author: Graffeo, J. Ciparick, J. (dissenting).

text:
    [923 NE2d 1111, 896 NYS2d 723]
    Eugenia Brennan Heslin, as Administrator of the Estate of Egypt A. Phillips, Deceased, Appellant, v County of Greene et al., Respondents, et al., Defendants.
    Argued January 5, 2010;
    decided February 11, 2010

      POINTS OF COUNSEL

      O’Connell and Aronowitz, Albany (Pamela A. Nichols of counsel), for appellant.
    I. The infant, Egypt Phillips, and her infant distributees are entitled to an infancy toll based upon the relevant statutory scheme. (Campbell v City of New York, 4 NY3d 200; Henry v City of New York, 94 NY2d 275; Pierson v City of New York, 56 NY2d 950; Barnes v County of Onondaga, 103 AD2d 624; Gibbons v City of Troy, 91 AD2d 707; McDaniel v Clarkstown Cent. School Dist. No. 1, 110 AD2d 349; Matter of Covert, 97 NY2d 68; Matter of Alexis, 14 Misc 3d 379; Matter of Nicpon, 102 Misc 2d 619; Matter of Ball, 24 AD3d 1062.) II. The facts of this case fall squarely within the cases that have applied CPLR 208 under the unique circumstances where there is no person entitled to commence the action other than infant distributees. (Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687; Pulsifer v Olcott, 63 Misc 2d 524, 41 AD2d 781; Matter of Cruz v New York City Health & Hosps. Corp., 131 Misc 2d 376; Cruz v Mount Sinai Hosp., 61 AD2d 915; Baez v New York City Health & Hosps. Corp., 80 NY2d 571; Ratka v St. Francis Hosp., 44 NY2d 604.) III. The Third Department’s decision simply relied on precedents from other Appellate Divisions erroneously decided. (Matter of Hidalgo v New York City Health & Hosps. Corp., 210 AD2d 481; Kemp v City of New York, 208 AD2d 684; Baker v Bronx Lebanon Hosp. Ctr., 53 AD3d 21; Ratka v St. Francis Hosp., 44 NY2d 604; Holmes v City of New York, 269 App Div 95; Matter of Mlodozeniec v Worthington Corp., 9 AD2d 21, 8 NY2d 918, 364 US 628; Matter of Cruz v New York City Health & Hosps. Corp., 131 Misc 2d 376; Cruz v Mount Sinai Hosp., 61 AD2d 915; Boles v Sheehan Mem. Hosp., 178 Misc 2d 864; Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687.) IV The public policy of this state to protect infants in statute of limitations cases requires that the Court toll plaintiff-appellant’s cause of action for conscious pain and suffering under these unique circumstances. (Matter of Discenza v Dann 00., 148 AD2d 196, 75 NY2d 765; Weed v St. Joseph’s Hosp., 245 AD2d 713; Henry v City of New York, 94 NY2d 275; Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687; Sharrow v Inland Lines, Ltd., 214 NY 101; Caffaro v Trayna, 35 NY2d 245; George v Mt. Sinai Hosp., 47 NY2d 170; Roldan v Allstate Ins. Co., 149 AD2d 20.)

      Boeggeman, George & Corde, P.C., White Plains (Cynthia Dolan of counsel), for County of Greene, respondent.
    I. The infant distributees were not the only distributees eligible to be fiduciaries at the time of death. (Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687; People v Rose, 41 AD3d 742, 9 NY3d 926; Matter of Alexis, 14 Misc 3d 379; Matter of Nicpon, 102 Misc 2d 619.) II. The infant plaintiff’s personal injury causes of action are barred by the statute of limitations. (Rivera v County of Westchester, 188 Misc 2d 746; Matter of Hidalgo v New York City Health & Hosps. Corp., 210 AD2d 481; Kemp v City of New York, 208 AD2d 684; Ratka v St. Francis Hosp., 44 NY2d 604; Mack v City of New York, 265 AD2d 308; Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Barrett v State of New York, 78 NY2d 1111; Henry v City of New York, 94 NY2d 275; Gibbons v City of Troy, 91 AD2d 707.)

      Thorn Gershon Tymann and Bonanni, LLP, Albany (Maureen S. Bonanni and Erin Mead of counsel), for County of Greene Department of Social Services and another, respondents.
    I. Plaintiff lacks standing to bring a conscious pain and suffering cause of action. (Brandon v Columbian Mut. Life Ins. Co., 264 AD2d 436; New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207; Levi v Myrthil, 21 AD3d 350; Central N.Y. Coach Lines, Inc. v Syracuse Herald Co., Ill NY 110; Ratka v

