author: Smith, J.

text:
    [866 NE2d 1039, 834 NYS2d 710]
    The People of the State of New York, Respondent, v James Chiddick, Appellant.
    Argued March 22, 2007;
    decided May 1, 2007

      POINTS OF COUNSEL

      Simpson Thacher & Bartlett LLP, New York City (Jamie Lynn Craver and Jonathan K. Youngwood of counsel), and Office of the Appellate Defender (Richard M. Greenberg and Risa Gerson of counsel) for appellant.
    James Chiddick’s second degree burglary and second degree assault convictions must be reversed because the evidence educed at trial was legally insufficient to establish “physical injury” within the meaning of Penal Law § 10.00 (9). (People v Guidice, 83 NY2d 630; Matter of Philip A., 49 NY2d 198; People v Jimenez, 55 NY2d 895; People v Adams, 309 AD2d 648; People v Foster, 162 AD2d 703; People v Estes, 131 AD2d 872; Matter of Shawnell UU., 240 AD2d 947; People v Marzano, 147 AD2d 752; People v Thomas, 274 AD2d 761; People v Velasquez, 202 AD2d 1037.)

      Robert T Johnson, District Attorney, Bronx (Leilani Rodriguez, Joseph N. Ferdenzi and Peter D. Coddington of counsel), for respondent.
    Physical injury was established beyond a reasonable doubt. (People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v McDowell, 28 NY2d 373; People v Rojas, 61 NY2d 726; Matter of Philip A., 49 NY2d 198; People v Guidice, 83 NY2d 630; People v Bouyea, 142 AD2d 757; People v Tejeda, 165 AD2d 683, 78 NY2d 936; People v Durant, 190 AD2d 615; People v Tate, 170 AD2d 291.)
   OPINION OF THE COURT

Smith, J.

We hold that the evidence in this case was sufficient to support the jury’s finding that defendant caused “substantial pain” and therefore “physical injury” to his victim.

Defendant made the mistake of committing burglary in a building where Adrian Gentles was working. Gentles confronted him and the two scuffled, defendant trying to escape and Gentles trying to hold on to him. Defendant bit Gentles on the left ring finger and fled, but Gentles followed him in a car, eventually cornered him, and turned him over to the police.

The bite caused Gentles’s fingernail to crack and his finger to bleed. After defendant was captured, Gentles went to the hospital, where he received a tetanus shot and a bandage. Gentles gave the following testimony about what the bite felt like:

“Q . . . And as a result of being bitten on your nail by the defendant, what happened, did you feel any pain?
“A Sure.
“Q All right. How much pain? A little pain, a lot of pain?
“A In between.
“Q Okay. So, moderate pain you felt?
“A Yeah.”

A jury convicted defendant on several charges, including second degree burglary (Penal Law § 140.25) and second degree assault (Penal Law § 120.05 [6]). It is an element of both these crimes that defendant caused “physical injury” to Gentles, and defendant challenges his conviction on the ground that proof of physical injury was lacking. “Physical injury,” as used in the Penal Law, means “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). We decide that the record supports a finding of substantial pain, and do not consider whether impairment of physical condition was also established.

Of course “substantial pain” cannot be defined precisely, but it can be said that it is more than slight or trivial pain. Pain need not, however, be severe or intense to be substantial. Beyond these generalizations, there are several factual aspects of a case that can be examined to decide whether enough pain was shown to support a finding of substantiality.

Perhaps most important is the injury defendant inflicted, viewed objectively. Here, defendant broke Gentles’s fingernail and caused him to bleed — an experience that would normally be expected to bring with it more than a little pain. Also important is the victim’s subjective description of what he felt; sometimes an objective account of the injury, unaccompanied by testimony about the degree of pain the victim experienced, will be enough (People v Rojas, 61 NY2d 726 [1984]), but sometimes it will not (Matter of Philip A., 49 NY2d 198 [1980]). Here, Gentles’s testimony confirms that the pain was not trivial: he said it was in between “[a] little” and “a lot.”

It is also relevant that Gentles sought medical treatment for the wound defendant inflicted — an indication that his pain was significant. And finally, the legislative history of the Penal Law shows that the motive of the offender may be relevant: the revisors’ notes to the sections defining assault say that “petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives” constitute only harassment and not assault, because they do not inflict physical injury (see Staff Notes of Temp St Commn on Rev of Penal Law and Crim Code, 1964 Proposed NY Penal Law art 125, at 330, quoted in Matter of Philip A., 49 NY2d at 200). Motive is relevant because an offender more interested in displaying hostility than in inflicting pain will often not inflict much of it. Here, defendant’s motive was to make Gentles let go of him: the whole point of the bite was to inflict as much pain as he could. Indeed, it seems unlikely that anything less than substantial pain would have caused Gentles, evidently a tenacious man, to release his hold.

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

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order affirmed.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    [867 NE2d 374, 835 NYS2d 523]
    The People of the State of New York, Respondent, v Nico LeGrand, Appellant.
    Argued February 14, 2007;
    decided March 27, 2007

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City {Jan Hoth and Robert S. Dean of counsel), for appellant.
    I. The trial court erred in: (a) denying appellant’s well-founded application to introduce expert identification testimony where the accuracy of identifications made seven years after the crime was the sole issue in the case; and (b) determining that, in any event, the evidence was inadmissible as it propounded theories that were not generally accepted by the scientific community. (People v Drake, 7 NY3d 28; People v Young, 7 NY3d 40; People v Lee, 96 NY2d 157; People v Alvarez, 198 AD2d 171; Frye v United States, 293 F 1013; People v Wernick, 89 NY2d 111; People v Wesley, 83 NY2d 417; People v Taylor, 75 NY2d 277; Matter of Nicole V., 71 NY2d 112; People v Keindl, 68 NY2d 410.) II. Appellant’s constitutional right to a speedy trial was violated where, without good cause, proceedings were not instituted against him until eight years after the crime and almost six years after he was identified as a suspect. (People v Singer, 44 NY2d 241; People v Vernace, 96 NY2d 886; People v Lesiuk, 81 NY2d 485; People v Staley, 41 NY2d 789; United States v Marion, 404 US 307; Klopfer v North Carolina, 386 US 213; People v Taranovich, 37 NY2d 442; People v Watts, 57 NY2d 299; People v Johnson, 38 NY2d 271; People v Ranellucci, 43 NY2d 943.)

      Robert M. Morgenthau, District Attorney, New York City {Meredith Boylan and Patrick J. Hynes of counsel), for respondent.
    I. The delay in arresting defendant for second-degree murder did not violate his right to due process. (United States v Lovasco, 431 US 783; United States v Marion, 404 US 307; People v Singer, 44 NY2d 241; People v Staley, 41 NY2d 789; People v Taranovich, 37 NY2d 442; People v Waldron, 6 NY3d 463; People v Vernace, 96 NY2d 886; People v Wing Keung Tsang, 284 AD2d 218; People v Rodriguez, 281 AD2d 375, 96 NY2d 906; People v

      Suero, 235 AD2d 357, 89 NY2d 1101.) II. The hearing court appropriately exercised its discretion in denying the admission of defendant’s proposed expert testimony at trial. (People v Lee, 96 NY2d 157; People v Smith, 191 Misc 2d 765; Frye v United States, 293 F 1013; People v Mooney, 76 NY2d 827; United States v Lumpkin, 192 F3d 280; United States v Rodriguez-Felix, 450 F3d 1117; People v Leone, 25 NY2d 511; People v Hughes, 59 NY2d 523; People v Schreiner, 77 NY2d 733; People v Wesley, 83 NY2d 417.)

      David Loftis, New York City, Barry Scheck, Peter Neufeld and Ezekiel Edwards for Innocence Project, Inc., amicus curiae.
    I. The trial court’s determination to exclude expert testimony ignored the persistent problems of eyewitness identification that courts and scientists have undertaken and created a substantial risk of wrongfully convicting an innocent man. II. As suggestiveness exists within our judicial process, expert testimony is necessary to inform jurors of the causes of misidentification and its admission should not be hinged on a pretrial determination of the strength of the prosecution case. (United States v Wade, 388 US 218; People v Adams, 53 NY2d 241; People v Riley, 70 NY2d 523; People v Brisco, 99 NY2d 596, habeas corpus granted sub nom. Brisco v Phillips, 376 F Supp 2d 306; People v Duuvon, 77 NY2d 541; People v Chipp, 75 NY2d 327; People v Hart, 208 AD2d 861; People v Lee, 96 NY2d 157; People v Riley, 70 NY2d 523; People v Prochilo, 41 NY2d 759.)

      Steven Banks, New York City, Lorca Morello, Robert Garcia and Green & Willstatter, White Plains, for Legal Aid Society and others, amici curiae.
    I. The testimony of a qualified expert on the factors affecting the reliability of eyewitness identification should be presumptively admissible when proffered by the accused at trial when identification is at issue. (People v Taylor, 75 NY2d 277; People v Young, 7 NY3d 40; People v Lee, 96 NY2d 157; People v Smith, 191 Misc 2d 765; People v Carroll, 95 NY2d 375; People v Hudy, 73 NY2d 40; Rock v Arkansas, 483 US 44; Chapman v California, 386 US 18; Parker v Mobil Oil Corp., 7 NY3d 434; People v Wesley, 83 NY2d 417.) II. Appellant was deprived of a fair trial by the court’s preclusion of expert eyewitness testimony. (People v Goldstein, 6 NY3d 119; People v Wesley, 83 NY2d 417; People v Taylor, 75 NY2d 277; People v Jeter, 80 NY2d 818; People v Young, 7 NY3d 40; People v Drake, 7 NY3d 28; United States v Downing, 753 F2d 1224.) III. The hearing court’s decision is based on a fundamental misunderstanding of the scientific principles underlying eyewitness identification research. (People v Wesley, 83 NY2d 417; United States v Mathis, 264 F3d 321.)
   OPINION OF THE COURT

Jones, J.

