author: G.B. Smith, J.

text:
    [830 NE2d 301, 797 NYS2d 403]
    Jo’Ell Sheppard-Mobley, by His Father and Natural Guardian, Lemuel Mobley, et al., Respondents, v Leslie King, M.D., et al., Appellants.
    Argued March 21, 2005;
    decided May 10, 2005

      POINTS OF COUNSEL

      McAloon & Friedman, P.C., New York City (Timothy J. O’Shaughnessy and Lawrence W. Mumm of counsel), for Leslie A. King, M.D. and another, appellants.
    I. The Appellate Division erred in failing to dismiss the infant’s claim in its entirety on the ground that it is a wrongful life claim. (Hayes v Kearney, 237 AD2d 769; Miccarelli v Fleiss, 219 AD2d 469; Batson v La Guardia Hosp., 194 AD2d 705; Heyward v Ellenville Community Hosp., 215 AD2d 967; Bellen v Baghei-Rad, 148 AD2d 827.) II. The Appellate Division should have dismissed the mother’s claims for emotional distress in their entirety. (Heyward v Ellenville Community Hosp., 215 AD2d 967.) III. The Appellate Division erred in holding that Broadnax v Gonzalez (2 NY3d 148 [2004]) requires that a mother may recover for her emotional distress upon the birth of her baby in an impaired state. (Becker v Schwartz, 46 NY2d 401; Howard v Lecher, 42 NY2d 109; Vaccaro v Squibb Corp., 52 NY2d 809; Tebbutt v Virostek, 65 NY2d 931; Lafferty v Manhasset Med. Ctr. Hosp., 54 NY2d 277; Landon v New York Hosp., 101 AD2d 489, 65 NY2d 639; Royal v Booth Mem. Med. Ctr., 270 AD2d 243; Altman v Alpha Obstetrics & Gynecology, 255 AD2d 276, 93 NY2d 801; Bermeo v Atakent, 241 AD2d 235.)

      Marulli & Associates, P.C., New York City (John Tomaszewski
      and Pamela M. Gleit of counsel), for Ira J. Spector, M.D., appellant.
    I. The Appellate Division’s reversal of the IAS court, insofar as it reinstated the sixth cause of action seeking damages on behalf of respondent Karen Sheppard for the emotional distress and mental anguish allegedly suffered as a result of the infant respondent’s birth-related injury, was in error. (Becker v Schwartz, 46 NY2d 401; Howard v Lecher, 42 NY2d 109; Broadnax v Gonzalez, 2 NY3d 148; Park v Chessin, 46 NY2d 401; Vaccaro v Squibb Corp., 52 NY2d 809; Tebbutt v Virostek, 65 NY2d 931.) II. The Appellate Division erred in affirming the IAS court’s denial of summary judgment in favor of appellant Ira J. Spector, M.D. (Alvarez v Prospect Hosp., 68 NY2d 320; Kleinert v Begum, 144 AD2d 645; Yasin v Manhattan Eye, Ear & Throat Hosp., 254 AD2d 281; Chulla v DiStefano, 242 AD2d 657; Markley v Albany Med. Ctr. Hosp., 163 AD2d 639; Gedon v Bry-Lin Hosps., 286 AD2d 892; Megally v LaPorta, 253 AD2d 35; Lipton v Kaye, 214 AD2d 319; Fridovich v David, 188 AD2d 984; Ferrara v South Shore Orthopedic Assoc., 178 AD2d 364.) III. The Appellate Division erred in reversing the IAS court and concluding that the first and second causes of action stated cognizable claims. (Becker v Schwartz, 46 NY2d 401; Alquijay v St. Luke’sRoosevelt Hosp. Ctr., 63 NY2d 978; Spano v Bertocci, 299 AD2d 335.)

      Aaronson Rappoport Feinstein & Deutsch, LLP, New York City (Steven C. Mandell of counsel), for Sheila Kumari-Subaiya, M.D. and another, appellants.
    I. A mother may not recover damages for emotional distress on the theory that her child was born impaired as a result of defendant’s negligence. (Landon v New York Hosp., 65 NY2d 639; Vaccaro v Squibb Corp., 52 NY2d 809; Becker v Schwartz, 46 NY2d 401; Howard v Lecher, 42 NY2d 109; Stewart v Long Is. Coll. Hosp., 30 NY2d 695; Tobin v Grossman, 24 NY2d 609; DeCintio v Lawrence Hosp., 299 AD2d 165; Burgess v Miller, 124 AD2d 692; Anderson v Wiener, 100 AD2d 919; Osborn v Andrus Pavilion of St. John’s Riverside Hosp., 100 AD2d 840.) II. The parties by their stipulation may limit the issues to be litigated or otherwise make the law of the case. Here, plaintiffs’ stipulation established that they did not possess a malpractice claim as to appellant Sheila Kumari-Subaiya, M.D., effectively ratifying the propriety of its dismissal by the Supreme Court. Therefore, the Appellate Division was required—but failed—to dismiss plaintiff Karen Sheppard’s derivative sixth cause of action. (Tebbutt v Virostek, 65 NY2d 931; Hallock v State of New York, 64 NY2d 224; Mitchell v New York Hosp., 61 NY2d 208; Martin v City of Cohoes, 37 NY2d 162;
      Matter of Frutiger, 29 NY2d 143; Stevenson v News Syndicate Co., 302 NY 81; Matter of Malloy, 278 NY 429; Matter of New York, Lackawana & W. R.R. Co., 98 NY 447; Dolitsky’s Dry Cleaners v Y L Jericho Dry Cleaners, 203 AD2d 322; Nottenberg v Walber 985 Co., 160 AD2d 574.) III. On the testimony adduced, as a pure matter of logic, and upon plaintiffs’ stipulation, Karen Sheppard’s emotional distress claim should have been dismissed on proximate cause grounds. (Dempsey v Methodist Hosp., 159 AD2d 541; Mortensen v Memorial Hosp., 105 AD2d 151; Monahan v Weichert, 82 AD2d 102; Kimball v Scors, 59 AD2d 984; Vaccaro v Squibb Corp., 52 NY2d 809; Howard v Lecher, 42 NY2d 109; Becker v Schwartz, 46 NY2d 401; Stewart v Long Is. Coll. Hosp., 30 NY2d 695; Koehler v Schwartz, 48 NY2d 807.) IV Beyond the foregoing, on the facts here, to rule otherwise would result in a threefold recovery of damages for emotional distress, once on behalf of the infant plaintiff for his own injuries and twice for the infant plaintiffs mother. (Hill v St. Clare’s Hosp., 67 NY2d 72; Derby v Prewitt, 12 NY2d 100; Matter of Parchefsky v Kroll Bros., 267 NY 410; Milks v McIver, 264 NY 267; Zarcone v Perry, 78 AD2d 70; Clark v Halstead, 276 App Div 17.)

      Davidson & Cohen, PC., Rockville Centre (Bruce E. Cohen of counsel), for respondents.
    I. The surviving infant’s claim for damages for medical malpractice sustained in útero was properly recognized by the Appellate Division and, to the extent that claims sounded in “wrongful life,” same was previously conceded as inapplicable and dismissed by the Appellate Division. (Becker v Schwartz, 46 NY2d 401; Alquijay v St. Luke’s-Roosevelt Hosp. Ctr., 63 NY2d 978; Solicitor for Affairs of His Majesty’s Treasury v Bankers Trust Co., 304 NY 282; Matter of McDonald, 211 NY 272; Gregoire v G.P. Putnam’s Sons, 298 NY 119; Gordon v Eastern Ry. Supply, 82 NY2d 555; Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Cohn v Lionel Corp., 21 NY2d 559; McCaskey, Davies & Assoc, v New York City Health & Hosps. Corp., 59 NY2d 755.) II. The Appellate Division correctly permitted Karen Sheppard’s claim for emotional distress. (Johnson v State of New York, 37 NY2d 378; Broadnax v Gonzalez, 2 NY3d 148; Ferrara v Bernstein, 81 NY2d 895; Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632; Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697; Endresz v Friedberg, 24 NY2d 478; Tebbutt v Virostek, 65 NY2d 931; Perry-Rogers v Obasaju, 282 AD2d 231; Kennedy v McKesson Co., 58 NY2d 500; Howard v Lecher, 42 NY2d 109.) III. There can be no limitations placed upon the surviving infant’s right of recovery for tortiously inflicted prenatal injuries. (Woods v Lancet, 303 NY 349; Endresz v Friedberg, 24 NY2d 478; LaBello v Albany Med. Ctr. Hosp., 85 NY2d 701.) IV Additional arguments advanced by appellant Ira J. Spector, M.D. are not subject of this appeal. (Lee v City of New York, 162 AD2d 34; Markley v Albany Med. Ctr. Hosp., 163 AD2d 639; Sawh v Schoen, 215 AD2d 291; Bienz v Central Suffolk Hosp., 163 AD2d 269; Cogswell v Chapman, 249 AD2d 865; Gordon v Eastern Ry. Supply, 82 NY2d 555; Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632; Derdiarian v Felix Contr. Corp., 51 NY2d 308.) V New and novel arguments of appellants Sheila Kumari-Subaiya, M.D. and Promedica Imaging, PC., regarding the effect of the stipulation were not raised before the Appellate Division and are not preserved for review. (Rohring v City of Niagara Falls, 84 NY2d 60.)