      St. Francis Hosp., 44 NY2d 604; Lancaster v 46 NYL Partners, 228 AD2d 133; Jae Woo Yoo v New York City Health & Hosps. Corp., 239 AD2d 267; People v Knowles, 88 NY2d 763; Matter of Swantz v Planning Bd. of Vil. of Cobleskill, 34 AD3d 1159; Matter of Allen v Strough, 301 AD2d 11.) II. Plaintiff’s conscious pain and suffering claim against the municipal defendants is barred by the applicable statute of limitations. (Miller v County of Sullivan, 36 AD3d 994; Campbell v City of New York, 4 NY3d 200; Barnes v County of Onondaga, 65 NY2d 664; Gibbons v City of Troy, 91 AD2d 707; Ratka v St. Francis Hosp., 44 NY2d 604; Rivera v County of Westchester, 188 Misc 2d 746; Matter of Hidalgo v New York City Health & Hosps. Corp., 210 AD2d 481; Kemp v City of New York, 208 AD2d 684; Baker v Bronx Lebanon Hosp. Ctr., 53 AD3d 21; Vasquez v Wood, 190 Misc 2d 427.) III. Permitting an infancy toll in this case would be contrary to the statutory scheme. (Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687.) IV Even applying an infancy toll, the conscious pain and suffering cause of action is time-barred. (Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687; Matter of Boles v Sheehan Mem. Hosp., 265 AD2d 910; Baker v Bronx Lebanon Hosp. Ctr., 53 AD3d 21; Weed v St. Joseph’s Hosp., 245 AD2d 713; Tuyet Ngoc Nguyen v 230 Park Invs., LLC, 19 AD3d 295; Matter of Rivera v Westchester County Med. Ctr., 222 AD2d 680; Cherry v Mallery, 280 AD2d 860; Ritchie v Felix Assoc., LLC, 60 AD3d 402; Baez v New York City Health & Hosps. Corp., 80 NY2d 571; Matter of James MM. v June OO., 294 AD2d 630.) V Public policy does not require the application of the infancy toll to the facts of this case. (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 2 NY3d 648; Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399.)

      Michael A. Cardozo, Corporation Counsel, New York City (Leonard Koerner and Stephen J. McGrath of counsel), for City of New York and another, amici curiae.
    The Appellate Division correctly determined that the statute of limitations applicable to decedent’s cause of action for personal injuries barred the application for leave to serve a late notice of claim. There is no legal basis for application of any toll or extension of the statute of limitations other than the one-year extension provided in CPLR 210 (a), which, in this case, was not needed. (Pierson v City of New York, 56 NY2d 950; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Hernandez v New York City Health & Hosps. Corp., 78 NY2d 687; Ratka v St. Francis Hosp., 44 NY2d 604; Matter of Hidalgo v New York City Health & Hosps.

      Corp., 210 AD2d 481; Kemp v City of New York, 208 AD2d 684; Baker v Bronx Lebanon Hosp. Ctr., 53 AD3d 21; Gordon v Gordon, 110 AD2d 623; Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38; Liff v Schildkrout, 49 NY2d 622.)
   OPINION OF THE COURT

Graffeo, J.

In this case, we conclude that the special infancy toll applicable in wrongful death actions involving sole infant distributees under Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687 [1991]) is not available for personal injury claims. We therefore affirm the order of the Appellate Division.

Plaintiff Eugenia Brennan Heslin is the administrator of the estate of the decedent, Egypt Phillips. Egypt, born in May 2001, lived with her two young sisters and their mother Tanya Rose. Egypt’s biological father, a convicted felon, had abandoned her. In early 2004, Rose’s boyfriend, James Smith, moved in with the family. In May and again in August 2004, Egypt was taken to health care facilities for treatment of various injuries, including a broken clavicle and head trauma. According to plaintiff, these instances of suspected abuse were reported to defendants County of Greene, County of Greene Mental Health, County of Greene Department of Social Services and/or County of Greene Child Protective Services (collectively, the County defendants). Following the August incident, Smith was apparently ordered to leave the family home. However, on November 21, 2004, Egypt died tragically as a result of injuries intentionally inflicted upon her by Smith.

About two weeks later, Smith and Rose were each charged in connection with Egypt’s death. Rose pleaded guilty to criminally negligent homicide and was subsequently sentenced to a prison term of 1⅓ to 4 years. Following a jury trial, Smith was convicted of second-degree murder and sentenced to a term of 25 years to life imprisonment.

In December 2004, shortly after Egypt’s death, plaintiff was appointed as the attorney for the children, Egypt’s sisters, in connection with an abuse and neglect proceeding pending in Family Court against Smith and Rose. In addition to serving as attorney for the children (formerly referred to as a law guardian) in Family Court, Surrogate’s Court appointed her as the administrator of Egypt’s estate in October 2006.

Until plaintiff’s application, no one had petitioned Surrogate’s Court to handle the administration of Egypt’s estate under SCPA 1001 and 707. Rose and the biological father were each disqualified because of their felony status (see SCPA 707 [1] [d]). Although the task would have ordinarily fallen to Egypt’s siblings under the priority of decedent’s relatives established in SCPA 1001 (1), they too were ineligible based on their infancy (see SCPA 707 [1] [a]). Because no other relative sought to be appointed guardian for the siblings under article 17 of the SCPA, they had no adult representative who could function as the administrator or consent to anyone else assuming that role (see SCPA 1001 [2], [6]). Out of concern for the fate of Egypt’s siblings, plaintiff pursued appointment as administrator pursuant to the fallback provision of SCPA 1001 (8) (b), allowing any qualified “petitioner” to become an administrator in the court’s discretion.

In the course of fulfilling her duties as attorney for the children and administrator of Egypt’s estate, plaintiff determined that Egypt’s siblings had potential claims against the County defendants and private individuals based on their alleged negligence contributing to Egypt’s death at the hands of Smith. On November 16, 2006, plaintiff served a notice of claim on the County defendants in her capacity as administrator of Egypt’s estate. Five days later, plaintiff commenced this action against the County defendants alleging causes of action for wrongful death and personal injury. Any damages recovered would ultimately benefit the siblings as Egypt’s sole distributees by intestacy. Plaintiff simultaneously moved pursuant to General Municipal Law § 50-e (5) for leave to file a late notice of claim for the personal injury cause of action.

