author: Alexander, J.

text:
    In the Matter of Marcel St. Onge et al., Appellants, v Jean Donovan, as Chairperson of the Town of Colonie Zoning Board of Appeals, et al., Respondents. In the Matter of Daniel Driesbaugh, Respondent, v Joseph Gagnon et al., Constituting the Town of Fenton Zoning Board of Appeals, Appellants.
    Argued February 2, 1988;
    decided March 31, 1988

      POINTS OF COUNSEL

      Arnold W. Proskin and Peter M. Fitzner for appellants in the first above-entitled proceeding.
    I. A use variance granted by a Zoning Board of Appeals conditioned upon an illegal, improper or impermissible condition should survive when the condition is stricken. (Matter of Dexter v Town Bd., 36 NY2d 102; Matter of Allen v Hattrick, 87 AD2d 575; Matter of Summit School v Neugent, 82 AD2d 463; Town of Huntington v Sudano, 42 AD2d 791, 35 NY2d 796; Matter of Hubshman v Henne, 42 AD2d 732; Gordon v Zoning Bd. of Appeals, 126 Misc 2d 75.) II. A condition, imposed upon the granting of a use variance by a Zoning Board of Appeals, which attempts to make the use variance personal to the owner of the property so that it expires upon transfer of title is invalid and unenforceable. (Matter of Dexter v Town Bd., 36 NY2d 102; Matter of Hughes v Lockport Zoning Bd. of Appeals, 90 AD2d 681; Balodis v Fallwood Park Homes, 54 Misc 2d 936; Vernon Park Realty v City of Mount Vernon, 307 NY 493; Matter of Feneck v Murdock, 16 Misc 2d 789.)

      Susan Marie Tatro, Town Attorney (Joyce C. Tarantino of counsel), for respondents in the first above-entitled proceeding.
    Whether a variance, conditioned upon an impermissible condition, should survive after the condition is stricken, depends solely upon the particular facts of the case. (People ex rel. Sullivan v McLaughlin, 266 NY 519.)

      Albert J. Millus, Jr., for appellants in the second above-entitled proceeding.
    I. The conditions placed upon the variance by the Zoning Board of Appeals were reasonable and directly related to proper zoning objectives. (Matter of Weinstein v Burns, 20 Misc 2d 362; Matter of Otto v Steinhilber, 282 NY 71; Matter of Clark v Board of Zoning Appeals, 301 NY 86, 340 US 933; Matter of Paplow v Minsker, 43 AD2d 122; People v Scott, 26 NY2d 286; Matter of Friedland v Ingersoll, 249 App Div 623; Matter of Hubshman v Henne, 42 AD2d 732; Sokoloff v Zoning Bd. of Appeals, 74 AD2d 868; Matter of Gregory v Board of Appeals, 87 AD2d 1000.) II. If the court finds that the zoning board impermissibly placed conditions upon the grant of the variance, the matter should be remanded to the Board for a new determination. (Matter of Von Kohorn v Morrell, 9 NY2d 27; Matter of Concerned Citizens Against Crossgates v Town of Guilderland Zoning Bd. of Appeals, 91 AD2d 763; Matter of Otto v Steinhilber, 282 NY 71; Matter of Frishman v Schmidt, 61 NY2d 823; Matter of Consolidated Edison Co. v Hoffman, 43 NY2d 598; Matter of Cowan v Kern, 41 NY2d 591; Conley v Town of Brookhaven Zoning Bd., 40 NY2d 309; Matter of Ahmad v Zoning Bd. of Appeals, 99 AD2d 634; Matter of Reed v Board of Stds. &

      Appeals, 255 NY 126; Matter of New York State Elec. Corp. v Public Serv. Commn., 260 NY 32.)

      Holly A. Nelson for respondent in the second above-entitled proceeding.
    I. The condition mandating that Mr. Driesbaugh discontinue his operations at the Route 369 (Canal Street) location, and cease for all time the operation at that location on or before July 10, 1986, was unconstitutional and beyond the power of the Board. (Matter of Harbison v City of Buffalo, 4 NY2d 553; People v Miller, 304 NY 105; RHP, Inc. v City of Ithaca, 91 AD2d 721; Sarrds, Inc. v City of White Plains, 68 AD2d 905; Gordon v Zoning Bd. of Appeals, 126 Misc 2d 75; Matter of Dexter v Town Bd., 36 NY2d 102.) II. The condition mandating that Mr. Driesbaugh not keep more than two vehicles, plus vehicles used by employees during working hours, outside the building at any given time was an illegal attempt to regulate the conduct of Mr. Driesbaugh’s business. (Matter of Hubshman v Henne, 42 AD2d 732; Matter of Schlosser v Michaelis, 18 AD2d 940; Sokoloff v Zoning Bd. of Appeals, 74 AD2d 868; Matter of Wheeler v City of Elmira, 101 AD2d 647, 63 NY2d 721.) III. The courts below properly determined that a remand to the Board would be improper and inapposite to respondent’s due process rights. (Matter of Paplow v Minsker, 43 AD2d 122; Corter v Zoning Bd. of Appeals, 46 AD2d 184; Matter of Genesee Farms v Scopano, 77 AD2d 784.)
   OPINION OF THE COURT

Alexander, J.

In Matter of Dexter v Town Bd. (36 NY2d 102), we held that conditions imposed on the grant of a variance must relate only to the use of the property that is the subject of the variance without regard to the person who owns or occupies that property. This fundamental principle was violated by the local zoning board in each case. Consequently, the order of the Appellate Division in St. Onge v Donovan must be reversed, and the order of the Appellate Division in Driesbaugh v Gagnon modified.

I.

A

In St. Onge v Donovan, petitioners contracted to purchase a two-story house in the Town of Colonie for the purpose of operating a real estate business. Operation of such a business is not a permitted use in the residential district where the property is located. This property had been used exclusively for that purpose, however, by the previous owners pursuant to a variance granted by the local zoning board in 1977. The record demonstrates that the variance was granted on the basis of evidence showing that the applicants would suffer unnecessary hardship if they were not permitted to convert the property to commercial use. The variance contained a restrictive condition, however, that provided that the building was "to be used solely by the applicants and may be used only in connection with their existing real estate business”. When petitioners sought site plan approval from the Town Planning Board in 1985 for the continued use of the property as a real estate office, the Planning Board denied approval, citing the fact that the variance granted in 1977 was only temporary, and that under the terms of the restrictive condition a transfer of the property would terminate the variance.

Petitioners appealed that determination to the Zoning Board of Appeals (Board), contending that the previous variance continued to be valid. They argued that they were entitled to use the property for their real estate business — a purpose expressly permitted by the variance — without further permission from the Town since the variance runs with the land, and the circumstances justifying the initial grant of the variance had not changed. The Board concluded, however, that the variance issued in 1977 was temporary, and that new evidence would be required to determine whether an extension would be justified. The Board decided that the entire matter should be reviewed de novo, and scheduled a hearing at which petitioners were invited to present evidence justifying the continuation of the variance. When petitioners failed to appear at the scheduled hearing, the Board denied the application to extend the variance, but did so without prejudice to a future application. This article 78 proceeding challenging the Board’s determination ensued.

Special Term granted the petition to the extent of annulling the Board’s determination requiring a de novo application for a use variance. The court held that a variance runs with the land and cannot be a right personal to the landowner, concluding that the restrictive condition in the 1977 variance is void, and that the variance thus is unconditional with no time limitation. The Appellate Division agreed with Special Term that the restrictive condition is void. It concluded, however, that "it does not necessarily follow that the condition should be ignored and petitioners be granted the benefit of an unconditional variance” (127 AD2d, at 881). Accordingly, the court reversed Special Term, holding that the decision whether to grant a variance lies within the discretion of the Board and as it is not clear that the Board would have granted an unconditional variance had it known that it could not impose the condition, petitioners were required to apply for a variance de novo. The case is now before us pursuant to leave granted by this court.

B

In Driesbaugh v Gagnon, petitioner owns and operates two automobile body repair shops in the Town of Fenton, both of which are located in agricultural-residential districts in violation of the local zoning ordinance. One of the repair shops, located along Route 369 in the Village of Port Crane, is a lawful prior nonconforming use; the other shop, located on Route 7, was purchased by petitioner in 1984, after the enactment of the zoning ordinance, and therefore is not a protected nonconforming use. In February 1985, petitioner was served with a "Notice of Violation” requesting that he cease operations at the Route 7 location. He then applied to the Town Zoning Board of Appeals (Board) for a use variance that would permit him to continue operation of the Route 7 shop.

Although the Board was concerned that any hardship petitioner suffered might be considered self-imposed (see, Matter of Clark v Board of Zoning Appeals, 301 NY 86, 89) because he had purchased the property from one who had been operating an auto repair business in violation of the zoning ordinance, it nevertheless concluded that equitable considerations militated in favor of granting the variance. The Board found that petitioner apparently did not have actual knowledge that the previous owner was operating his business in violation of the zoning ordinance, that petitioner had invested considerable time and money in the premises and that the property’s location — sandwiched between an interstate highway on the north and railroad tracks on the south — made it ill suited for agricultural purposes. The Board noted further that the property had been operated as an auto repair center for nearly 10 years without objection from the Town. Thus, the Board resolved to grant a variance, but imposed six conditions designed to prevent expansion of the nonconforming use.

Petitioner instituted an article 78 proceeding seeking to annul, as relevant here, two of the conditions — the fourth and sixth. The fourth condition proscribed keeping more than two nonemployee vehicles outside the building during working hours, and the sixth condition required petitioner to phase out his operations at the Port Crane location by July 10, 1986. Petitioner contended that the former condition placed a limitation on the number of cars he could recondition in a given week, and thus threatened the economic viability of his business. He further contended that the latter requirement that he phase out his Port Crane business improperly interfered with a lawful nonconforming use.