The main issue before us is whether the hearing court erred when it refused to admit expert testimony on the reliability of eyewitness identifications, which it concluded was based on novel scientific principles, theories or techniques that are not generally accepted by the relevant scientific community.

After a Frye hearing, Supreme Court found that the proposed testimony was relevant to the facts of the case, that defendant’s witness was a qualified expert and that the proposed testimony was beyond the ken of the typical juror. However, the court denied defendant’s motion to admit expert testimony, ruling that the proposed expert testimony was not generally accepted within the relevant scientific community. For the reasons that follow, we hold that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror. Taking into account that trial courts generally have the power to limit the amount and scope of evidence presented, we nevertheless conclude that, in this case, the court erred when it precluded the testimony of defendant’s eyewitness identification expert in its entirety.

Facts and Procedural History

On the morning of June 15, 1991, livery cab driver Joaquin Liriano was stabbed to death on Morningside Drive in Manhattan. Liriano’s assailant fled before the police arrived on the scene. Four people witnessed the attack, and within a few days collaborated on a composite sketch of the assailant. Two years later, defendant was identified as a possible suspect in the homicide when an officer who arrested him for an unrelated burglary concluded that he resembled the 1991 composite sketch. However, because the police were unable to find any of the witnesses to the stabbing, the homicide case stalled. The case remained dormant until April 1998 when defendant was again arrested for burglary in the same precinct. Police again concluded that he resembled the composite sketch.

The authorities located the four witnesses who contributed to the composite sketch and one additional witness to the stabbing who was not identified until 1998. One of the witnesses identified defendant as the killer in a photo array and a lineup. Two of the remaining witnesses were shown the photo array, but neither made a positive identification. Specifically, one witness picked out defendant’s photo as a “close, if not exact” match. A third witness described defendant’s picture as “similar” to that of the assailant. The fourth and fifth witnesses also examined the photo array, but were unable to identify defendant. There was no forensic or other physical evidence connecting defendant to the stabbing.

Defendant was charged with second degree murder in April 1999. The People’s case rested solely on identifications made nearly seven years after the crime. In April 2001, during defendant’s first trial, three witnesses identified defendant as the perpetrator. However, two of the witnesses had seen defendant’s photo array in the district attorney’s office the night before they were to testify. Defendant’s first trial ended in a mistrial (due to a hung jury) after three days of deliberation.

In June 2001, prior to his second trial, defendant, relying on this Court’s decision in People v Lee (96 NY2d 157 [2001]), moved to introduce at trial the testimony of an expert in order to “educate the jurors as to the weaknesses and dangers inherent in eyewitness testimony and to present them with an appropriate perspective by which to judge such testimony.” According to the supporting memorandum of law, the expert would testify as to research findings regarding several factors that may influence the perception and memory of a witness and affect the reliability of eyewitness identifications: in particular, the effect of “weapon focus,” the lack of correlation between witness confidence and accuracy of identification, the effect of postevent information on accuracy and confidence malleability. The expert would not, however, opine on the accuracy of any specific eyewitness identification. Moreover, defense counsel’s affirmation stated that “[i]f any issues remain unresolved for the court as to the admissibility of such evidence, those issues could be resolved by conducting a Frye hearing prior to trial.”

The prosecution opposed the motion on the ground that the theories that the defense wanted to introduce were “highly controversial.” Further, the prosecutor argued that in Lee, this Court upheld the lower court’s decision to preclude expert testimony addressing the same issues on which defendant’s expert would testify here. The prosecutor also argued that cross-examination and/or jury instructions could counter a mistaken identification.

After conducting a Frye hearing, the court precluded the testimony on the ground that the expert’s conclusions were not generally accepted in the relevant scientific community. At the second trial, the jury found defendant guilty of second degree murder. Defendant was sentenced to an indeterminate prison term of 25 years to life. The Appellate Division unanimously affirmed (28 AD3d 318 [2006]), and a Judge of this Court granted defendant leave to appeal (7 NY3d 758 [2006]). We now reverse and order a new trial.

Discussion

Over the past few decades, criminal defendants have increasingly called on psychologists to offer expert opinion testimony regarding the objective and subjective factors that influence the reliability of eyewitness identifications. They argue that misidentifications may lead to false convictions and that in certain cases, experts may offer the jury much needed guidance regarding how to assess the reliability of an identification. Typically, such expert testimony is based on research findings from experiments that test how accurately experiment subjects (i.e., “witnesses”) recall faces and other details under various conditions. According to one commentator, the overall research findings show that

“witnesses often make mistakes, that they tend to make more mistakes in cross-racial identifications as well as when the events involve violence, that errors are easily introduced by misleading questions asked shortly after the witness has viewed the simulated happening, and that the professed confidence of the subjects in their identifications bears no consistent relation to the accuracy of these recognitions” (1 McCormick, Evidence § 206, at 880 [6th ed 2006]).

Although there may be risks associated with allowing an expert to apply research findings from experiments on the reliability of eyewitness identifications to real-life identifications, these findings — produced through sound, generally accepted experimentation techniques and theories, published in scholarly journals and subjected to peer review — have over the years gained acceptance within the scientific community. On this point, then Judge Kaye previously stated that

“[t]o the extent that judicial acceptance is indicative of general scientific acceptance, the emerging trend today is to find expert psychological testimony on eyewitness identification sufficiently reliable to be admitted, and the vast majority of academic commentators have urged its acceptance .... [Psychological research data is by now abundant, and the findings based upon it concerning cognitive factors that may affect identification are quite uniform and well documented” (People v Mooney, 76 NY2d 827, 829-830 [1990, Kaye, J., dissenting] [citations omitted]).

However, “in recognition that expert testimony of this nature may involve novel scientific theories and techniques, a trial court may need to determine whether the proffered expert testimony is generally accepted by the relevant scientific community” (Lee, 96 NY2d at 162, citing People v Wesley, 83 NY2d 417, 423-429 [1994]).

Eleven years after Mooney, we reexamined the admissibility of expert testimony on the issue of reliability of eyewitness identifications in Lee. In that case, defendant sought to introduce expert testimony on how factors such as the duration of an encounter, stress involved in the encounter and the passage of time between the crime and identification affect memory and eyewitness identification. The defendant also sought to have the expert explain the lack of correlation between a witness’s confidence and the accuracy of the identification. The hearing court summarily rejected the eyewitness testimony as inadmissible. We held that in so rejecting the expert testimony, the court failed to exercise its discretion; “while such expert testimony is not inadmissible per se, the decision whether to admit it rests in the sound discretion of the trial court” {Lee, 96 NY2d at 160). A court’s exercise of discretion depends largely on whether jurors, after the court considers their “day-to-day experience, their common observation and their knowledge,” would benefit from the specialized knowledge of an expert witness (see id. at 162, quoting People v Cronin, 60 NY2d 430, 433 [1983]). The trial court should weigh defendant’s request to admit expert testimony against factors “such as the centrality of the identification issue and the existence of corroborating evidence” (id. at 163). Under the particular facts and circumstances in Lee, we concluded that the trial court did not abuse its discretion in excluding the expert testimony.

In People v Young (7 NY3d 40 [2006]), this Court again examined the issue of the admissibility of expert testimony on the reliability of eyewitness identifications. Based upon the particular facts in that case, we found no abuse of discretion when the trial court excluded the testimony. In Young, defendant sought to introduce expert testimony

“that people are generally more accurate in identifying people of their own race than of another race; that, where a crime is committed with a weapon, the victim’s tendency to focus on the weapon may interfere with his or her observation of the criminal; that a stressful experience is more likely to be a memorable one up to a moderate level of stress, but that events generating higher levels of stress are remembered less well; and that there is only a very weak relationship between a witness’s confidence in the accuracy of his or her recollection and its true accuracy — i.e., that people very confident in their recollections are often wrong” (id. at 43 [internal quotation marks omitted]).

In holding that the trial court did not abuse its discretion when it excluded the expert’s testimony, we noted that the factors discussed by the expert were relevant to the victim’s identification of defendant and that “if this case turned entirely on an uncorroborated eyewitness identification, it might well have been an abuse of discretion to deny the jury the benefit of [the expert’s] opinions” (id. at 45).

Thus, it is clear that expert testimony regarding the factors that affect the accuracy of eyewitness identifications, in the appropriate case, may be admissible in the exercise of a court’s discretion. Moreover, there are cases in which it would be an abuse of a court’s discretion to exclude expert testimony on the reliability of eyewitness identifications.

We now conclude that this case falls in the latter category and that defendant’s expert should have been allowed to testify. In reaching this conclusion, we first note that the hearing court recognized the importance of the evidence to the defense and found that the proposed expert testimony was relevant to the issues and facts of this case. Further, we consider this case in light of Lee. It is clear that this case turned solely on the accuracy of the witnesses’ identification; however, unlike Lee and Young, there was no corroborating evidence connecting defendant to the commission of the crime charged. Plainly, in light of these facts, the testimony of defendant’s expert would have benefitted the jury in evaluating the accuracy of the eyewitness identifications.

In spite of the foregoing, the court excluded the testimony as not generally accepted in the scientific community under Frye v United States (293 F 1013 [DC Cir 1923]). In Frye, the court stated

“[j]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs” (id. at 1014).