Supreme Court granted the motion and extended the time to serve the notice of claim to November 16, 2006, the date it was actually filed (15 Misc 3d 1102[A], 2007 NY Slip Op 50464[U]). Initially, the court determined that the wrongful death claim was timely because the notice of claim was filed within 90 days from plaintiff’s appointment as administrator and the action was commenced within two years of Egypt’s death, as required by statute (see General Municipal Law § 50-e [1] [a]; § 50-i [1]).

Turning to the personal injury cause of action, the court found that the notice of claim was untimely because it was not filed within 90 days after the claim arose. Recognizing that it lacked the discretion to extend the time beyond the expiration of the applicable one-year-and-90-day limitations period, the court relied on our decision in Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687 [1991]) to conclude that the toll afforded by CPLR 208 applied, based on the infancy of Egypt’s siblings, and, as a result, the statute of limitations did not begin to run until plaintiffs appointment as administrator in October 2006. In Hernandez, this Court held that the CPLR 208 infancy toll applies when an infant is the sole distributee in a wrongful death action. Relying on the factors in General Municipal Law § 50-e (5), the court granted plaintiff leave to file the late notice of claim.

The Appellate Division reversed and dismissed the personal injury claim, but agreed that the wrongful death claim was timely (53 AD3d 996 [3d Dept 2008]). The court held that Supreme Court lacked discretion to enlarge the time to serve the late notice of claim because the personal injury claim was time-barred, reasoning:

“Supreme Court’s reliance on the infancy toll of CPLR 208, on behalf of decedent’s infant distributees, to extend the statute of limitations on the personal injury claim was not proper inasmuch as such a claim is brought on behalf of decedent and is personal to her, not her surviving infant distributees” (id. at 998).

We granted plaintiff leave to appeal (12 NY3d 702 [2009]).

EPTL 11-3.2 (b), referred to as the “survival statute,” provides that “[n]o cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent.” As a condition precedent to initiating a personal injury action against a municipality, a notice of claim must be served within 90 days after the claim arises (see General Municipal Law § 50-e [1] [a]). The action must also be commenced within the statutorily prescribed one-year-and-90-day limitations period (see General Municipal Law § 50-i [1]). Although a court is authorized to extend the filing of a notice of claim beyond the 90-day period, the time for filing may not be extended beyond the expiration of the applicable statute of limitations (see General Municipal Law § 50-e [5]).

In this case, Egypt first sustained injuries at some point in early 2004 and died on November 21, 2004. Since a notice of claim was not filed within 90 days of her death, leave to file a late notice was necessary. The personal injury claim accrued no later than the date of her death and, absent the application of a toll, the one-year-and-90-day limitations period expired in February 2006. Because the request for leave to file a late notice was not made within that time frame, as mandated by General Municipal Law § 50-e (5), an extension of time to file such notice is not statutorily authorized unless the limitations period was tolled.

Plaintiff asserts that the statute of limitations for the personal injury cause of action was tolled under CPLR 208 due to the infancy of Egypt’s sole distributees—her sisters. In particular, plaintiff submits that Supreme Court appropriately applied the rationale of Hernandez, which held that CPLR 208 tolls the statute of limitations where the sole distributee in a wrongful death action is an infant, to this personal injury claim. While the dissent adopts this position, we cannot agree based on the fundamental distinction between the natures of the two claims.

In Hernandez, the decedent died intestate in April 1987 in a facility operated by defendant New York City Health and Hospitals Corporation, leaving her infant son as her sole distributee. Letters of guardianship were issued to the infant’s grandmother in December 1987 and an administrator of the estate was appointed with the guardian’s consent later that month. In February 1988, the administrator was granted leave to file a late notice of claim. But she did not commence a wrongful death action until December 1988, more than one year and 90 days after decedent’s death. The defendant moved to dismiss the wrongful death action as time-barred. On appeal, a majority of this Court concluded that the action was timely by virtue of the CPLR 208 infancy toll, holding that where the only distributee is an infant, the distributee’s infancy serves to toll the limitations period “until the earliest moment there is a personal representative or potential personal representative who can bring the action,” which the Court stated would occur upon the “appointment of a guardian or majority of the distributee, whichever occurs first” (78 NY2d at 693).

In reaching this result in Hernandez, we were careful to limit our analysis to wrongful death actions authorized by EPTL 5-4.1, emphasizing that such claims belong to a decedent’s distributees rather than the estate standing in place of the decedent. For example, we observed that “any damages recovered are exclusively for the benefit of the decedent’s distributees” and that “the cause of action is not part of and bears no legal relationship to decedent’s estate” (id. [internal quotation marks and citations omitted]). Moreover, any damages must be “measured by the effect of the wrongful act on the distributees—the pecuniary loss suffered by the individual distributees as a result of decedent’s death” (id.). In contrast, we noted that a personal injury action brought under EPTL 11-3.2 (b) seeks damages for an injury to the decedent and belongs to the estate. Finally, we stressed that in a wrongful death case involving a sole infant distributee, it is the “infant child who has suffered any loss recognized by law” (id.).

