author: Titone, J.

text:
    [624 NE2d 656, 604 NYS2d 519]
    Sondra Kaplan, Respondent, v Nessa Kaplan et al., Appellants.
    Argued September 7, 1993;
    submitted on reargument October 6, 1993;
    decided November 16, 1993

      POINTS OF COUNSEL

      Curtis, Mallet-Prevost, Colt & Mosle, New York City (T. Barry Kingham and Michelle A. Rice of counsel), for Nessa Kaplan, appellant.
    I. A public retirement system member may not effectively agree to designate irrevocably a beneficiary of death benefits. (Caravaggio v Retirement Bd. of Teachers’ Retirement Sys., 36 NY2d 348; McDermott v McDermott, 119 AD2d 370; Couture v Regan, 110 AD2d 360; Heitner v Heitner, 155 AD2d 282; Weizenecker v Weizenecker, 140 AD2d 517; Matter of Prouse v Misarti, 115 AD2d 867; Matter of Ginsberg v Levitt, 36 AD2d 82, 404 US 959; Matter of Oro v New York State Employees’ Retirement Sys., 142 AD2d 830; Majauskas v Majauskas, 61 NY2d 481; Monck v Monck, 184 App Div 656.) II. The Equitable Distribution Law actually proscribes equitable distribution in the instant case. (Consorti v Consorti, 175 AD2d 940; Berman v Berman, 111 AD2d 141; Mallad Constr.

      Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Krupski v Krupski, 168 AD2d 942; Franz v Franz, 107 AD2d 1060.)

      O. Peter Sherwood, Corporation Counsel of New York City (Edward F. X. Hart, Larry A. Sonnenshein and Susan Sanders of counsel), for Teachers’ Retirement System of City of New York, appellant.
    I. Decedent’s right to designate the beneficiaries of the moneys payable upon his death by defendant Teachers’ Retirement System was absolute, protected from impairment or diminution by article V, § 7 of the New York Constitution and protected from assignability by Administrative Code of the City of New York § 13-561. In fact, his right to designate a beneficiary of his death benefits was not affected by any provision of his separation agreement or his judgment of divorce from his former wife, plaintiff Sondra Kaplan. (Caravaggio v Retirement Bd. of Teachers’ Retirement Sys., 36 NY2d 348; Couture v Regan, 110 AD2d 360; Matter of Prouse v Misarti, 115 AD2d 867; Matter of Demerritt v Levitt, 71 AD2d 757, 48 NY2d 607; Matter of Ginsberg v Levitt, 36 AD2d 82, 28 NY2d 486, 404 US 959; Matter of Oro v New York State Employees’ Retirement Sys., 142 AD2d 830; Matter of Jacobelli v Regan, 131 AD2d 166; Matter of Venet v Teachers’ Retirement Sys., 159 AD2d 273; Heitner v Heitner, 155 AD2d 282.) II. The Teachers’ Retirement System must pay decedent’s "presumptive retirement” benefits to his duly designated beneficiaries in accordance with the instructions given in his legally valid 1989 designation of beneficiary form. (Majauskas v Majauskas, 61 NY2d 481; McDermott v McDermott, 119 AD2d 370.)

      Evan L. Gordon, New York City, for respondent.
    I. The separation agreement incorporated in the judgment of divorce provided for the equitable distribution of the husband’s pension rights and for the wife to receive 100% of the death benefit as her equitably distributed share. II. The agreement to designate the first wife as 100% beneficiary in the judgment of divorce should be enforced as part of equitable distribution of marital property. (Majauskas v Majauskas, 61 NY2d 481; Caravaggio v Retirement Bd. of Teachers’ Retirement Sys., 36 NY2d 348; McDermott v McDermott, 119 AD2d 370; Matter of Spadaro [Chislett] v New York City Police Dept. Pension Serv., 115 Misc 2d 494; Monck v Monck, 184 App Div 656; Zwingmann v Zwingmann, 150 App Div 358; Heitner v Heitner, 155 AD2d 282; Matter of Prouse v Misarti, 115 AD2d 867; Couture v Regan, 110 AD2d 360; Matter of Ginsberg v Levitt,
      36 AD2d 82.) III. Teachers’ Retirement System’s roll in this litigation should be that of stakeholder. Its assertion of an adversarial position seeks to prejudice the substantive rights of the parties in the name of administrative convenience. (Heitner v Heitner, 141 Misc 2d 557, 155 AD2d 282; Couture v Regan, 110 AD2d 360.)
   OPINION OF THE COURT

Titone, J.

In Caravaggio v Retirement Bd. of Teachers’ Retirement Sys. (36 NY2d 348), we held that an "anti-assignment” statute prevented a member of the Teachers’ Retirement System (TRS) from designating a former spouse as "irrevocable beneficiary” of pension benefits in a separation agreement, and that a subsequently executed beneficiary form filed with the Retirement System governed distribution of those funds. The enactment of the Equitable Distribution Law in the interim, however, prompts us to revisit the issue and to reach a different conclusion today. For the following reasons, we now hold that a separation agreement expressly distributing pension benefits as marital property pursuant to the Equitable Distribution Law is enforceable and exempt from application of the statutory anti-assignment provision governing the TRS pension funds.

I.

This dispute concerns the competing claims asserted by the first and second wives of decedent Daniel Kaplan to approximately $800,000 in pension death benefits accrued while he was a member of the Teachers’ Retirement System. Plaintiff Sondra Kaplan, decedent’s first wife, contends that she is entitled to the death benefits under a separation agreement, which was incorporated into their 1985 judgment of divorce. The parties’ agreement states that it "constitute^] an agreement pursuant to Domestic Relations Law § 236 (B) (3) * * * in lieu of each of their respective rights” to assert claims for maintenance or distributive awards of marital property. Regarding the pension, the stipulation expressly acknowledges that "[p]ursuant to Domestic Relations Law § 236 (B) * * * [plaintiff] has an equitable interest in” decedent’s pension, and further designates her "100% irrevocable beneficiary” of decedent’s pension death benefits. Defendant Nessa Kaplan, decedent’s second wife, seeks to divide the funds by enforcing two pension beneficiary forms validly executed by decedent and filed with TRS in 1988 and again in 1989, naming her 58.5% beneficiary and plaintiff as 41.5% beneficiary of the death benefits.

In January 1991, plaintiff commenced this action against decedent’s estate and TRS seeking in her first cause of action a declaration that defendant Nessa Kaplan had no right, title or interest in decedent’s pension benefits and that plaintiff was entitled to 100% of the benefits under the terms of the separation agreement. In her second cause of action, plaintiff asserted a breach of contract claim against decedent’s estate for the full value of the pension benefits due. Plaintiff moved for a temporary restraining order and a preliminary injunction seeking to enjoin defendant TRS from paying any pension benefits to defendant. Supreme Court granted TRS’s motion for summary judgment dismissing the complaint and vacated a temporary restraining order which had earlier been granted, holding, inter alla, that under this Court’s decision in Caravaggio (supra) "an agreement to designate irrevocably a beneficiary of benefits payable on death by a member of the Teachers’ Retirement System is not effective and cannot be enforceable against the Retirement System when the member subsequently designates another beneficiary for his benefits.”

The Appellate Division reversed on the law, reinstated the complaint, and granted plaintiff’s motion for summary judgment on the first cause of action declaring that plaintiff is entitled to 100% of the death benefits payable by TRS. In so doing, the Court recognized an exception to Caravaggio’s strict application of the anti-assignment statute for a "distribution of marital property made pursuant to the Equitable Distribution Law” (Kaplan v Kaplan, 185 AD2d 179, 180). We granted leave to defendants Nessa Kaplan and TRS and now affirm.

II.

At the core of this dispute is defendants’ contention that the assignment of decedent’s death benefits to plaintiff under the separation agreement cannot be enforced because it contravenes Administrative Code of the City of New York § 13-561, which provides that public retirement fund pension benefits available to members of the Teachers’ Retirement System are "exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable.” The purpose of this type of "anti-assignment” provision is to "protect public employee pensions against improvidence and misfortune” that might enable creditors or assignees to reach those funds (McDermott v McDermott, 119 AD2d 370, 377, appeal dismissed 69 NY2d 1028, citing Caravaggio, supra, at 353). This stated purpose is achieved "when the fund is preserved for the use of the pensioner and those legally dependent upon him [or her] for support and maintenance” (Zwingmann v Zwingmann, 150 App Div 358, 360).