Supreme Court, agreeing with petitioner, annulled the fourth and sixth conditions, denied the Board’s request to remand the case for reconsideration of the variance and otherwise affirmed the grant of the use variance with the remaining conditions. The court concluded that the limitation on the number of nonemployee cars kept outside the building improperly regulated the conduct of the petitioner’s business, not the use of the land, and the requirement that the Port Crane business be eliminated improperly sought to regulate the use of land that was not the subject of the variance. Additionally, the court found that this last condition constituted an unconstitutional taking of petitioner’s nonconforming use of his Port Crane property. The Appellate Division affirmed for the reasons stated, and we granted leave to appeal.

II.

A

In Matter of Dexter v Town Bd. (36 NY2d 102, supra), a corporation sought to have the Zoning Board of the Town of Gates rezone 12 acres of land from a residential to a commercial classification so as to permit the development of a retail shopping center. Although the zoning board granted the reclassification, it imposed several conditions, one of which provided that the " 'application for the construction of a retail supermarket by [the corporation] and related commercial structures, shall inure to the benefit of [the corporation] only, and for that specific purpose only’ ” (Matter of Dexter v Town Bd., 36 NY2d, at 104, supra). The record revealed that during the hearing on the application, the Town Attorney indicated that the rezoning was to be used only by the corporation and, if for any reason the corporation decided not to proceed with the development, the property would automatically revert to its prior restricted status.

We invalidated the condition, holding that although a local zoning board may impose "appropriate conditions and safeguards in conjunction with a change of zone or a grant of a variance or special permit”, those conditions "must be reasonable and relate only to the real estate involved without regard to the person who owns or occupies it” (Matter of Dexter v Town Bd., 36 NY2d, at 105, supra). We recognized that where a zoning change such as a variance or special permit is sought, there is ordinarily a specific project sponsored by a particular developer that is the subject of the application and that, as a consequence, attention generally focuses on the reputation of the applicant, the applicant’s relationship to the community and the particular intended use, so that "all too often the administrative or legislative determination seems to turn on the identity of the applicant or intended user, rather than upon neutral planning and zoning principles” (Matter of Dexter v Town Bd., 36 NY2d, at 105, supra). We characterized this approach as error, however, and a "lack of adherence to the fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it.” (Matter of Dexter v Town Bd., 36 NY2d, at 105, supra; FGL & L Prop. Corp. v City of Rye, 66 NY2d 111, 116; Matter of Weinrib v Weisler, 27 NY2d 592, affg 33 AD2d 923; Vernon Park Realty v City of Mount Vernon, 307 NY 493, 500).

Our holding in Dexter did not, nor was it intended to, divest zoning boards of their discretionary power to impose reasonable conditions in connection with a zoning decision; it merely established limitations on the exercise of that power. A zoning board may, where appropriate, impose "reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property”, and aimed at minimizing the adverse impact to an area that might result from the grant of a variance or special permit (Matter of Pearson v Shoemaker, 25 Misc 2d 591, 592; see, 2 Anderson, New York Zoning Law and Practice §§ 23.47, 23.48, at 237-239 [3d ed]). Such conditions might properly relate "to fences, safety devices, landscaping, screening and access roads relating to period of use, screening, outdoor lighting and noises, and enclosure of buildings and relating to emission of odors, dust, smoke, refuse matter, vibration noise and other factors incidental to comfort, peace, enjoyment, health or safety of the surrounding area” (Matter of Pearson v Shoemaker, 25 Misc 2d 591, 592, supra). Similarly, we have upheld, as a condition of rezoning property for commercial use, the imposition of a requirement that the owners of the property execute and record restrictive covenants relating to the maximum area to be occupied toy buildings, the erection of a fence, and the planting of shrubbery (see, Church v Town of Islip, 8 NY2d 254, 259). Such conditions are proper because they relate directly to the use of the land in question, and are corrective measures designed to protect neighboring properties against the possible adverse effects of that use. Conditions imposed to protect the surrounding area from a particular land use are consistent with the purposes of zoning, which seeks to harmonize the various land uses within a community (see generally, Collard v Incorporated Vil. of Flower Hill, 52 NY2d 594, 602; Udell v Haas, 21 NY2d 463, 469-470).

On the other hand, zoning boards may not impose conditions which are unrelated to the purposes of zoning (see, 2 Anderson, New York Zoning Law and Practice § 23.55 [3d ed]; Matter of Dexter v Town Bd., 36 NY2d, at 105, supra). Thus, a zoning board may not condition a variance upon a property owner’s agreement to dedicate land that is not the subject of the variance application (see, e.g., Gordon v Zoning Bd. of Appeals, 126 Misc 2d 75 [condition requiring dedication of portion of front yard invalid where variance sought related to side yard requirements]; Matter of Allen v Hattrick, 87 AD2d 575 [conditions unrelated to relief requested in variance invalid]). Nor may a zoning board impose a condition that seeks to regulate the details of the operation of an enterprise, rather than the use of the land on which the enterprise is located (see, e.g., Matter of Summit School v Neugent, 82 AD2d 463 [conditions regulating details of the operation of a private school invalid]; Matter of Schlosser v Michaelis, 18 AD2d 940 [conditions regulating details of a wholesale florist business invalid]). Such conditions are invalid because they do not seek to ameliorate the effects of the land use at issue, and are thus unrelated to the legitimate purposes of zoning.

B

In St. Onge, the condition imposed on the variance granted by the Town Zoning Board in 1977 clearly relates to the landowner rather than the use of the land. By its terms, the condition purports to terminate the variance automatically if any persons other than the original applicants use the property as a real estate office. This is precisely the type of personal condition proscribed by Matter of Dexter v Town Bd. (36 NY2d 102, supra), for it focuses on the persons occupying the property rather than the use of the land or the possible effects of that use on the surrounding area. As this condition bears no relation to the proper purposes of zoning, therefore, it was properly ruled invalid.

Similarly in Driesbaugh, the Zoning Board of the Town of Fenton improperly conditioned its grant of the variance on the phasing out of petitioner’s Port Crane operation. The variance requested by petitioner related only to the business located on Route 7 and, therefore, any conditions imposed on the variance must relate solely to that property (Matter of Dexter v Town Bd., 36 NY2d, at 105, supra). By conditioning the variance on the elimination of the Port Crane operation, the Board has imposed a requirement completely unrelated either to the use of the land at issue or to the potential impact of that use on neighboring properties (see, Matter of Dexter v Town Bd., 36 NY2d, at 105, supra). The Appellate Division, therefore, correctly found this condition to be invalid.

The Town’s contention in Driesbaugh, that the sixth condition is justified by the close relationship between the two properties and, generally, by the interrelated nature of land in the community must be rejected. We acknowledge that, in exercising their zoning powers, local authorities must consider the needs of the community as a whole (see, Udell v Haas, 21 NY2d 463, 469, supra). Indeed, it is for this reason that zoning decisions must be made "in accordance with a comprehensive plan”, rather than in response to "the whims of either an articulate minority or even majority of the community” (Town Law § 263; Udell v Haas, 21 NY2d, at 469, supra). The zoning power is not without limits, however, and its mere invocation does not excuse the arbitrary infringement of property rights (see, Udell v Hass, 21 NY2d, at 473, supra). In seeking a variance for a specific parcel petitioner should not have been required to forfeit valuable property rights merely because he happened to own other property in the same community (see, People v Miller, 304 NY 105, 107 [prior nonconforming use constitutionally protected interest]; Matter of Harbison v City of Buffalo, 4 NY2d 553). The fact that the two separate parcels here are held in common ownership is purely a matter of personal circumstance, and does not furnish a basis for regulating the parcel which is not the subject of the variance (Matter of Dexter v Town Bd., 36 NY2d, at 105, supra).

In contrast, the condition in Driesbaugh limiting the number of cars that may be parked at the Route 7 shop should have been upheld as a valid exercise of the zoning board’s discretion. The number of vehicles that are permitted to accumulate on petitioner’s property may adversely affect the character of the neighborhood, classified in the zoning ordinance as an agricultural-residential district. Notably, several of the other conditions imposed — prohibiting the accumulation of scrap materials and debris outside the building and limiting any outward appearance of a commercial operation— manifest a similar concern that the use of the property not disrupt the rural atmosphere of the surrounding area. This condition, therefore, which limits to two the number of vehicles that may be kept outside the building during working hours, is valid as a reasonable restriction on petitioner’s use of the property (Matter of Dexter v Town Bd., 36 NY2d, at 105, supra).

III.

Our determination that the local zoning board in each case improperly imposed a condition on a variance that is unrelated to the use of the property in question does not end the inquiry. The question remains as to whether, in the circumstances, Supreme Court properly upheld the respective variances after striking the invalid condition, or whether the local zoning board in each case should have been afforded an opportunity to reconsider the variance application. We conclude that in St. Onge, the Appellate Division erred in requiring petitioners to reapply to the zoning board for a variance, and that in Driesbaugh, the Appellate Division properly affirmed the Supreme Court judgment upholding the variance after striking the impermissible condition.

It is, of course, true that the decision whether to grant a variance properly lies within the discretion of the Board (see, Matter of Village Bd. v Jarrold, 53 NY2d 254, 257; Consolidated Edison Co. v Hoffman, 43 NY2d 598, 606). A local zoning board’s grant or denial of a variance, however, is subject to judicial review. Section 267 of the Town Law specifically authorizes Supreme Court to review the decisions of town zoning boards, and further provides that "the court may reverse or affirm, wholly or partly, or may modify the decision brought up for review” (Town Law § 267 [10]). Concededly, the court’s review power is limited. "[A] board determination may not be set aside in the absence of illegality, arbitrariness or abuse of discretion” (Consolidated Edison Co. v Hoffman, 43 NY2d 598, 608, supra). Moreover, the reviewing court may not conduct a trial de novo on an issue already decided by the zoning board on the basis of substantial evidence (People ex rel. Hudson-Harlem Val. Tit. & Mtge. Co. v Walker, 282 NY 400, 405). Within those limitations, however, the court may appropriately modify the decision brought up for review if the zoning board’s determination was illegal, arbitrary or an abuse of its discretion.