Hence, even though CPLR 208 applies when the “person entitled to commence an action is under a disability because of infancy”—and the person entitled to bring a wrongful death claim under EPTL 5-4.1 is the estate’s “personal representative”—in Hernandez we employed the CPLR 208 toll based on the infancy of the distributee himself. In that unique context, where no personal representative was otherwise available, it was reasonable to look to the distributee’s infancy status because the wrongful death claim belonged to him and would compensate him for damages that he directly sustained as a result of his mother’s death. As we put it, the distributee was “the only person . . . whose interests are at stake in bringing this [wrongful death] action” (78 NY2d at 693). In effect, we treated the distributee as the plaintiff under the tolling statute because, for all intents and purposes, the claim was his own.

Following Hernandez, Appellate Division case law has consistently declined to extend the toll rule fashioned in Hernandez outside the wrongful death context (see Matter of Hidalgo v New York City Health & Hosps. Corp., 210 AD2d 481, 482-483 [2d Dept 1994]; Kemp v City of New York, 208 AD2d 684, 686 [2d Dept 1994]; see also Baker v Bronx Lebanon Hosp. Ctr., 53 AD3d 21, 23 [1st Dept 2008]). These courts recognized that, unlike a wrongful death claim that directly compensates a decedent’s distributees for their own damages, a personal injury claim is designed to compensate the decedent for injuries suffered and is personal to the deceased—in other words, it is a claim assumed by the estate.

In the present case, the Appellate Division acted in accord with these precedents (see Heslin v County of Greene, 53 AD3d 996, 998 [3d Dept 2008]), and we believe it correctly drew a distinction between the two causes of action in holding that Hernandez should be limited to the wrongful death arena. As we explained in Hernandez itself, a wrongful death action belongs to the decedent’s distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act (see EPTL 5-4.3). The proceeds are paid directly to the distributees in the proportions directed by the court, determined by their respective monetary injuries (see EPTL 5-4.4). In comparison, a personal injury action on behalf of the deceased under EPTL 11-3.2 (b) seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate (see Ratka v St. Francis Hosp., 44 NY2d 604, 609 [1978]). Such a claim is personal to the deceased and belongs to the estate, not the distributees. The types of damages that are recoverable are different and the calculations of damages for the two claims are based on separate factors.

Moreover, because it is the estate that recovers in a personal injury action, any proceeds will first be applied to outstanding liens, debts or expenses (see EPTL 4-1.1, 13-1.3; SCPA 1811). Only after the obligations of the estate are fulfilled would any remaining funds be paid to beneficiaries or distributees. This is in stark contrast to the damages recoverable in a wrongful death action, where any proceeds are generally not subject to the claims of the estate’s creditors (see 9 Warren’s Heaton, Surrogate’s Court Practice § 122.02 [4] [c], at 122-42 [7th ed]). In short, the two causes of action are “predicated on essentially different theories of loss which accrue to different parties” (Ratka, 44 NY2d at 609).

Unlike the infant distributee in Hernandez, who was the only party that “suffered any loss recognized by law” as the beneficiary of a wrongful death claim (Hernandez, 78 NY2d at 693), the infant distributees here do not seek to recover their own damages through a personal injury claim. Rather, they hope to inherit through intestacy any damages that their sister would have been entitled to had she survived. The rationale underlying Hernandez—that a court may take into account the infancy of the distributee because the wrongful death claim belongs to and is for the “sole benefit” of the distributee (id. at 694 n 5)— simply does not apply here, despite the sympathetic plight of Egypt’s siblings. Put differently, the necessary connection between infant distributees and a personal injury action brought on behalf of the deceased under EPTL 11-3.2 (b) is missing since such a claim redresses a wrong suffered by the deceased, not the distributees.

Plaintiff nevertheless urges that the tolling rule adopted by Hernandez should apply with equal force to personal injury actions because EPTL 11-3.2 (b), like EPTL 5-4.1, authorizes a “personal representative” to bring the action and, in this case, Egypt’s siblings would be the ultimate beneficiaries of any damages recovered under either claim. Plaintiff points out that no personal representative existed to bring the personal injury action until her appointment as administrator in October 2006, after the statute of limitations had expired. Despite that unfortunate occurrence, we cannot disregard the fundamental legal distinction between the two causes of action, and the argument of the plaintiff and dissent would result in a rule that is unsupported by the key jurisprudential underpinning of Hernandez—the unique status of a distributee as the direct beneficiary and source of a wrongful death claim.

In fact, it is notable that EPTL 11-3.1, a catchall provision, similarly enables a “personal representative” to commence all other types of action that survive the decedent’s death. Taken to its logical conclusion, plaintiffs position would result in the application of the CPLR 208 toll to any cause of action belonging to a decedent—adult and infant alike—who leaves only infant distributees. A decedent’s personal claims could potentially be pursued more than a decade later on the basis that an infant distributee would be entitled to any damages recovered by the estate through intestate succession. The adoption of such a rule, impinging on the settled policies underlying statutes of repose, must be made by the Legislature.

We therefore conclude that Supreme Court improperly relied on the CPLR 208 toll to permit a late notice of claim for the personal injury action based on the infancy of the decedent’s siblings. Because the applicable statute of limitations expired before the filing of a late notice of claim, the Appellate Division correctly denied the motion and dismissed the personal injury claim.

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

Ciparick, J. (dissenting).

Because I believe that plaintiff, administrator of the estate of the infant decedent whose sole distributees are her infant sisters, is entitled to the infancy toll pursuant to CPLR 208 in this personal injury action as we applied it in Hernandez v New York City Health & Hosps. Corp. (78 NY2d 687 [1991]), I respectfully dissent.