Prior to the enactment of the Equitable Distribution Law, the anti-assignment statute governing benefits accruing to members of the Teachers’ Retirement System was strictly applied to bar equally the claims of a spouse or a creditor to the funds under an assignment or agreement with the pensioner (Caravaggio, supra, at 354). Thus, in Caravaggio, we held that a separation agreement purporting to irrevocably assign pension benefits to a former spouse was invalid and could "not operate to defeat the claim of a later validly-designated beneficiary to the specific fund” (36 NY2d, at 350). That determination was predicated primarily on the member’s absolute statutory right to change the designated beneficiary at any time (see, Administrative Code former § B20-46.0 [a]) and the underlying legislative intent of the anti-assignment provision to preserve the funds for the future support of the member and his or her dependents (36 NY2d, at 353). The Court justified its strict application of the rule to bar even a former spouse’s claim to the funds by likening the anti-assignment policy to a "spendthrift trust” in that it was designed to prevent "a civil employee [from] bargaining] away his right to change his beneficiary as a concession exacted in a moment of financial disadvantage or other transient exigency” (id., at 357-358).

Equating the rights of the spouse and dependents with those of any other creditor for purposes of applying the anti-assignment rule is no longer justified, however (see, McDermott, 119 AD2d, at 377, supra; see also, Matter of Wanamaker v Wanamaker, 93 Misc 2d 784). The revolutionary enactment of the Equitable Distribution Law in 1980 (see, Domestic Relations Law § 236 [B]) recognized that marriage is an "economic partnership” that each spouse has individually contributed to during the marriage (O’Brien v O’Brien, 66 NY2d 576, 583; see also, McDermott, supra, at 378-380). Accordingly, a former spouse is now understood to have acquired an independent ownership interest in any "marital property” acquired during the marriage and. prior to separation or divorce (Domestic Relations Law § 236 [B] [1] [c]).

Since the enactment of the Equitable Distribution Law, this Court has held that pension benefits are marital property to the extent that the spouses accrued an interest in those benefits during the marriage, and thus are properly the subject of court-ordered equitable distribution awards (Tanchick v Tanchick, 82 NY2d 202, 207; Majauskas v Majauskas, 61 NY2d 481). Indeed, in this case, the separation agreement acknowledges that plaintiff has an equitable interest in decedent’s pension funds under Domestic Relations Law § 236 (B).

However, the pension benefits in this case are subject to an anti-assignment rule prohibiting their alienation by an act of the Retirement System member. Nonetheless, we conclude that the policies underlying this and other anti-assignment provisions would not be offended by subjecting pension benefits such as those accrued by the decedent to assessment under the Equitable Distribution Law. Even before this case, courts have long recognized a limited exception to the unyielding application of analogous anti-assignment laws to satisfy previously adjudicated but unmet alimony and support obligations for the member’s spouse and dependents (see, Monck v Monck, 184 App Div 656; Zwingmann v Zwingmann, 150 App Div 358, supra; Cogollos v Cogollos, 93 Misc 2d 406).

Under the Equitable Distribution Law a distribution of property upon dissolution of the marriage now commonly stands in the place of ongoing support payments formerly provided for by a court-ordered alimony award. Courts must now consider any award of maintenance in making an equitable distribution of property (see, Domestic Relations Law § 236 [B] [5] [d] [5]) and vice versa (see, id., § 236 [B] [6] [a] [1]). Indeed, a major goal of the equitable division of marital assets is to reduce the continued reliance on alimony and maintenance payments which tend to unnecessarily perpetuate the financial ties between former spouses (see, Matter of Spadaro [Chislett] v New York City Police Dept. Pension Serv., 115 Misc 2d 494, 497). The close interrelationship between support and property distribution awards renders any distinction between them for purposes of applying the anti-assignment law undeserved.

The purpose of the anti-assignment law to preserve the funds for the member’s future support obligations is adequately served when an equitable distribution award is made with a view toward the parties’ specific support needs. Moreover, excepting support obligations from the anti-assignment statute’s reach prevents that legislation from becoming an instrument to deprive those intended beneficiaries from receiving the funds. Fundamentally, the pension-protective laws were not designed to relieve a member of the Retirement System of the special obligations to support his or her dependents, but to preserve the funds from claims that are "hostile” to those of the member’s dependents (American Tel. & Tel. Co. v Merry, 592 F2d 118, 124, citing Schlaefer v Schlaefer, 112 F2d 177, 185 [DC App 1940]).

This conclusion does not fully resolve the question before us, however, because the assignment of decedent’s pension benefits was made here in a separation agreement, and not by court-ordered equitable distribution. Despite this distinction, the assignment in this case, negotiated with the parties’ express recognition of the wife’s equitable interest in the pension death benefits under Domestic Relations Law § 236 (B), is similarly enforceable against a claim to the funds interposed by a later-designated beneficiary, notwithstanding the terms of Administrative Code § 13-561.

The Equitable Distribution Law recognizes that its goals may be achieved equally through a property division fashioned by a court which has considered a number of equitable factors (Domestic Relations Law § 236 [B] [5]), or by an agreement between the parties providing "for the ownership, division or distribution of separate and marital property” (id., § 236 [B] [3]). Accordingly, separation agreements purporting to equitably assign pension benefits upon dissolution of a marriage should be accorded the same status and protection that court-ordered awards of pension benefits are entitled to. Such a holding is consistent with the statutory policy of encouraging nonlitigated resolution of the former spouses’ economic disputes. Our conclusion also comports with the trend in an increasing number of jurisdictions of recognizing such exemptions from anti-assignment statutes (see, e.g., Tenneco Inc. v First Va. Bank, 698 F2d 688 [4th Cir 1983]; American Tel. & Tel. Co. v Merry, 592 F2d 118 [2d Cir 1979], supra; Koelsch v Koelsch, 148 Ariz 176, 713 P2d 1234 [1986]; In re Marriage of Hackett, 113 Ill 2d 286, 497 NE2d 1152 [1986]; Matter of Marriage of Sedbrook, 16 Kan App 2d 668, 827 P2d 1222,1233-1234 [1992]; Evans v Evans, 111 NC App 792, 434 SE2d 856 [1993]; Graham v Graham, 396 Pa Super 166, 578 A2d 459 [1990]; Collida v Collida, 546 SW2d 708 [Tex Civ App 1977]).

Finally, we are not unmindful of defendant Retirement System’s concern that it will be overburdened by the administrative work involved in processing attachments or assignments made pursuant to marital agreements or judgments (Caravaggio, supra, at 353). Nonetheless, any increased administrative costs are counterbalanced by the need to give effect to and further the policies underlying the enactment of equitable distribution concepts, such as protecting a former spouse’s ownership interest in pension benefits accrued during the marriage, ensuring continued reliance on bargained-for separation agreements negotiated with those principles in mind, and avoiding the "heavy burden that will be imposed on the public treasury if dependent spouses and children cannot enforce support rights and must instead resort to [public] assistance” (American Tel. & Tel., 592 F2d, at 125).

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

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

Order affirmed, with costs.

       Indeed, in recognition of this trend, Congress in 1984 amended the anti-alienation provision of the Employee Retirement Income Security Act (ERISA) by expressly excepting from its application qualified domestic relations orders (29 USC § 1056 [d] [3] [A]). The stated intention of this amendment was "to remove ERISA as a barrier to recovery of alimony, child support and property settlements” (Evans, 111 NC App, at 797, supra, 434 SE2d, at 859 [emphasis supplied]).


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    [624 NE2d 661, 604 NYS2d 524]
    The People of the State of New York, Respondent, v David Hernandez, Appellant. The People of the State of New York, Respondent, v Oswaldo Santana, Appellant.
    Argued and submitted October 12, 1993;
    decided November 16, 1993

      POINTS OF COUNSEL

      Feldman and Feldman, Hauppauge (Steven A. Feldman and Arza R. Feldman of counsel), for David Hernandez, appellant.
    I. Defendant’s conviction of felony murder was not proved beyond a reasonable doubt and thus his conviction should be reversed and vacated. (People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307, 444 US 890; People v Bynum, 70 NY2d 858; People v Gomez, 67 NY2d 843; People v Dekle, 56 NY2d 835; People v McGowan, 160 AD2d 896; People v Wood, 8 NY2d 48; People v Udwin, 254 NY 255; People v LaBarbera, 159 Misc 177; People v Ramos, 116 AD2d 462.) II. The court improperly instructed the jury that, in order to find defendant guilty of felony murder, it need not find he fired the fatal shot. (People v Castro, 141 AD2d 658; People v Wood, 8 NY2d 48;
      People v Ramos, 116 AD2d 462; People v Guraj, 105 Misc 2d 176.)