Accordingly, “the Frye test asks ‘whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally’ ” (Parker v Mobil Oil Corp., 7 NY3d 434, 446 [2006], quoting Wesley, 83 NY2d at 422). Further, this test “emphasizes ‘counting scientists’ votes, rather than . . . verifying the soundness of a scientific conclusion’ ” (id. at 447, quoting Wesley, 83 NY2d at 439 [Kaye, Ch. J., concurring]). Once the general reliability concerns of Frye are satisfied, the court will consider whether there is a proper foundation “for the reception of the evidence at trial” (id., quoting Wesley, 83 NY2d at 429). We conclude that it was not error for the court to conduct a Frye hearing, although we recognize that this Court and other New York courts have permitted and upheld a qualified expert’s testimony regarding research findings on patterns of human behavior without first requiring a Frye hearing. Further, expert opinion testimony regarding the reliability of an eyewitness identification should be treated in the same manner as testimony offered by other experts. A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony. “Once a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is offered [and courts] may take judicial notice of reliability of the general procedure” (Wesley, 83 NY2d at 436 [Kaye, Ch. J., concurring]). Moreover, a number of New York courts have found that the Frye test has been met after considering whether factors that may affect eyewitness identifications should be admitted.

Here, defendant’s expert offered testimony at the Frye hearing that four factors which may influence the reliability of eyewitness identifications are generally accepted in the scientific community. In support of the expert’s testimony, a survey demonstrating acceptance of these factors by an overwhelming majority of the experts in this particular field was introduced at the hearing. The methodology and results of this survey were criticized by the People’s expert witness. We agree that the survey alone is not dispositive of the Frye issue; however, as to three of these factors — correlation between confidence and accuracy of identification, the effect of postevent information on accuracy of identification and confidence malleability — the defense expert’s testimony contained sufficient evidence to confirm that the principles upon which the expert based his conclusions are generally accepted by social scientists and psychologists working in the field. Accordingly, defendant met his burden under Frye. As such, testimony as to these factors should not have been precluded at defendant’s second trial. As to the fourth factor (the effect of weapon focus), we agree that there was insufficient evidence to confirm that the principles expounded by defendant’s expert witness are generally accepted by the relevant scientific community. Thus, testimony as to this factor was properly excluded.

Significantly, during the pretrial Frye hearing, the People proffered their own expert to challenge the defense expert’s conclusions. In the scheme of things, it must be presumed that this witness would likewise have been available to testify before the jury. Further, it should be noted that although we hold that the expert testimony should have been admitted in this case, the court would still be obliged to exercise its discretion with regard to the relevance and scope of such expert testimony. Plainly, not all categories of such testimony are applicable or relevant in every case. In that event, admissibility would rest within the trial court’s sound discretion.

Although the trend has been of late to more liberally admit such testimony — as recognized in Lee and Young — the admissibility of such evidence would also depend upon the existence of sufficient corroborating evidence to link defendant to the crime. In the event that sufficient corroborating evidence is found to exist, an exercise of discretion excluding eyewitness expert testimony would not be fatal to a jury verdict convicting defendant. Under the facts and circumstances of this case, the hearing court abused its discretion in failing to admit eyewitness expert testimony on the question of identification.

Defendant’s remaining contention that his constitutional right to a speedy trial was violated lacks merit.

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

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott concur.

Order reversed, etc.

      . For common definitions of these factors, we refer the reader to People v LeGrand (196 Misc 2d 179, 180-181 [Sup Ct, NY County 2002]).

      . See e.g., People v Brown, 97 NY2d 500 (2002); People v Taylor, 75 NY2d 277 (1990); Matter of Nicole V., 71 NY2d 112 (1987); People v Keindl, 68 NY2d 410 (1986); Selkowitz v County of Nassau, 45 NY2d 97 (1978); People v Henson, 33 NY2d 63 (1973); People v Ciervo, 123 AD2d 393 (2d Dept 1986); People v Smith, 191 Misc 2d 765 (Sup Ct, NY County 2002).

      . See e.g., People v Drake, 188 Misc 2d 210 (Sup Ct, NY County 2001); People v Beckford, 141 Misc 2d 71 (Sup Ct, Kings County 1988); People v Lewis, 137 Misc 2d 84, 86 (Monroe County Ct 1987); People v Brooks, 128 Misc 2d 608 (Westchester County Ct 1985).


author: Read, J.

text:
    [867 NE2d 397, 835 NYS2d 546]
    The People of the State of New York, Respondent, v James W. Newton, Jr., Appellant.
    Argued March 21, 2007;
    decided May 1, 2007

      POINTS OF COUNSEL

      Mitch Kessler, Cohoes, for appellant.
    County Court violated appellant’s constitutional due process right to a fair trial by denying his request for a jury instruction on intoxication as a defense to the third-degree sodomy count, since (a) intoxication may negate the mental state necessary for the commission of third-degree sodomy as charged in the indictment, and (b) there was sufficient evidence of appellant’s intoxication to create a question of fact for the jury as to whether he was able to form that mental state. (People v Koerber, 244 NY 147; Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575; People v Ressler, 302 AD2d 921; People v Coe, 71 NY2d 852; People v Williams, 81 NY2d 303; People v Erts, 73 NY2d 872; People v Tabarez, 69 NY2d 663; People v Perry, 61 NY2d 849; People v Gaines, 83 NY2d 925; People v Felder, 178 AD2d 936.)

      Gerald F Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
    The trial court properly denied defendant’s request to charge intoxication as a defense to sodomy in the third degree. (People v Perry, 61 NY2d 849; People v Gaines, 83 NY2d 925; People v Park, 12 AD3d 942; People v Salco, 302 AD2d 613; People v Brown, 226 AD2d 1108; People v Williams, 81 NY2d 303; People v Hamilton, 256 AD2d 922; People v Goetz, 68 NY2d 96; People v Di Paola, 143 AD2d 487; People v Koerber, 244 NY 147.)
   OPINION OF THE COURT

Read, J.

On March 19, 2003, defendant James W. Newton, Jr. was indicted for the crimes of sodomy in the first degree (Penal Law § 130.50 [1]), sexual abuse in the first degree (Penal Law § 130.65 [1]) and sodomy in the third degree (Penal Law § 130.40 [3]). The three-count indictment accused defendant of engaging in oral sex with a 19-year-old male by forcible compulsion and without consent (by virtue of something other than incapacity). In light of these allegations, a declaration of delinquency charged defendant with violating the conditions of the sentence of probation imposed upon him in 2000 after his conviction for second-degree assault. Defendant contended that the alleged victim did not resist or otherwise communicate a lack of consent, and that he perceived the sexual act to be consensual. It is undisputed that defendant had been consuming beer steadily in the hours before this incident.

At trial, defense counsel asked the court to instruct the jury on intoxication with respect to both sodomy counts (see Penal Law § 15.25 [while “(i)ntoxication is not, as such, a defense to a criminal charge,” evidence of a defendant’s intoxication may be offered whenever “relevant to negative an element of the crime charged”]). Instead, the court charged the jury on intoxication with respect to first-degree sodomy only, reasoning that this crime called for the factfinder to conclude beyond a reasonable doubt that defendant intended to engage in forcible compulsion (see People v Williams, 81 NY2d 303, 316-317 [1993] [“intent is implicitly an element of’ first-degree rape and first-degree sodomy, and “(t)he intent required is the intent to perform the prohibited act — i.e., the intent to forcibly compel another to engage in intercourse or sodomy”]; see also People v Perry, 61 NY2d 849 [1984] [charge on intoxication should be given if there is sufficient evidence in the record for a reasonable person to entertain a doubt as to whether defendant possessed the requisite mental state, such as intent, on that basis]).

Regarding third-degree sodomy, however, the court instructed the jury that “intoxication is not a defense under any circumstances” because there was no element of intent or other subjective mental state required for this crime. “Rather, . . . sodomy in the third degree involves an allegation that a reasonable person in the defendant’s situation would have understood the . . . alleged victim’s words and acts as an expression of a lack of consent.” As a result, the court charged the jury that “if the defendant failed to so understand solely as a result of intoxication[,] such would not be a defense under the law” to third-degree sodomy. The jury ultimately acquitted defendant of sodomy in the first degree, and convicted him of sodomy in the third degree.

Defendant subsequently pleaded guilty to the violation of probation, with the understanding that the trial judge would impose a determinate sentence of five years of imprisonment to be followed by three years of postrelease supervision, which would run concurrently with his sentence for the sodomy conviction. On March 5, 2004, the court sentenced defendant as a second felony offender to an indeterminate prison term of 2 to 4 years for the sodomy conviction, and to the agreed-upon concurrent sentence for the violation of probation. The Appellate Division affirmed the judgment of conviction, rejecting defendant’s argument that the trial court should have instructed the jury to consider intoxication in connection with the third-degree sodomy charge. A Judge of this Court granted defendant leave to appeal, and we now affirm.

To be guilty of third-degree sodomy under Penal Law § 130.40 (3), defendant was required to have engaged in the sexual act “with another person without such person’s consent where such lack of consent [was] by reason of some factor other than incapacity to consent.” The Sexual Assault Reform Act fleshed out this crime by specially defining “lack of consent” for purposes of third-degree sodomy as

“circumstances under which, at the time of the [sexual act], the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances” (Penal Law § 130.05 [2] [d]).

This provision was

“designed to address the so-called date rape or acquaintance rape situations [where] there [might] be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent, and a reasonable person in the actor’s situation would understand that the victim was expressing a lack of consent” (Donnino, Main Volume Supp Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 130, at 220 [citation and internal quotation marks omitted]).

Further,

“[t]he use of the term ‘reasonable person’ in the ‘actor’s situation’ imports an objective element into the determination of whether there was a clear expression of non-consent to the [sexual act]. Although the ‘reasonable person’ must stand in the shoes of the actor, if such a person would understand that the victim was expressing a lack of consent, then it does not matter that the accused thought otherwise” (id. at 220-221 [emphasis added and citation omitted]).