In both St. Onge and Driesbaugh, the respective zoning boards exercised their discretion in deciding to grant the requested variances. No argument is made in either case that the requirements for a variance were not satisfied. It is thus established that the requirements for a variance were satisfied in each case (see generally, Matter of Village Bd. v Jarrold, 53 NY2d, at 257, supra; Matter of Otto v Steinhilber, 282 NY 71, 76). The imposition of the personal conditions, however, as indicated above, was illegal. Thus, Supreme Court appropriately excised the unlawful conditions in each case (Town Law § 267 [10]; see, 6 Rohan, Zoning and Land Use Controls § 43.03 [3]; see, e.g., Matter of Allen v Hattrick, 87 AD2d 575, supra; Matter of Summit School v Neugent, 82 AD2d 463, supra; Matter of Hubshman v Henne, 42 AD2d 732).

The argument made by respondents in St. Onge, that Special Term violated the "clear” intent of the Board by granting a permanent and unconditional variance, must be rejected. It is basic that a variance runs with the land and, "absent a specific time limitation, it continues until properly revoked” (2 Anderson, New York Zoning Law and Practice § 23.53 [3d ed]; see, Blum v McGraw, 92 Misc 2d 781, 784; Balodis v Fallwood Park Homes, 54 Misc 2d 936, 939; Matter of Feneck v Murdock, 16 Misc 2d 789, 792). Here, the conclusion that the Board’s imposition of a personal condition was merely a misguided attempt to impose a time limitation is merely speculative and not supported by the record (see, 2 Anderson, New York Zoning Law and Practice § 23.53 [3d ed]; see, Matter of New York Life Ins. Co. v Foley, 13 AD2d 768). Indeed, what evidence there is in the record of the Board’s intent indicates that it rested its decision to grant a variance on the intended use of the property as a real estate office. Thus, it cannot be said that, in granting the variance without the condition, Special Term violated the Board’s "clear” intent to limit the duration of the variance. The Board’s imposition of a condition personal to the landowners constituted an error of law properly reviewable by Special Term, and that court properly exercised its discretion in upholding the variance after striking the condition.

Accordingly, the order of the Appellate Division in St. Onge v Donovan is reversed and the judgment of Special Term reinstated; the order of the Appellate Division in Driesbaugh v Gagnon is modified by reinstating the fourth condition and, as so modified, affirmed.

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

In Matter of St. Onge v Donovan: Order reversed, with costs, and judgment of Supreme Court, Albany County, reinstated.

In Matter of Driesbaugh v Gagnon: Order modified, with costs to appellants, by reinstating the Board’s fourth condition and, as so modified, affirmed.

      . Petitioner was also served with a "Notice of Violation” concerning his Port Crane business. The Zoning Board of Appeals reversed the citation, however, after concluding that the Port Crane operation was a lawful nonconforming use.

      . The previous owner purchased the property in 1976. The zoning board’s "Opinion and Decision” is dated April 10, 1986. Thus, at the time of the Board’s decision, the property had been used illegally for about 10 years.

      . Petitioner abandoned his challenge to the second condition which precluded the posting of any sign denoting a commercial operation, after an agreement was reached with the Town permitting petitioner to post a sign identifying his business as a registered vehicle repair shop in compliance with State law.

      . As we hold the condition invalid for violating the rule in Dexter, we need not reach the issue of whether it also constitutes an unconstitutional deprivation of property.


source: Caselaw Access Project

author: Hancock, Jr., J. Kaye, J. Bellacosa, J.

license: Public Domain

text:
    James M. O’Neill, Respondent, v Oakgrove Construction, Inc., et al., Defendants. Gannett Rochester Newspapers, Appellant.
    Argued February 9, 1988;
    decided March 29, 1988

      POINTS OF COUNSEL

      John B. McCrory and William S. Brandt for appellant.
    I. A First Amendment privilege protects unpublished information gathered by qualified journalists. (People v Korkala, 99 AD2d 161; United States v Burke, 700 F2d 70, 464 US 816; People v Bova, 118 Misc 2d 14; Wilkins v Kalla, 118 Misc 2d 34; United States v Criden, 633 F2d 346, cert denied sub nom. Schaffer v United States, 449 US 1113; Silkwood v Kerr-McGee Corp., 563 F2d 433; Montezuma Realty v Occidental Petroleum Corp., 494 F Supp 780; Baker v F & F Inv., 470 F2d 778, 411 US 966; Loadholtz v Fields, 389 F Supp 1299; Miami Herald Publ. Co. v Tornillo, 418 US 241.) II. Plaintiff totally failed to meet his burden under the balancing test. (Riley v City of Chester, 612 F2d 708; Silkwood v Kerr-McGee Corp., 563 F2d 433; Carey v Hume, 492 F2d 631, 417 US 938; Gulliver’s Periodicals v Levy Circulating Co., 455 F Supp 1197; Baker v F & F Inv., 470 F2d 778, 411 US 966; United States v Orsini, 424 F Supp 229, 559 F2d 1206, 434 US 997; United States v Burke, 700 F2d 70, 464 US 816; People v Marahan, 81 Misc 2d 637; People v Monroe, 82 Misc 2d 850; In re Petroleum Prods. Antitrust Litig., 680 F2d 5, cert denied sub nom. Arizona v McGraw-Hill, Inc., 459 US 909.)

      Alexander Geiger for respondent.
    I. Any constitutional reporter’s privilege against disclosure is, at most, a qualified privilege. (Matter of Beach v Shanley, 62 NY2d 241; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151; Matter of Consumers Union, 495 F Supp 582; United States v Cuthbertson, 630 F2d 139, 449 US 1126; Herbert v Lando, 441 US 153.) II. Respondent in this case has overcome any applicable qualified privileges. (Koump v Smith, 25 NY2d 287; People v Wolf, 39 AD2d 864; Allen v Crowell-Collier Publ. Co., 21 NY2d 403; Matter of Maryland v Ambach, 59 NY2d 711.)

      Peter L. Danziger, Barbara G. Billet, Ralph Huber, Richard N. Winfield, Steven Sadicario, John Zucker, Sandra Baron, Andrew Hughes, George Freeman and Peter G. Stone for New York Newspaper Publishers Association, Inc., and others, amici curiae.

    I. Compelled disclosure of unpublished information and work product, whether confidential or otherwise, would substantially impair the effective functioning of a free press, to the detriment of an informed public. (Zerilli v Smith, 656 F2d 705; Wilkins v Kalla, 118 Misc 2d 34; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151.) II. The reporter’s privilege under the First Amendment extends to all unpublished journalistic work product and information. (von Bulow by Auersperg v von Bulow, 811 F2d 136; Loadholtz v Fields, 389 F Supp 1299; Matter of Consumers Union, 495 F Supp 582; United States v Cuthbertson, 630 F2d 139, 449 US 1126; Continental Cablevision v Storer Broadcasting Co., 583 F Supp 427; Altemose Constr. Co. v Building & Constr. Trades Council, 443 F Supp 489; People v Korkala, 99 AD2d 161; Wilkins v Kalla, 118 Misc 2d 34; People v Bova, 118 Misc 2d 14; People v Troiano, 127 Misc 2d 738.) III. A broad reporter’s privilege should be recognized under article I, § 8 of the NY Constitution. (People ex rel. Arcara v Cloud Books, 68 NY2d 553; SHAD Alliance v Smith Haven Mall, 66 NY2d 496; Bellanca v New York State Liq. Auth., 54 NY2d 228, 456 US 1006; PruneYard Shopping Center v Robins, 447 US 74; People v P J. Video, 68 NY2d 296; People v Adams, 53 NY2d 241; Cooper v Morin, 49 NY2d 69; Sharrock v Dell Buick-Cadillac, 45 NY2d 152; People v Hobson, 39 NY2d 479; People v Settles, 46 NY2d 154.)
   OPINION OF THE COURT

Hancock, Jr., J.

The question presented is whether nonconfidential photographs taken by journalists in the course of newsgathering activities and kept as resource material are protected from compelled disclosure by a qualified reporter’s privilege under the State or Federal Constitution. The Appellate Division held that protection from disclosure was limited to situations involving "a confidential relationship with a source” and to those involving "private sources where discovery would substantially intrude upon the privacy of press functions” (122 AD2d, at 571). We disagree. Article I, § 8 of the New York State Constitution and, we believe, the First Amendment of the Federal Constitution as well, provide a reporter’s privilege which extends to confidential and nonconfidential materials and which, albeit qualified, is triggered where the material sought for disclosure — the photographs here — was prepared or collected in the course of newsgathering.

Our decision is based on an adequate and independent ground under our State Constitution. Nevertheless, we are noting our agreement with the Federal courts that have reached the same result under the Federal Constitution in order that we might express our own view of the federal guarantee of a free press which, of course, we are also bound to uphold. This practice is in accord with our proper role in helping to expound the Federal, as well as our State, Constitution and, as some of the commentators have explained, it contributes to the development of a body of case law of potential use to federal and other state courts (see, e.g., Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 Tex L Rev 1025, 1029-1030, 1050; Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Tex L Rev 977, 985-986; Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv L Rev 1324, 1357). We have followed the practice in other cases and see no reason for hesitancy in doing so here (see, e.g., Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57, 64-65; People v Stith, 69 NY2d 313, 316, n; People v Donovan, 13 NY2d 148, 151-152).

I

Plaintiff was injured when his automobile hit a concrete median after sliding off a roadway which was under construction. Seventeen photographs of the accident scene were taken by a police photographer. Additionally, a photojournalist employed by appellant, Gannett Rochester Newspapers (Gannett), took 58 photographs, one of which was published in the Democrat and Chronicle the following day.

Plaintiff brought an action for personal injury against the contractors and subcontractors responsible for the construction project, alleging hazardous conditions at the construction site and various safety violations. When his informal request to examine Gannett’s photographs was refused, plaintiff moved pursuant to CPLR 3120 (b) for an order directing Gannett, as a nonparty, to produce those photographs for inspection and copying. Gannett cross-moved for a protective order arguing that its unpublished photographs are privileged under the free press and speech guarantees of the Federal and State Constitutions.