      Barry Stendig, New York City, and Philip L. Weinstein for Oswaldo Santana, appellant.
    The People’s evidence, which failed to prove that either appellant or codefendant fired the fatal shot, but instead demonstrated that a police officer accidentally killed the deceased, was insufficient to convict appellant of felony murder, and the submission of the concomitant theory to the jury that "but for” appellant’s acts the officer would not have been killed and that appellant could be convicted if he set in motion a chain of events which resulted in the death deprived him of a fair trial. (People v Wood, 8 NY2d 48; People v Udwin, 254 NY 255; People v Ramos, 116 AD2d 462; People v Castro, 141 AD2d 658; People v Guraj, 105 Misc 2d 176; People ex rel. Culhane v Sullivan, 139 AD2d 315; People v King, 61 NY2d 550; People v Gaines, 74 NY2d 358; People v Giro, 197 NY 152.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Paula Milazzo, Amyjane Rettew and Phyllis A. Monroe of counsel), for respondent.
    I. These two juries properly concluded that Hernandez had caused Trooper Aversa’s death, and that defendants were therefore guilty of felony murder. (People v Wood, 8 NY2d 48; People v Spivey, 81 NY2d 356; People v Bolden, 81 NY2d 146; People v Graham, 55 NY2d 144; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; People ex rel. Culhane v Sullivan, 139 AD2d 315; People v Duffy, 79 NY2d 611; People v Keyes, 75 NY2d 343; People v Campbell, 72 NY2d 602; People v Brengard, 265 NY 100.) II. Contrary to Santana’s unpreserved claim, the trial court did not instruct that the jury should convict if the proof demonstrated "only” that Hernandez’s conduct was the "but for” cause of death. (People v Jackson, 76 NY2d 908; People v Warner-Lambert Co., 51 NY2d 295, 450 US 1031.)
   OPINION OF THE COURT

Simons, J.

This appeal raises the question whether a conviction of felony murder under Penal Law § 125.25 (3) should be sustained where the homicide victim, a police officer, was shot not by one of the defendants but by a fellow officer during a gun battle following defendants’ attempted robbery. Under the circumstances presented, we conclude that it should, and we therefore affirm.

I

Defendants Santana and Hernandez conspired to ambush and rob a man who was coming to a New York City apartment building to buy drugs. The plan was to have Santana lure him into the building stairwell where Hernandez waited with a gun. In fact, the man was an undercover State Trooper, wearing a transmitter, and backed up by fellow officers.

Once the Trooper was inside the building, Hernandez accosted him and pointed a gun at his head. A fight ensued during which the officer announced that he was a policeman, pulled out his service revolver and began firing. In the confusion, Hernandez, still armed, ran from the building into a courtyard where he encountered members of the police backup unit. They ordered him to halt. Instead, he aimed his gun at one of the officers and moved toward him. The officers began firing, and one, Trooper Joseph Aversa, was fatally shot in the head. His body was found near the area where Hernandez was apprehended after being wounded. Santana was arrested inside the building.

The evidence at trial did not establish who killed Aversa, but the People concede that it effectively eliminated the possibility that either defendant was the shooter. Separate juries were empaneled for the two cases, and both defendants were convicted of felony murder and other charges.

On appeal, defendants contend that the felony murder charges should have been dismissed because neither one of them fired the fatal shot. The Appellate Division rejected that argument. Even though a fellow officer shot Aversa, the Court concluded that defendants were properly held responsible for felony murder because their conduct "unquestionably 'forged’ a critical link in the chain of events that led to Trooper Aversa’s death” (186 AD2d 471, 473).

II

Some 30 years ago, this Court affirmed the dismissal of a felony murder charge on the grounds that neither the defendant nor a cofelon had fired the weapon that caused the deaths (People v Wood, 8 NY2d 48). In Wood, the defendant and his companions were escaping from a fight outside a tavern when the tavern owner, attempting to aid police, fatally shot a bystander and one of defendant’s companions. Defendant was charged with assault and felony murder. At the time, the relevant provision of section 1044 of the former Penal Law defined murder in the first degree as "[t]he killing of a human being * * * without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony” (§ 1044 [2]). We concluded that by the plain terms of the statute defendant could not be liable for murder, for the killing of the two men was not committed by a person "engaged in the commission of’ a felony or a felony attempt. Relying on the statute’s "peculiar wording”, we decided the case without addressing whether a similar result would be required as a matter of common law (8 NY2d, at 53; see, Commonwealth v Redline, 391 Pa 486, 137 A2d 472). The Wood case acknowledged that other jurisdictions differed on whether to apply a proximate cause theory under which felons could be held responsible for homicides committed by nonparticipants or an agency theory under which felons would be responsible only if they committed the final, fatal act (People v Wood, supra, at 51-53; see, Annotation, Criminal Liability Where Act of Killing is Done by One Resisting Felony or Other Unlawful Act Committed by Defendant, 56 ALR3d 239, 249-261, §§ 4, 5).

In 1965, the Legislature revised the felony murder statute by removing the language that had been dispositive in Wood and replacing it with a provision holding a person culpable for felony murder when, during the commission of an enumerated felony or attempt, either the defendant or an accomplice "causes the death of a person other than one of the participants” (Penal Law § 125.25 [3]). Thus, this appeal raises the question of whether Wood remains good law despite the recasting of the Penal Law. The question is one of first impression for this Court, although some Appellate Division panels have continued to adhere to the Wood rule that the shooter must be a participant in the underlying felony (see, e.g., People v Castro, 141 AD2d 658, lv denied 72 NY2d 1044; People v Ramos, 116 AD2d 462).

The People believe those Appellate Division decisions to be in error. They premise their argument on the established construction of the term "causes the death”, which is now the operative language in the Penal Law. That term is used consistently throughout article 125 and has been construed to mean that homicide is properly charged when the defendant’s culpable act is "a sufficiently direct cause” of the death so that the fatal result was reasonably foreseeable (People v Kibbe, 35 NY2d 407, 412; accord, Matter of Anthony M., 63 NY2d 270, 280; People v Stewart, 40 NY2d 692, 697). In the People’s view the evidence here meets that standard. They contend that it was highly foreseeable that someone would be killed in a shootout when Hernandez refused to put down his gun and instead persisted in threatening the life of one of the back-up officers. Thus, under the People’s theory, Hernandez "caused the death” of Aversa. Because his attempt to avoid arrest was in furtherance of a common criminal objective shared with Santana, the People contend that the murder was properly attributed to Santana as well as under principles of accomplice liability (see, People v Friedman, 205 NY 161; accord, People v Wood, supra, at 52).

In response, defendants assert that People v Wood, though decided on narrow statutory grounds, states a rule that was followed for centuries at common law and one that has been embraced by a significant number of jurisdictions. The rationale for requiring that one of the cofelons be the shooter (or, more broadly, the person who commits the final, fatal act) has been framed in several ways. Some courts have held that when the victim or a police officer or a bystander shoots and kills, it cannot be said that the killing was in furtherance of a common criminal objective (State v Severs, 759 SW2d 935, 938 [Tenn Crim App]). Others have concluded that under such circumstances the necessary malice or intent is missing (Wooden v Commonwealth, 222 Va 758, 284 SE2d 811). Under the traditional felony murder doctrine, the malice necessary to make the killing murder was constructively imputed from the mens rea incidental to perpetration of the underlying felony (Commonwealth v Redline, 391 Pa 486, 493-494, 137 A2d 472, 475, supra; IV Blackstone, Commentaries, at 200-201). Thus, in Wooden, the Virginia Supreme Court concluded that where a nonparticipant in the felony is the shooter, there can be no imputation of the necessary malice to him, and no party in the causal chain has both the requisite mens rea and culpability for the actus reus. Still other courts have expressed policy concerns about extending felony murder liability. They have asserted that no deterrence value attaches when the felon is not the person immediately responsible for the death, or have contended that an expansive felony murder rule might unreasonably hold the felons responsible for the acts of others — for instance, when an unarmed felon is fleeing the scene and a bystander is hit by the bad aim of the armed victim (see, People v Washington, 62 Cal 2d 777, 781-782, 402 P2d 130, 134; State v Bonner, 330 NC 536, 541-542, 411 SE2d 598, 601).

Ill

Analysis begins with the statute. The causal language used in our felony murder provision and elsewhere in the homicide statutes has consistently been construed by this Court according to the rule in People v Kibbe (35 NY2d 407, supra), where we held that the accused need not commit the final, fatal act to be culpable for causing death. To accept defendants’ analysis would require that we hold that the phrase "causes the death” in subdivision (3), the felony murder paragraph of section 125.25, means something entirely different than it does in subdivisions (1) and (2) of the very same section. That is contrary to the normal rules of statutory construction (see, People v Bolden, 81 NY2d 146, 151).

That rule of construction must bend, of course, if in fact the Legislature intended the language to have a unique meaning within the context of the felony murder provision, but the legislative history of the 1965 revision reveals nothing about whether the Legislature intended to overturn People v Wood. Defendants read that silence to mean that no such substantive change in the law was envisioned by the Legislature, and they urge us to reaffirm the common law as it applied to felony murder to limit liability when a nonparticipant is the killer.

Defendants’ position is problematic for several reasons. First, it asks us to find in the ambiguous silence of the legislative record grounds for contradicting the unambiguous language of the statute. Second, it assumes that the Legislature intended an unusually narrow construction of the word "causes” even though New York homicide decisions had defined causality more expansively (see, e.g., People v Kane, 213 NY 260, 270 [error in medical treatment provided to victim does not relieve attacker of liability]). It assumes also that in choosing the statutory language the Legislature and the Temporary State Commission on Revision of the Penal Law and Criminal Code, which drafted the amended provision, disregarded the well-defined debate over the difference between "causing” a homicide and "committing” a homicide (see, e.g., Morris, The Felon’s Responsibility for the Lethal Acts of Others, 105 U Pa L Rev 50 [1956]). The Legislature could easily have written into subdivision (3) the limitation endorsed by defendants — as it did with the limitation applying to the death of a cofelon — but it chose not to do so.