      Law Offices of Michael A. Haskel, Mineola (Michael A. Haskel of counsel), for University Associates in Obstetrics and Gynecology, PC., amicus curiae.
    I. Broadnax v Gonzalez (2 NY3d 148 [2004]) should not be extended. (Matter of Doyle v Amster, 79 NY2d 592; Matter of Dettmer, 178 Misc 401, 266 App Div 877, 292 NY 688; People v Bing, 76 NY2d 331; Payne v Tennessee, 501 US 808; Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Vaccaro v Squibb Corp., 52 NY2d 809; Pratt Inst, v City of New York, 183 NY 151; Matter of Weinbaum, 51 Misc 2d 538; Johnson, Drake & Piper v State of New York, 24 AD2d 11; Empire Sq. Realty Co. v Chase Natl. Bank of City of N.Y., 181 Misc 752, 267 App Div 817, 901.) II. Practical considerations militate against extending Broadnax v Gonzalez (2 NY3d 148 [2004]). (Tebbutt v Virostek, 65 NY2d 931; People v Hobson, 39 NY2d 479.) III. Public policy weighs heavily in favor of limiting Broadnax v Gonzalez (2 NY3d 148 [2004]).

      Mauro Goldberg & Lilling LLP, Great Neck (Kenneth Mauro and Richard J. Montes of counsel), for New York and Presbyterian Hospital and others, amici curiae.
    I. The Appellate Division erred in interpreting this Court’s decision in Broadnax v Gonzalez (2 NY3d 148 [2004]) to allow a mother to assert a cause of action for the alleged emotional distress she sustained by giving birth to a child born alive, but impaired by medical malpractice. (Vaccaro v Squibb Corp., 52 NY2d 809; Becker v Schwartz, 46 NY2d 401; Howard v Lecher, 42 NY2d 109; Tebbutt v Virostek, 65 NY2d 931; Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697; Woods v Lancet, 303 NY 349; Miller v Rivard, 180 AD2d 331; Weintraub v Brown, 98 AD2d 339; Endresz v Fried-berg, 24 NY2d 478; Desiderio v Ochs, 100 NY2d 159.)

      Shaub, Ahmuty, Citrin & Spratt, LLP Lake Success (Steven J. Ahmuty, Jr. of counsel), and Susan C. Wattman, New York City, for Beth Israel Medical Center and others, amici curiae.
    The Appellate Division decision directly conflicts with, and constitutes an unwarranted major expansion of, the injury-specific rule set forth in Broadnax v Gonzalez (2 NY3d 148 [2004]). (Landon v New York Hosp., 101 AD2d 489, 65 NY2d 639; Vaccaro v Squibb Corp., 52 NY2d 809; Becker v Schwartz, 46 NY2d 401; Howard v Lecher, 42 NY2d 109; Stewart v Long Is. Coll. Hosp., 30 NY2d 695; Tobin v Grossman, 24 NY2d 609; Tebbutt v Virostek, 65 NY2d 931; Endresz v Friedberg, 24 NY2d 478.)

      Michael A. Cardozo, Corporation Counsel, New York City (Fay Leoussis, Laurel Hoffman, Kristin M. Helmers and Alan G. Krams of counsel), for New York City Health and Hospitals Corporation, amicus curiae.
    A mother does not have a separate cause of action for emotional distress arising out of injuries to her newborn child where the child has been born alive and can seek damages for any impairments caused by malpractice. (Endresz v Friedberg, 24 NY2d 478; Broadnax v Gonzalez, 2 NY3d 148; Tebbutt v Virostek, 65 NY2d 931.)

      Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains (Edward J. Guardaro, Jr. of counsel), for Combined Coordinating Counsel, Inc., amicus curiae.
    I. The Appellate Division’s reinstatement of plaintiffs sixth cause of action was error. (Broadnax v Gonzalez, 2 NY3d 148; Becker v Schwartz, 46 NY2d 401; Tebbutt v Virostek, 65 NY2d 931; Endresz v Friedberg, 24 NY2d 478; Howard v Lecher, 42 NY2d 109; Johnson v State of New York, 37 NY2d 378; Lauer v City of New York, 258 AD2d 92; Murphy v American Home Prods. Corp., 58 NY2d 293.) II. The policy considerations against a further expansion of the law are significant. (Broadnax v Gonzalez, 2 NY3d 148; Tobin v Grossman, 24 NY2d 609; Ellis v Peter, 211 AD2d 353, 86 NY2d 885; O’Toole v Greenberg, 64 NY2d 427; Weintraub v Brown, 98 AD2d 339; Sorkin v Lee, 78 AD2d 180; Sala v Tomlinson, 73 AD2d 724, 49 NY2d 701, 801; Howard v Lecher, 42 NY2d 109.) III. Plaintiffs claims are clearly for wrongful life. (Becker v Schwartz, 46 NY2d 401; Park v Chessin, 46 NY2d 401.)

      Shoshana T. Bookson, New York City, Val Washington, Clifford S. Nelson and Glenn von Nostitz for New York State Trial Lawyers Association, Inc., amicus curiae.
    L A cause of action for emotional distress is proper on behalf of a woman who gives birth to a live child in a severely impaired state. (Broadnax v Gonzalez, 2 NY3d 148; Tebbutt v Virostek, 65 NY2d 931; Woods v Lancet, 303 NY 349; Endresz v Friedberg, 24 NY2d 478; Johnson v State of New York, 37 NY2d 378; Ferrara v Bernstein, 81 NY2d 895; Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632; Vaccaro v Squibb Corp., 52 NY2d 809; Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697; Fahey v Canino, 304 AD2d 1069.) II. The public policy arguments advanced by defendants are contradicted by the facts.

      LeBoeuf, Lamb, Greene & MacRae, L.L.R, New York City (Jay G. Safer and Brian K. Friedman of counsel), for Medical Society of the State of New York and another, amici curiae.
    The Appellate Division misapplied the holding of Broadnax v Gonzalez (2 NY3d 148 [2004]) in its decision. (Tebbutt v Virostek, 65 NY2d 931; Woods v Lancet, 303 NY 349; Bovsun v Sanperi, 61 NY2d 219; Trombetta v Conkling, 82 NY2d 549; Howard v Lecher, 42 NY2d 109; Becker v Schwartz, 46 NY2d 401; Vaccaro v Squibb Corp., 52 NY2d 809; Tobin v Grossman, 24 NY2d 609; Pratt Inst, v City of New York, 183 NY 151; 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280.)
   OPINION OF THE COURT

G.B. Smith, J.

In Broadnax v Gonzalez and Fahey v Canino (2 NY3d 148 [2004]), this Court held that medical malpractice resulting in a miscarriage or stillbirth must be construed as a violation of the duty of care to the expectant mother, entitling her to damages for emotional distress. This case calls upon us to determine whether an expectant mother may recover damages for emotional harm where the alleged medical malpractice causes in útero injury to the fetus, subsequently born alive. We hold that, under Broadnax/Fahey, she may not.

In July 1999, plaintiff Karen Sheppard met with defendant Dr. Leslie A. King, of defendant Obstetrical & Gynecological Services of Rockville Centre (OGSRC), complaining of lower abdominal discomfort. After conducting various tests, Dr. King informed her both that she was pregnant and that she had large fibroids in her uterus. Dr. King told her that as a result of her fibroids, she was not likely to carry the fetus to term. Sheppard alleges that Dr. King advised her to terminate the pregnancy.

Dr. King subsequently referred Sheppard to Dr. Ira J. Spector for a second opinion concerning the performance of a surgical abortion. She asserts that Dr. Spector informed her that as a result of the fibroids, her pregnancy would not last beyond the fifth month, and that if the fibroids did not abort the pregnancy, “the baby would be terrible.” However, Dr. Spector advised her that, given her condition, a surgical abortion would be difficult and dangerous. Thus, Dr. Spector suggested that a nonsurgical abortion be accomplished with the drug methotrexate, which breaks down fetal tissue.