In short, the proper inquiry for the factfinder is not whether a defendant actually perceives a lack of consent, but whether the victim, by words or actions, clearly expresses an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting. Otherwise, it would not be enough for a victim simply to say “No.” Every prosecution would devolve into a dispute over whether the particular defendant might have misapprehended whether “No” really meant “No” for one reason or another. As the People point out, if the Legislature had, in fact, intended to take a defendant’s subjective mental state into account, it could have drafted the statute to require the accused to know or have reason to know that the victim was not consenting; or the Legislature could have furnished an accused with an affirmative defense of lack of knowledge (see e.g. Penal Law § 130.10 [1] [providing for an affirmative defense of lack of knowledge of incapacity where victim’s lack of consent is based solely upon incapacity to consent because of mental disability, mental incapacity or physical helplessness]).

Because a defendant’s subjective mental state is not an element of the crime of third-degree sodomy, evidence of intoxication at the time of the sexual act is irrelevant. Thus, the trial judge in this case properly declined to instruct the jury on intoxication with respect to the charge of this crime.

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

Chief Judge Kaye and Judges Ciparick, Grapfeo, Smith, Pigott and Jones concur.

Order affirmed.

      . The Sexual Assault Reform Act (L 2000, ch 1), as subsequently amended, modernized the nomenclature used to describe certain crimes and terms in article 130 of the Penal Law. As a result, “sodomy” was later renamed “criminal sexual act” (see L 2000, ch 1, § 56; L 2003, ch 264, §§ 18, 20, 71).

      . The trial judge had already dismissed the count alleging sexual abuse in the first degree.


author: Pigott, J. Chief Judge Kaye

text:
    [867 NE2d 389, 835 NYS2d 538]
    In the Matter of City of Long Beach, Respondent, v Civil Service Employees Association, Inc. — Long Beach Unit, Appellant.
    Argued March 22, 2007;
    decided May 1, 2007

      POINTS OF COUNSEL

      Law Offices of Louis D. Strober, Jr., LLC, Garden City (Louis D. Strober, Jr., of counsel), for appellant.
    I. The petition to stay arbitration was improperly granted. (Matter of Alden Cent. School Dist. v Watson, 56 AD2d 713; Matter of Sprinzen [Nomberg], 46 NY2d 623; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774.) II. Arbitration is the preferred method of resolving disputes under collective bargaining agreements. (Matter of Alden Cent. School Dist. v Watson, 56 AD2d 713; County of Ontario v Faculty Assn. of Community Coll, of Finger Lakes, 56 AD2d 189; Matter of Board of Educ. of W. Irondequoit Cent. School Dist. v West Irondequoit Teachers Assn., 55 AD2d 1037; Belmont Cent. School Dist. v Belmont Teachers Assn., 51 AD2d 653; Matter of Kepp v Springville-Griffith Inst. Cent. School Dist., 55 AD2d 1033, 43 NY2d 767; Matter of South Colonie Cent. School Dist. v Longo, 55 AD2d 753, 43 NY2d 136; New York Inst. of Technology v Council of Metropolitan & Old Westbury Chs., Am. Assn. of Univ. Professors, 47 AD2d 659; Susquehanna Val. Cent. School Dist. at Conklin v Susquehanna Val. Teachers’ Assn., 46 AD2d 104, 37 NY2d 705; Matter of Silverman [Benmor Coats], 61 NY2d 299; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364.) III. The two-part test to determine whether a public employee’s grievance is subject to arbitration has been met in this matter. (Matter of Van Scoy [Holder], 265 AD2d 806; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of Board of Educ., Potsdam Cent. School Dist. [Kmack], 216 AD2d 718; Matter of County of Sullivan [Sullivan County Empls. Assn.], 235 AD2d 748.) IV. The employer voluntarily negotiated job security (tenure) provisions thereby Hmiting its own discretion in layoff situations. (Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of Heslin v City of Cohoes, 74 AD2d 393; Matter of Niagara Wheatfield Adm’rs Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 746; Matter of Marcellus Cent. School Dist. [Marcellus School Off. Personnel Assn.], 177 AD2d 935; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268; Board of Educ., Bellmore-Merrick Cent. High School Dist., Nassau County v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of Associated Teachers of Huntington v Board of Educ., Union Free School Dist. No. 3, Town of Huntington, 33 NY2d 229; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Matter of Burke v Bowen, 40 NY2d 264.)

      Corey E. Klein, Corporation Counsel, Long Beach, for respondent.
    I. The State Constitution and Civil Service Law mandate appointments be made by merit and fitness. (Palmer v Board of Educ. of Union Free School Dist. No. 2, Town of Geddes, 276 NY 222; McGowan v Burstein, 71 NY2d 729; Matter of Civil Serv. Empls. Assn., Westchester Ch., Local 860 v Town of Harrison, 48 NY2d 66; Matter of Giordano v Henry, 44 AD2d 835; Amico v Erie County Legislature, 36 AD2d 415; Matter of Montero v Lum, 68 NY2d 253; McGowan v Burstein, 71 NY2d 729; Matter of Sikich v Hughes, 274 App Div 675.) II. Provisional employees are not entitled to rights as tenured employees. (Koso v Greene, 260 NY 491; Matter of Preddice v Callanan, 69 NY2d 812; Edelman v Israel, 208 AD2d 1104; Matter of Giordano v Henry, 44 AD2d 835; Matter of Vacca v Town of Southeast, 206 AD2d 433; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774.) III. Public policy precludes arbitration. (Matter of Blackburne [Governor’s Off. of Empl. Relations], 87 NY2d 660; Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273; Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 49 NY2d 732; Board of Educ., Great Neck Union Free School Dist. v Areman, 41 NY2d 527;
      Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of County of Fulton [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, CSEA Local 818, Fulton County Gen. Unit], 14 AD3d 771; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 268 AD2d 523; Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 NY3d 660; Matter of Sprinzen [Nomberg], 46 NY2d 623.)
   OPINION OF THE COURT

Pigott, J.

Petitioner City of Long Beach (City) brought this CPLR article 75 proceeding to stay two arbitrations demanded by respondent Civil Service Employees Association, Inc. — Long Beach Unit (CSEA) on behalf of several terminated provisional employees. The central issue in this case is whether the subject claims are arbitrable under the terms of a Collective Bargaining Agreement (CBA) between the parties. We conclude that they are not, and therefore affirm the Appellate Division order granting the City’s petition and permanently staying arbitration.

I.

In March 2004, the New York State Civil Service Commission issued a “Report on Merit System Administration for the City of Long Beach Civil Service Commission” that, among other things, admonished the City for its poor control over provisional appointments within the civil service system. In particular, the report noted that a number of competitive class positions had been improperly filled with and retained by provisional employees; at least one for as long as 19 years.

In response to the report, the City appointed a new Civil Service Commission that directed the City to address the issue. The City wrote to several employees occupying provisional appointments and informed them that, based upon a review of its records, there was reason to believe that they were serving in a provisional capacity beyond the statutorily prescribed time period. The employees were provided with an opportunity to meet with City officials to discuss their employment status prior to any final employment action. Following these meetings, the City determined that the continued employment of certain provisional employees violated applicable civil service laws and regulations and terminated them.

CSEA filed grievances on behalf of the terminated provisional employees, alleging that pursuant to the terms of the CBA, the employees were “tenured” and entitled to be rehired to another position. In its demands for arbitration, CSEA relied on the following tenure provisions found in article VI of the CBA:

“Section 6-1.0 — Definition of Tenure
“Employees with one (1) year of service in the annual employment of the City, regardless of classification, will be deemed tenured employees. This period of tenure is to be computed retroactively and only employees enumerated in Section 2-1.0 of this Agreement shall be deemed non-tenured.
“Section 6-1.1 — Rights of Tenured Employees
“All tenured employees will be protected from separation from employment with the City for any reason other than (a) voluntary withdrawal; (b) dismissal for disciplinary reasons after a hearing pursuant to Section 75 of the Civil Service Law; (c) provisional employees in the competitive class will be protected by tenure with the exception that their employment may be terminated pursuant to Civil Service Law should it be necessary pursuant to Civil Service Law to appoint a qualified candidate from a Civil Service eligible list to their position. In that event, the displaced provisional employee will be transferred by the City to another position in the City for which he/she qualifies, should such a position be open. A position will be deemed open if it was vacated within six (6) months of a tenured provisional employee’s displacement by a candidate from an eligible list certified by the Civil Service Commission.”

The City brought this action seeking to stay arbitration on public policy grounds. CSEA answered and cross-moved to compel arbitration.

Supreme Court granted the City’s petition, denied CSEA’s cross motion and permanently stayed arbitration. The court held that the contractual provisions for grievance and arbitration are not enforceable due to the provisional status of the employees. The Appellate Division affirmed the judgment, holding that “[b]ecause the provisions of the parties’ collective bargaining agreement upon which [CSEA] relies have the effect of limiting the [City’s] ability to discharge provisional employees, those provisions are against public policy and unenforceable as a matter of law” (29 AD3d 789, 790 [2d Dept 2006]). This Court granted leave.

II.

As a general rule, “public policy in this State favors arbitral resolution of public sector labor disputes” (Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, 372 [1997]). We have repeatedly held, however, that a dispute is not arbitrable when the subject matter of the dispute violates a statute, decisional law or public policy (see e.g. Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006]; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273 [2000]). In this case, the subject dispute is not arbitrable because granting the relief sought on behalf of the provisional employees under the so-called “tenure” provisions of the CBA would violate the Civil Service Law and public policy.

Our State Constitution mandates that civil service appointments and promotions “shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive” (NY Const, art V, § 6). “The purpose of this provision was to replace the spoils system with a system of merit selection and to protect the public as well as the individual employee” (Matter of Montero v Lum, 68 NY2d 253, 258 [1986]). This constitutional mandate “may not be blinked or avoided” (Matter of Board of Educ. of City of N.Y. v Nyquist, 31 NY2d 468, 472 [1973]). Even in instances where a competitive examination is not “practicable,” appointments to classified civil service positions outside the exempt and labor classes may be made only “after such noncompetitive examination as is prescribed by the state civil service department or municipal commission having jurisdiction” (Civil Service Law § 42 [1]).