Third and more serious, defendants’ argument is premised on the assumption that the relevant common law pertaining to felony murder was uniform and unambiguous at the time the Legislature acted in 1965. In fact, the leading American case for limiting felony murder liability, Commonwealth v Redline (391 Pa 486, 137 A2d 472, supra), which was decided shortly before People v Wood, overturned prior case law in Pennsylvania. Variations on the felony murder doctrine were widespread in American jurisprudence, with liability turning on such factors as whether the victim was one of the felons, whether the felons initiated the gun battle and whether the deceased had been used as a shield by defendant (see, People v Washington, 62 Cal 2d 777, 402 P2d 130, supra; Commonwealth v Redline, supra).

Nor can it be contended that the limited view of felony murder liability was clearly the law in New York at the time the Legislature acted. In People v Wood, we noted that two of our decisions had incidentally endorsed the idea that the felon must be the killer (see, People v Giro, 197 NY 152; and People v Udwin, 254 NY 255), but we expressly left open questions concerning "the application of the rules of causation and foreseeability” (People v Wood, supra, at 53). Earlier, in People v Keshner (304 NY 968), we had let stand a felony murder conviction though defendants did not commit the final, fatal act. In Keshner, defendants had plotted to burn down a building and had spread gasoline in the structure but were apprehended by police before they could proceed further. Moments later, an independent force caused the gasoline to ignite, and defendants were held liable for the deaths of those caught in the blaze.

In light of the statutory language and the case law prior to the revision, we conclude that the Legislature intended what appears obvious from the face of the statute: that "causes” in the felony murder provision should be accorded the same meaning it is given in subdivisions (1) and (2) of section 125.25 of the Penal Law.

Unlike defendants and those courts adopting the so-called agency theory, we believe New York’s view of causality, based on a proximate cause theory, to be consistent with fundamental principles of criminal law. Advocates of the agency theory suggest that no culpable party has the requisite mens rea when a nonparticipant is the shooter. We disagree. The basic tenet of felony murder liability is that the mens rea of the underlying felony is imputed to the participant responsible for the killing (People v Wood, 8 NY2d 48, 51, supra). By operation of that legal fiction, the transferred intent allows the law to characterize a homicide, though unintended and not in the common design of the felons, as an intentional killing (id.). Thus, the presence or absence of the requisite mens rea is an issue turning on whether the felon is acting in furtherance of the underlying crime at the time of the homicide, not on the proximity or attenuation of the death resulting from the felon’s acts. Whether the death is an immediate result or an attenuated one, the necessary mens rea is present if the causal act is part of the felonious conduct.

No more persuasive is the argument that the proximate cause view will extend criminal liability unreasonably. First, New York law is clear that felony murder does not embrace any killing that is coincidental with the felony but instead is limited to those deaths caused by one of the felons in furtherance of their crime (People v Ryan, 263 NY 298). More than civil tort liability must be established; criminal liability will adhere only when the felons’ acts are a sufficiently direct cause of the death (People v Kibbe, 35 NY2d 407, 412-413, supra). When the intervening acts of another party are supervening or unforeseeable, the necessary causal chain is broken, and there is no liability for the felons (People v Kern, 75 NY2d 638, 658, cert denied 498 US 824; Matter of Anthony M., 63 NY2d 270, 280, supra; People v Kane, 213 NY 260, 270, supra; State v Baker, 607 SW2d 153, 156 [Mo]). Where a victim, a police officer or other third party shoots and kills, the prosecution faces a significant obstacle in proving beyond a reasonable doubt to a jury that the felons should be held responsible for causing the death.

Second, the New York felony murder statute spells out the affirmative defense available to the accomplice who does not cause the death (see, Penal Law § 125.25 [3] [a]-[d]). Defendants assert that our construction of the statute’s causality language will mean that an accomplice whose partner is the shooter will have a defense but one whose unarmed partner causes the death will not. The plain language of the statute does not support that proposition. The statutory defense is available to the accomplice who (a) does not cause the death, (b) is unarmed, (c) has no reason to believe that the cofelon is armed and (d) has no reason to believe that the cofelon will "engage in conduct likely to result in death or serious physical injury”. Thus, by its terms, the defense is not limited to situations where the cofelon kills with a weapon; it applies as well to instances where some other "conduct likely to result in death” is not within the contemplation of the accomplice.

In short, our established common-law rules governing determinations of causality and the availability of the statutory defense provide adequate boundaries to felony murder liability. The language of Penal Law § 125.25 (3) evinces the Legislature’s desire to extend liability broadly to those who commit serious crimes in ways that endanger the lives of others. That other States choose more narrow approaches is of no moment to our statutory scheme. Our Legislature has chosen not to write those limitations into our law, and we are bound by that legislative determination.

IV

Finally, we conclude that there was no error in the court’s instructions on defendant Santana’s culpability. The jury was properly charged that more than "but for” causation was required; that it must find the fatal result was the sufficiently direct and foreseeable result of Hernandez’s acts (see, People v Kibbe, 35 NY2d 407, 413, supra).

The evidence established that Hernandez, when confronted by the officers in the courtyard, refused to surrender and continued to move toward one officer with his gun drawn. Immediate flight and attempts to thwart apprehension are patently within the furtherance of the cofelons’ criminal objective (People v Gladman, 41 NY2d 123, 129; People v Donovan, 53 AD2d 27). Moreover, it was highly foreseeable that when Hernandez continued toward the officer with his gun drawn that shots would be fired and someone might be hit. Foreseeability does not mean that the result must be the most likely event. Undoubtedly, in planning the robbery, defendants did not anticipate that their victim would be a State Trooper or that a back-up unit would be on the scene. Yet, it was foreseeable that police would try to thwart crime (People v Irby, 47 NY2d 894), and Hernandez was aware that police were on the scene at the point he resisted arrest and remained armed. As the Appellate Division concluded, it is simply implausible for defendants to claim that defendants could not have foreseen a bullet going astray when Hernandez provoked a gun battle outside a residential building in an urban area.

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

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

Order affirmed.

        See, e.g., Wilson v State (188 Ark 846, 68 SW2d 100); People v Washington (62 Cal 2d 777, 402 P2d 130); Alvarez v District Ct. (186 Colo 37, 525 P2d 1131); Weick v State (420 A2d 159 [Del]); State v Crane (247 Ga 779, 279 SE2d 695); People v Morris (1 Ill App 3d 566, 274 NE2d 898); Commonwealth v Moore (121 Ky 97, 88 SW 1085); State v Garner (238 La 563, 115 So 2d 855); Campbell v State (293 Md 438, 444 A2d 1034); Commonwealth v Balliro (349 Mass 505, 209 NE2d 308); People v Austin (370 Mich 12, 120 NW2d 766); State v Bonner (330 NC 536, 411 SE2d 598); Sheriff, Clark County v Hicks (89 Nev 78, 506 P2d 766); State v Canola (73 NJ 206, 374 A2d 20); Jackson v State (92 NM 461, 589 P2d 1052); Commonwealth ex rel. Smith v Myers (438 Pa 218, 261 A2d 550); State v Severs (759 SW2d 935 [Tenn Grim App]); State v Hansen (734 P2d 421 [Utah]); Wooden v Commonwealth (222 Va 758, 284 SE2d 811). While all of these cases have imposed limitations on felony murder liability when a nonparticipant is directly responsible for the killing, in some the limitation apparently applies only when one of the cofelons is the homicide victim.
      Among the decisions holding that a felony murder properly lies even when a nonparticipant does the actual shooting are State v Baker (607 SW2d 153 [Mo]), Mikenas v State (367 So 2d 606 [Fla]), State v Lucas (164 Ariz 540, 794 P2d 1353 [Ariz App]), and Johnson v State (386 P2d 336 [Okla Crim App]).


author: Levine, J. Titone, J.

text:
    [624 NE2d 667, 604 NYS2d 530]
    In the Matter of Lawrence Andriola et al., Respondents, v Juan U. Ortiz, as City Personnel Commissioner, Department of Personnel, and as Chairman of the Civil Service Commission of the City of New York, et al., Appellants. William Barrett et al., Intervenors-Respondents.
    Argued October 14, 1993;
    decided November 18, 1993

      POINTS OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City (Ronald E. Sternberg and Leonard Koerner of counsel), for appellants.
    Petitioners, who were promoted following the regrading of their promotional examinations, are not entitled to back pay and seniority benefits retroactive to the dates they claim they would have been promoted had their examinations been correctly graded in the first instance. (Matter of Delicati v Schechter, 3 AD2d 19; Matter of Berger v Walsh, 291 NY 220; Matter of Cassidy v Municipal Civ. Serv. Commn., 37 NY2d 526; Matter of State Div. of Human Rights [Cottongim]

      v County of Onondaga Sheriff’s Dept., 71 NY2d 623; Matter of McKernan v City of New York Civ. Serv. Commn., 121 AD2d 350, 69 NY2d 607; Matter of Abrams v Bronstein, 33 NY2d 488; Matter of Barmonde v Kaplan, 266 NY 214; Martin v City of New York, 176 NY 371; Warner v Board of Educ., 14 AD2d 300, 12 NY2d 924; Matter of Antonopoulou v Beame, 32 NY2d 126.)