In August 1999, while Sheppard was in her seventh week of pregnancy, Dr. King administered the methotrexate. According to Dr. King, he acted in consultation with Dr. Spector, who allegedly advised that the drug be administered in two separate 50-milligram doses, the second dose to be administered one week after the first. Upon administering the second dose, Dr. King allegedly advised Sheppard that she could detect no fetal heartbeat. Shortly thereafter, Sheppard met with defendant Dr. Sheila Rumari-Subaiya, a radiologist and owner of defendant Promedica Imaging, PC., because although Sheppard believed the pregnancy to be terminated, she was concerned about the absence of fetal discharge. Dr. Rumari-Subaiya performed a sonogram and advised Sheppard that there was no fetal heartbeat.

Sheppard asserts that over the next few months, she experienced abdominal and pelvic discomfort and was concerned about the possibility of ovarian, cervical or uterine cancer. She consulted with a different radiology group, and after a sonogram was performed, learned that the abortion procedure had failed and that she was in her 28th week of pregnancy. Sheppard alleges that Dr. King had given her too small a dose of methotrexate to accomplish the abortion.

When Drs. King and Spector learned that Sheppard was still pregnant and that the fetus was at risk of birth defects due to exposure to methotrexate, they discussed with her the possibility of an out-of-state late-term abortion. Sheppard ultimately rejected that option and decided to carry the child to term. On March 3, 2000, infant plaintiff Jo’Ell Sheppard-Mobley was born, suffering from fetal methotrexate syndrome, manifested through serious congenital impairments. This action was commenced in Supreme Court on behalf of Sheppard, the infant and the infant’s father, Lemuel Mobley, alleging malpractice by Drs. King, Spector and Rumari-Subaiya, as well as OGSRC and Promedica. In seven causes of action, the complaint alleges that infant plaintiff suffered severe physical injuries caused by defendants’ failure to properly diagnose, care for and treat Sheppard during the course of her pregnancy. The complaint seeks to recover damages on behalf of the infant for his physical injuries and for the parents’ loss of the child’s services and medical expenses. On behalf of Sheppard, the complaint alleges physical and emotional injuries caused by defendants’ alleged medical malpractice. Finally, as against Dr. King, OGSRC and Dr. Spector, the complaint alleges lack of informed consent in their treatment of Sheppard.

Defendants made motions for summary judgment dismissing various causes of action, the most pertinent of which was their motion to dismiss the sixth cause of action seeking damages for Sheppard’s emotional distress. While the trial court granted defendants’ motion, the Appellate Division overturned that decision. Noting that during the pendency of the appeal, this Court decided Broadnax/Fahey and thereby implicitly overruled Tebbutt v Virostek (65 NY2d 931 [1985]), the Appellate Division concluded that even in the absence of physical injuries, Sheppard could recover damages for emotional distress caused by a violation of the duty of care owed to her while she was being treated during her pregnancy. The Court concluded that while Broadnax/Fahey involved the stillbirth or miscarriage due to alleged malpractice, this Court’s analysis was also applicable to cases involving the live birth of a severely impaired child. Thus, the Court reinstated this cause of action, and granted defendants leave to appeal to this Court. We now modify the order of the Appellate Division by dismissing the sixth cause of action with leave to plaintiffs to replead that claim, and otherwise affirm.

Our decision in Broadnax/Fahey was intended to fill a gap created by our previous decision in Tebbutt which concerned the medical malpractice performed upon the body of an expectant mother resulting in a miscarriage or stillbirth. Our jurisprudence has long permitted infants who suffer a legally cognizable injury in the womb and survive the pregnancy to seek damages for their injuries (see Woods v Lancet, 303 NY 349 [1951]). We also have long permitted a pregnant mother who suffered an independent injury as a result of malpractice to bring suit for her own personal injuries (see Ferrara v Bernstein, 81 NY2d 895 [1993]; Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697 [1987]). However, where medical malpractice caused a miscarriage or stillbirth, no claim for wrongful death existed on behalf of the child (see Endresz v Friedberg, 24 NY2d 478 [1969]). As we held in Tebbutt, the expectant mother could not bring a cause of action for negligently causing a miscarriage or stillbirth (65 NY2d 931 [1985]).

As we recognized in Broadnax/Fahey, our tort jurisprudence in this area created a “peculiar result” in that “it exposed medical caregivers to malpractice liability for in útero injuries when the fetus survived, but immunized them against any liability when their malpractice caused a miscarriage or stillbirth” (2 NY3d at 154). Moreover, we recognized the injustice created by “categorically denying recovery to a narrow, but indisputably aggrieved, class of plaintiffs” (id.). It was this particular injustice that we sought to rectify when we held that a mother could recover for emotional injuries when medical malpractice caused a stillbirth or a miscarriage, even without a showing that she suffered an independent physical injury. In other words, our holding in Broadnax/Fahey is a narrow one, intended to permit a cause of action where otherwise none would be available to redress the wrongdoing that resulted in a miscarriage or stillbirth.

In the case now before us, the Appellate Division improperly extended our decision in Broadnax/Fahey by reinstating Sheppard’s sixth cause of action seeking damages for emotional harm based on the birth of a live infant with physical injuries. The rule pronounced in Broadnax/Fahey does not apply here, where infant plaintiff was injured in útero, but carried to term and born alive. After all, as we stated in Woods v Lancet, a child born alive may bring a medical malpractice action for physical injuries inflicted in the womb (303 NY 349 [1951]).

However, as defendants conceded during oral argument, Sheppard’s sixth cause of action can proceed to the extent that she seeks damages for emotional harm that she suffered as a result of an independent injury (see Ferrara, 81 NY2d at 898 [plaintiff permitted to recover emotional damages caused by negligent abortion services and the defendant’s failure to inform her of the incomplete abortion and the need to promptly return to the medical facility]; Martinez, 70 NY2d at 699 [plaintiff entitled to recover damages for mental anguish suffered as a result of the defendant’s breach of duty to her in negligently advising her that her child would be born with severe congenital defects, thus convincing her to obtain an unnecessary abortion, contrary to her strongly held beliefs]).

Sheppard now alleges that as a result of defendants’ breach of their duties owed directly to her, she suffered mental anguish resulting from an independent injury. Specifically, Sheppard claimed that she was advised that due to fibroids, she would not be able to carry her child to term. Relying on defendants’ advice, she underwent a chemical abortion. She was subsequently informed that the procedure was a success when, in fact, it had failed. Upon learning that she was carrying a compromised fetus, she had to decide whether to seek an out-of-state late-term abortion or give birth to a child likely to have congenital defects due to exposure to methotrexate. Such allegations may support a finding of injury independent of the birth of an impaired child. Because the complaint does not set forth these independent allegations, however, we dismiss the sixth cause of action and remit for Sheppard to amend her complaint to plead such injury. Finally, we conclude that the Appellate Division properly reinstated the first two causes of action against Drs. Kang and Spector brought on behalf of infant plaintiff. To be sure, a cause of action may not be maintained on behalf of an infant plaintiff based on a claim of “wrongful life” or the assertion that but for the negligence of the healthcare provider, the parent would have aborted the fetus rather than giving birth to a child with abnormalities (see Alquijay v St. Luke’s-Roosevelt Hosp. Ctr., 63 NY2d 978 [1984]; Becker v Schwartz, 46 NY2d 401 [1978]). However, as the Appellate Division properly concluded, the first two causes of action are not limited to wrongful life claims. Thus, infant plaintiff does not claim that defendant doctors negligently failed to administer the proper dosage of methotrexate in order to abort the pregnancy. Rather, he has alleged that his injuries were caused by defendants’ erroneous advice to Sheppard that she would not be able to carry the fetus to term and thereby wrongly advised her to undergo the chemical abortion. Infant plaintiff claims that had defendants not been negligent in this regard, Sheppard would not have undergone methotrexate treatments and she would have given birth to a healthy child. These claims are sufficient to overcome defendants’ motion to dismiss (see Woods, 303 NY at 356-357).

Accordingly, the order of the Appellate Division should be modified, without costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed. The certified question should be answered in the negative.

Chief Judge Kaye and Judges Ciparick, Rosenblatt,

Graffeo, Read and R.S. Smith concur.