Here, as in Hernandez, the decedent died intestate, survived only by infant distributees. However, the majority opines that the rule we announced in Hernandez cannot apply to a personal injury cause of action for conscious pain and suffering because of the “fundamental distinction between the natures” of personal injury claims and wrongful death claims (majority op at 74). The majority observes that the two claims are predicated on different theories of loss and are compensable by different measures of damages (see id. at 76-77). Specifically, the majority states that a personal injury cause of action for conscious pain and suffering is “personal to the deceased and belongs to the estate, not the distributees” (id.). The majority concludes that the adoption of a rule expanding Hernandez to claims other than wrongful death must be accomplished by the Legislature (see id. at 78). I disagree because I believe the statutory scheme and the rationale of Hernandez compel a different result.

The survival statute, EPTL 11-3.2 (b), provides, in relevant part: “No cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent.” Thus, pursuant to the plain language of the survival statute, a personal injury claim survives the decedent’s death.

CPLR 208 provides in pertinent part:

“If a person entitled to commence an action is under a disability because of infancy ... at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under the disability dies, the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies, whichever event first occurs; if the time otherwise limited is less than three years, the time shall be extended by the period of disability” (emphasis added).

Notably, CPLR 208 does not limit the toll to causes of action that are “personal” to the infant (majority op at 77). Rather, the person under the disability of infancy must only be “entitled to commence [the] action” (CPLR 208).

In Hernandez, we considered the difficult circumstance presented by “[t]he confluence of the pertinent EPTL, SCPA and CPLR provisions” in a wrongful death case where the sole distributee of an estate was an infant (78 NY2d at 693). We eschewed the “unnecessarily harsh result” reached by a “mechanical application of CPLR 208” and instead applied the infancy toll “until the earliest moment there is a personal representative or potential personal representative who can bring the action, whether by appointment of a guardian or majority of the distributee, whichever occurs first” (id,). We determined in Hernandez that what “[ultimately” tipped the balance in favor of extending the CPLR 208 toll to permit the wrongful death claim to proceed was “the infancy of the sole distributee” (id. at 694). That same consideration should tip the scale here, where no person was entitled to commence the action other than the infant distributees until the appointment of Heslin as administrator.

The existing statutory scheme supports the conclusion that the personal injury claim be permitted to move forward. EPTL 11-3.2 (b), the survival statute, contemplates the transfer of a cause of action to another—i.e., the decedent’s personal representative (see also Matter of Meng, 227 NY 264, 277 [1919] [cause of action “belongs to or is vested in the person or persons who has or have the lawful right to prosecute it”]). The practical consequence of the survival statute is to sever a personal injury claim from the decedent and transfer it to the personal representative. Ratka v St. Francis Hosp. (44 NY2d 604, 609 [1978]), a case relied on by the majority, is not to the contrary. Ratka drew a distinction between personal injury and wrongful death causes of action for the purpose of determining finality when considering our jurisdiction and concluded that the two causes of action were “materially separate and distinct” and “predicated on essentially different theories of loss which accrue to different parties” (id. at 609). Ratka never drew the distinction for purposes of applying an infancy toll, which we draw here. Of course, there is no question that the two causes of action are different and are “predicated on . . . different theories” (44 NY2d at 609). The question here is whether, for the purposes of applying the CPLR 208 infancy toll as we did in Hernandez, there is any legal or logical basis to treat the causes of action differently. I submit there is not.

Egypt’s infant sisters, who would have priority to serve as personal representatives of the decedent here (see EPTL 1-2.13; SCPA 1001)—and who would thus be “entitled to commence [the] action” (CPLR 208)—are unable to serve in that capacity by virtue of their infancy. In Hernandez, we remedied that unique legal situation by applying the CPLR 208 infancy toll until the appointment of a guardian or the majority of the distributee. We did that because the only person “whose interests [we]re at stake in bringing th[e] action” was the sole infant survivor of the decedent (78 NY2d at 693). Here, contrary to the majority’s assertions, the only real parties in interest to both the personal injury claim and the wrongful death claim are Egypt’s infant sisters—the only persons who can inherit from her estate and who will benefit from the outcome of both the personal injury and wrongful death claims.

The practical consequences of allowing a personal injury claim to go forward, other than the possibility of a larger damages award to the infant distributees, are minimal. The infant distributees are no differently situated with respect to the personal injury claim than they are with respect to the wrongful death claim. For both causes of action, they will be the sole beneficiaries of any damages. The majority would deny the infant plaintiffs the benefit of the CPLR 208 toll, as we applied it in Hernandez, merely because any damages must first pass through the estate. It is interesting to note that the plaintiff in Hernandez was also the personal representative of the estate.

The majority draws a line where the statutory structure does not support one, apparently out of concern that applying Hernandez to personal injury claims will lead to “the application of the CPLR 208 toll to any cause of action belonging to a decedent—adult and infant alike—who leaves only infant distributees” (majority op at 78). However, certain causes of action already continue after death by reason of legislative act (see EPTL 11-3.2 [b]), and there exists a legislative determination that those under the disability of infancy are entitled to a toll of the statute of limitations to protect their interests. No purpose is thus served by denying this very narrow class of claimants—infants who are the sole distributees of a decedent— the benefits of these legislative determinations. I respectfully dissent and would reverse the order of the Appellate Division and reinstate the order of Supreme Court granting plaintiff’s motion, pursuant to General Municipal Law § 50-e (5), for leave to file a late notice of claim.