      Colleran, O’Hara & Mills, Garden City (John F. Mills and Carol L. O’Rourke of counsel), for respondents.
    I. Civil Service Law § 61 does not preclude an award of retroactive benefits to those employees who have in fact been promoted in strict rank order. (Matter of State Div. of Human Rights [Cottongim] v County of Onondaga Sheriff’s Dept., 71 NY2d 623; Matter of Abrams v Bronstein, 33 NY2d 488; Matter of McKernan v City of New York Civ. Serv. Commn., 121 AD2d 350, 69 NY2d 607; Matter of Oback v Nadel, 99 AD2d 1031, 62 NY2d 606; Matter of Berger v Walsh, 291 NY 220; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Matter of Aladin v Schultz, 176 AD2d 205.) II. The relief sought by petitioners is also mandated by the principle of equal protection of laws. (Matter of Abrams v Bronstein, 33 NY2d 488.) III. Respondents’ contention that the award of retroactive benefits is prohibited by the proscription against gifts of public funds is without merit and is insufficient to create a constitutional issue for review by this Court. (Matter of Antonopoulou v Beame, 32 NY2d 126; Matter of Abrams v Bronstein, 33 NY2d 488.)
   OPINION OF THE COURT

Levine, J.

Petitioners and intervenors were New York City firefighters when petitioners brought the instant CPLR article 78 proceeding challenging respondents’ grading of 12 questions on a promotional examination for the position of Fire Department Lieutenant given October 31, 1981. Pursuant to the order of Supreme Court, New York County, dated July 11, 1988, the examination was regraded and, as a result, a special eligible list was promulgated from which those petitioners then still on active duty were promoted to lieutenant, as were intervenors. Petitioners then moved for a modification of the July 11, 1988 order to provide for retroactive seniority benefits and back pay from the date each of them would have been promoted from the original eligible list had the examination been properly graded. They were joined in this request by intervenors. Additionally, four of the original petitioners who had retired before the revised promotional list was promulgated, but who had passed the written portion of the examination as regraded, sought retroactive seniority and back pay from the date they claimed they would have been promoted had the original examination been properly graded.

Respondents opposed any award of retroactive seniority benefits for back pay on the principal ground that to do so would be in derogation of their statutory discretion as a governmental Civil Service appointing authority to select for appointment or promotion any one of the three highest persons on the eligible list, as provided under Civil Service Law § 61 (the "one-in-three rule”). Supreme Court rejected this objection. It reasoned that, because petitioners and intervenors had already been promoted from the special eligible list following the regrading of the examination, awarding them retroactive seniority benefits and back pay to the date they would have been promoted had the examination been properly graded in the first instance could not be said to impinge on respondents’ statutory discretion under the one-in-three rule. Such an award, the court held, merely served to "make whole” the petitioners still in active service for being deprived of the earlier promotions they would have received. Furthermore, the court found that the New York City Fire Department historically and throughout the pertinent period had followed a consistent policy of promoting to the ranks of lieutenant and above the highest persons on the applicable list. This abdication of discretion also obviated any need to preserve respondents’ discretion under the one-in-three rule, the court concluded.

As to the four original petitioners who had retired from service before the special eligible list was promulgated, Supreme Court also fashioned a rather intricate remedy to place them in the same position they would have been in had their examinations initially been graded properly.

The Appellate Division affirmed (186 AD2d 423). Relying on its own decision in Matter of McKernan v City of New York Civ. Serv. Commn. (121 AD2d 350, lv denied 69 NY2d 607) and this Court’s decision in Matter of Abrams v Bronstein (33 NY2d 488), the Court concluded that the award of retroactive benefits did not interfere with respondents’ statutory discretion under the one-in-three rule, because it merely placed petitioners and intervenors in the same position that they would have been in had the examination been correctly graded in the first instance. We granted leave to consider whether the award of retroactive seniority benefits and back pay antedating petitioners’ and intervenors’ actual promotions to Fire Department Lieutenant is barred by reason of Civil Service Law § 61.

We reverse. Our decisions repeatedly have acknowledged the importance of the discretionary governmental appointive power embodied in Civil Service Law § 61, and have rejected attempts to invoke the aid of the courts to limit the reasonable exercise of that discretion (see, City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 430; Matter of Cassidy v Municipal Civ. Serv. Commn., 37 NY2d 526, 528-529; Matter of Berger v Walsh, 291 NY 220, 223). Consistent with our adherence to the historical policy upon which Civil Service Law § 61 is based, we have held that a person successfully passing a competitive Civil Service examination does not acquire any "legally protectable interest” in an appointment to the position for which the examination was given (Matter of Cassidy v Municipal Civ. Serv. Commn., supra, at 529; see also, Matter of Deas v Levitt, 73 NY2d 525, 532, cert denied 493 US 933), nor "thereby gain a vested right to appointment to the position” (Hurley v Board of Educ., 270 NY 275, 279).

It follows from the foregoing that petitioners and intervenors would not have acquired any enforceable right or even any legally cognizable interest in appointment to the position of Fire Department Lieutenant if the examination they initially took for that position had been properly graded and resulted in their achieving passing grades. This would have remained so despite the existence of a past practice of the New York City Fire Department to promote the top graded examinees to lieutenant from the eligible list since, surely, no court would find it arbitrary or capricious on the part of the appointing authority for it to abandon that practice at any time in favor of the exercise of its statutory discretion under Civil Service Law § 61 (see, Matter of Delicati v Schechter, 3 AD2d 19, 23-24 [Breitel, J.]). Indeed, petitioners and intervenors have not argued that the practice of the Fire Department to appoint lieutenants strictly on the basis of test scores created any enforceable entitlement in their favor to promotion from the eligible list if the examination had been properly graded in the first instance.

One must conclude from the foregoing that Supreme Court’s direction that petitioners and intervenors receive retroactive seniority benefits and back pay — in effect thereby mandating their retroactive promotion to lieutenant — is fundamentally inconsistent with the letter and spirit of Civil Service Law § 61, and with our previously cited holdings that the only remedy a Civil Service examinee in the competitive class is entitled to for defects in the appointive or promotional process such as that presented here is not appointment or promotion, but a judicial direction for reconsideration after the prior defect has been corrected (see, City of Schenectady v State Div. of Human Rights, supra; Matter of Berger v Walsh, supra). The retroactive promotions to lieutenant effected by Supreme Court’s order cannot be rationalized as merely making petitioners and intervenors "whole”. This point was well made in Matter of State Div. of Human Rights (Cottongim) v County of Onondaga Sheriff’s Dept. (71 NY2d 623). In that case, we contrasted the available remedy for a wrongfully discharged employee (as was therein established) with that for employees not fairly considered for appointment or promotion (as is the case here) (id., at 634). We held in Matter of State Div. of Human Rights (Cottongim) that reinstatement is an appropriate remedy in the case of a wrongfully discharged employee; it restores to the employee that which he or she possessed before the wrong was committed (id.). On the other hand, we explained the holdings in our previous decisions dealing with defects in the appointment process that "where a person has not been considered fairly for an appointment by a public employer, the remedy that generally will make the individual whole * * * is that the individual be fairly considered for the appointment. These cases recognize that it may be improper to go further and require that the person be appointed to the position because this could award more than a complainant was entitled to before the [defect] took place” (id., at 634 [emphasis supplied]).

So too here, when petitioners established a defect in the promotional process, i.e., the improper grading of the examination, the appropriate remedy to make them whole under our precedents was to correct the defect they established, by regrading the examinations and promulgating a special eligible list, and then giving them due consideration for promotions from their positions on the new list (Matter of State Div. of Human Rights [Cottongim] v County of Onondaga Sheriff’s Dept., supra). This remedy, of course, ultimately led to their actual promotion, but that result was not dictated in order to make them whole.

Accordingly, Supreme Court erred when it granted relief clearly in excess of the appropriate remedy here, by effectively dictating the retroactive promotion of petitioners and intervenors. This result, as we have concluded, violated the policy underlying Civil Service Law § 61 that competitive Civil Service examinees gain no cognizable legal rights to employment or promotion by passing an examination for the position sought. The courts may not dictate retroactive appointment or promotion in violation of this strong State policy on the factual supposition, no matter how reasonable, that had the appointive process worked properly initially, the candidate would have received earlier appointment or promotion.