Special Term granted the motion, denied the cross motion, and ordered that Gannett produce the photographs. On appeal, the Appellate Division agreed with the denial of Gannett’s cross motion on the ground that "there is no compelling reason for extending the scope of the [First Amendment reporter’s] privilege to nonconfidential materials” and because the "facts of this case do not warrant affording [Gannett] greater protection under the State Constitution” (122 AD2d, at 571). The court modified the order of Special Term, however, by reversing the grant of plaintiff’s discovery motion and remitting the matter for an in camera examination of the photographs and a routine discovery motion determination of the "relevance of the information and an actual need for its production.” (See, CPLR 3101 [a]: "[t]here shall be full disclosure of all evidence material and necessary”.) On remand, Supreme Court determined that 19 of the Gannett photographs "depict relevant evidence not shown in the police photographs” and ordered their production.

Gannett, raising a substantial constitutional issue, brought this appeal as of right (CPLR 5601 [b]). For the following reasons, we reverse the order of the Appellate Division thus presented for our review.

II

In the ordinary case, the scope of discovery available against a nonparty is governed solely by the "sweeping exhortation” of CPLR 3101 which requires "full disclosure of all evidence material and necessary in the prosecution or defense of an action,” wherever "sufficient independent evidence” is not obtainable (Cirale v 80 Pine St. Corp., 35 NY2d 113, 116-117). The prerequisites of materiality and necessity, though placing some limit on entitlement to disclosure, extend to any information or items "bearing on the controversy” which will be an aid to trial preparation, sharpening of the issues, or reducing delay. The test in such cases is "usefulness and reason” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406). Where, however, the nonparty against whom discovery is sought is engaged in newsgathering or reporting activities, and the materials requested are photographs taken in the course of such endeavors, additional considerations are involved.

The ability of the press freely to collect and edit news, unhampered by repeated demands for its resource materials, requires more protection than that afforded by the disclosure statute (CPLR 3101). The autonomy of the press would be jeopardized if resort to its resource materials, by litigants seeking to utilize the newsgathering efforts of journalists for their private purposes, were routinely permitted (see, Miller v Mecklenburg County, 602 F Supp 675, 679; Maurice v National Labor Relations Bd., 7 Med L Rptr 2221, 2223 [SD NY], vacated on other grounds 691 F2d 182; Wilkins v Kalla, 118 Misc 2d 34, 35). Moreover, because journalists typically gather information about accidents, crimes, and other matters of special interest that often give rise to litigation, attempts to obtain evidence by subjecting the press to discovery as a nonparty would be widespread if not restricted on a routine basis. The practical burdens on time and resources, as well as the consequent diversion of journalistic effort and disruption of newsgathering activity, would be particularly inimical to the vigor of a free press.

For these reasons, the courts in New York and elsewhere, Federal and State, have recognized a reporter’s qualified privilege under the First Amendment guarantee of free press and speech (see, United States v Burke, 700 F2d 70, 77 [2d Cir], cert denied 464 US 816; Zerilli v Smith, 656 F2d 705, 713-715 [DC Cir]; United States Criden, 633 F2d 346, 358-359 [3d Cir], cert denied sub nom. Schaffer v United States, 449 US 1113; Silkwood v Kerr-McGee Corp., 563 F2d 433, 438 [10th Cir]; People v Korkala, 99 AD2d 161, 167; People v Bova, 118 Misc 2d 14). As formulated by the decisions of these courts, the privilege bars coerced disclosure of resource materials, such as photographs, which are obtained or otherwise generated in the course of newsgathering or newspreparing activities, unless the moving litigant satisfies a tripartite test which is more demanding than the requirements of CPLR 3101 (a). Under the tripartite test, discovery may be ordered only if the litigant demonstrates, clearly and specifically, that the items sought are (1) highly material, (2) critical to the litigant’s claim, and (3) not otherwise available. Accordingly, if the material sought is pertinent merely to an ancillary issue in the litigation, not essential to the maintenance of the litigant’s claim, or obtainable through an alternative source, disclosure may not be compelled (see, e.g., In re Petroleum Prods. Antitrust Litig., 680 F2d 5, 9 [2d Cir], cert denied sub nom. Arizona v McGraw-Hill, Inc., 459 US 909; Riley v City of Chester, 612 F2d 708, 717 [3d Cir]; Silkwood v Kerr-McGee Corp., supra, at 438 [10th Cir]; Baker v F & F Inv., 470 F2d 778, 784 [2d Cir], cert denied 411 US 966; Montezuma Realty Corp. v Occidental Petroleum Corp., 494 F Supp 780 [SD NY]).

The considerations underlying this qualified privilege are not peculiar to materials obtained in confidence. (Contrast the specific concerns about confidential sources addressed by the absolute protection of the Shield Law [Civil Rights Law § 79-h; see, Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 155-157].) As many of the courts have already noted, confidentiality or the lack thereof has little, if anything, to do with the burdens on the time and resources of the press that would inevitably result from discovery without special restrictions (see, von Bulow by Auersperg v von Bulow, 811 F2d 136, 143 [2d Cir], cert denied sub nom. Reynolds v von Bulow, — US —, 107 S Ct 1891; United States v Cuthbertson, 630 F2d 139, 147 [3d Cir], cert denied 449 US 1126; Matter of Consumers Union, 495 F Supp 582, 586 [SD NY]; Loadholtz v Fields, 389 F Supp 1299, 1303 [MD Fla]; People v Korkala, 99 AD2d 161, 167, supra).

Although the Supreme Court has yet to recognize a reporter’s privilege (see, e.g., Branzburg v Hayes, 408 US 665, 682-683; see generally, discussion in Tribe, American Constitutional Law § 12-22, at 971-977 [2d ed]) and, indeed, declined to adopt the three-pronged test when requested to do so in the context of a grand jury investigation (see, Branzburg v Hayes, supra, at 702-704; id., at 710 [Powell, J., concurring]; compare with id., at 740, 743 [Stewart, J., dissenting]), we agree with those Federal courts that have found the qualified privilege necessary to insure the protections guaranteed by the First Amendment. Moreover, "construing [our] own constitution so as to recognize a newsman’s privilege”, as the Branzburg court foresaw we might (408 US, at 706, supra), we have no difficulty in concluding that the guarantee of a free press in article I, § 8 of the New York Constitution independently mandates the protection afforded by the qualified privilege to prevent undue diversion of journalistic effort and disruption of press functions. The expansive language of our State constitutional guarantee (compare, NY Const, art I, § 8, with US Const 1st Amend), its formulation and adoption prior to the Supreme Court’s application of the First Amendment to the States (compare, NY Const of 1821, art VII, § 8; and Brandreth v Lance, 8 Paige 24 [1839], with Near v Minnesota, 283 US 697 [1931] — [citing Brandreth v Lance and other New York cases with approval, id., at 719, n 11]), the recognition in very early New York history of a constitutionally guaranteed liberty of the press (see, Jay, Address to the People of the State of New York, May 1788, 3 American Museum [No. 6] 559 [1792], reprinted in 3 Roots of the Bill of Rights, at 554, 560 [Schwartz ed]; Smith, Address to the People of the State of New York, May 1788 — Postscript [agreeing with Jay on that point], reprinted in id., at 566, 576), and the consistent tradition in this State of providing the broadest possible protection to "the sensitive role of gathering and disseminating news of public events” (Matter of Beach v Shanley, 62 NY2d 241, 256 [Wachtler, J., concurring]), all call for particular vigilance by the courts of this State in safeguarding the free press against undue interference.

While we agree with the three-part test articulated in the Federal courts and, moreover, adopt it under our State Constitution, it must be noted that this test is but a complement to the general principles governing compelled disclosure where they are applied to a reporter’s photographs. Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party (see, e.g., Cynthia B. v New Rochelle Hosp. Med. Center, 60 NY2d 452, 460-462; CPLR 3101, 3103). Thus, in deciding whether to order disclosure of photographs prepared or obtained in the course of newsgathering, a court would consider the extent, if any, that press activities will be aifected and, if so, whether such is justified by the interest to be served. Together with the particularized constitutional test we recognize today, these basic protections pertaining to discovery are, of course, wholly available to control disclosure in this sensitive area (see, Cynthia B. v New Rochelle Hosp. Med. Center, supra; CPLR 3103; cf., Branzburg v Hayes, supra, at 680-681, 699-700).

Finally, contrary to plaintiffs contention, neither Matter of Beach v Shanley (supra) nor Matter of Knight-Ridder Broadcasting v Greenberg (supra) supports a different result. In Matter of Beach v Shanley, where we held that the categorical protection against compulsory disclosure of confidential sources provided by statute in this State (see, Civil Rights Law § 79-h [Shield Law]) extended to Grand Jury investigations, we declined to find a similar protection under the State Constitution only because it was unnecessary to reach the constitutional issue in that case (62 NY2d, at 254, supra). In Matter of Knight-Ridder Broadcasting v Greenberg, where we held that the same absolute Shield Law protection did not extend to nonconfidential sources, we simply noted, with regard to constitutional questions, that the Supreme Court’s decision in Branzburg v Hayes (supra) provided no additional First Amendment protection where relevant information was sought in a Grand Jury investigation, and that the issue, whether protection was afforded by the State Constitution, had not been preserved for our review (70 NY2d, at 160, supra).

Ill

In the present case, the Appellate Division, finding no constitutional protection for nonconfidential press materials, returned plaintiff’s discovery motion to Supreme Court for a hearing to determine whether the photographs sought "depicted] relevant evidence not shown in the police photographs” and were, therefore, "material and necessary” to plaintiff’s personal injury claim within the meaning of CPLR 3101. As discussed above, that standard affords inadequate protection to the newsgathering activities of the press. The more stringent, constitutionally mandated test that we have outlined should be applied.

Accordingly, the order of Supreme Court appealed from and the order of the Appellate Division brought up for review should be reversed, and the matter remitted to Supreme Court for a determination in accordance with the principles enunciated herein.

Kaye, J.

(concurring). I concur in the result reached today and in the court’s opinion, except insofar as the court decides the case under the Federal Constitution. In my view the case is correctly resolved under the State Constitution alone.