Order modified, etc.


source: Caselaw Access Project

author: Graffeo, J. R.S. Smith, J. (dissenting).

license: Public Domain

text:
    [830 NE2d 1130, 797 NYS2d 802]
    The People of the State of New York, Appellant, v Andrew H. Van Buren, Respondent. The People of the State of New York, Appellant, v Mary B. Jeanniton, Respondent.
    Argued March 22, 2005;
    decided May 10, 2005

      POINTS OF COUNSEL

      Richard D. Northrup, Jr., District Attorney, Delhi (John Hub-hard of counsel), for appellant.
    I. Criminal Procedure Law § 1.20 (34) (o) controls over the 1906 Water Supply Act relied on by County Court in outlining the powers of the Water Supply Police. (Sega v State of New York, 60 NY2d 183; People ex rel. Thorpe v Clark, 62 AD2d 216; Matter of State of New York v Ford Motor Co., 74 NY2d 495; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205.) II. The designation of Water Supply Police as police officers under Criminal Procedure Law § 1.20 (34) (o) does not violate home rule provisions of the New York State Constitution. (Wambat Realty Corp. v State of New York, 41 NY2d 490; Matter of Town of Islip v Cuomo, 64 NY2d 50; Matter of Board of Educ. of City School Dist. of City of N.Y. v City of New York, 41 NY2d 535; Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164; Matter of Board of Supervisors of Ontario County v Water Power & Control Commn., 255 NY 531.) III. Under Criminal Procedure Law § 1.20 (34) (o), the geographic area of Department of Environmental Protection Water Supply Police authority encompasses the entire watershed. (City of New York v Village of Tannersville, 263 AD2d 877; City of New York v Mancini-Ciolo, Inc., 188 AD2d 633.) IV As “police officers” designated by Criminal Procedure Law § 1.20 (34) (o), the Department of Environmental Protection Water Supply Police are authorized to issue simplified traffic informations throughout the watershed.

      Andrew H. Van Buren, Hobart, respondent pro se.
    I. The geographical area of employment of the Department of Environmental Protection does not include Hamden, New York. (People v Graham, 192 Misc 2d 528, 1 AD3d 1066, 2 NY3d 762; People v Wolf, 166 Misc 2d 372; People v Edmonds, 157 Misc 2d 966; People v Firth, 3 NY2d 472; People v Byron, 17 NY2d 64.) II. Department of Environmental Protection (DEP) officers lack authority to act outside of New York City’s municipal boundaries, its reservoirs, or its surrounding property, which amount to the water “sources” the DEP is charged with protecting. (People v Woodford, 85 Misc 2d 213; People v Hartman, 114 Misc 2d 138.) III. The language contained in Criminal Procedure Law § 1.20 (34) (o) limits Department of Environmental Protection officers to law enforcement duties which accomplish the stated purpose of protecting New York City’s water supply. (People v Hartman, 114 Misc 2d 138; People v Lanzot, 67 AD2d 864, 49 NY2d 796.) IV Absent clear legislative authority, the Department of Environmental Protection lacks jurisdiction to act outside New York City’s municipal boundaries.

      Terence P. O’Leary, Walton, for Mary B. Jeanniton, respondent.
    I. Both the Eminent Domain Law of 1905 and the 1906 law which created and authorized the City of New York’s police force defined specific geographic areas, and the areas addressed in the law of 1906 were necessarily contained within the areas taken by the 1905 Eminent Domain Law. (City of New York v Town of Colchester, 66 Misc 2d 83; Matter of Long Beach Land Co., 182 NY 489.) II. The law of 1906 that legislatively created the City of New York’s police force only authorized the performance of special duties which were expressly, clearly and unequivocally limited in scope, purpose and kind to activities involving the transient laborers at water supply construction sites within the reservoir lands. (Nebbia v People of N.Y., 291 US 502; People v Hogencamp, 295 AD2d 808.) III. The law of 1983 that wrapped up the Legislature’s 1980 strengthening of law enforcement across New York State contained a brief and piecemeal amendment which quoted words and phrases from the 1905 and 1906 laws, as codified for decades before 1983 into the Administrative Code of the City of New York, merely to clarify the police officer status of the water supply officers forgotten in 1980, and it was enacted without any indication the 1983 Legislature intended to either change the special duties of the Water Supply Police or their area of employment. IV The “human resources” in the watershed possess, inter alia, the eyes and ears of eternal vigilance and want to go sailing in the reservoir lands pursuant to the rights secured a century ago but unreasonably curtailed by the City of New York.

      Michael A. Cardozo, Corporation Counsel, Kingston (Leonard Koemer, Hilary Meltzer and Linda A. Geary of counsel), for City of New York, amicus curiae.
    I. The County Court ignored the plain language, obvious intent and legislative history of the 1983 Criminal Procedure Law amendment and therefore violated long established rules of statutory interpretation. (New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Matter of Thomas v Bethlehem Steel Corp., 95 AD2d 118, 63 NY2d 150; People v Collins, 38 Misc 2d 952; Matter of Grand Jury Subpoena Duces Tecum [Museum of Modem Art], 253 AD2d 211.) II. The County Court erred because it ignored several other basic principles of statutory construction which, if applied properly, would render the 1906 statute inapplicable to the New York City Department of Environmental Conservation Water Supply Police. (Iazzetti v City of New York, 94 NY2d 183; Matter of Independence Party State Comm, v New York State Bd. of Elections, 297 AD2d 459; Davis v Supreme Lodge, Knights of Honor, 165 NY 159; People v Newman, 32 NY2d 379, 414 US 1163; Matter of New York State Cable Tel. Assn. v Public Serv. Commn. of State of N.Y., 87 AD2d 288; Matter of Grand Jury Subpoena Duces Tecum [Museum of Modern Art], 253 AD2d 211; People ex rel. Thorpe v Clark, 62 AD2d 216; People v Lanzot, 67 AD2d 864; Pardi v Barone, 257 AD2d 42; Matter of American Motors Sales Corp. v Brown, 152 AD2d 343.) III. The 1983 amendment to the Criminal Procedure Law did not violate the home rule powers of upstate local governments because the amendment addresses matters of state concern. (Wambat Realty Corp. v State of New York, 41 NY2d 490; Matter of Kelley v McGee, 57 NY2d 522; Matter of Board of Educ. of City School Dist of City of N.Y. v City of New York, 41 NY2d 535; Adler v Deegan, 251 NY 467; Matter of Town of Islip v Cuomo, 64 NY2d 50; Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164; Matter of Board of Supervisors of Ontario County v Water Power & Control Commn., 255 NY 531; Robertson v Zimmermann, 268 NY 52; Lawrence Constr. Corp. v State of New York, 293 NY 634; Matter of Stein, 131 AD2d 68.)

      Eliot Spitzer, Attorney General, Albany (Caitlin J. Halligan, Daniel Smirlock, Peter H. Lehner, Denise A. Hartman and James Tierney of counsel), for State of New York, amicus curiae.
    I. The Department of Environmental Protection’s Water Supply Police have the authority to act as police officers under the Criminal Procedure Law within the entire New York City watershed area. II. The State of New York’s designation of New York Water Supply Police as “police officers” does not violate the home rule provisions of the New York Constitution. (Matter of Town of Islip v Cuomo, 64 NY2d 50; Wambat Realty Corp. v State of New York, 41 NY2d 490; Robertson v Zimmermann, 268 NY 52; Matter of Board of Supervisors of Ontario County v Water Power & Control Commn., 227 App Div 345, 255 NY 531.)

      Young Sommer Ward Ritzenberg Baker & Moore, LLC, Albany (Jeffrey S. Baker of counsel), for Coalition of Watershed Towns, amicus curiae.
    I. The Coalition of Watershed Towns has an interest in having this issue resolved. II. Department of Environmental Conservation police jurisdiction should be limited to the reservoirs and New York City-owned property. (Matter of City of Schenectady v Flacke, 100 AD2d 349, 63 NY2d 603.) III. Affirmance of the lower court will permit a legislative resolution of the dispute.
   OPINION OF THE COURT

Graffeo, J.

We are asked in this case whether the New York City Department of Environmental Protection (DEP) Water Supply Police are authorized to enforce traffic laws within the city watershed. Based on the statutes underlying their authority as police officers, we reverse the dismissal of the simplified traffic informations at issue.

I.

By the end of the 19th century, the State Legislature and the City of New York recognized the need to insure an adequate and safe supply of water for an ever-growing city population. In furtherance of this purpose, in 1905 the City was granted eminent domain powers over areas outside the City in order to create new reservoirs and build water supply facilities (see L 1905, ch 724). Due to the magnitude of construction contemplated and the large labor force needed to work on the project, the Legislature mandated that the New York City Board of Water Supply:

“provide proper police protection to the inhabitants of the localities in which any work may he constructed under the authority of this act and during the period of construction, against the acts or omissions of persons employed on such works or found in the neighborhood thereof; and to that end the said board is hereby authorized and required to appoint a sufficient number of persons to adequately police the said localities for the said periods” (L 1906, ch 314, § 6).