To the extent that the decision in Matter of McKernan v City of New York Civ. Serv. Commn. (121 AD2d 350, supra) supports the award of retroactive seniority benefits and back pay as appropriate relief on a successful challenge to deficiencies in the Civil Service appointive or promotional process such as was presented here, that decision is disapproved. Moreover, petitioners’ and interveners’ reliance on the McKernan case to establish their right to retroactive seniority benefits and back pay under the Equal Protection Clauses of the Federal and State Constitutions (US Const 14th Amend; NY Const, art I, § 11) is also unavailing. The prevailing party in Matter of McKernan (supra) and petitioners here are not similarly situated, and respondents here have clearly established a reasonable basis for not adhering to the McKernan precedent in their treatment of petitioners and intervenors.

Finally, nothing that we have said here is inconsistent with our decision in Matter of Abrams v Bronstein (33 NY2d 488, supra). In Matter of Abrams, a group of New York City police officers who had brought a separate court challenge to the grading of a police lieutenant examination entered into a stipulation with the City of New York that they would receive retroactive benefits, including salary increments, in the event that they won their suit and as a result were eventually appointed lieutenant from the revised eligible list (id., at 490-491). The petitioners in Matter of Abrams had not joined in the prior litigation, but had taken the same examination and had been promoted to police lieutenant from the same revised list (id., at 491). We held in Matter of Abrams that equal protection prevented the City of New York from discriminating between petitioners and their peers as to the retroactive benefits in question merely because the latter group had brought the lawsuit challenging the grading of the promotional examination (id., at 494-495). In the instant case, petitioners and intervenors have not pointed to any similarly situated members of the New York City Fire Department who have received the retroactive benefits they seek here. Thus, Matter of Abrams v Bronstein (supra) does not support their claim.

For all the foregoing reasons, the order of the Appellate Division should be reversed, with costs, and the motion to modify the July 11, 1988 order and judgment of Supreme Court denied.

Titone, J.

(concurring in part and dissenting in part). I concur in the majority opinion to the extent that it bars the four retired petitioners, who have not been promoted by respondent Fire Department to the position of lieutenant, from receiving the claimed retroactive relief. As the majority concludes, Supreme Court improperly ordered their retroactive promotion and thereby usurped the discretionary authority of the appointing agency to make such appointment determinations under Civil Service Law § 61 (l)’s "one-in-three” rule. However, in my view, the same rationale has no application in the context of court orders directing retroactive back pay and seniority benefits to individuals who have already been appointed or promoted and who are merely seeking to recover the benefits withheld as a result of a past wrong. The majority’s failure to distinguish between the type of relief granted to the retired firefighters on the one hand — retroactive promotion and benefits — and to the promoted firefighters on the other — retroactive benefits incidental to their promotion — represents an unwarranted application of the "one-in-three” rule that has unnecessarily deprived a group of civil servants of the relief they deserve which in no way encroaches on any statutory discretion accorded to the Fire Department’s appointing authority under the Civil Service Law. The Fire Department has already exercised that discretion, without court interference, in making the promotional appointments. Additionally, the award of retroactive benefits as incidental relief to the promoted firefighters is directly supported by this Court’s precedent in Matter of Abrams v Bronstein (33 NY2d 488). Beyond that, the majority has failed to articulate any compelling policy rationale to justify its departure from Abrams or the withholding of retroactive benefits from civil servants who have been harmed, not because of the appointing authority’s protected exercise of discretion, but due to that body’s erroneous grading of the promotional examination. Accordingly, I respectfully dissent from that portion of the majority’s holding which deprives petitioners and intervenors who have already been promoted by the Fire Department of their retroactive relief.

Initially, I agree with the majority that no firefighter would have "acquired any enforceable right or even any legally cognizable interest in appointment to the position of Fire Department Lieutenant” had the original grading of the examination been proper and had they achieved passing scores (majority opn, at 324). In fact, it is well settled that the power granted to the appointing officer by Civil Service Law § 61 (l)’s "one-in-three” selection rule clearly prevents the courts from directing that authority to appoint (Matter of Cassidy v Municipal Civ. Serv. Commn., 37 NY2d 526, 528-529; Matter of Berger v Walsh, 291 NY 220, 222-223; Matter of Delicati v Schechter, 3 AD2d 19, 23), or reinstate (see, City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 430) a candidate (cf., Matter of State Div. of Human Rights [Cottongim] v County of Onondaga Sheriff’s Dept., 71 NY2d 623, 634; Matter of Delicati, supra, at 23).

However, it does not necessarily follow, as the majority holds, that the existence of that rule also precludes a claim for retroactive benefits sought by petitioners who have already, in fact, been appointed. As articulated by the majority, the purpose of precluding the courts from fashioning mandatory appointment-related remedies is to preserve the historical discretion reserved to the governmental appointing authorities (majority opn, at 324). That purpose does not preclude awards of retroactive pay and benefits where the appointing authority has exercised its discretion by selecting the aggrieved candidates for appointment.

Significantly, the "one-in-three” rule justification for precluding a court from directing an appointing authority to promote a candidate has never been extended by this Court to bar a grant of retroactive benefits to a candidate who has already been appointed by that authority. Indeed, substantially all of the cases that the majority cites involved petitioners who were denied judicial relief, including claims for retroactive pay and benefits, because they were primarily seeking to compel their appointment or reinstatement after being passed over or discharged (see, Matter of State Div. of Human Rights [Cottongim], supra; City of Schenectady, supra; Matter of Cassidy, supra; Matter of Berger v Walsh, supra; Matter of Delicati, supra). None of those cases involved the denial of claims for retroactive benefits asserted by petitioners who had already been appointed to the post they sought.

The flaw in the majority’s analysis here is its characterization of Supreme Court’s directive as an order "mandating * * * retroactive promotion” (majority opn, at 325). As the majority itself recognizes, however, Supreme Court did not order the promotion of those petitioners (see, majority opn, at 325-326); rather, in essence, the court ordered only that the promoted firefighters be given a retroactive appointment date to facilitate the calculation of benefits wrongfully withheld. Indeed, those firefighters did not bring this proceeding to compel the Commissioner to appoint them because they were "not fairly considered for appointment or promotion” (majority opn, at 325). Rather, they seek, as relief incidental to their resulting promotions, merely to be placed in the position that they would have been in had the appointing authority properly graded the examinations initially.

This Court and others have previously recognized that an order granting retroactive promotion is distinct from an order directing retroactive benefits and that, despite the discretionary authority vested in the appointing officer, the latter award is available to a petitioner who has already been promoted in order to remedy the effects of unfair grading of the promotional exam (see, Matter of Abrams v Bronstein, 33 NY2d 488, supra; Matter of McKernan v City of New York Civ. Serv. Commn., 121 AD2d 350). In fact, the argument asserted by respondents and accepted by the majority — that the award of retroactive benefits to petitioners would, like an order compelling appointment, undermine the appointing authority’s discretionary power — is not novel. In Matter of Abrams (supra), this Court rejected that identical claim. Relying on the pivotal fact that the petitioners had all already been appointed "in regular order according to the listings”, the Court concluded that the proposed application of the "one-in-three” selection rule asserted to justify withholding those retroactive benefits from the petitioners "misses the point because the petitioners are not asserting a right to be appointed but a right to equal benefits upon appointment” (id., at 493, n 6 [emphasis supplied]). Despite its protestations to the contrary, the majority’s holding cannot be reconciled with the italicized language in Abrams.

Since it would be impossible for the courts to interfere with the Fire Department’s power to appoint the promoted firefighters because that appointing authority has already exercised its discretion by so doing, the sole inquiry for the courts concerns the remedy to be afforded petitioners to make them whole. Well settled is the rule that a remedy should be coextensive with the wrong it is designed to redress (Weissman v Evans, 56 NY2d 458, 467). An award of retroactive back pay and seniority benefits calculated from the date the petitioners would have been promoted — although "disapproved” of by the majority for reasons which remain to be explained (see, majority opn, at 326) — is sufficient to redress the wrong to petitioners because it "restores [them] to the position in which [they] would have been had * * * [they] timely * * * been promoted” (Matter of McKernan v City of New York Civ. Serv. Commn., 121 AD2d 350, 352, supra; see also, Anderson v County of Suffolk, 97 AD2d 448, 449; CPLR 7806).

Contrary to respondent’s assertion that the date the petitioners would have been promoted is speculative and thus impossible to determine, the Fire Department’s policy of promoting in strict numerical order renders those dates readily ascertainable. Thus, in this case, the award of retroactive benefits may simply be calculated from the promotion date of the firefighter who previously held the ranking on the original list that is now held by the petitioner on the revised list. In fact, the record reveals that the Fire Department has utilized the same system in the past to project retroactive seniority dates upon court-ordered regrading of a lieutenant’s examination so that firefighters who would have been promoted by a certain cutoff date after the reranking could be certified as eligible in time to take the promotional exam for captain.