Judges Read, Smith and Pigott concur with Judge Graffeo; Judge Ciparick dissents and votes to reverse in a separate opinion in which Chief Judge Lippman and Judge Jones concur. Order affirmed, with costs.

      . Plaintiff also sued Early Childhood Learning Center of Greene County (Egypt’s preschool) and Catalina Alegre, M.D. (Egypt’s pediatrician). Those causes of action are not at issue on this appeal.

      . Rose cannot qualify as a distributee because of her culpable conduct contributing to Egypt’s death (see Matter of Covert, 97 NY2d 68, 74 [2001]). Egypt’s biological father is similarly disqualified because he abandoned her (see EPTL 4-1.4 [a] [1]).

      . The wrongful death cause of action remains pending and is not at issue before us.

      . Before 1935, although a decedent’s claims based in contract and injury to property survived and could be maintained by the estate’s representative, any personal injury cause of action abated upon death (see Herzog v Stern, 264 NY 379, 383 [1934], cert denied 293 US 597 [1934]; see also former Decedent Estate Law §§ 116, 117, 118, 119, 120). Recognizing the inequity in treating personal injury claims differently, the Legislature amended the relevant statutes in 1935 to provide that such claims also survive a decedent’s death (see L 1935, ch 795; see also former Decedent Estate Law §§ 118, 119, presently codified at EPTL 11-3.2). Consequently, all tort and contract actions that belonged to a decedent may now be maintained by the estate’s personal representative (see EPTL 11-3.1, 11-3.2).

      . CPLR 208 provides, in relevant part: “If a person entitled to commence an action is under a disability because of infancy ... at the time the cause of action accrues, and the time otherwise limited for commencing the action . . . is less than three years, the time shall be extended by the period of disability.”

      . At the time, a wrongful death claim against the New York City Health and Hospitals Corporation was governed by a one-year-and-90-day statute of limitations. A two-year limitations period now applies to such wrongful death claims (see McKinney’s Uncons Laws of NY § 7401 [2] [L 1969, ch 1016, sec 1, § 20 (2), as amended by L 1990, ch 804, § 122]).

      . “Personal representative” is defined as “a person who has received letters to administer the estate of a decedent” (EPTL 1-2.13). When a decedent dies intestate, the administrator is the estate’s personal representative.

      . We, too, have declined to read Hernandez broadly. Notably, we did not see fit to apply the Hernandez toll on behalf of infant beneficiaries of a wrongful death claim where the decedent’s will named an executrix who could have timely commenced an action on the infants’ behalf (see Baez v New York City Health & Hosps. Corp., 80 NY2d 571, 576-577 [1992]).

      . The dissent criticizes our reliance on Ratka in emphasizing that wrongful death claims are materially different from personal injury actions. But the dissent fails to acknowledge that in Hernandez itself the Court focused on the unique qualities of a wrongful death claim and explicitly distinguished it from a personal injury action available pursuant to EPTL 11-3.2 (b).

      . For example, suppose the adult decedent in Hernandez possessed a breach of contract claim against XYZ Corporation. Under the rule proposed by plaintiff, an action to recover contract damages could hypothetically be brought approximately 11 years after the decedent’s death based on the distributee’s infancy even though the claim belonged to the decedent, not the distributee. But the distributee’s infancy should be irrelevant under CPLR 208, which provides a toll based on the plaintiffs infancy, not the infancy of a distributee who inherits through intestacy any damages accruing to the estate.

       The finality analysis we employed in Ratka is no longer good law (see Burke v Crosson, 85 NY2d 10, 16-17, 17 n 3 [1995] [“where a negligence cause of action has been dismissed but there remain other claims for relief based on the same transaction or transactions, the doctrine of implied severance is not available”]).


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [923 NE2d 1120, 896 NYS2d 732]
    Hugh Gallagher et al., Appellants, v The New York Post et al., Respondents. NYP Holdings, Inc., Third-Party Plaintiff-Respondent, v Francis A. Lee Co., Third-Party Defendant-Respondent.
    Argued January 6, 2010;
    decided February 11, 2010

      POINTS OF COUNSEL

      Sacks and Sacks, LLP, New York City (Scott N. Singer and Kenneth Sacks of counsel), for appellants.
    I. Upon the undisputed proof that no safety devices were provided, plaintiff should have been awarded summary judgment under Labor Law § 240 (1). (Koenig v Patrick Constr. Corp., 298 NY 313; Bland v Manocherian, 66 NY2d 452; Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Brant v Republic Steel Corp., 91 AD2d 841; Phillips v Flintkote Co., Glens Falls Portland Cement Div., 89 AD2d 724;
      Rea v Elia Bldg. Co., 79 AD2d 1102; Duda v Rouse Constr. Corp., 32 NY2d 405; Joyce v Rumsey Realty Corp., 17 NY2d 118.) II. Plaintiff was not the sole proximate cause of his accident. (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35.) III. Defendants’ failure to provide lifelines, stanchions or other anchorage points for safety belts provides an additional basis for liability under Labor Law § 240 (1). (Conway v New York State Teachers’ Retirement Sys., 141 AD2d 957; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Bland v Manocherian, 66 NY2d 452; Goldthwait v State of New York, 120 AD2d 969; Desrosiers v Barry, Bette & Led Duke, Inc., 189 AD2d 947; Hayes v Eastman Kodak Co., 143 AD2d 510; Nimirovski v Vornado Realty Trust Co., 29 AD3d 762; Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561.)