Issues involving free expression have long been viewed as matters peculiarly implicating local concerns and local standards (see, e.g., People v P. J. Video, 68 NY2d 296, 308; People ex rel. Arcara v Cloud Books, 68 NY2d 553, 557). As the opinion acknowledges, the language of article I, § 8 of our State Constitution is materially different — more expansive— than the First Amendment; article I, § 8 has a longer, independent history; and we have maintained a consistent tradition in this State of providing the broadest possible protection to "the sensitive role of gathering and disseminating news of public events.” (Matter of Beach v Shanley, 62 NY2d 241, 256 [Wachtler, J., concurring].) I therefore cannot understand — or join — the decision to premise the qualified privilege we now adopt on the Federal Constitution in addition to the State Constitution. The fact that Federal law remains unsettled (see, majority opn, at 528) leads me particularly to question why we would deliberately choose to surround our new privilege with any of the uncertainty that presently accompanies the Federal law, when we could very respectably resolve the issue with clarity and finality for the citizens of this State under the State Constitution.

The court offers two answers: that we decide the issue under both Constitutions because we have used that methodology before, and because it accords with our proper role in the Federal system (majority opn, at 524-525). But neither answer is satisfactory here. First, in resolving issues raised under parallel provisions of the State and Federal Constitutions, this court has not been wedded to any particular methodology. Depending on the matter at issue, we have decided parallel constitutional questions under the State Constitution alone (see, e.g., Rivers v Katz, 67 NY2d 485, 498) and under both (see, e.g., People v Stith, 69 NY2d 313, 316, n). The issue before us is strikingly appropriate for disposition under the State Constitution without the additional overlay of the First Amendment: this court balances the interests of the press against the State statutory rights of New York litigants seeking particular materials in discovery, and adopts a solution that best accommodates the interests of both. Second, in resolving the question solely as a matter of State law, we still might look to Federal precedents as well as those of other States, and by our decision help to expound Federal law and furnish guidance for sister States. We thereby do fulfill our proper role in the Federal system, which is first and foremost to settle issues as definitively as possible for the people of this State.

Bellacosa, J.

(concurring). Although I concur in the court’s decision to reverse, I write separately to express my different perspective on the rationale of the majority opinion.

The material sought to be discovered by the plaintiff in this case consists of unpublished photographs taken by a photojournalist employed by a Rochester newspaper. Neither the newspaper nor the photojournalist are parties to the automobile accident case seeking damages for negligence, but plaintiff argues that the photos are discoverable because they are "material and necessary” to his case.

As is evident from the language of CPLR 3101, civil discovery is meant to be generous and sweeping. Subdivision (a) sets the tone by announcing: "There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action”, with subdivisions (b), (c) and (d) serving as limitations on the general availability (see, Siegel, NY Prac § 344, at 420-423). In this framework, exceptions to the demand for all relevant evidence should " 'not [be] lightly created nor expansively construed, for they are in derogation of the search for truth’ ” in the adjudication of disputes within the judicial system (Herbert v Lando, 441 US 153, 175, quoting United States v Nixon, 418 US 683, 710; see also, Cynthia B. v New Rochelle Hosp. Med. Center, 60 NY2d 452, 460-462).

The court is confronted in this case with two competing interests: the interest in maintaining the free flow of information by the organized press and the evidentiary needs of an injured litigant.

Clearly, the special sanctuary sought by the publisher Gannett Rochester Newspapers cannot be justified solely on the basis of its photojournalist’s role as a private citizen or as an employee, because that would contradict the general susceptibility of all citizens and entities to broadly available judicial process. The only rationale for cloaking the press with this exceptional protection rests on the unique role of reporters as purveyors of information to the public and of newspapers as forums for criticism, discussion and debate.

That rationale tips the balance in favor of a constitutional qualified privilege for the press in this case, because without the extra gloss of protection against ordinary disclosure the unique functions of the press could be seriously interdicted. The nature of the press function makes it a more likely target for subpoenas which, in turn, will generate cost and diversion in time and attention from journalistic pursuits. Indeed, the real threat that unpublished photos may eventually be "material and relevant” in some litigation between private parties may induce reporters to discard, in the ordinary course, potentially discoverable materials to avoid exposure to judicial process by subpoena duces tecum. Journalists should be spending their time in newsrooms, not in courtrooms as participants in the litigation process (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 168 [dissenting opn]).

This case will for all practical purposes eclipse the purpose of the Shield Law (Civil Rights Law § 79-h) except in the narrowest circumstance — the small residuum between the constitutional qualified privileged confidential materials and the absolutely confidential kind. Thus, the state of the law left in the wake of the cramped statutory construction in Matter of Knight-Ridder Broadcasting v Greenberg (70 NY2d 151, supra) adds a special impetus for the court to declare a State constitutionally protected qualified privilege as to nonconfidential photographic materials to complement the statutorily shielded confidential materials. Otherwise, photographs like these, acquired in a "nonconfidential” manner, would remain amenable to normal demands and distractions already evident in the often-abused discovery process of civil litigation.

As I understand the new test, the State constitutionally based qualified privilege simply elevates the CPLR 3101 thresholds from "material” to "highly” so, from "necessary” to "critical”, and from "insufficiently independent availability” to "not otherwise available”; and, it inverts the burden or imposes a presumption in favor of the protected press over the ordinary litigant.

I unhesitatingly join in the reversal because this decision substantially fills the policy gap created by the holding in Matter of Knight-Ridder Broadcasting v Greenberg (70 NY2d 151, supra), and does so on a higher order of law — the State Constitution. Nevertheless, while I am satisfied that a distinction can and has been made justifying invocation of a State constitutional right to create a qualified privilege to the press, an incongruity may be inferred from this holding because the court refused to do that very thing in favor of a pamphleteer in a private shopping mall, based on the free speech right (SHAD Alliance v Smith Haven Mall, 66 NY2d 496, 508 [Wachtler, Ch. J., dissenting]).

Chief Judge Wachtler and Judges Simons, Kaye and Alexander concur with Judge Hancock, Jr.; Judge Kaye concurs in a separate concurring opinion; Judge Bellacosa concurs in result in another concurring opinion; Judge Titone taking no part.

Order of Supreme Court appealed from and order of the Appellate Division brought up for review reversed, with costs, and matter remitted to Supreme Court, Monroe County, for further proceedings in accordance with the opinion herein.

      . This appeal does not involve the statutory privilege under New York’s Shield Law (Civil Rights Law § 79-h) which provides unqualified protection to a reporter’s confidential sources and materials (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151; Matter of Beach v Shanley, 62 NY2d 241). Rather, it involves the question of a constitutional privilege, State or Federal, providing qualified protection to materials which, although the product of newsgathering, were not obtained in confidence and, therefore, do not fall within the reach of the statute.

      . To be sure, in some of the cases in which a constitutional reporter’s privilege was recognized, the countervailing government interest was not as compelling as the grand jury investigation in Branzburg v Hayes (408 US 665). Nevertheless, the courts have held the three-pronged test applicable regardless of the criminal or civil context (see, e.g, United States v Burke, 700 F2d 70; United States v Criden, 633 F2d 346; United States v Cuthbertson, 630 F2d 139; cf., In re Petroleum Prods. Antitrust Litig., 680 F2d 5 [discovery sought by several States which had jointly brought an antitrust action]). (This being a civil case, we, of course, do not consider the different factors present in criminal cases.)
      One commentator, in questioning any reliance on Branzburg, or on any other Supreme Court decision on the subject, as a basis for finding a First Amendment reporter’s privilege, has noted: "Despite the holding in Branzburg and the discouraging tone of the majority opinion, the lower federal courts have consistently read the case to support some kind of qualified privilege for reporters” because five Justices apparently believed "that the Constitution may at times protect the confidentiality of a journalist’s sources” (Tribe, American Constitutional Law § 12-22, at 972 [2d ed]). As already noted, however, the courts have held the privilege necessary to protect nonconfidential materials as well (see, e.g., von Bulow by Auersperg v von Bulow, 811 F2d 136; United States v Cuthbertson, supra; Matter of Consumers Union, 495 F Supp 582; Loadholtz v Fields, 389 F Supp 1299).

      . The protection afforded by the guarantees of free press and speech in the New York Constitution is often broader than the minimum required by the First Amendment (see, People ex rel. Arcara v Cloud Books, 68 NY2d 553, 557-558; Matter of Beach v Shanley, 62 NY2d 241, 255 [Wachtler, J., concurring]; Bellanca v New York State Liq. Auth., 54 NY2d 228, 235). Article I, § 8 of the Constitution assures, in affirmative terms, the right of our citizens to "freely speak, write and publish” and prohibits the use of official authority which acts to "restrain or abridge the liberty of speech or of the press”.


author: Kaye, J.

text:
    Justin Kavanaugh, Also Known as Justin Gonzales, an Infant, by Irene Gonzales, His Mother and Natural Guardian, et al., Respondents, v William Nussbaum, Defendant, and Erol Y. Caypinar et al., Appellants.
    Argued February 10, 1988;
    decided March 29, 1988