“Although the constitutional merit and fitness provision has been recognized as ‘self-executing,’ the Legislature has enacted a number of statutes to implement the constitutional merit and fitness and competitive examination requirements” (Buffalo Bd. of Educ., 90 NY2d at 374 [citation omitted]). With respect to provisional appointments, the Civil Service Law authorizes such appointments only when there is no eligible list available for filling a vacancy in a competitive class, and then only for a maximum period of nine months (see Civil Service Law § 65 [1],

[2]). Once a provisional employee has been in a position for one month, the City must hold a civil service examination (see Civil Service Law § 65 [2]). Furthermore, any provisional appointment to a position must end within two months of the establishment of an appropriate eligible list, with only a narrowly defined exception applicable when termination would “disrupt or impair essential public services” (see Civil Service Law § 65 [3]), a provision not applicable here. Further, a provisional employee may be terminated “at any time without charges preferred, a statement of reasons given or a hearing held” (Matter of Preddice v Callanan, 69 NY2d 812, 814 [1987]). The statutory scheme contained in section 65 by its very terms prohibits any right of tenure to provisional employees. Properly construed, the Civil Service Law renders the provisions of the CBA upon which CSEA relies meaningless.

We have long held that appointments made pursuant to Civil Service Law § 65 carry no expectation nor right of tenure (see Montero, 68 NY2d 253 [1986]; Matter of Hilsenrad v Miller, 284 NY 445 [1940]; Koso v Greene, 260 NY 491 [1933]). Provisional employees,

“though in a sense holding positions in the competitive class, are, for reasons of necessity, exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by period of tenure under the [Civil Service Law]” (Koso, 260 NY at 494).

Such appointments “are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions” and “[w]hile such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment” (id. at 495).

CSEA relies on those portions of the CBA which provide that a provisional appointee is considered a tenured employee after one year of service. The Civil Service Law, however, clearly sets a time limitation on provisional appointments and that period is nine months. The City therefore cannot agree to provide superior rights to provisional employees holding positions beyond that statutory time period. Because the provisions under the CBA are unenforceable as a matter of law, we need not concern ourselves with the particular relief requested by CSEA, i.e. whether the provisional employees may be rehired to noncompetitive or competitive positions. A provisional employee cannot be entitled to any right of continued employment under the terms of this CBA, regardless of the nature of the requested position.

Policy considerations warrant strict compliance by employers with the time limitations imposed under the Civil Service Law. Such limitations are necessary to ensure adherence to the constitutional preference for merit selection. As illustrated in this case, an employer may sometimes abuse its authority to make provisional appointments and retain provisional employees far beyond their statutory purpose. In doing so, the employer fails to meet its obligation to render a competitive examination and create an eligible list within one month of a provisional appointment. Allowing parties to enter into agreements that give tenure rights to provisional employees who have served beyond the statutory time limit would only perpetuate this harm. The failure to administer timely examinations prevents the identification and hiring of qualified candidates from eligible lists, as required by the Civil Service Law, and misleads provisional appointees into having expectations of continued employment beyond that permitted by law.

We therefore conclude that the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye

(dissenting in part). In March 2004, the Civil Service Commission, having reviewed the civil service employment practices of the City of Long Beach, recommended that the City cease to rely on provisional appointments to fill a number of its civil service provisions, and instead, as far as practicable, make appointments based on competitive examination.

This case concerns the period following the issuance of the Commission’s report, when the City moved toward implementing its recommendations. In particular, what is at issue here are provisions of a collective bargaining agreement (CBA) negotiated more than 30 years ago between the City and the CSEA, dealing with “tenure” provisions for provisional employees.

I agree that, as an arbitrator may not rely on the portion of the CBA that purports to grant tenure to provisional employees after one year of service (section 6.1-0), or on the section that prohibits termination until and unless the City appoints from an eligible list (section 6-1.1 [c]), a stay should be granted with regard to arbitration of section 6.1-0 and the first part of section 6-1.1. I conclude, however, that the second component of the bargained-for section 6-1.1 (c) — that a displaced provisional worker will be transferred into an open position for which he or she is qualified — is arbitrable.

Maria Almonte was employed by the City in a provisional capacity as a bus dispatcher from 1989 to June 30, 2004. Prior to serving as a dispatcher, she was employed by the City of Long Beach in the noncompetitive position of bus driver from 1985 to 1989. Ms. Almonte served the City in these two positions for close to 20 years. After being notified that she would be terminated due to her status as a provisional worker serving beyond the statutory period, she requested that, pursuant to section 6-1.1 (c) of the CBA, she be given a vacant bus driver position for which she was qualified; she had previously served in the bus driver position and held a valid driver’s license. The City refused her request and hired someone else the day after her termination as dispatcher became effective.

On June 4, 2004, Ms. Almonte filed a grievance with the City pursuant to article X of the CBA, which sets forth procedures for resolution of any dispute concerning the “interpretation or application of express terms of the Agreement” (section 10-1.5), and provides that any dispute not settled in step one or two of the grievance procedure may be submitted to arbitration by either party (section 10-1.4). Her grievance claimed that she was “wrongfully terminated as per CSEA CBA,” and that she “should be reinstated as a Bus Driver.” The CSEA initiated a class action grievance on behalf of provisional employees terminated in violation of the CBA, joined Ms. Almonte as a petitioner, and on June 22, 2004, filed two demands for arbitration. The second demand, addressing Ms. Almonte’s particular request for relief, stated that “grievant should be afforded the right to be placed in a position she is qualified for, if a vacancy exists. There is a Bus Driver vacancy available on a June 7 job posting that she is qualified for. Grievant should be slotted into that vacancy.” Supreme Court granted the City a stay of arbitration and the Appellate Division affirmed.

For the reasons that follow, I disagree with the majority’s conclusion that we need not concern ourselves with the specific relief requested. Ms. Almonte was entitled to have her grievance submitted to arbitration in accordance with the CBA.

Initially, although the grievance cites to section 6.1-1, we are not prohibited from analyzing the request for placement, a request that relies on the second component of section 6.1-1 (c) independent of the first. An interpretation of the placement relief requested by Ms. Almonte as separable from the purported grant of “tenure” otherwise included in the provision gives meaning to the intent of the parties to the extent permitted by the Civil Service Law (see, e.g. Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778 [1976] [upholding bargained-for procedural protections for probationary employees although finding provision granting tenure unenforceable]).

Implicit in the Civil Service Law is the conclusion that, for purposes of the CBA, a position may be “open” only if it is noncompetitive, or if a different competitive position is available for which there is no eligible list. As acknowledged by the parties, where an eligible list does exist, the position would be filled pursuant to the mandatory appointment provisions and the one-in-three requirement of the Civil Service Law (see Civil Service Law §§ 65, 61; CBA § 6.1-1).

Accordingly, placement of a terminated provisional employee into an open position would not disrupt a merit-based appointment. It would only acknowledge a bargained-for preference in favor of a provisional employee within a field of candidates qualified for a noncompetitive position, or within a competitive position for which there were no eligible candidates (see, e.g. Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 81 [2003] [upholding award that “did not force the Board to hire or select a nonqualified candidate for a teaching position”]; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 746 [1978] [a municipal employer may agree to give preference for filling of vacancies to certain individuals among applicants equally qualified for the position]).

The majority takes issue with granting a worker who has been provisionally employed for more than one year what it deems to be rights superior to those granted a provisional worker who is replaced by the City within a nine-month period as per statutory mandate. The Civil Service Law itself, however, does not prohibit the City and the CSEA from negotiating limited protections for provisional employees based on the length of time they have served the City. Any such prohibition stems from the statute’s requirement that provisional appointments be terminated after nine months (Civil Service Law § 65 [2]), from its failure to provide provisional employees the right to a hearing or to an appeal (see Civil Service Law §§ 75, 76), and from its merit-based system of appointment from eligible lists based on examination (see Civil Service Law § 65).

Ms. Almonte’s placement in the bus driver position at issue does not conflict with any of the implicit statutory prohibitions. The City was free to terminate Ms. Almonte prior to the expiration of the nine-month period as required by statute and chose not to do so. In her demand for arbitration, she is not requesting review of her termination, nor does she ask for reinstatement in contravention of an eligible list. “Where an arbitrator may be able to fashion a remedy not in violation of public policy,” the Court should not intervene (see Matter of Committee of Interns & Residents [Dinkins], 86 NY2d 478, 484 [1995]).

Plainly, provisional employment cannot ripen into permanent appointment (see Koso v Greene, 260 NY 491, 495 [1933]). Provisional workers have no preferential rights of permanent employment or of “retention over those higher in eligibility” (id.; see also Matter of Preddice v Callanan, 69 NY2d 812, 813 [1987] [provisional workers have “no expectation of tenure and rights attendant thereto”]).

The placement requested here, however, is not tantamount to permitting a provisional appointment to ripen into permanency, or to granting a provisional employee rights equivalent to tenure. Ms. Almonte is not requesting reinstatement to her provisional position as bus dispatcher, for which she is admittedly not qualified. She is instead simply requesting placement in a separate noncompetitive position for which she is qualified. Upon placement, she would be subject to the mandatory probationary period preceding any permanent appointment (see 4 NYCRR 4.5 [a]), or subject to termination at any time if the placement were provisional. In either case, the City could terminate Ms. Almonte prior to the vesting of any rights afforded a permanent employee.