The members of this policing force were issued certificates of appointment that were provided to the sheriffs of the counties where the officers operated (id.).

Once the water facilities were substantially completed and the work camps closed, the need for watershed police, as contemplated by the 1906 Act, subsided. Instead, the focus of their responsibilities switched to protecting the reservoirs and watershed lands from pollution, and to providing security for the new facilities. The Legislature eventually decided that permanent protection of the City’s infrastructure was necessary, but that the cost of such protection would be borne by the City. In 1937, the Legislature imposed upon the Commissioner of the DEP “the duty ... to preserve the purity of all waters from which any part of the city water supply is drawn, and to protect such supply and the lands adjacent thereto from injury or nuisance . . . [and] preserve ... all other property connected with the water supply” (L 1937, ch 929, § 1, enacting Administrative Code § 734[1]-1.0).

Despite the fact that for many years the Legislature had recognized the authority of the City to maintain a water supply protection force (see L 1983, ch 969; Mem of Assembly in Support, Bill Jacket, L 1983, ch 969; Budget Report on Bills, Bill Jacket, L 1983, ch 969; Sponsor’s Mem, Bill Jacket, L 1983, ch 969), the members of that force were not expressly designated “police officers” as defined in the Criminal Procedure Law. But in 1983 the Legislature conferred police officer status on DEP officers by including them in CPL 1.20 (34), the statute that lists the groups of persons that constitute police officers in New York (see L 1983, ch 969, § 7). This provision vested DEP police with jurisdiction over areas outside of the City in order “to protect the sources, works, and transmission of water supplied to the city of New York, and to protect persons on or in the vicinity of such water sources” (CPL former 1.20 [34] [o]). The DEP police were thus charged with “enhancing the enforcement and prosecution of violators of the laws which protect the City’s water supply” (Mem of Mayor of City of NY, Bill Jacket, L 1983, ch 969).

According to the City, the DEP Commissioner currently employs a departmental force of approximately 170 officers who are engaged in law enforcement activities. Over nine million people in New York City and surrounding communities rely on the New York City watershed system as their primary source of potable water. As the largest surface water supply in the United States, the City’s three watershed resources—the Croton, Delaware and Catskill watersheds—span an area of almost 2,000 square miles in eight upstate New York counties. The watershed includes 19 reservoirs and three controlled lakes, in addition to an extensive aqueduct system, and water control and treatment facilities.

II.

In January 2003, DEP police officers issued speeding tickets to defendants Mary Jeanniton and Andrew Van Burén, returnable in Hamden Town Court in Delaware County. Defendants separately moved to dismiss their respective uniform traffic in-formations on several grounds. They argued that the alleged speeding infractions occurred outside the geographical jurisdiction of the DEP police, which defendants maintained was limited to city-owned property within the watershed. Defendants also contended that DEP had failed to comply with the requirements of its 1906 enabling legislation and that enforcement of the Vehicle and Traffic Law was inconsistent with the mission of the DEP—to protect New York City’s water supply. Finally, they claimed that the municipal home rule provisions of the New York Constitution prohibited such DEP law enforcement action without the consent of local government.

The Town of Hamden Justice Court dismissed both tickets and Delaware County Court affirmed. County Court reasoned that the 1906 legislation and related departmental regulations authorized DEP police functions only during the construction of water supply facilities, which concededly was not occurring at the time the tickets were issued. The court also concluded that DEP had violated the state constitutional provision regarding municipal home rule by engaging in law enforcement activities absent the consent of the Town of Hamden. A Judge of this Court granted leave to appeal and we now reverse.

III.

As relevant here, a police officer is generally authorized to arrest an individual for a petty offense, which includes a traffic violation (see Vehicle and Traffic Law § 155), when: (1) there is “reasonable cause to believe that such person has committed such offense in [the officer’s] presence” (CPL 140.10 [1] [a]); (2) “[s]uch offense was committed or believed by [the officer] to have been committed within the geographical area of such officer’s employment or within one hundred yards of such geographical area” (CPL 140.10 [2] [a]); and (3) “[s]uch arrest is made in the county which such offense was committed or believed to have been committed or in an adjoining county” (CPL 140.10 [2] [b]).

It is undisputed in this case that the DEP police officers had reasonable cause to believe that defendants violated the Vehicle and Traffic Law by speeding and that they were apprehended in the county where the alleged infractions occurred. It is also clear that the DEP officers were on patrol in their geographical jurisdiction, which encompasses all of the land within the “watershed” (Rules of City of NY Dept of Envtl Protection [15 RCNY] § 18-16 [a] [114]) as demarcated on the relevant official maps (see Rules of City of NY Dept of Envtl Protection [15 RCNY] Appendix A, maps 18-A.l[a], 18-A.l[b]). This watershed area includes most of the Town of Hamden (see map 18-A.l[b]) and defendants concede that the alleged traffic infractions occurred within the boundaries of the watershed. The DEP officers were therefore authorized as police officers under CPL 140.10 to stop defendants for speeding infractions.

Defendants’ claim that DEP police should be restricted to law enforcement activities related specifically to the protection of water facilities or a direct water source (a lake or reservoir, for example) is inconsistent with the express delegation of police power to this force under the Criminal Procedure Law (see CPL 1.20 [34] [o]). Aside from the relevant provisions of the Criminal Procedure Law, the DEP Commissioner is statutorily empowered to protect New York City’s potable water supply throughout the region of the watershed (see Public Health Law § 1100 et seq.), an authority that is similarly reflected in state regulations (see 10 NYCRR 128-1.1), the New York City Charter (see NY City Charter § 1403), the New York City Administrative Code (see Administrative Code of City of NY § 24-302) and the Rules of the City of New York (see Rules of City of NY Dept of Envtl Protection [15 RCNY] § 18-11 [a]).

Protection of that water supply cannot be accomplished by guarding lakes and reservoirs alone since watershed lands are “water sources” (CPL 1.20 [34] [o]) that the DEP police are required to protect (see e.g. Rules of City of NY Dept of Envtl Protection [15 RCNY] § 18-16 [a] [30]). A DEP officer who observes a motorist traveling at high speed in excess of posted limits could he justifiably concerned that the driver poses a danger to the watershed because of the increased probability of an accident that could cause a “[pjetroleum product” (§ 18-16 [a] [78]) or other pollutants to be discharged onto watershed lands, which would seep into groundwater or flow toward a water supply site. And, aside from protecting the watershed itself, the Legislature has authorized the DEP police “to protect persons” who are within or in the vicinity of the watershed (CPL 1.20 [34] [o]). This authority includes enforcing the Vehicle and Traffic Law, violations of which necessarily create a danger to the driver of an automobile, passengers and other members of the public.

Despite the broad police powers vested in the DEP force, the DEP properly recognizes that its mission does not necessarily demand that it be in the business of setting “speed traps” merely for the sake of enforcing the Vehicle and Traffic Law—a function better left to local law enforcement agencies. The enormous expanse of the region that DEP police must patrol, the breadth of their responsibilities associated with guarding the watershed resources and transmission facilities, and the fact that they are funded by New York City, all indicate the need for administrative oversight regarding the efficient and appropriate deployment of DEP resources. As one DEP administrator has noted:

“The primary mission of this Department is to safeguard the drinking water of the City of New York. Enforcement efforts are focused to protect the sources, works and transmissions of the New York City Water Supply System.
“As law enforcement professionals, threats to the environment, threats to NYC property and threats to security of facilities, works and transmissions is our primary focus. Officers will focus on enforcement efforts directly related to our mission. The enforcement of vehicle and traffic law violations, except in extenuating circumstances, undermines our ability to meet our Department mission.”

Although the issuance of speeding tickets is not a core function of the DEP force, as police officers with full authority to protect the public within the city watershed, it cannot be said that the officers in this case acted in excess of their jurisdiction.* *** We therefore conclude that the simplified traffic informations should not have been dismissed.