      POINTS OF COUNSEL

      Ignatius John Melito for Erol Y. Caypinar, appellant.
    I. The court below erroneously permitted Dr. Caypinar to be held vicariously liable for the acts of a covering physician. As a matter of public policy such vicarious liability should not be permitted since it will curtail the availability of medical services. (Graddy v New York Med. Coll., 19 AD2d 426; Connell v Hayden, 83 AD2d 30; Kanter v Schlecker, 102 AD2d 882; Arshansky v Royal Concourse Co., 28 AD2d 986; Nisenholtz v Mount Sinai Hosp., 126 Misc 2d 658; Fiegelson v Ryan, 108 Misc 2d 192.) II. The complaint against Dr. Caypinar should be dismissed since plaintiffs failed to establish a prima facie case against him. (Foley v Gillick, 39 AD2d 546; Holzberg v Flower & Fifth Ave. Hosp., 39 AD2d 526, 32 NY2d 716; Vara v Drago, 24 AD2d 888; Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950; Sheehan v City of New York, 40 NY2d 496; Derdia

      rian v Felix Contr. Corp., 51 NY2d 308; Bank of U. S. v Manheim, 264 NY 45; Fealey v Bull, 163 NY 397; Summa v Masterson, 215 App Div 159; Blum v Fresh Grown Preserve Corp., 292 NY 241.) III. Legal errors in the charge and special interrogatories prejudiced Dr. Caypinar and warrant reversal and a new trial. (Stone v Goodman, 241 App Div 290; Pike v Honsinger, 155 NY 201; Kinch v Adams, 46 AD2d 467; Johnson v Yeshiva Univ., 42 NY2d 818; Ward v Kovacs, 55 AD2d 391; Cleary v Dietz Co., 222 NY 126; Garthe v Ruppert, 264 NY 290; Lichtenstein v Montefiore Hosp. & Med. Center, 56 AD2d 281.) IV. The court below erred in holding that an award for loss of enjoyment of life is permissible even where plaintiff is not capable of appreciating the consequences of his injury. The court below further erred in upholding a $1,500,000 award for pain and suffering on that basis where the record shows that the jury made no award for loss of enjoyment of life. (Rufino v United States, 69 NY2d 310; Gallo v Supermarkets Gen. Corp., 112 AD2d 345; Bottone v New York Tel. Co., 110 AD2d 922; McDougald v Garber, 132 Misc 2d 457; Caprara v Chrysler Corp., 52 NY2d 114; Fiederlein v New York City Health & Hosps. Corp., 56 NY2d 573; Wittman v Gilson, 120 AD2d 964; Huertas v State of New York, 84 AD2d 650; Spadaccini v Dolan, 63 AD2d 110; Jones v City of New York, 57 AD2d 429.) V. The $740,000 award for impairment of earning capacity should be set aside since it was the result of legal error in the court’s charge which misleadingly made it appear that the wildly speculative projections of plaintiffs’ economic expert were supported by independent United States Government projections. (Tate v Colabello, 58 NY2d 84; De Chico v Metro-North Commuter R. R., 758 F2d 856; Cornell v Duffy-Mott Co., 263 NY 95; Zaninovich v American Airlines, 26 AD2d 155; Matter of Riehl v Town of Amherst, 308 NY 212; Matter of Miller v National Cabinet Co., 8 NY2d 277; Drayton v Jiffee Chem. Corp., 591 F2d 352; Glidden Co. v Hellenic Lines, 207 F Supp 262, 315 F2d 162; Reno v Bull, 226 NY 546.)

      Patricia DAlvia and Andrea M. Alonso for Brookhaven Memorial Hospital, appellant.
    I. The court below was incorrect in determining that loss of enjoyment of life, an element of pain and suffering, did not require cognitive awareness in order for plaintiffs to recover. In any event, the determination whether there should be a recovery and the extent of the award is a jury question. The court below erred by invading the jury’s province in this area. (Middleton v Whitridge, 213 NY 499; Cohen v Hallmark Cards, 45 NY2d 493; Rufino v United States, 69 NY2d 310; McDougald v Garber, 132 Misc 2d 457; Caprara v Chrysler Corp., 52 NY2d 114; Ledogar v Giordano, 122 AD2d 834; Gallo v Supermarkets Gen. Corp., 112 AD2d 345; Sternemann v Langs, 93 AD2d 819; Zapata v City of New York, 96 AD2d 779; Warmsley v City of New York, 89 AD2d 982; Terwilliger v State of New York, 96 AD2d 688.) II. The court below was incorrect in reinstating the award of loss for future earning capacity.

      Norman Bard and Beth J. Goldmacher for Nareys Suteethorn, appellant.
    I. As to Dr. Suteethorn, the jury, by its response to interrogatory numbered 6, returned a verdict which could have been based on one or more of three departures charged against this defendant — because plaintiff failed to prove an actionable case as concerns two of those departures, the judgment entered upon the verdict in favor of plaintiff and against Dr. Suteethorn must be reversed and a new trial ordered. There was error in failing to charge that defendant, Suteethorn, had a right to rely on the orders of Dr. Swenson. (Davis v Caldwell, 54 NY2d 176; Caputo v Frankel, 89 AD2d 595; Ward v Kovacs, 55 AD2d 391; Schreiber v Cestari, 40 AD2d 1025; Carhart v Relmar Operating Corp., 66 AD2d 680; Hamilton v Presbyterian Hosp., 24 AD2d 563; Toth v Community Hosp., 22 NY2d 255; Fiorentino v Wenger, 19 NY2d 407; Pigno v Bunim, 43 AD2d 718, 35 NY2d 841; Killeen v Reinhardt, 71 AD2d 851.) II. Whether Suteethorn had improperly performed an internal examination during the mother’s first emergency room visit, whether plaintiff was then having active bleeding were questions the jury had to answer by specific reference to Suteethorn’s credibility — because of this, defendant was seriously prejudiced when plaintiff was permitted to impeach his credibility by improper means. The court below agreed error was committed but held that the error was not prejudicial. We disagree. (Fields v City of New York, 4 NY2d 334; Kozlowski v City of Amsterdam, 111 AD2d 476; Wurtzman v Kalinowski, 233 App Div 187; Greene v White, 37 NY 405; People v Smith, 172 NY 210; People v Strait, 154 NY 165; People v Corey, 148 NY 476; Griffin v Corporation of Church of Assumption, 14 AD2d 620; Larkin v Nassau Elec. R. R. Co., 205 NY 267; Vernet v Gilbert, 90 AD2d 846.) III. If this court rules that a new trial is warranted as to either defendant, the case should be remanded to the court below for determination as to whether or not that court should exercise its discretion and award a new trial against all defendants. (Statella v Chuckrow Constr. Co., 28 AD2d 669; Grote v Jonbert Realty Corp., 1 AD2d 111; Robinson v Terminal Frgt. Transp., 2 AD2d 510; Cregar v McDonald, 28 AD2d 1142; Troll v Schoonmaker Bros., 34 AD2d 1030; Rocco v Dickstein, 49 AD2d 649; Doyle v Dapolito, 20 AD2d 318; Nicholas v Reason, 84 AD2d 915.) IV. Loss of enjoyment of life should, as a matter of public policy, be considered part and parcel of pain and suffering requiring cognitive awareness to recover. If and how much plaintiff should recover is a jury function. The findings of the court below on point was a usurpation of that function. (Sumner v Extebank, 58 NY2d 1087; Cohen v Hallmark Cards, 45 NY2d 493; Ledogar v Giordano, 122 AD2d 834; Rufino v United States, 69 NY2d 310; McDougald v Garber, 132 Misc 2d 457; Matter of Cicio v City of New York, 98 AD2d 38; Matter of Peterson v New York State Dept. of Correctional Seros., 100 AD2d 73; Ramson v New-York & Erie R. R. Co., 15 NY 415; Kavanaugh v Nussbaum, 129 AD2d 559.)

      Norman E. Frowley for respondents.
    I. The proof establishing that defendant Dr. Suteethorn was negligent in failing to observe "active” bleeding or in communicating the proper information to the covering physician was more than adequate. (Benson v Dean, 232 NY 52; Meiselman v Crown Hgts. Hosp., 285 NY 389.) II. The jury’s verdict as to defendant Dr. Suteethorn’s malpractice in failing to admit Mrs. Kavanaugh to the hospital was based on a preponderance of the credible evidence. (Toth v Community Hosp., 22 NY2d 255; Fiorentino v Wenger, 19 NY2d 407.) III. In an exercise of its discretion the court below decided that any alleged error in the use of Dr. Suteethorn’s prior statement and any allegedly improper comments by plaintiffs’ counsel did not have an effect upon the jury’s findings and therefore constituted harmless error; defendant has failed to show that the court below abused its discretion as a matter of law in this respect. (Vandenburgh v Columbia Mem. Hosp., 91 AD2d 710; Blasi v Coca-Cola Bottling Co., 121 Misc 2d 457; Virgo v Bonaville, 49 NY2d 982; Mussari v Davidson, 93 AD2d 996; Kane v Zade, 63 AD2d 993; Reilly v Wright, 55 AD2d 544; Rice v Ninacs, 34 AD2d 388; Barry v Manglass, 77 AD2d 887.) IV. The trial court’s charge as to the potential vicarious responsibility for Dr. Swenson’s acts was entirely proper given the proof. (Kanter v Schlecker,
      102 AD2d 882; Graddy v New York Med. Coll., 19 AD2d 426; Prooth v Wallsh, 105 Misc 2d 603; Mduba v Benedictine Hosp., 52 AD2d 450; Lanza v Parkeast Hosp., 102 AD2d 741; Rivera v Bronx-Lebanon Hosp. Center, 70 AD2d 794; Felice v St. Agnes Hosp., 65 AD2d 388.) V. As the court below concluded after reviewing all the proof, the record contains sufficient evidence to establish a prima facie case and to warrant the jury’s conclusion that Dr. Caypinar’s failure to perform a Caesarian delivery in the face of indications of fetal distress constituted negligence which was a proximate cause of the injuries sustained by plaintiff. Moreover, as the court below held, because the case against defendant Caypinar was submitted to the jury in the form of a special verdict asking the jury’s judgment on each of the departures, a preponderance of the evidence supporting any one of those departures will suffice to sustain the verdict even if the jury’s findings as to one or more of the others is not similarly supported. (Mattot v Ward, 48 NY2d 455; Toth v Community Hosp., 22 NY2d 255; Mertsaris v 73rd Corp., 105 AD2d 67; Monahan v Weichert, 82 AD2d 102; Industrial & Gen. Trust v Tod, 180 NY 215; Spett v President Monroe Bldg. & Mfg. Co., 19 NY2d 203; Bell v New York City Health & Hosps. Corp., 90 AD2d 270; Millwaukee & St. Paul Ry. Co. v Kellogg, 94 US 469; Benenson v National Sur. Co., 235 App Div 294.) VI. The court’s charge that a doctor’s duty to possess the requisite skill and knowledge included the duty to keep abreast of changing concepts relative to standards of care and to keep abreast and to use new and changing diagnostic tools was proper in this case. VII. As the court below concluded the special interrogatories as to Dr. Caypinar were proper in all respects. VIII. The issue of whether loss of enjoyment of life is a separate element of damage is not presented for review since the separateness of the award was never urged below and thus was never passed upon by the court below. However, we nonetheless submit, in the event this court reviews the issue, that loss of enjoyment of life is conceptually different from conscious pain and suffering and is based on evidence of loss which is more objective than that pertinent to pain and suffering. It is thus a separate element of damage and is recoverable, we submit, regardless of whether the injured party is consciously aware of the loss. Further, a separate award for this element of damage facilitates judicial review of the entire damage verdict and is thus consistent with the purpose of recent legislation. (Tate v Colabello, 58 NY2d 84; McDougald v Garber, 132 Misc 2d 457;
      Ramson v New-York & Erie R. R. Co., 15 NY 415; Gallo v Supermarkets Gen. Corp., 112 AD2d 345, 66 NY2d 605; Battone v New York Tel. Co., 110 AD2d 922; Alexander v Eldred, 100 AD2d 666, 63 NY2d 460; Sternemann v Langs, 93 AD2d 819; Rowan v County of Nassau, 91 AD2d 608; Neal v Rainbow House Fruits, 87 AD2d 511; Warmsley v City of New York, 89 AD2d 982.) IX. Propriety of the award for impairment of earnings capacity is not presented for review. In any event, the award was entirely improper. (Davis v St. Joseph’s Children’s Servs., 64 NY2d 794; Tate v Colabello, 58 NY2d 84; Snow v State of New York, 98 AD2d 442, 64 NY2d 745; Ledogar v Giordano, 122 AD2d 834, 68 NY2d 911.)
   OPINION OF THE COURT