The cases concerning provisional appointments cited by the majority do not address the situation presented here: a provisional employee seeking placement in a noncompetitive position pursuant to a negotiated collective bargaining agreement. Rather, they involve employees seeking continuation or reinstatement to a competitive position under the Civil Service Law, often ahead of candidates with greater eligibility (see Preddice, 69 NY2d 812 [provisional employee has no right to reinstatement or back pay notwithstanding jury verdict that he was discharged in bad faith]; Matter of Montero v Lum, 68 NY2d 253 [1986] [probationary period for permanent position began when employee passed civil service exam, not when he was appointed to temporary position]; Matter of Hilsenrad v Miller, 284 NY 445 [1940] [temporary appointment to permanent position did not become permanent upon five-month extension]; Koso, 260 NY 491 [1933] [term of preceding provisional appointment may not be counted toward length of permanent appointment for purpose of layoffs based on seniority within competitive position]). The clear requirement, evident in these cases, of merit-based selection within competitive positions where practicable need not be confused with a prohibition on agreements granting a limited preference based on seniority within noncompetitive positions. Significantly, not one of the cases cited involves a bargained-for agreement between sophisticated parties or under authority of the Taylor Law.

When there is no direct conflict with statutory or decisional law, this Court favors a policy of “noninterference” with the arbitration of legal disputes (Matter of Sprinzen [Nomberg], 46 NY2d 623, 629 [1979]). Correlatively, we have allowed arbitrators “expansive power ... to fashion fair determinations of the parties’ rights and remedies” (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO,. 99 NY2d 1, 7 [2002]). This policy of encouraging arbitration is even weightier when it comes to public employment, as not only does the Taylor Law require collective bargaining, but also “public policy in this State favors arbitral resolution of public sector labor disputes” (Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, 372 [1997]). In fact, we have noted that “arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself” (Transport Workers, 99 NY2d at 8, quoting Steelworkers v Warrior & Gulf Nav. Co., 363 US 574, 578 [I960]), as labor arbitrators are uniquely qualified to resolve disputes due to their personal experience, knowledge and competence in the field.

Finally, the majority assumes that requiring the parties to abide by the provision they negotiated will provide a disincentive to the City to offer testing for competitive positions and to otherwise comply with the time limits set forth in section 65 of the Civil Service Law. Not so. A permissible interpretation of the negotiated placement provision would merely place a terminated employee in an open noncompetitive position or in a competitive position for which a noneligible person could otherwise be appointed on a provisional basis. It would not fill a permanent competitive position that requires examination. The City can, and should, give tests and create eligible lists, as recommended by the Civil Service Commission. The fact that the section of the CBA at issue does not commence until after one year’s service is similarly irrelevant. The City’s apparent difficulty in limiting the length of its provisional appointments to the statutory nine-month period should not provide yet another policy reason to allow it to avoid a bargained-for provision, and to adversely affect the status of civil service employees relying in good faith on protections afforded them by the CBA.

The provision of the CBA at issue affords limited seniority protection to provisional employees like Maria Almonte who would, after long service, be left with no City employment at all. As we recently confirmed in Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807 (8 NY3d 513 [2007]), in a case (such as this one) where a lawful interpretation of a provision of the parties’ negotiated agreement is possible, the Court’s strong policy of promoting arbitration of public labor disputes requires that we allow the arbitration to proceed.

Judges Graffeo, Read, Smith and Jones concur with Judge Pigott; Chief Judge Kaye dissents in part and votes to modify in a separate opinion in which Judge Cipajrick concurs.

Order affirmed, with costs.


author: Chief Judge Kaye.

text:
    [868 NE2d 189, 836 NYS2d 509]
    Arthur Ross et al., Respondents-Appellants, v Louise Wise Services, Inc., Appellant-Respondent.
    Argued March 27, 2007;
    decided May 3, 2007

      POINTS OF COUNSEL

      Sedgwick, Detert, Moran & Arnold LLP, New York City (David M. Covey and Caryn M. Silverman of counsel), for appellant-respondent.
    I. Wrongful adoption claims against social service agencies, such as Louise Wise Services, Inc., do not warrant punitive damages as a matter of law; the decisions in Juman v Louise Wise Servs. (3 AD3d 309 [2004]) and Jeffrey BB. v Cardinal McCloskey School & Home for Children (257 AD2d 21 [1999]), factually indistinguishable from this case, are dispositive. (Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603; Walker v Sheldon, 10 NY2d 401.) II. This Court has held repeatedly that punitive damages may be available as a matter of law only in limited circumstances; therefore, the First Department erred as a matter of law in holding that the record supports a claim for punitive damages. (Walker v Sheldon, 10 NY2d 401; Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196; 164 Mulberry St. Corp. v Columbia Univ., 4 AD3d 49; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Rudin Mgt. Co. v Commissioner, of Dept. of Consumer Affairs of City of N.Y., 213 AD2d 185; Matter of Kennedy v Kennedy, 251 AD2d 407, 92 NY2d 818; Matter of Hays v Ward, 179 AD2d 427, 80 NY2d 754.) III. The First Department erred in holding that punitive damages are potentially available where no showing has been made that such damages are necessary, under the circumstances, to deter future or similar conduct. (Hartford Acc. & Indem. Co. v Village of Hempstead, 48 NY2d 218; Walker v Sheldon, 10 NY2d 401; Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309.) IV. Punitive damages may not be utilized as a means of addressing a perceived inequity in the compensatory damages potentially recoverable. (Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309; Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196; Jeffrey BB. v Cardinal McCloskey School & Home for Children, 257 AD2d 21; Juman v Louise Wise Servs., 3 AD3d 309.) V. A trial of the punitive damages claim will result in a waste of judicial and party resources.

      Phillips Nizer, LLP, New York City (Michael J. Silverberg and Bruce Turkle of counsel), for respondents-appellants.
    I. Summary judgment must be denied where triable issues are shown to exist. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Matter of Warder v Board of Regents of Univ. of State of N.Y., 53 NY2d 186; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369; Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57; Andre v Pomeroy, 35 NY2d 361; Moskowitz v Garlock, 23 AD2d 943; Ferrante v American Lung Assn., 90 NY2d 623; Giuffrida v Citibank Corp., 100 NY2d 72; Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982; Greenberg v Bar Steel Constr. Corp., 22 NY2d 210.) II. Plaintiffs’ second and third causes of action were improperly dismissed. (General Stencils v Chiappa, 18 NY2d 125; Farkas v Farkas, 168 F3d 638; Glus v Brooklyn Eastern Dist. Terminal, 359 US 231; Erbe v Lincoln Rochester Trust Co., 13 AD2d 211; Meridien Intl. Bank v Government of Republic of Liberia, 23 F Supp 2d 439; Smith v Cutson, 188 AD2d 1034; Mandelblatt v Devon Stores, 132 AD2d 162; Insurance Co. of N. Am. v Whitlock, 216 App Div 78; Juman v Louise Wise Servs., 254 AD2d 72; Junius Constr. Corp. v Cohen, 257 NY 393.) III. The trial court properly refused to summarily dismiss plaintiffs’ claim for punitive damages. (Walker v Sheldon, 10 NY2d 401; Giblin v Murphy, 73 NY2d 769; Borkowski v Borkowski, 39 NY2d 982; Welch v Mr. Christmas, 57 NY2d 143; Nardelli v Stamberg, 44 NY2d 500; Laurie Marie M. v Jeffrey T.M., 159 AD2d 52, 77 NY2d 981; Roy v Hartogs, 81 Misc 2d 350; Micari v Mann, 126 Misc 2d 422; Juman v Louise Wise Servs., 3 AD3d 309; Jeffrey BB. v Cardinal McCloskey School & Home for Children, 257 AD2d 21.)
   OPINION OF THE COURT

Chief Judge Kaye.

Plaintiffs, adoptive parents Arthur Ross and Barbara Ross, have asserted three causes of action against Louise Wise Services: wrongful adoption/fraud; negligence and breach of fiduciary duty; and intentional infliction of emotional distress. On defendants’ motion for summary judgment, we conclude that, while plaintiffs may seek compensatory damages, punitive damages are not available for the first claim in this case, and statutes of limitations bar the second and third claims.

Facts

In 1960 plaintiffs applied to Louise Wise (the Agency) for assistance in adopting an infant. They told the Agency that they preferred a “healthy infant from a healthy family,” and that “it would be nice if the baby’s birth family had an artistic background.” Mr. Ross was nationally recognized in the advertising field, had won awards and made a good salary, and the couple were engaged in various cultural activities. According to one social worker who had interviewed them, plaintiffs were mature, seemed comfortable about adopting a child and could handle the situation “better than the average couple with whom we place a child.”

In the spring of 1961 plaintiffs were offered a boy, born January 11, 1961. In response to plaintiffs’ question about the health of the baby and his biological family, the social worker told plaintiffs this was “a demanding baby who likes attention.” She described the physical appearance and artistic interests of the birth parents and indicated that they were healthy but the birth father was allergic to penicillin and the maternal grandfather had died of heart disease. The Agency did not, however, disclose that either of the birth parents or members of their families had suffered from emotional disturbance.

According to Agency files, the biological mother never had a “normal” home life. In 1952, her father, the baby’s biological grandfather, was hospitalized for 1½ years for schizophrenia when he was in his mid-60s. The report also indicated that the birth mother was worried that her feelings of stress could affect the baby. She and the biological father married only because she was pregnant. She had seen a psychiatrist, who wrote to the Agency that the mother “presented as a girl who was failing in her major adjustments to life: late to school with the result that she failed to maintain matriculation at two colleges; few friends; hostility to most people; and demanding dependency.” The biological father, according to the files, saw a psychiatrist, who, after one meeting, stated that the father was “a seriously disturbed young man, classified him as a paranoid, schizophrenic, and felt he had married purely for her [the birth mother’s] money.” The doctor also noted that, while the birth father could use treatment, “there was no rush.”

Plaintiffs accepted the child, and on March 30, 1961, took home the baby they named Anthony. Although he was an active, difficult infant who could not sleep well, Ms. Ross attended to him and he was a happy baby. The adoption was finalized in 1962, and in 1964 plaintiffs adopted a daughter from the Agency. By the time Anthony was four, his troublesome behavior led plaintiffs to seek professional help.

