, 49 NY2d 203, 205; People v Arthur, 22 NY2d 325, 329; compare, People v LaClere, 76 NY2d 670, 672; compare also, Edwards v Arizona, 451 US 477, 484-485; Arizona v Roberson, 486 US 675, 683-684).

Defendant’s attempt to extend those important representational protections with another artificial derivative right to counsel, by making People v Rogers something it never was, is based on a serious misreading of Bing. Indeed, Bing carefully differentiated the holdings of Bartolomeo and Rogers: "In People v Rogers (supra), the right to counsel had been invoked on the charges on which defendant was taken into custody and he and his counsel clearly asserted it. * * * In People v Bartolomeo (supra), however, defendant was taken into custody for questioning on a new, unrelated charge. He was not represented on that charge and freely waived his right to counsel” (People v Bing, 76 NY2d 331, 350, supra [emphasis added]; see, People v Robles, 72 NY2d 689, 698, supra ["Rogers established a * * * limited right with respect to unrelated charges in order to protect the * * * right to counsel in the pending proceeding”]). Thus, Bing could not be clearer that the Rogers right to counsel bars questioning on unrelated matters only when a defendant is in custody on the initial charge upon which the right to counsel has attached. It does not extend to questioning and result in suppression when the defendant is subsequently taken into custody on an unrelated charge, under circumstances as occurred in this case (Bing, supra, at 350; see also, Note, Interaction Between State and Federal Right to Counsel: The Overruling of Bartolomeo, 8 Touro L Rev 191, 228 [1991]).

In sum, we hold that in a subsequent custodial interrogation about matters unrelated to the charge upon which a defendant was assigned counsel in a prior separate proceeding, the suspect is competent to waive the right to counsel in the absence of counsel as to such matters. Defendant did just that here, and the Appellate Division, therefore, correctly ruled that suppression should be denied and the matter should proceed on the indictment.

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

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

Order affirmed.