In sum, because I cannot agree that a court’s award of back pay to petitioners after they have been duly appointed is inconsistent with the "one-in-three” rule, and because the majority’s justification for denying retroactive benefits to civil servants who have been promoted belatedly is unconvincing and departs from this Court’s clear precedent, I would modify the Appellate Division order insofar as it granted such relief to the retired petitioners, and otherwise affirm the awards to those petitioners and intervenors already promoted by the Commissioner.

Chief Judge Kaye and Judges Simons, Hancock, Jr., Bellacosa and Smith concur with Judge Levine; Judge Titone dissents in part in a separate opinion.

Order reversed, etc.


text:
    [624 NE2d 974, 604 NYS2d 879]
    Gerald A. Pollicina, as Administrator of the Estate of Barbara A. Pollicina, Deceased, Respondent, v Misericordia Hospital Medical Center et al., Defendants, and Hospital of the Albert Einstein College of Medicine, Appellant.
    Argued October 13, 1993;
    decided November 18, 1993

      POINTS OF COUNSEL

      Bower & Gardner, New York City (Nancy Ledy Gurren and Judith A. Davidow of counsel), for appellant.
    The Court below incorrectly interpreted the General Obligations Law to allow for the aggregation of settlements in calculating permissible setoffs. (Dole v Dow Chem. Co., 30 NY2d 143; Rock v Reed-Prentice Div., 39 NY2d 34; Killeen v Reinhardt, 71 AD2d 851; Werner v Our Lady of Lourdes, 60 AD2d 791; Williams v Niske, 147 Misc 2d 556, 181 AD2d 307, 81 NY2d 437; Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 151 Misc 2d 1, 188 AD2d 214, lv granted sub nom. Dudick v Keene Corp., 81 NY2d 707; Didner v Keene Corp., 188 AD2d 15, 81 NY2d 707; Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408; Bingham v Ryder Truck Rental, 110 AD2d 867.)

      Profeta & Eisenstein, New York City (Fred R. Profeta, Jr., and Michael J. Orlofsky of counsel), and Theodore H. Friedman, P. C, for respondent.
    I. General Obligations Law § 15-108 is inapplicable to the Sandor settlement, and the other settlements herein, because they were all finalized after the entry of judgment. (Bonnot v Fishman, 88 AD2d 650; Audrieth v Parsons Sanitarium, 588 F Supp 1380; Rock v Reed-Prentice Div., 39 NY2d 34; Didner v Keene Corp., 188 AD2d 15; Matter of Nicastro, 150 AD2d 454; Matter of DeLong, 89 AD2d 368; Hall v Gebbia, 47 AD2d 724; Lettiere v Martin El. Co., 62 AD2d 810; In re Brooklyn Navy Yard Asbestos Litig., 971 F2d 831; Cooperman v Ferrentino, 38 AD2d 945.) II. Even if the Sandor settlement had been final at the time of judgment, Einstein waived the General Obligations Law formula because it abandoned its affirmative defense of setoff at trial. (Livant v Livant, 18 AD2d 383; Mulligan v Wetchler, 39 AD2d 102; Hill v St. Clare’s Hosp., 67 NY2d 72; Div-Com, Inc. v F. J. Zeronda, Inc., 136 AD2d 844; Richards v South Buffalo Ry. Co., 54 AD2d 310; Peddle v Turner Constr. Co., 92 AD2d 530; Valenti Elec. Co. v Power Line Constructors, 123 AD2d 604; Audrieth v Parsons Sanitarium, 588 F Supp 1380.) III. If not waived at the trial level, General Obligations Law treatment of the Sandor settlement was later waived because it was not raised upon the first appeal. (Mitchell v New York Hosp., 61 NY2d 208; Parochial Bus Sys. v Board of Educ., 60 NY2d 539; State of New York v Peerless Ins. Co., 117 AD2d 370; Blum v Stone, 127 AD2d 549; Galarza v Pacific Steel Boiler Corp., 147 AD2d 527; Haddock v City of New York, 140 AD2d 91; Maxwell v City of New York, 156 AD2d 28; Matter of Smith, 91 AD2d 789; Matter of Pessano, 269 App Div 337, 296 NY 564; Blake v City of New York, 157 AD2d 482.) IV. If the General Obligations Law is applicable at all to the postjudgment settlements herein, and was not waived, the aggregate method of calculating setoffs should be utilized in order to produce a fair result. (Williams v Niske, 81 NY2d 437; Milbrandt v Green Refractories, Co., 79 NY2d 26.) V. Whatever method of setoff is chosen, all setoffs, in a wrongful death case, should be applied against the principal award together with interest from date of death. (Milbrandt v Green Refractories Co., 79 NY2d 26; Welsh v Peerless Cas. Co., 8 AD2d 373, 8 NY2d 745; Cleghorn v Ocean Acc. & Guar. Corp., 244 NY 166; Alfieri v Cabot Corp., 17 AD2d 455, 13 NY2d 1027.)
   OPINION OF THE COURT

Titone, J.

In this medical malpractice action against multiple defendants, plaintiff has recovered a judgment for wrongful death and has been awarded damages, as reduced by the trial court and affirmed by the Appellate Division, against the only nonsettling defendant, Albert Einstein College of Medicine (Einstein). The primary issue in this case, as in the companion cases (Didner v Keene Corp., 82 NY2d 342; Dudick v Keene Corp., 82 NY2d 821 [both decided herewith]), is the proper method for computing the setoff required by General Obligations Law § 15-108 (a) where two or more defendants have settled with the plaintiff before entry of judgment. Unlike the companion cases, this appeal presents an additional question: whether the approval of the Surrogate’s Court is necessary to render a settlement in a wrongful death action final and binding.

I.

Before the verdict was announced, two of the defendants, Drs. Mancuso and Allen, settled collectively for the sum of $1.1 million, and defendant Dr. Sandor settled for $650,000. Another defendant, Misericordia Hospital Medical Center (Misericordia), settled with plaintiff for $50,000. Only defendant Einstein’s liability remained to be determined by the jury. The jury’s apportionment of the fault in this case — a factual determination which the Appellate Division has affirmed (158 AD2d 195) — was 25% ($550,000) against Einstein, 25% ($550,-000) against defendants Dr. Mancuso and Dr. Allen, and 50% ($1,100,000) against defendant Dr. Sandor. Defendant Misericordia was determined to have no responsibility for plaintiffs decedent’s injuries.

Since the jury’s apportionment of fault differed from the amounts that the settling defendants had paid, a dispute has arisen regarding how the General Obligations Law § 15-108 (a) setoff for settlements should be applied.

II.

Initially, we reject plaintiffs contention that General Obligations Law § 15-108 (a) is not applicable because the settling defendants did not have formal executed releases in hand at the time judgment was entered. As we stated in Didner v Keene Corp. (supra), a settlement entered into or memorialized in open court that effectively and finally terminates the action against the settling defendants is sufficient to invoke the remedial provisions of the statute.

We also reject plaintiffs more substantive contention that General Obligations Law § 15-108 (a) is not applicable because the settlements in question were not finalized until after the judgment was entered. This argument is predicated on the assumption that under EPTL 5-4.6 the approval of the Surrogate was required before the settlements would be final and binding. Relying on this central supposition, plaintiff then argues that Rock v Reed-Prentice Div. (39 NY2d 34, 40-41), in which this Court held that General Obligations Law § 15-108 (c) does not apply to postjudgment settlements (cf, Didner v Keene Corp., supra; Lettiere v Martin El. Co., 62 AD2d 810, affd 48 NY2d 662), precludes application of General Obligations Law § 15-108 (a) to his settlements, because those settlements, although reached before judgment, did not receive the Surrogate’s imprimatur of approval until more than four months after judgment was entered.

The suggestion that the Surrogate has a mandatory role to play in the settlement of wrongful death actions has no support in EPTL 5-4.6. As drafted both before and after its 1992 revisions (see, L 1992, ch 595), that statute clearly and unequivocally confers the power of approval upon "the court in which [the] action for [wrongful death] * * * is pending,” i.e., the Supreme Court. As it existed before 1992, EPTL 5-4.6 (a) provided:

"Upon the application of an administrator appointed under 5-4.1 or a personal representative to the court in which an action for wrongful act, neglect or default causing the death of a decedent is pending, the court may, after inquiry into the merits of the action and the amount of damages proposed as a compromise^ approve or disapprove the compromise]” (emphasis supplied).

The current version is the same except for the addition of a proviso authorizing a "transfer [of] the action to the surrogate’s court which issued the letters [of administration] for determination of the issues of allocation and distribution of proceeds and related matters” after a compromise has been approved (§ 5-4.6 [a] [1] [emphasis supplied]).