Postadoption Events

In 1970, when Anthony was nine years old and the difficulties increased, plaintiffs called the Agency and were directed to Barbara Miller, head of the Post-Adoption Service. Plaintiffs told Miller that Anthony was experiencing “night terrors,” cursed at the family, hit his parents and threatened people with objects. Ms. Ross suspected that he was hyperactive and might have brain dysfunction. Plaintiffs asked whether there could have been problems with the birth mother, whether she had taken drugs, whether she attempted to abort the pregnancy or whether there was birth trauma. Miller recommended that plaintiffs see a psychiatrist, Dr. Anne-Marie Weil, associated with the Agency. Miller’s letter to Weil noted that Anthony’s birth mother and grandfather “had histories of emotional instability”; however, Miller did not give Weil any specifics of the schizophrenia, and neither Miller nor Weil told plaintiffs of any emotional instability. Weil never saw Anthony himself, and her suggestions for behavior modification were to no avail.

While Ms. Ross wished to get treatment for Anthony, Mr. Ross disagreed and hoped that Anthony would grow out of his disruptive behavior. In 1973, after Anthony’s school advised plaintiffs that Anthony needed a special school, they called Miller again to ask that she send a summary of Anthony’s “birth history, background and foster home experience to Dr. Stella Chess,” a well-known child psychiatrist plaintiffs had engaged. Although Miller mentioned in her report to Chess that Anthony was a tense, active baby, she did not tell the doctor of the birth parents’ history of schizophrenia. In the same call to Miller, Ms. Ross indicated that she suspected more and more that Anthony’s difficulties were organically based and divulged that she was forced to separate herself from her son as much as possible since his violence was getting progressively worse.

When she phoned the Agency in 1981, Ms. Ross told Miller that, fearful of her own and her daughter’s physical well-being, she had moved out of her home in 1978 when Anthony had finished a special high school. Plaintiffs divorced in 1979. The daughter then lived with her mother and Anthony with his father. Though Miller stated in her notes that Anthony remained disturbed and undiagnosed, she mentioned nothing to plaintiffs about his biological background.

Anthony continued to live with his father and graduated from college. Over the years, he did see several doctors, none of whom could assist him. He had some odd jobs but could not keep any. Ms. Ross called the Agency in 1994 and told them that she thought Anthony had ADHD. The Agency again did not disclose any information, including that it had received a call in 1984 that Anthony’s birth mother had committed suicide in 1973. Anthony’s behavior became more erratic, and he started to see a psychiatrist again. In 1995, when Anthony was 34, Mr. Ross woke up to find his son about to hit him with a large flashlight. Anthony was taken to Bellevue, where he was diagnosed as a paranoid schizophrenic.

The Action

The New York Times Magazine on March 14, 1999, published an article, What the Jumans Didn’t Know About Michael, describing a family who adopted a boy from the Agency and learned years later that the birth family’s history included schizophrenia. As a result, plaintiffs sought Anthony’s medical records. These were sent in April 1999, and plaintiffs filed suit on June 25, 1999. Plaintiffs testified in their depositions that much as they love Anthony, they would not have adopted him before they saw him if they had been told about the schizophrenia in his biological family, and that psychiatrists might have treated him differently had disclosure been made earlier. Further, they claimed that the stresses in their family resulted in both plaintiffs’ clinical depression, the dissolution of their marriage and lost employment.

Agency Policies in the 1960s and 1970s

In the 1960s and 1970s, the belief among the social workers and psychiatrists who worked for the Agency was that, in the development of a child, nurture played a far more significant role than nature. For that reason, the policy of the Agency was not to disclose certain information about a birth family’s medical history if the doctors were unsure whether the factors were hereditary. Anita Longo Sorensen, the Agency’s expert witness, expressed this opinion in an affidavit and added:

“Moreover, it was the belief and general opinion of social workers and other professionals in the adoption field at those times that mental illness would not be passed on if a child were placed in a loving environment.
“It was also the general opinion and belief of social workers and other professionals in the adoption field at those times that the disclosure of certain information to prospective adoptive parents would interfere with the bonding between adoptive parent and child and prove detrimental to the child, the parents and their relationship. Therefore, it was the practice of social workers and other professionals in the adoption field in the 1960s and into the early 1980s not to disclose information that could be viewed as negative and which was not believed to be hereditary for fear that it would influence the family adversely on how they would nurture the adopted child. This practice remained in effect until changes were made in the Social Services Law and the Public Health Law in the early-mid 1980s.”

Specifically, psychiatrists were unsure about the hereditary factors of mental illness and therefore would not discuss with adoptive parents mental disturbances of the biological family. Florence Kreech, Executive Director of the Agency during that period, testified that their psychiatrists “felt for many, many years we knew so little about schizophrenia and they felt very strongly about not putting labels on people.” Kreech knew that studies were underway, but the Agency’s psychiatrists “knew too little about hereditary factors,” and had no certain information that a child of a parent or parents who had schizophrenia had a greater risk of developing it. “[T]here were children that may have come from parents — and, again, they wouldn’t put labels on them — whose parents were disturbed, but it did not necessarily follow that the children were going to be disturbed.”

Miller conceded that she concealed the biological information from all adoptive parents, including plaintiffs, when they called with postadoptive questions. She followed what the Agency considered normative policy. Generally, the Agency might have told a couple that there was some disturbance in the family background, but more likely the Agency, without divulging aberrant history, would find an adoptive couple who could be accepting of emotional problems. Social workers and psychiatrists were concerned that the child not be stigmatized.

“[I]f there were a history of mental illness which we understood to be noninheritable at that time — and I couldn’t find a psychiatrist in New York at the time who would have told you that it was inherited — we would not mention that, simply because our psychiatrist felt that it had no meaning and it would only cause anxiety or might cause anxiety in the parents.”

A “healthy baby” at that time meant a physically healthy child.

The Agency has included in the record extracts from literature published in the 1960s through 1980s to underscore the divergent views on the etiology of schizophrenia. For example, Herbert Weiner, M.D., wrote in 1967 that “In psychiatry, the nature-nurture controversy continues to rage . . . .” (Schizophrenia III: Etiology, in Freedman and Kaplan, Comprehensive Textbook of Psychiatry § 15.3, at 604 [1967].) The author concluded that “The environment may continuously interact with the genotype to elicit certain kinds of general potentialities and more specific dispositions to react to certain categories of environmental stress that lead to the illness” (id. at 620).

Plaintiffs too presented the affidavit of an expert, Dr. Dolores Malaspina, whose work concentrates on schizophrenia. She indicated that as far back as 1911 a study showed that schizophrenia “arose from a hereditary taint,” and even in the 1920s, studies demonstrated elevated risks for the disease in close relatives. Malaspina affirmed that “[although a number of American practitioners theorized in the post-World War II era that schizophrenia could arise from a dysfunctional family, the evidence of its genetic familial nature was never questioned.” Studies indicated that the likelihood of getting schizophrenia for someone with one affected parent is 12%, and the risk for bi-lineal inheritance is 46%. A doctor’s not knowing the family history could make diagnosis “correspondingly difficult.”

It was not until 1983 that the Legislature enacted Social Services Law § 373-a (L 1983, ch 326, amended by L 1985, chs 103, 142), which provides that medical histories should be disclosed to preadoptive parents and adult adoptees. In 1985, the statute was amended to include adoptive parents. The Legislature also enacted Public Health Law §§ 4138-b, 4138-c and 4138-d, effective December 6, 1983, establishing an Adoption Information Registry in the Department of Health to allow adult adoptees to obtain nonidentifying medical information.

Decisions of the Lower Courts

In Supreme Court, the Agency moved for an order granting summary judgment dismissing plaintiffs’ complaint; granting partial summary judgment dismissing plaintiffs’ second and third causes of action as time-barred; dismissing plaintiffs’ claim for emotional distress and recovery of business or other losses from that emotional distress, and limiting potential recovery of compensatory damages to extraordinary out-of-pocket expenses of raising plaintiffs’ adopted child to age 21; and dismissing plaintiffs’ claim for punitive damages. Refusing to grant summary judgment as to the first count (wrongful adoption/fraud), the court found triable issues of fact as to whether the Agency concealed or misrepresented material facts at the time of the adoption and in subsequent years about the child’s biological history. The court dismissed the claims for negligence and intentional infliction of emotional harm on statute of limitations grounds, limited potential recovery of compensatory damages to out-of-pocket expenses before the child reached 21 and allowed the claim for punitive damages to proceed.

The Appellate Division affirmed. The Agency did not appeal Supreme Court’s refusal to dismiss the cause of action for wrongful adoption. All five Appellate Division Justices agreed that the statute of limitations had run on the negligence and intentional infliction of emotional distress claims. As to the punitive damages, two Justices determined that plaintiffs had raised sufficient issues of fact based on the Agency’s initial as well as subsequent failures to disclose the child’s family history of mental illness. The two other Justices in the majority concluded that the issue concerned the conduct surrounding the adoption and consequences of the initial concealment, not the Agency’s subsequent action or inaction. The dissent, while not questioning plaintiffs’ cognizable claim of wrongful adoption, stated that punitive damages could rest only on conduct at the time of the adoption and on the Agency’s motivation — which, from the extensive record evidence, was not to hurt maliciously or inflict pain but to find a good home for the child. The Appellate Division granted leave.

The Agency appeals from the order allowing the issue of punitive damages to proceed; plaintiffs cross-appeal from the order dismissing their second and third causes of action. We agree with the trial court and Appellate Division on the statute of limitations issue, agree with the dissent on the punitive damages issue and accordingly modify the order of the Appellate Division.