      Jones Hirsch Connors & Bull P.C., New York City (Richard C. Imbrogno and Mark Wellman of counsel), for respondents and third-party plaintiff-respondent.
    The Appellate Division correctly affirmed the denial of plaintiffs’ motion for summary judgment on their Labor Law § 240 (1) claim because triable issues of fact exist. (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Zeitner v Herbmax Sharon Assoc., 194 AD2d 414; Montgomery v Federal Express Corp., 4 NY3d 805; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Sommer v Federal Signal Corp., 79 NY2d 540; Makaj v Metropolitan Transp. Auth., 18 AD3d 625; Landry v Di Sarro Constr. Co., 149 AD2d 859, 74 NY2d 940; Miller v Long Is. Light. Co., 166 AD2d 564; Quattrocchi v F.J. Sciame Constr. Corp., 44 AD3d 377, 11 NY3d 757; Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561.)

      Rafter & Associates, PLLC, New York City (Howard K. Fishman of counsel), for third-party defendant-respondent.
    Plaintiffs’ motion for summary judgment was correctly denied because there are questions of fact whether safety devices were available to Hugh Gallagher at the job site. (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35; Robinson v East Med. Ctr., LP, 6 NY3d 550; Montgomery v Federal Express Corp., 4 NY3d 805; Bradley v Ibex Constr. LLC, 22 AD3d 380.)
   OPINION OF THE COURT

Pigott, J.

On June 28, 2004, plaintiff Hugh Gallagher, an ironworker, was assigned to remove a section of metal decking from the second floor of a building in the Bronx owned by defendant NYP Holdings, Inc. (NYP), in preparation for the installation of new flooring. He was partnered with another ironworker, Jim Gaffney; the two men worked under the direction of foreman Joe Nover. Gallagher was cutting the metal with a two-handled, powered saw, enlarging an opening created by other workers. According to Gallagher, he was holding both handles of the saw when its blade jammed, propelling him forward so that he fell through the uncovered opening. Gallagher landed on a temporary floor situated between the first and second levels, sustaining injuries.

Gallagher and his wife commenced this personal injury action against NYP alleging, among other things, violations of Labor Law §§ 200, 240 (1) and § 241 (6). Relevant to this appeal, plaintiffs allege that NYP failed to provide Gallagher safety devices to prevent a fall from an elevated work site, in violation of Labor Law § 240 (1).

At his deposition, the assistant project manager at the NYP work site, Jonathan Schreck, testified that “safety harnesses with shock-absorbing lanyards” and “retracting lanyards that we refer to as yo-yos” were available for use at the project site on the date of the accident, but he could not say whether any such safety devices were in the area from which Gallagher fell. Schreck also testified that, at the time of the accident, there was a “standing order,” issued by project manager Mark Piazza to the project foremen, that the ironworkers should “have a harness on and be tied off.” However, he could not recall whether these instructions had been given to the ironworkers.

Schreck, who had taken Gallagher to the hospital after the accident, testified that Gallagher had given him the impression that he had been holding the saw with only one hand and that he had fallen as he reached to grab the jammed saw with his other hand. He stated that Gallagher had told him that he had not been cleared by his doctor to return to work, following a 2002 accident and related surgeries to his right hand. Gallagher himself stated at his deposition that he could not complete a grip with his right hand, because the tip of his little finger was missing. But he insisted that he had been cleared to return to work by the date of his accident.

Plaintiffs moved for partial summary judgment on their Labor Law § 240 (1) claim, pointing to an affidavit by Gaffney stating that “there were no safety lines, lifelines or stanchions in the work area, and [he and Gallagher] were not provided with any safety belts, harnesses or yo-yos in order to tie off.” NYP cross-moved for summary judgment dismissing the complaint in its entirety. NYP relied in large part on Schreck’s deposition testimony that safety devices were available for use at the project site, and concerning the “standing order.” NYP also argued that Gallagher had not been medically cleared to return to work following his 2002 accident, and that his premature return was the sole proximate cause of his injuries.

In further support of their motion, plaintiffs introduced an affidavit signed by Nover, Gallagher’s foreman, who, according to Schreck, would have been the person responsible for relaying safety instructions to the ironworkers. Nover stated that Gallagher had not been “provided with a safety harness or lifeline, nor were any stanchions or safety cables in the accident area at the time of the accident.”

Supreme Court denied plaintiffs’ summary judgment motion (2007 NY Slip Op 34452[U]). Initially it did so on the ground that Schreck’s deposition testimony raised a question of fact as to whether safety devices had been provided to Gallagher. On reargument, Supreme Court acknowledged that it had overlooked Nover’s affidavit and decided that no triable issue of fact existed as to whether Gallagher had been provided with appropriate safety devices. Nevertheless, Supreme Court ruled that the summary judgment motion should be denied—apparently on the basis that Gallagher may have returned to work prematurely, and that the weakness of his grip on the saw may have been the sole proximate cause of his accident.

The Appellate Division agreed with Supreme Court’s initial rationale for denying plaintiffs summary judgment, holding that Schreck’s testimony was sufficient to raise issues of fact as to whether Gallagher had been provided with adequate safety devices and instructed to use them, but had declined to do so (55 AD3d 488 [2008]). Two Justices dissented. The Appellate Division granted plaintiffs leave to appeal, and we now reverse.