Kaye, J.

A physician who designates another doctor to "cover” for him, in the circumstances presented, is not liable for the covering doctor’s own negligence in treating the regular physician’s patient.

Plaintiff Justin Kavanaugh was born, in obvious distress, at 4:46 a.m., December 16, 1974, after only 31 weeks’ gestation, weighing about three pounds. His mother, plaintiff Irene Gonzales, had engaged defendant Erol Caypinar, an obstetrician, on December 3, 1974, after Dr. William Nussbaum had for several months failed to diagnose that she was pregnant. Mrs. Gonzales was then 44 years old; the youngest of her three children was more than 20 years old. On her two visits to Dr. Caypinar’s office — December 3 and December 10, 1974— Mrs. Gonzales complained of staining, and had elevated blood pressure.

At about 9:30 p.m., December 15, Mrs. Gonzales began bleeding to such an extent that her husband took her to the emergency room of defendant Brookhaven Hospital. There she was treated by the emergency room physician, defendant Nareys Suteethorn, a hospital employee. Dr. Suteethorn examined Mrs. Gonzales, but testified that he saw no active bleeding. Whether Dr. Suteethorn inserted his finger into Mrs. Gonzales’ cervix, and whether such an examination precipitated hemorrhaging because of an abnormally low placenta (placenta previa), were sharply disputed issues. Dr. Caypinar was at the time attending a meeting at another hospital, and had arranged for Dr. Albin W. Swenson, Jr. (not a defendant) to cover for him. Dr. Suteethorn reported his findings by telephone to Dr. Swenson who told him to send Mrs. Gonzales home and have her contact Dr. Caypinar in the morning.

After returning home, Mrs. Gonzales’ bleeding increased, and at about 2:00 a.m., December 16, she was returned by ambulance to the Brookhaven emergency room, where she was again seen by Dr. Suteethorn, and this time admitted to the hospital. Dr. Caypinar, who was in the delivery room assisting another doctor, ordered a "double set up” to permit either an internal examination of Mrs. Gonzales or a Caesarian section, because he anticipated a potential emergency (possible placenta previa or placenta separation). For an hour or more Dr. Caypinar received reports from the labor room nurses who were monitoring Mrs. Gonzales, and thereafter himself attended her. A loss of the fetal heartbeat was reported beginning about 4:15 a.m., some 31 minutes before Justin’s delivery by Caesarian section. In the delivery room, the infant required resuscitation; his APGAR (a score of zero to 10 assigned to newborns, based on observation) was one at one minute after birth, five at five minutes, and four at 10 minutes. He was transferred to North Shore Hospital, where a tracheotomy was performed to help him breathe. He was tube-fed for about six months, after which he spent some 14 months at Downstate Medical Center. The evidence indicated that Justin suffered permanent debilitating injury, including a reduced ability to become educated, or to care for himself, or to sustain himself economically; he is retarded, has epilepsy (experiencing periodic grand mal seizures) and requires special education and therapy.

A special verdict form, consisting of several questions, was submitted to the jury. The jury found that Dr. Caypinar was culpably negligent in four respects: he failed to ascertain the nature and position of placenta implantation; he failed to use the available diagnostic procedure of sonography; he failed to advise the covering physician as to potential risks; and he failed to render proper care and treatment on December 16, 1974. A single question was submitted embodying three possible theories of liability of Dr. Suteethorn: that he negligently performed a prenatal internal examination of Mrs. Gonzales; that he failed to describe all pertinent findings of that examination, including a finding of vaginal bleeding, to Dr. Swenson; and that he failed to admit Mrs. Gonzales to the hospital on her first visit. The jury answered that question affirmatively.

The jury was further asked whether Dr. Swenson — the covering doctor — himself had failed to care for and treat Mrs. Gonzales in accordance with accepted standards and whether such departure was a proximate cause of Justin’s injuries. It answered yes to both that question and the next: "Under the facts and circumstances of this case, and in accordance with the rules of law as I have charged, do you find that the arrangement between Dr. Caypinar and Dr. Swenson was such as to impute to Dr. Caypinar any causally related acts of negligence on the part of Dr. Swenson?” Having answered both questions affirmatively, the. jury was then asked whether any part of the finding of Dr. Caypinar’s liability was a result of the imputation of negligence on the part of Dr. Swenson and, if so, how much. The jury answered, "Yes. 25%.”

Total damages were fixed at $4,340,000: $2,500,000 for Justin’s pain and suffering; $600,000 as the present value of future expenses for institutional custodial care; $740,000 as the present value of his diminished earning capacity, and $500,000 for Mrs. Gonzales’ lost services. The jury apportioned fault 70% to Dr. Caypinar, 30% to Brookhaven (as Suteethorn’s employer). The court denied defendants’ motions challenging the jury’s findings as to negligence and apportionment, but it reduced the award for pain and suffering to $1,500,000 and it set aside the awards for custodial care, diminished earning capacity and lost services, concluding that there was inadequate evidentiary support for these items of damage. On cross appeals, the Appellate Division sustained the judgment as to liability and the award for pain and suffering, but it restored both the $740,000 award for lost earning capacity and $35,000 of the award for lost services (129 AD2d 559). This court granted defendants’ motions for leave to appeal.

Except as to the imputation to Dr. Caypinar of liability for the negligence of Dr. Swenson, we affirm the Appellate Division order in every respect. In that the parties have devoted a major portion of their argument to the question whether the liability of Drs. Caypinar and Suteethorn was established, we state at the outset that, as to both doctors, the affirmed findings of their own negligence and causation had support in the record, which is the limit of the scope of our review (Humphrey v State of New York, 60 NY2d 742).

Vicarious Liability

Dr. Caypinar, a sole practitioner, and Dr. Swenson both specialized in obstetrics and gynecology on Long Island, but were not partners in the practice of medicine, and did not share office space. Both participated with two colleagues who similarly enjoyed privileges at Brookhaven Hospital in an arrangement whereby each doctor took a turn covering for the other three, so there would be 24-hour-a-day, seven-day-a-week coverage of their patients. Each of the four retained the entire fee from his own patient, whatever service the others might have rendered that patient. The undisputed testimony was that it was common practice in the community for sole practitioners to cover for each other, and that such arrangements were standard practice at the hospital, which required doctors with privileges to be continuously available for emergencies. Pursuant to the covering arrangement, when Mrs. Gonzales arrived at Brookhaven Hospital the night of December 15 and said she was Dr. Caypinar’s patient, the emergency room physician consulted the roster and called Dr. Swenson, who was covering for him.

Both in sending the issue to the jury and in later refusing to set aside the verdict, the trial court concluded — essentially for three reasons — that the relationship or association between Drs. Caypinar and Swenson supported the imposition of vicarious liability. First, even if Drs. Caypinar and Swenson were not partners, employees or employers of each other and shared no fees, the covering arrangement was for their mutual benefit; their arrangement afforded continuous treatment for their patients and enabled them to satisfy what appeared to be the hospital’s requirement for privileges. Second, Mrs. Gonzales had an ongoing relationship with Dr. Caypinar, and had the right to expect satisfactory treatment from him, which included persons to whom he directed her. Third, Mrs. Gonzales had no knowledge of the arrangement and no opportunity to participate in the selection of the covering doctor in any given instance, from which the court concluded that "it would not seem reasonable that she should bear the total responsibility for the no option situation presented to her.”

Liability in negligence generally rests on a defendant’s own fault. Underlying the doctrine of vicarious liability — the imputation of liability to defendant for another person’s fault, based on defendant’s relationship with the wrongdoer — is the notion of control. The person in a position to exercise some general authority or control over the wrongdoer must do so or bear the consequences (Prosser and Keeton, Torts § 69, at 500 [5th ed 1984]). A classic example is liability of ah employer for the acts of its employees within the course of employment, evidencing the public policy foundations of vicarious liability. The risk is allocated to the employer because it is better able than the innocent plaintiff to bear the consequences of employees’ torts, and by the imputation of liability is also encouraged to act carefully in the selection and supervision of its employees. Vicarious liability applies to hospitals and physicians (Bing v Thunig, 2 NY2d 656). Brookhaven Hospital thus unquestionably stands liable for the negligence of its employee Dr. Suteethorn. But Dr. Swenson was not an employee of Dr. Caypinar — indeed, plaintiffs make no such contention — and the imputation of Dr. Swenson’s negligence to him therefore raises different concerns.