Analysis

As a threshold matter, the Agency, in failing to challenge the order leaving in place the action for wrongful adoption, acknowledges that plaintiffs have raised a cognizable claim under common-law fraud principles in the adoption setting (see Juman v Louise Wise Servs., 159 Misc 2d 314, 316-317 [NY County 1994], affd 211 AD2d 446 [1st Dept 1995]). The court in Juman indicated that the tort concerned not simply an agency’s silence but “ ‘the deliberate act of misinforming’ ” a couple who were deprived of their right to make informed parenting decisions (id. at 318 [citation omitted]). To establish a prima facie case for fraud, plaintiffs would have to prove that

“(1) defendant made a representation as to a material fact; (2) such representation was false; (3) defendant [ ] intended to deceive plaintiff; (4) plaintiff believed and justifiably relied upon the statement and was induced by it to engage in a certain course of conduct; and (5) as a result of such reliance plaintiff sustained pecuniary loss” (id. at 320).

Thus, plaintiffs here will have the opportunity to show that the Agency’s admitted policy to withhold information from them concerned material facts on which they relied and as a result of which they sustained monetary losses.

The questions we are called upon to answer are whether plaintiffs may seek punitive damages for wrongful adoption/ fraud as alleged, and whether equitable estoppel bars the Agency from asserting the defense of statute of limitations on the second and third causes of action.

Punitive Damages

Compensatory damages are intended to have the wrongdoer make the victim whole — to assure that the victim receive fair and just compensation commensurate with the injury sustained. Punitive damages are not to compensate the injured party but rather to punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future (Walker v Sheldon, 10 NY2d 401, 404 [1961]; see Krohn v New York City Police Dept. 2 NY3d 329, 335 [2004]; Sharapata v Town of Islip, 56 NY2d 332, 335 [1982]). Subjecting a wrongdoer to punitive damages serves to deter future reprehensible conduct. Hence the term “exemplary damages” is a synonym for punitive damages.

Punitive damages are permitted when the defendant’s wrongdoing is not simply intentional but “evince[s] a high degree of moral turpitude and demonstrate [s] such wanton dishonesty as to imply a criminal indifference to civil obligations” (Walker, 10 NY2d at 405; see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994]). In Prozeralik v Capital Cities Communications (82 NY2d 466, 479 [1993]), the Court wrote that punitive damages may be sought when the wrongdoing was deliberate “ ‘and has the character of outrage frequently associated with crime’ ” (citation omitted). The misconduct must be exceptional, “as when the wrongdoer has acted maliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness ... or has engaged in outrageous or oppressive intentional misconduct or with reckless or wanton disregard of safety or rights” (Sharapata, 56 NY2d at 335 [citations and internal quotation marks omitted]; see also Wilson v City of New York, 7 AD3d 266, 267 [1st Dept 2004] [misconduct lacked “the character of spite, malice or evil motive”]).

Plaintiffs in Juman brought suit for wrongful adoption on facts analogous to those here. The prospective adoptive parents had been told certain information about the birth parents but not that they had met in a psychiatric hospital and that the mother had undergone a frontal lobotomy years before the child was born. The child became paranoid schizophrenic. The First Department found that the plaintiffs were entitled to seek compensatory damages but not punitive damages — conduct subsequent to the enactment of Social Services Law § 373-a setting standards for disclosure was irrelevant to the wrongful adoption claim “since the operative facts are those that occurred at and around the time of the . . . adoption” (3 AD3d at 310).

In Jeffrey BB. v Cardinal McCloskey School & Home for Children (257 AD2d 21 [3d Dept 1999]), also a wrongful adoption case, the Third Department similarly dismissed a claim for punitive damages. Although the prospective parents, who had five other children, specifically asked about problems in the child’s background, the agency withheld that she had been sexually abused. She would, thereafter, allegedly abuse two of the other children. The court determined that the agency’s actions did not rise to the level of culpable conduct necessary to award ex-emplary damages.

In this case, the Agency has conceded that it intentionally misrepresented facts about Anthony’s background. We are troubled by such concealment, and sympathetic to the suffering plaintiffs have endured. They have presented sufficient triable facts to proceed on their fraud claim for compensatory damages.

In its motion for summary judgment, however, the Agency has shown that, even if its failure to disclose may have been tortious, its conduct in connection with the adoption did not evince the high degree of moral turpitude required for punitive damages. Nor would punitive damages be warranted against the Agency for deterrence.

First, nothing in the record disproves what the Agency’s own social workers and its expert stated — in the 1960s and even into the early 1980s the policy was not to disclose certain information about the child’s biological background if the professionals were unsure whether the factors were hereditary. Many thought that mental illness could be avoided if a child were placed in a loving environment and that disclosure of birth parents’ emotional disturbances would negatively affect the child’s bonding with the adoptive parents. While it may be difficult for us in the twenty-first century to envisage not discussing mental or physical illness with prospective parents, and while such normative conduct may be deemed tortious even for that time, we cannot say that the record shows that the Agency’s motivation was malicious or vindictive.

Not until 1983 did the Legislature enact Social Services Law § 373-a to require disclosure of medical histories to prospective adoptive parents and adult adoptees. Although we address common-law tort and not violation of the statute, that the statute was enacted only in the 1980s is a factor in determining that punitive damages are inappropriate here.

As to deterrence, section 373-a now requires agencies to provide to prospective adoptive parents and, upon request, to adoptive parents “the medical histories of a child legally freed for adoption . . . and of his or her natural parents, with information identifying such natural parents eliminated.” Medical histories include “psychological information” (id.). Thus, the statute assures that agencies do not conceal relevant history of birth parents. Moreover, defendant Agency no longer acts in placing children for adoption, and its records are now housed at a different agency.

The complaint here includes a single cause of action for wrongful adoption and fraud at the time of the adoption. There are no separate counts of fraud concerning conduct in later years. Thus, even though no justification may exist, for example, for the Agency’s failure to disclose information to the doctors plaintiffs consulted for Anthony in the 1970s, the fraud of wrongful adoption must center on the conduct that induced the prospective parents to accept the child. Because we cannot conclude from the record that the initial concealment was motivated by malice so as to warrant punitive damages, or that these damages would deter future reprehensible conduct, we limit plaintiffs’ potential recovery to compensatory damages.

Equitable Estoppel

The second and third causes of action — for negligence and infliction of emotional distress — are barred by the statutes of limitations under CPLR 214 (three years) and CPLR 215 (one year) respectively. Plaintiffs do not assert that the discovery rule under CPLR 203 (g) that permits the fraud claim to proceed is applicable to these torts, for plainly it is not. Rather, they argue that the doctrine of equitable estoppel should apply.

Under this doctrine, a defendant is estopped from pleading a statute of limitations defense if the “plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski v Saeli, 44 NY2d 442, 449 [1978]). For the doctrine to apply, a plaintiff may not rely on the same act that forms the basis for the claim — the later fraudulent misrepresentation must be for the purpose of concealing the former tort (see Zumpano v Quinn, 6 NY3d 666, 674 [2006]; Rizk v Cohen, 73 NY2d 98, 105-106 [1989]). The uncommon remedy of equitable estoppel “is triggered by some conduct on the part of the defendant after the initial wrongdoing; mere silence or failure to disclose the wrongdoing is insufficient” (Zoe G. v Freder ick F.G., 208 AD2d 675, 675-676 [2d Dept 1994]). In Zumpano (6 NY3d at 674, 675), plaintiff brought suit against a priest and the Catholic Diocese years after he was allegedly sexually abused. We held that the defendants’ failure to disclose the abuse was not a subsequent or specific action that kept the plaintiff from timely bringing suit, and thus did not constitute a basis for equitable estoppel.

Plaintiffs argue that the Agency’s fraudulent conduct induced them not to file suit. They cite to General Stencils v Chiappa (18 NY2d 125 [1966]), in which plaintiff company sued its bookkeeper for theft over many years. The Court held that the defendant could not assert a statute of limitations defense because she affirmatively and carefully concealed her crime and “produced the long delay between the accrual of the cause of action and the institution of the legal proceeding” (id. at 128). In this case, unlike General Stencils, nothing in the record indicates that the Agency attempted after the adoption to conceal medical histories to induce plaintiffs to forbear from filing suit alleging negligence or infliction of emotional distress. Plaintiffs did not get in touch with the Agency until 1970, by which time both torts of negligence and infliction of emotional distress were already time-barred. Therefore, even if the Agency made fraudulent misrepresentations, plaintiffs had not been induced to refrain from filing suit, and equitable estoppel is not warranted in this case.

Accordingly, the order of the Appellate Division should be modified, without costs, by granting defendant’s motion to dismiss plaintiffs’ demand for punitive damages and, as so modified, affirmed. The certified question should be answered in the negative.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order modified, etc.

      . Founded in 1916, the Agency sought good homes for children placed for adoption. By the late 1990s, it no longer acted as an adoption agency, and instead offered training and support for foster care families and children. Those operations ceased in 2004, and the Agency’s records were placed with a different adoption agency. Currently, the Agency has social services programs but runs neither adoption nor foster care placements.

      . In June 1982, Anthony, 21, unexpectedly appeared at Dr. Weil’s office and asked for a report that she had written 10 years earlier. Weil had no recollection of the report but called Miller, who wrote in her notes that the doctor was frightened by Anthony’s demeanor and felt he was a paranoid schizophrenic, capable of violence. Miller wrote back saying that she appreciated the caution, but neither Miller nor Weil alerted the plaintiffs. In 1984, when Anthony was 23, he made an appointment at the Agency to learn about his birth history. He was told what plaintiffs had been told at the outset — that the medical information was good.

      . The Juman case was remanded to Supreme Court, which issued an opinion (174 Misc 2d 49 [NY County 1997], mod. 254 AD2d 72 [1st Dept 1998]). On the questions of pecuniary and punitive damages, the case was again remanded (Juman v Louise Wise Servs., Sup Ct, NY County, Sept. 1, 2000, Lehner, J., Index No. 005809/92, mod 3 AD3d 309 [1st Dept 2004]).