The amendment was enacted to address a specific problem: the absence from the Supreme Court wrongful death action of certain parties, including the State Tax Commission and the individual distributees, who have an interest in the distribution of the lawsuit’s proceeds (see, Turano, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 17B, EPTL 5-4.6, 1993 Pocket Part, at 87). To remedy this problem, the Legislature made express provision authorizing, but not requiring, the court in which the wrongful death action is pending to refer the case to the Surrogate for the limited purpose of administering the proceeds of an approved settlement (L 1992, ch 595). There is nothing in the amendment that purports to alter the right and obligation of the Supreme Court to evaluate and resolve the fairness and reasonableness of the settlement, including the amount to be paid, the manner in which the payment obligation is amortized and the parties’ arrangements for payment of costs and attorneys’ fees. Indeed, as drafted both before and after the amendment, the statute provides that the Supreme Court’s written approval constitutes "conclusive evidence of the adequacy of the compromise in any proceeding in the surrogate’s court for the final settlement of the account of [the] administrator or personal representative” (EPTL 5-4.6 [b]). It is difficult to imagine a clearer expression of the Legislature’s intention to leave the power to approve settlements in the hands of the court in which the wrongful death action is pending, in this case the Supreme Court.

Moreover, even if there had been a contrary legislative intention to transfer authority to approve wrongful-death settlements to the Surrogate’s Court, such an intention could not be implemented, since it would run directly afoul of the existing constitutional allocation of judicial powers. Article VI, § 7 (a) of the State Constitution provides that the Supreme Court "shall have general original jurisdiction in law and equity.” Further, "[i]f the legislature shall create new classes of actions and proceedings, the supreme court shall have jurisdiction over such classes of actions and proceedings” (id., §7[b]).

This means that, with two narrow exceptions, the Supreme Court is competent to entertain all causes and to conduct all subsidiary proceedings necessary to determining those causes (see, Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166), including any and all proceedings occurring in the course of a statutorily prescribed wrongful death action (see, Liff v Schildkrout, 49 NY2d 622). While the Legislature may confer concurrent jurisdiction on other courts, it cannot oust the Supreme Court from jurisdiction or limit the scope of its authority in those actions (see, Kagen v Kagen, 21 NY2d 532).

Although the Surrogate’s Court is the primary forum for proceedings involving estates and intestacies, the Supreme Court’s inviolate authority to hear and resolve all causes in law and equity unquestionably extends to such matters as well. Indeed, the specific question of the relationship between the power of Supreme Court and those of the Surrogate’s Court has already been definitively addressed in Matter of Malloy (278 NY 429, 432), in which this Court stated:

"The Supreme Court is a court of general jurisdiction. It may take the account of a trustee, probate a will, and exercise jurisdiction in many other matters where the Surrogate’s Court also has jurisdiction. The Legislature cannot by statute deprive it of one particle of its jurisdiction, derived from the Constitution (Art. VI), although it may grant concurrent jurisdiction to some other court, as it has done to the Surrogate’s Court.”

As the holding in Malloy makes clear, the Supreme Court has the authority to probate a will or distribute an intestate’s assets in accordance with law. A fortiori, it has the inalienable power to approve settlements of the wrongful death actions that are commenced and prosecuted before it as well as the power to distribute the proceeds of those settlements, notwithstanding that the Legislature may authorize the Surrogate’s Court to perform one or both of those judicial functions.

It is true, as one commentator has noted that the Surrogate’s Court is the "preferred” forum for determining the proper distribution of the settlement proceeds because "unlike the trial court, all parties interested in the estate, e.g., creditors, distributees [and] the State Tax Commission, * * * are before the [Surrogate’s] court and have an opportunity to be heard” (9A Rohan, NY Civ Prac If 5-4.6 [1], at 5-947). However, the same cannot be said about the determination to approve or disapprove the terms of a wrongful death settlement. As to that determination, it is the Supreme Court, with its superior familiarity with the merits and the litigants, that is better situated to make the necessary assessment.

Inasmuch as the settlements in this case were not required to be submitted to Surrogate’s Court for approval, the fact that the Surrogate did not act upon them until after entry of judgment did not vitiate their effect for purposes of applying General Obligations Law § 15-108 (a). Indeed, the contrary view would be inimical to that statute’s over-all goal of encouraging settlements (see, Williams v Niske, 81 NY2d 437, 443). Accordingly, plaintiff’s argument that there should be no setoff at all was properly rejected.

III.

Since General Obligations Law § 15-108 (a)’s set-off provisions are fully applicable in these circumstances, the only remaining question is how the setoff should be computed in this case. Defendant Einstein contends that the case-by-case or "pick and choose” method should be used. Under that method, which is fully described in Didner v Keene Corp. (supra), the amount deducted as a result of the Mancuso-Allen settlement would be $1.1 million (the amount paid in settlement) and the amount deducted as a result of the Sandor settlement would also be $1.1 million (Dr. Sander’s apportioned share of liability). As a consequence, plaintiff’s $2.2 million damage award would be reduced to zero.

For the reasons stated in Didner v Keene Corp. (supra; see also, Dudick v Keene Corp., supra), we conclude that the Appellate Division properly rejected this approach in favor of the "aggregate” approach, in which the totaled settlement amounts for all settling defendants are compared with the total of the corresponding apportioned shares and the higher of these totals is deducted from the damage award. We further conclude, however, that the Appellate Division erred in its application of this method to the facts in this case.

The court held that the $50,000 Misericordia settlement amount should not be deducted at all because Misericordia was found free of all liability and "it would not be equitable for the tortfeasor — Einstein—to profit from this settlement at the expense of the injured party” (187 AD2d 217, 220). However, the language of General Obligations Law § 15-108 (a), specifically its reference to released "persons liable or claimed to be liable in tort for the same injury, or * * * wrongful death” (emphasis supplied), compels the conclusion that the settlement amount should be deducted even if the party "claimed to be liable” is ultimately exonerated (see, Bonnot v Fishman, 88 AD2d 650, 651, affd 57 NY2d 870; see also, 12th Ann Report of Jud Conf on CPLR, reprinted in 1974 McKinney’s Session Laws of NY, at 1819). The Misericordia settlement should therefore have been deducted.

Under the aggregate method that we have adopted, the total of all of the settlements ($1.8 million), including the $50,000 Misericordia settlement, should be compared with the total of the apportioned shares ($1,650,000) and the higher amount ($1.8 million) should then be deducted from the $2.2 million awarded, leaving a reduced recovery of $400,000.

We have considered plaintiff’s other contentions and find them to be without merit. Inasmuch as plaintiff did not file a cross appeal, we do not consider his arguments pertaining to interest on the sum awarded.

Accordingly, the order of the Appellate Division should be modified, with costs to plaintiff, by remitting the case to the Supreme Court, Bronx County, for further proceedings in accordance with this opinion and, as so modified, affirmed.

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

Order modified, etc.

      . The Practice Commentary asserts that the matter "must” be referred to the Surrogate after approval of the compromise (Turano, Supp Practice Commentaries, op. cit., 1993 Pocket Part, at 87; see also, Legislation Report of Comm on Legislation of Trusts and Estates Law Section of NY St Bar Assn, in Bill Jacket to L 1992, ch 595, at 47 [May 26, 1992]). However, the word "must” does not appear in the amended statute and, in fact, the statute’s grammatical structure leaves little room for doubt that the permissive term "may”, which appears earlier in the same sentence was intended to apply both to the court’s power to "[a]pprove * * * a compromise” and the function of "transferring]” the action to the Surrogate. Thus, it would appear that the 1992 amendment empowers, but does not require, the Supreme Court to transfer the matter to the Surrogate’s Court for allocation and distribution of the proceeds of a compromise and other "related matters.” Significantly, such a view of the statute is necessary in order to avoid any potential conflict with article VI, § 7 of the State Constitution (see, at 338-339, infra).

      . Where the action is pending in a Federal District Court, that court has jurisdiction concurrent with that of the Surrogate’s Court (see, Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 5-4.6, at 595-596, quoting Matter of Franco, 108 Misc 2d 1084, 1087-1089).

      . The Supreme Court cannot entertain cases in which exclusive jurisdiction has been conferred by Congress on the Federal courts (e.g., 28 USC § 1334 [bankruptcy matters]; 28 USC § 1338 [a] [patent and copyright infringement suits]; see, US Const art VI [Supremacy Clause]). Additionally, the Supreme Court is without power to entertain actions for money damages against the State, which can only be heard in the Court of Claims (see, Court of Claims Act §§ 8, 9; Siegel, NY Prac § 12, at 14-15, and n 4).

      . Some courts have expressed the view that the Surrogate’s Court has concurrent power to approve settlements (see, Matter of Nicastro, 150 AD2d 454; Matter of DeLong, 89 AD2d 368; Matter of Holquin, 101 Misc 2d 174). Additionally, the Surrogate’s Courts have historically reviewed settlements as part of their responsibility to supervise the activities of court-appointed fiduciaries (see, e.g., Matter of Leopold, 259 NY 274). We do not here intend to suggest that the Surrogates may not, under any circumstances, review settlements of actions and proceedings originating in other courts. We hold only that referral to the Surrogate’s Court for review of the settlement terms is not mandatory.