We also reject defendants’ argument that DEP police are prohibited from patrolling the watershed by the municipal home rule provisions in the State Constitution. The right of a “local government[ ]” to administer its own affairs and enact “local legislation” affecting its “property, affairs or government” is enshrined in article IX of the State Constitution (NY Const, art IX, § 2 [b] [1], [2]). Section 3 of article IX provides, however, that “nothing in this article shall restrict or impair any power of the legislature in relation to . . . [m]atters other than the property, affairs or government of a local government” (art IX, § 3 [a] [3]). In the precarious balance between state and local powers, one definitive principle has emerged: “that a proper concern of the State may also touch upon local concerns does not mean that the State may not freely legislate with respect to such concerns” (Wambat Realty Corp. v State of New York, 41 NY2d 490, 494 [1977]). Hence, we have recognized that the protection of the public water supply is integral to the public health and welfare and, consequently, a matter of sufficient concern to the State to exclude it from the strictures of the municipal home rule provisions of the State Constitution (see Matter of Town of Islip v Cuomo, 64 NY2d 50, 57 [1984]; Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164, 168 [1959]; see also Matter of Board of Supervisors of Ontario County v Water Power & Control Commn., 255 NY 531 [1930], affg 227 App Div 345 [3d Dept 1929]). The same holds true for the vital watersheds that supply water to New York City.

Accordingly, in each case, the order of County Court should be reversed and the simplified traffic information reinstated.

Chief Judge Kaye (dissenting). I agree with the majority that the geographical jurisdiction of Department of Environmental Protection (DEP) officers encompasses all of the land within the watershed (Rules of City of NY Dept of Envtl Protection [15 RCNY] § 18-16 [a] [114]) as set forth on the relevant official maps (see Rules of City of NY Dept of Envtl Protection [15 RCNY] Appendix A, maps 18-A.l[a], 18-A.l[b]). I cannot agree, however, that, under CPL 1.20 (34) (o), the New York City Department of Environmental Protection police had authority to hunt out speeders and issue traffic tickets. CPL 1.20 (34) (o) vests the DEP police with jurisdiction over land within the watershed only when acting “to protect the sources, works, and transmission of water supplied to the city of New York, and to protect persons on or in the vicinity of such water sources.” The DEP police are trusted with “enhancing the enforcement and prosecution of violators of the laws which protect the City’s water supply” (Statement of Mayor of City of NY in Support, Bill Jacket, L 1983, ch 969, at 34).

Subsection (o) is specific and discrete. It does not vest DEP officers with authority to apprehend speeders, unless such enforcement is related to protecting the watershed or the City’s facilities, or an individual near a water source or facility. The People make no such showing here.

R.S. Smith, J. (dissenting).

I dissent because I accept defendants’ argument, rejected by the majority in its footnote 5 (at 649), that the only statutory authorization for the police force now called the “DEP police” is contained in a 1906 enactment that became obsolete long ago.

The 1906 statute, now codified as New York City Administrative Code § 24-355, provides in relevant part:

“It shall be the duty of the board of water supply of the city of New York, to provide proper police protection to the inhabitants of the localities in which any work may be constructed under the authority of this act [L 1905, ch 724] and during the period of • construction, against the acts or omissions of persons employed on such works or found in the neighborhood thereof; and to that end the said board is hereby authorized and required to appoint a sufficient number of persons to adequately police the said localities for the said periods. . . . The said board shall give to each person so appointed a certificate of appointment and certified copies thereof, one of which shall be filed in the office of the sheriff of each county in which any work shall be in process of construction under this act and in which said person shall be authorized to perform his duties. Each of said persons so appointed shall be and have all the powers of a peace officer in the county where any work is being constructed under the authority of this act.... The sheriff of a county wherein a certificate of appointment of any such person as a peace officer is filed may cancel such certificate for cause, and shall immediately give notice in writing of such cancellation to the board of water supply of the city of New York, specifying the cause of such revocation. . . . On such cancellation the authority of such person as a peace officer shall immediately cease.” (L 1906, ch 314, § 6 [emphasis added].)

Thus the original authorization was only for the period of construction of water supply facilities, and required that certificates of appointment be filed with the sheriff of each affected county, who could cancel any certificate “for cause.” It is undisputed that the construction has been complete for many decades, and that no certificates of appointment are on file.

There has never been another statutory authorization. None of the three statutes cited by the majority in its footnote 5 authorizes the employment of New York City police in the watershed area. As to two of them, no argument is or can be made that they authorize anything of the kind. Chapter 929, § 1 of the Laws of 1937 (enacting Administrative Code of City of NY § 734[1]-1.0), quoted by the majority (majority op at 645), provides that what is now the Department of Environmental Protection (DEP) shall “preserve the purity of . . . waters . . . and . . . protect [the water] supply and the lands adjacent thereto from injury or nuisance.” It makes no mention of a police force. Chapter 599 óf the Laws of 2000 amended Criminal Procedure Law § 1.20 (34) (o) in a way not relevant here.

Indeed, it is undisputed that, from whenever construction of the “works” referred to in the 1906 act was finished until 1983, no statutory authorization for what is now called the DEP police existed. The force created in 1906 continued to function, and I have no doubt that the people who served on it were—as the DEP police still are—performing important public duties in complete good faith. Legally, however, when they acted outside New York City they were civilians; they had no authority to act as police officers.

The People argue here that the force was effectively revived in 1983, when a section referring to “the water-supply police employed by the city of New York” was added to the definition of “police officer” in the Criminal Procedure Law. The new section, CPL 1.20 (34) (o) included within the definition:

“A sworn officer of the water-supply police employed by the city of New York and acting outside said city, appointed to protect the sources, works, and transmission of water supplied to the city of New York, and to protect persons on or in the vicinity of such water sources.”

I think it is plain from the text of the statute and its legislative history, however, that the 1983 Legislature did not think it was either creating a new police force or reviving an old one; it was only giving “police officer” status to members of a force that it believed—mistakenly—already existed.

On its face, the statute merely defines a term. It does not purport to create a police force. It specifies the category, “police officer” rather than “peace officer” or something else, to which members of a certain force shall belong—a force that, the Legislature wrongly assumed, was already in existence. The legislative history makes even clearer that the Legislature did not think it was authorizing a police force. The Assembly memorandum in support of the legislation says:

“this bill would clarify that a sworn officer of the Water-Supply police employed by the City of New York and acting outside New York City [is] a police officer having been so designated in 1905 but inadvertently omitted from the peace-officer 1980 recodification provisions of the CPL” (Assembly Mem in Support of 1983 NY Assembly Bill 5782-A, Bill Jacket, L 1983, ch 969 [emphasis added]).

I think the majority—for understandable reasons—is reading the 1983 legislation as though it were sufficient to make the Legislature’s mistaken assumption come true—i.e., to do what the Legisláture probably would and should have done, if it had been correctly informed. I sympathize with the majority’s wish to accomplish a common-sense result, and if this case involved something other than the authorization of a police force—if the public employees involved were, say, lawyers or bus drivers—I might be prepared to go along. But I am unwilling to hold that some citizens have become police, with the power to use force to deprive other citizens of their liberty, until and unless the Legislature has unmistakably expressed an intention to confer that power on them. I would thus hold that the gap in the law that these cases have brought to light can be repaired only by new legislation.

I agree with the courts below that there was no statute permitting the officers who issued the speeding tickets in these cases to act as police officers in the watershed, and I would therefore affirm the dismissal of the simplified traffic informations.

Judges G.B. Smith, Ciparick and Read concur with Judge Graffeo; Chief Judge Kaye dissents in a separate opinion; Judge R.S. Smith dissents and votes to affirm in another opinion in which Judge Rosenblatt concurs.

In each case: Order reversed, etc.

      . Using substantially the same language, the 1906 Act was codified in the New York City Code (see Administrative Code of City of NY § 24-355).

      . A subsequent amendment expanded the jurisdiction of the DEP police to encompass areas within New York City and" to the protection of individuals “in the vicinity of’ the City’s water sources and facilities (CPL 1.20 [34] [o]; see L 2000, ch 599).

      . For the history of the development of the New York City water supply, see Miele, An Enormous Amount of Work to be Done: Protecting the New York City Watershed, 12 Fordham Envtl LJ 467 (2001) and Finnegan, New York City’s Watershed Agreement: A Lesson in Sharing Responsibility, 14 Pace Envtl L Rev 577 (Summer 1997).

      . See also Miele, An Enormous Amount of Work to be Done: Protecting the New York City Watershed, 12 Fordham Envtl LJ at 485 (quoting DEP Commissioner, responding to a question about DEP police conducting traffic stops, as stating “when they step out of the environmental end, it is because they see a danger. Now, if they see someone drunk driving ... we are not going to ignore it. We are not going to go out of our way to go after it, but that is how our police get involved in less than environmental issues”).