The central decision with respect to the vicarious liability of physicians is Graddy v New York Med. Coll. (19 AD2d 426 [Bergan, J.], mot to dismiss appeal denied 13 NY2d 1175). In Graddy the court refused to impute the negligence of the treating physician to the regular physician, although they shared office space, services, equipment and supplies, and even certain fees. As pertinent as the logic and result of the decision is the collection of authorities supporting the conclusion — still valid after 25 years — that "[i]n the absence of some recognized traditional legal relationship such as a partnership, master and servant, or agency, between physicians in the treatment of patients, the imposition of liability on one for the negligence of the other has been largely limited to situations of joint action in diagnosis or treatment or some control of the course of treatment of one by the other.” (Id., at 429.) The court concluded that vicarious liability "ought not be extended to rest on a situation where there is neither a legal nor an actual control of the treating physician by the other physician and the relationship between them upon which responsibility is sought to be imputed turns upon a shared office and an agreement to service each other’s patients for a shared fee.” (Id., at 430.) (See also, Connell v Hayden, 83 AD2d 30, 57-58; Feigelson v Ryan, 108 Misc 2d 192.)

The years since Graddy have seen the development of medical clinics and group practices engendering new questions about imputed liability, but the guiding principle remains unchanged: vicarious liability for medical malpractice generally turns on agency or control in fact, or apparent or ostensible agency (not in issue here) (Hill v St. Clare’s Hosp., 67 NY2d 72, 79; see also, Lanza v Parkeast Hosp., 102 AD2d 741). The requisite showing was not made.

The issue of agency or control in fact necessarily focuses on the relationship between the two doctors, not their relationship with plaintiffs. The trial court, in its charge and its comprehensive posttrial discussion of the issue, sought to determine whether the Caypinar-Swenson relationship was "sufficiently substantial”, whether there was a "sufficient legal relationship or arrangement so as to impose liability on Caypinar”, whether it was "reasonable to consider them to be associated.” That is not the test. No claim is even made that Dr. Caypinar retained Dr. Swenson to act as his agent, in his behalf. Instead, plaintiffs characterize the two doctors as partners or joint venturers. Neither term fits the relationship. By taking turns covering for each other, the doctors did not become partners or even joint venturers, both relationships typified by a sharing of the property and risks of the venture (see, e.g., Matter of Steinbeck v Gerosa, 4 NY2d 302, 317). Nor is this a case of concerted treatment, where the original physician participated in or exercised some degree of control over the acts of the treating physician (Graddy v New York Med. Coll., 19 AD2d 426, supra; Connell v Hayden, 83 AD2d 30, 53, supra). As the court observed in Graddy, what is presented here "is something less, and quite different from, a relationship of master and servant, or agency upon which vicarious liability has thus far rested.” (19 AD2d, at 430, supra.)

The trial court found persuasive, and a point of distinction, that the Caypinar-Swenson relationship was regular and mutually beneficial. But similar elements also existed in Graddy; indeed it is hard to imagine that any physicians would maintain a covering arrangement that did not offer mutual benefit. Still what is missing is some sort of legal or actual authority or control of the treating physician by the regular physician.

The pivotal consideration in extending vicarious liability is one of policy. We recognize that Graddy is distinguishable on its facts, but the policy concerns articulated there are perhaps even more compelling today. There the court wrote that the "implications of such an enlarged liability would tend to discourage a physician from arranging to have another care for his patients on his illness or absence and thus curtail the availability of medical service.” (19 AD2d, at 430, supra.) Covering arrangements were common for sole practitioners in Dr. Caypinar’s community, as they must be generally today; while it is in the nature of the medical profession that a patient’s emergency can arise at any moment, surely no person expects that his or her regular physician will always be there to respond. If liability were now to be imposed vicariously on physicians for the independent negligence of their covering doctors, some would doubtless be discouraged from making arrangements for the continuous care of their patients, but those who chose to or had to — if they are now to be made insurers of their colleagues’ independent acts — would be compelled to insure themselves accordingly. In either event, the public interest would ultimately be disserved.

Nor is the patient — or the public — left at risk by denying vicarious liability in such circumstances. Doctors remain answerable for their own fault in their covering arrangements, as in their treatment of patients (see, Datiz v Shoob, 71 NY2d 867; Ravo v Rogatnick, 70 NY2d 305, 310). They may, for example, be liable to their patients for negligence in their designation of covering doctors, or for their own joint participation with them in diagnosis or treatment or — as in this very case — for failing to advise the covering doctor of potential risks involved. By the same token, covering doctors are independently responsible, as treating physicians, for their negligence. Thus, we decline to enlarge the doctrine of vicarious liability to reach the situation here, and conclude that it was error to do so.

Alleged Errors in Damages

The Appellate Division, in upholding the pain and suffering award, recapitulated this infant’s difficulties and then noted in addition that "although there is no evidence that the infant plaintiff is capable of fully appreciating the consequences of his injuries, or that he is presently conscious of pain, an award for pain and suffering may be based upon the effect that the injuries had upon the infant plaintiff’s ability to enjoy the normal pursuits and pleasures of life.” (129 AD2d 559, 564, supra.) These lines have evoked a torrent of argument on various issues pertaining to the subject of damages for lost enjoyment of life.

The argument is misplaced. Loss of enjoyment of life was not presented to the jury as an element of the infant plaintiff’s damages and is not presented for our review. Nor did the Appellate Division predicate its affirmance on that new theory. The additional reference in the Appellate Division memorandum was at most a makeweight supporting the conclusion that the evidence amply supports the award of $1,500,000 for pain and suffering on the basis charged to the jury. We have no basis for disturbing that conclusion. Similarly, we affirm the Appellate Division order restoring the award for impaired earning capacity. Defendants acknowledge that some amount might be appropriate, but urge that this award is excessive. Defendants’ contention that the evidence supporting the award for impaired earning capacity must be rejected as "bloated” and incredible as a matter of law is without merit, as is their contention that the charge (which must be considered in its entirety) was misleading.

Disposition

Having concluded that the only error committed by the Appellate Division was in upholding the imposition of vicarious liability on Dr. Caypinar, we next consider what relief is necessary to remedy that error.

The jury’s finding of negligence on the part of Dr. Swenson, for which it imposed liability on Dr. Caypinar, was only one of five grounds found against Dr. Caypinar. Our rejection of vicarious liability does not undermine the validity of the remaining incidents of negligence, which independently support his liability to plaintiffs. Thus, despite error in imposing vicarious liability, Dr. Caypinar remains jointly and severally liable with Brookhaven for the full amount of the verdict as modified by the Appellate Division, and plaintiffs may recover the whole of their damages from either defendant. As we have several times noted, plaintiffs are not obliged to include all joint tort-feasors as defendants, and they may recover their entire damages from any of the particular tort-feasors sued, regardless of the concurrent negligence of others (see, Ravo v Ragotnick, 70 NY2d 305, 313, supra; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co., 45 NY2d 551, 557; Kelly v Long Is. Light. Co., 31 NY2d 25, 30).

While our decision to reject vicarious liability in the circumstances is without practical significance to plaintiffs, it may well affect defendants’ obligations as between each other. By overturning the finding against Dr. Caypinar for Dr. Swenson’s negligence, we also of necessity set aside the apportionment of damages between the two defendants, because the jury may well have predicated the apportionment on its belief that Dr. Caypinar’s share included responsibility for Dr. Swenson’s negligence. How the jury would have apportioned fault between the two codefendants without the element of vicarious liability is a question we cannot answer. Therefore, while not disturbing the award to plaintiffs, we must remit the case to Supreme Court, Suffolk County, for a new apportionment of damages between defendants, without the imposition on Dr. Caypinar of vicarious liability for the negligence of Dr. Swenson.

Defendants’ remaining points are without merit or unpreserved.

Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with the writing herein and, as so modified, affirmed, with costs to plaintiffs against appellants.

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

Order modified, without costs, and case remitted to Supreme Court, Suffolk County, for a new apportionment of damages in accordance with the opinion herein and, as so modified, affirmed, with costs to plaintiffs against appellants.

      . A verdict was directed in Dr. Nussbaum’s favor at the close of the evidence; he is not a party to this appeal.

      2. The court charged that liability for Dr. Swenson’s negligence could be imputed to Dr. Caypinar if it found a "sufficient legal relationship or arrangement”, considering the following factors: any fee arrangement; any mutual benefit; whether the hospital required the arrangement; whether Mrs. Gonzales had the opportunity to select who would treat her in Dr. Caypinar’s absence; whether Dr. Caypinar advised her she would be treated by someone else if he was unavailable; and whether Dr. Caypinar advised her of the names and qualifications of the covering doctors.

      . [3] As the Appellate Division noted, the case against defendant Caypinar was submitted in the form of a special verdict, seeking the jury’s judgment as to five separate departures causing plaintiffs’ injuries, and a preponderance of the evidence as to any one is sufficient to sustain the verdict (129 AD2d 559, 560; see also, Sternemann v Langs, 93 AD2d 819). By contrast, the single interrogatory submitted as to Dr. Suteethorn encompassed three possible theories of liability, and cannot stand unless all three are sustained (see, Davis v Caldwell, 54 NY2d 176). The special verdicts would be an impediment to review if indeed the separate questions were the basis for Dr. Caypinar’s liability. However, the jury also determined that Dr. Swenson was himself culpably negligent in treating Mrs. Gonzales, that Dr. Caypinar was liable for Dr. Swenson’s negligence,“and that this liability accounted for 25% of the total negligence found against Dr. Caypinar. In light of these findings, it is not possible to conclude (as it was in Sternemann) that the jury verdict can stand on any of the other, sustained grounds found against the doctor. Vicarious liability having been isolated as the basis for a portion of the award against Dr. Caypinar, that issue is appropriately before us.

      . See, e.g., Business Corporation Law § 1505 (a), providing that each "shareholder, employee or agent of a professional service corporation shall be personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him or by any person under his direct supervision and control while rendering professional services on behalf of such corporation.”

      . It bears note that, in deciding the legal issue, we do not condone a practice where a physician does not tell the patient what, if any, covering arrangements have been made. The regrettable fact that Dr. Caypinar did not mention the covering arrangements to Mrs. Gonzales cannot, however, make him vicariously liable for the independent negligence of the other physicians participating in the arrangements.

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