      . Nor do we agree with the courts below that the DEP police are limited to actions covered by chapter 314 of the Laws of 1906. Subsequent legislative enactments have expanded the jurisdiction of the DEP force beyond providing protection only during the construction of water facilities (see GPL 1.20 [34] [o]; Mem of Mayor of City of NY, Bill Jacket, L 2000, ch 599; L 1983, ch 969, § 7; L 1937, ch 929, § 1, enacting Administrative Code ,§ 734[1]-1.0).


author: Rosenblatt, J.

text:
    [830 NE2d 306, 797 NYS2d 408]
    The People of the State of New York, Respondent, v Abdel Hamilton, Appellant.
    Argued April 26, 2005;
    decided June 7, 2005

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Melissa Roth-stein and Richard M. Greenberg of counsel), for appellant
    I. The imposition of a consecutive sentence for criminal possession of a weapon violated Penal Law § 70.25 and Abdel Hamilton’s federal and state constitutional rights to due process and a trial by jury. (Apprendi v New Jersey, 530 US 466; Ring v Arizona, 536 US 584; United States v White, 240 F3d 127; Garrett v United States, 471 US 773; People v Young, 94 NY2d 171; People v Page, 88 NY2d 1; People v Ahmed, 66 NY2d 307; People v Thomas, 50 NY2d 467; People v Patterson, 39 NY2d 288, 432 US 197; People v Parks, 95 NY2d 811.) II. Abdel Hamilton’s rights to due process and a fair trial were violated by the admission, individually and cumulatively, of uncharged bad act allegations that overwhelmed the trial. (People v Ventimiglia, 52 NY2d 350; McKinney v Rees, 993 F2d 1378; Tucker v Makowski, 883 F2d 877; Michelson v United States, 335 US 469; People v Till, 87 NY2d 835; People v Hudy, 73 NY2d 40; People v Cintron, 95 NY2d 329; People v Bennett, 79 NY2d 464; People v Moses, 63 NY2d 299; People v Allweiss, 48 NY2d 40.) III. Abdel Hamilton was denied his right to a fair trial when Michael Agola stated that Mr. Hamilton had a witness killed, and the court refused to charge the jury that Barrington Robinson’s absence should not be considered against either party. (People v Robinson, 68 NY2d 541; People v Cook, 93 NY2d 840; People v Till, 87 NY2d 835; People v Hudy, 73 NY2d 40; People v Thomas, 51 NY2d 466; People v Seabrooks, 244 AD2d 514; People v Foster, 164 AD2d 894; People v Williams, 212 AD2d 388.) IV The late disclosure, delayed hearing and midtrial decision regarding the admissibility of papers seized from Dwayne Darby violated Abdel Hamilton’s rights to due process and a fair trial. (People v Copicotto, 50 NY2d 222; People v Dennis, 265 AD2d 271; People v Ventimiglia, 52 NY2d 350; People v Cintron, 95 NY2d 329; People v Bennett, 79 NY2d 464; People v Moses, 63 NY2d 299.)

      Robert T Johnson, District Attorney, Bronx (Yael V. Levy, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. II. The court properly imposed a consecutive sentence for the weapon possession conviction after it found that that crime was separate and distinct from the shooting crimes, and it was not required to submit that question to the jury. (Apprendi v New Jersey, 530 US 466; People ex rel. Maurer v Jackson, 2 NY2d 259; People v Rosen, 96 NY2d 329; United States v Cotton, 535 US 625; People v Casey, 95 NY2d 354; Jones v United States, 526 US 227; McMillan v Pennsylvania, 477 US 79; Almendarez-Torres v United States, 523 US 224; United States v Gaudin, 515 US 506; In re Winship, 397 US 358.) III. The court properly admitted the Dwayne Darby documents and evidence of defendant’s gang affiliation into evidence; the timing of the documents’ disclosure and of the court’s determination that they were admissible was appropriate. (People v Molineux, 168 NY 264; People v Ventimiglia, 52 NY2d 350; Matter of Holtzman v Hellenbrand, 92 AD2d 405; People v Espinal, 174 AD2d 500, 79 NY2d 826; People v Lynes, 49 NY2d 286; People v Dunbar Contr. Co., 215 NY 416; People v Gruttola, 43 NY2d 116; People v Jean-Louis, 272 AD2d 626, 95 NY2d 890; People v Thomas, 272 AD2d 892, 95 NY2d 858.) V The trial court properly (1) admitted into evidence Michael Ago-la’ s testimony that defendant admitted killing a witness, and (2) declined to instruct the jury not to draw an inference adverse to defendant from Barrington Robinson’s absence. (People v Narayan, 54 NY2d 106; People v Iannelli, 69 NY2d 684; People v Bryant, 280 AD2d 403, 96 NY2d 826; People v Tucker, 55 NY2d 1; People v MacDonald, 89 NY2d 908; People v Yazum, 13 NY2d 302; People v Iannone, 2 AD3d 1283, 2 NY3d 741; People v Rosario, 309 AD2d 537, 1 NY3d 579; People v Carroll, 95 NY2d 375; People v Aska, 91 NY2d 979.)
   OPINION OF THE COURT

Rosenblatt, J.

Concluding that he shot two people, killing one of them, a Supreme Court jury found defendant guilty of manslaughter in the first degree (Penal Law § 125.20 [1]), assault in the first degree (Penal Law § 120.10 [3]), criminal possession of a weapon in the second degree (Penal Law § 265.03), and reckless endangerment in the first degree (Penal Law § 120.25). We hold that the trial court violated Penal Law § 70.25 (2) when it imposed defendant’s weapon possession sentence to run consecutively with his sentences for manslaughter and assault.

The People’s evidence came largely from Anthony Smith, Anthony Bunch and Albert Hale. They testified that while on a Bronx street, they encountered Hubert Roberts. At the time, defendant was peeking out of the doorway of a building in which defendant’s cousin, Rondell Purnell, lived. When Roberts said he was about to leave, defendant went inside the building and immediately emerged with a gun in his hand. He approached Roberts and, after a verbal dispute, shot him in the head, killing him. Defendant then shot Anthony Smith in the back, as Smith was running away. As for motive, the People introduced proof that defendant was enraged over the disappearance of a gun from Purnell’s residence, and that he shot Roberts and Smith, mistakenly believing they stole the weapon.

The court sentenced defendant to consecutive prison terms of 12x/2 to 25 years for manslaughter for killing Roberts and 7V2 to 15 years for assault for having shot and injured Smith, to run concurrently with a 2Vs to 7 year sentence for reckless endangerment. Pertinent to this appeal, the court also imposed a 7V2 to 15 year sentence for weapon possession to run consecutively with the manslaughter and assault sentences. Defendant acknowledges that the court had the authority to sentence him consecutively for the Roberts manslaughter and the Smith assault. He contends, however, that by running the weapon sentence consecutively to the others, the court violated Penal Law § 70.25 (2). The Appellate Division affirmed defendant’s conviction and a Judge of this Court granted defendant leave to appeal. We agree with defendant’s contention and therefore modify the Appellate Division order and remit the case to Supreme Court for resentencing.

Penal Law § 70.25 governs the imposition of concurrent and consecutive sentences. Pursuant to subdivision (2),

“[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently.”

Under either of those circumstances, the court has no discretion; concurrent sentences are mandated (see People v Ramirez, 89 NY2d 444 [1996]; see generally William Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 70.25, at 241-242).

Here, the jury found defendant guilty of second-degree weapon possession for having possessed a pistol “with intent to use [it] unlawfully against another.” There is no doubt as to who the other person or persons were.

According to the other counts of the indictment and the proof at trial, defendant used a pistol—the only one involved in this case—to shoot Roberts and Smith. There is no allegation that the weapon count referred to a different pistol or a different event and the prosecution does not contend otherwise. The weapon count thus overlapped with the manslaughter and assault counts, and there was no proof of a separate intent to use the gun unlawfully.

Defendant correctly argues that, to be sentenced consecutively on the weapon charge, it would have been necessary for the People to establish that he possessed the pistol with a purpose unrelated to his intent to shoot Roberts and Smith. People v Parks (95 NY2d 811 [2000]) and People v Sturkey (77 NY2d 979 [1991]) support defendant’s argument.

In Parks, defendant was indicted on several counts of murder and robbery, along with other related crimes. The felony murder count charged Parks with having killed one of the victims in the course and furtherance of a robbery. He was also charged with robbing other victims at the scene. The indictment, however, did not identify which robbery served as the predicate for felony murder, nor did the court in its instructions to the jury. Because it was impossible to tell which robbery was “separate and distinct” from the felony murder, we held that the court improperly sentenced defendant to consecutive sentences on two of the robbery counts.

The same issue arose in Sturkey. There, the defendant was convicted of robbery, reckless endangerment and criminal possession of a weapon in the third degree, arising out of a scuffle with a police officer. During the encounter, Sturkey seized the officer’s gun. We held that the robbery and gun possession were part of the same act of seizing the gun from the officer. Under those circumstances, consecutive sentences for robbery and weapon possession were impermissible under Penal Law § 70.25 (2). The same holds true here. Because the weapon possession was not separate and distinct from the shootings, the statute prohibits consecutive sentences.

We have considered defendant’s other contentions by which he seeks a reversal and a new trial and find them without merit. Accordingly, the order of the Appellate Division should be modified by vacating the sentence imposed on defendant’s conviction for criminal possession of a weapon in the second degree and remitting to Supreme Court for resentencing, and, as so modified, affirmed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order modified, etc.

      . Defendant has argued that, to the extent the trial court found a different purpose for defendant’s weapon possession, such a finding would violate Apprendi v New Jersey (530 US 466 [2000]). Given our holding that no evidence at all suggests an independent purpose for the weapon, we need not reach the Apprendi issue.

      . In addition to our holdings in Parks and Sturkey, courts in New York have applied this rule consistently (see e.g. People v Washington, 9 AD3d 499 [3d Dept 2004] [holding that consecutive sentences for weapon possession and murder were prohibited where the People did not allege at trial that defendant possessed the gun for any purpose other than the murder]; People v Reyes, 239 AD2d 524 [2d Dept 1997]; People v Terry, 104 AD2d 572 [2d Dept 1984]; People v Rudolph, 16 AD3d 1151 [4th Dept 2005]).


author: R.S. Smith, J.

text:
    [830 NE2d 308, 797 NYS2d 410]
    In the Matter of the Arbitration between Buffalo Police Benevolent Association, Respondent, and City of Buffalo, Appellant.
    Argued April 14, 2005;
    decided June 7, 2005

      POINTS OF COUNSEL

      Jaeckle Fleischmann & Mugel, LLP, Buffalo (Matthew C. Van Vessem of counsel), for appellant.
    I. It is against public policy for an arbitrator to impose a restriction on an appointing authority’s discretionary power provided by Civil Service Law § 61 (1). (People ex rel. Balcom v Mosher, 163 NY 32; Matter of Berger v Walsh, 291 NY 220; Matter of Andriola v Ortiz, 82 NY2d 320; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of Cassidy v Municipal Civ. Serv. Commn. of City of New Rochelle, 37 NY2d 526; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Matter of Delicati v Schechter, 3 AD2d 19; Matter of Blackhurne [Governor’s Off. of Empl. Relations], 87 NY2d 660; Garrity v Lyle Stuart, Inc., 40 NY2d 354; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774.) II. Matter of Professional, Clerical, Tech. Empls. Assn. (Buffalo Bd. of Educ.) (90 NY2d 364 [1997]) does not permit an arbitration award to limit an appointing authority’s promotional rights under Civil Service Law § 61, in the absence of collective negotiations and voluntary agreement. (People ex rel. Balcom v Mosher, 163 NY 32; Matter of Berger v Walsh, 291 NY 220; Matter of Andriola v Ortiz, 82 NY2d 320.) III. Utilizing past practice alone to impose a restriction on an appointing authority’s Civil Service Law powers violates public policy. (Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of Silverman [Benmor Coats], 61 NY2d 299; Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 746; Matter of Apuzzo v County of Ulster, 98 AD2d 869, 62 NY2d 960; People ex rel. Balcom v Mosher, 163 NY 32; Matter of Cassidy v Municipal Civ. Serv. Commn. of City of New Rochelle, 37 NY2d 526; Matter of Larkin v Sardino, 79 AD2d 1096; Matter of Havern v Senko, 210 AD2d 480; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273; Matter of Berger v Walsh, 291 NY 220.)

      Law Offices of W. James Schwan, Buffalo (W James Schwan of counsel), for respondent.
    I. The arbitrator’s award does not violate public policy. (Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364.) II. Appellant’s claim that an external source, the arbitrator, imposed a limitation on appellant’s right to promote is misplaced. (People ex rel. Balcom v Mosher, 163 NY 32; Matter of Berger v Walsh, 291 NY 220; Matter of Andriola v Ortiz, 82 NY2d 320; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Matter of City of New York v New York State Div. of Human Rights, 93 NY2d 768.) III. The arbitrator’s finding that the parties’ collective bargaining agreement compels the appointment of the highest-scoring candidate is not subject to review. (Matter of Sprinzen [Nomberg], 46 NY2d 623; Matter of Associated Teachers of Huntington v Board of Educ., Union Free School Dist. No. 3, Town of Huntington, 33 NY2d 229; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321; Board of Educ. of Lakeland Cent. School Disk of Shrub Oak v Barni, 49 NY2d 311.)
   OPINION OF THE COURT

R.S. Smith, J.

We held in Matter of Professional, Clerical, Tech. Empls. Assn. (Buffalo Bd. of Educ.) (90 NY2d 364 [1997] [PCTEA]) that a public employer could, without violating public policy, agree to forgo its statutory authority to choose any one of three candidates for promotion to clerical and secretarial positions. We now hold that the rule of PCTEA does not apply to the promotion of police officers. Public policy requires that police departments retain the authority given them by Civil Service Law § 61 (1) to select one of three candidates for such promotions.

Facts and Procedural History

Following the administration of competitive examinations for the position of detective in the Buffalo Police Department, the Buffalo Municipal Civil Service Commission promulgated an “eligible list” of candidates who passed the examination, ranked by test scores. Officer Raymond Wrafter was first on the list, but when a position became vacant the Police Commissioner bypassed Officer Wrafter and promoted another of the top three candidates. The Buffalo Police Benevolent Association (PBA) filed a grievance, claiming that the Commissioner’s action violated article XV of the Collective Bargaining Agreement between the PBA and the City of Buffalo, which provides:

“All conditions or provisions beneficial to employees now in effect which are not specifically provided for in this Agreement or which have not been replaced by provisions of this Agreement shall remain in effect for the duration of this Agreement, unless mutually agreed otherwise between the City and the Union.”

The PBA’s theory was that this provision obligated the City to continue a long-standing practice by which the Commissioner appointed only the first-ranked candidate to positions in the competitive class of the civil service. An arbitrator, relying on our decision in PCTEA, agreed that the City had violated article XV and awarded Officer Wrafter compensatory damages. Supreme Court confirmed the arbitrator’s award, and the Appellate Division affirmed. We now reverse.

Discussion

Civil Service Law § 61 (1) provides in pertinent part:

“Appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion . . . .”

In PCTEA we addressed the application of this statute to two arbitration awards rendered against the Buffalo Board of Education—one involving the position of associate account clerk, the other that of senior typist. The Board had passed over the highest-scoring candidate for each position, in favor of candidates lower on the eligible list. In each case, an arbitrator held that the Board’s actions violated a collective bargaining agreement, relying in part on a “Maintenance of Benefits” clause similar to the clause in issue here, but also on an “explicit agreement of the parties,” reflected in minutes of a series of labor-management meetings, to promote the first person on the eligible list (90 NY2d at 370). In each case, we reversed a decision vacating the arbitrator’s award. We held that, while the Civil Service Law conferred discretion on the appointing authority to choose one of the three highest-scoring candidates, “a public employer may . . . voluntarily bargain with respect to the exercise of such discretion” (id. at 376), and thus could surrender it by contract.

Here, it is much less clear that the appointing authority “voluntarily” surrendered its power to choose. This case does not involve, as PCTEA did, minutes of meetings showing that an agreement to promote the highest-scoring candidate was explicitly discussed; the arbitrator’s award here was based on a general agreement to leave the status quo unchanged, coupled with a “past practice” of appointing the highest-scoring candidate. But more important, this case, unlike PCTEA, involves the selection by the Police Commissioner of an officer to fill a position important to the safety of the community. Public policy does not permit a ruling that the Commissioner has given up his statutory power to choose the person he thinks best qualified for that position—at least in the absence of compelling evidence that the Commissioner made a conscious choice to do so.

“Despite [the] policy of according an arbitrator seemingly unfettered discretion in matters submitted to him by the consent of the parties, it is the established law in this State that an award which is violative of public policy will not be permitted to stand” ([Matter of Sprinzen [Nomberg], 46 NY2d 623, 630 [1979]). We conclude that this is one of those relatively rare “cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator” (id. at 631). The arbitrator’s ruling that the Commissioner was bound by a collective bargaining agreement to appoint the highest-scoring candidate to the position of detective must be set aside.

Accordingly, the order of the Appellate Division should be reversed with costs and the arbitrator’s award vacated.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.

.Order reversed, with costs, and arbitration award vacated.