Through the affidavits of Gaffney and Nover, plaintiffs made a prima facie showing that NYP violated Labor Law § 240 (1) by failing to furnish adequate safety devices to Gallagher. Both men asserted that the ironworkers were not provided with necessary safety devices, corroborating Gallagher’s own similar testimony. The burden then shifted to NYP to raise a question of fact as to whether there was a violation of Labor Law § 240 (1). NYP argues that it met this burden through evidence that adequate safety devices were provided to Gallagher or, in the alternative, evidence that the sole proximate cause of Gallagher’s fall was that he prematurely returned to work.

NYP relies on our decision in Montgomery v Federal Express Corp. (4 NY3d 805 [2005]). In Montgomery, we held that a worker who injured himself when he jumped from an elevator motor room to a roof, rather than use a “readily available” ladder, was not entitled to recover under Labor Law § 240 (1). Similarly, in Robinson v East Med. Ctr., LP (6 NY3d 550, 553 [2006]), we held that a plumber who lost his balance and injured himself, when he used a six-foot ladder to install pipes at a height of 12 to 13 feet from the floor, could not recover under section 240 (1), because he knew that there were eight-foot ladders on the job site and exactly where they could be found. Both cases stand for the same proposition. Liability under section 240 (1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff’s own negligence is the sole proximate cause of his injury (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]).

This is not such a case. There is no evidence in the record that Gallagher knew where to find the safety devices that NYP argues were readily available or that he was expected to use them. Although Schreck testified that appropriate safety devices were available at the project site on the date of the accident, nowhere in his testimony did Schreck state that Gallagher had been told to use such safety devices. Schreck referred to a “standing order” issued to the project foremen, directing workers to “have a harness on and be tied off,” but could not say whether the order had been conveyed to the workers. Moreover, the affidavit of Gallagher’s foreman, Nover, who was not deposed, does not support NYP’s claim that Gallagher was told about safety devices. Nover stated that Gallagher had not been provided with the requisite safety devices, a proposition that is consistent either with Gallagher’s ignorance of the availability of safety devices or with his knowledge thereof. Even viewed in the light most favorable to NYP (as it must be when we consider plaintiffs’ motion for summary judgment), the evidence does not raise a question of fact that Gallagher knew of the availability of the safety devices and unreasonably chose not to use them.

Finally, even if Gallagher’s grip on the saw was not up to full strength as a result of his prior injury, such weakness in his hand would at most have contributed towards his loss of balance, and cannot as a matter of law have been the sole proximate cause of his fall from the second floor to the temporary floor.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, plaintiffs’ motion for summary judgment as to liability on their Labor Law § 240 (1) claim granted, and the certified question answered in the negative.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith and Jones concur.

Order, insofar as appealed from, reversed, etc.

      . Plaintiffs sued NYP as “The New York Post and NYP Holdings, Inc.”

      . NYP also commenced a third-party action against Gallagher’s employer, Francis A. Lee Co.; that action is not before this Court.

      . Supreme Court granted NYP’s cross motion to the extent of dismissing the Labor Law § 200 claim but, on reargument, reinstated the claim. The Appellate Division dismissed the section 200 claim. Plaintiffs do not appeal this part of the Appellate Division order.


author: Read, J.

text:
    [923 NE2d 1123, 896 NYS2d 735]
    The People of the State of New York, Respondent, v Vincent Fiammegta, Appellant.
    Argued January 12, 2010;
    decided February 16, 2010

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Lynn W.L. Fahey of counsel), for appellant.
    The court denied appellant due process when it refused him a further chance in a treatment program and sentenced him to prison without holding a hearing or otherwise resolving disputed allegations, based on hearsay and conjecture, that he was responsible for thefts within the program. (People v Selikoff 35 NY2d 227; Matter of Chaipis v State Liq. Auth., 44 NY2d 57; People v McConnell, 49 NY2d 340; People v White, 32 NY2d 393; Gagnon v Scarpelli, 411 US 778; Morrissey v Brewer, 408 US 471; Torres v Berbary, 340 F3d 63; Gardner v Florida, 430 US 349; People v Hansen, 99 NY2d 339; People v Outley, 80 NY2d 702.)

      Charles J. Hynes, District Attorney, Brooklyn (Morgan J. Dennehy and Leonard Joblove of counsel), for respondent.
    The Supreme Court conducted a sufficient inquiry before determining that defendant had violated the terms of the plea agreement. (People v Outley, 80 NY2d 702; Gardner v Florida, 430 US 349; People v Valencia, 3 NY3d 714; People v Naranjo, 89 NY2d 1047; Torres v Berbary, 340 F3d 63; People v Bing, 76 NY2d 331; People v Taylor, 9 NY3d 129; People v Kin Kan, 78 NY2d 54; McMillan v Pennsylvania, 477 US 79; United States v Watts, 519 US 148.)
   OPINION OF THE COURT

Read, J.

In January 2006, defendant Vincent Fiammegta was arrested and charged with two counts each of second-degree burglary, third-degree burglary, second-degree criminal trespass, third-degree criminal trespass, fourth-degree criminal mischief, fifth-degree criminal possession of stolen property, and petit larceny. The charges were based on allegations that he broke into two apartment buildings in Brooklyn and stole items from one of them. According to the presentence report, defendant admitted his guilt and explained that he had been “high on [Xanax], ambient ] and crack cocaine” at the time.

On May 10, 2006, the judge was informed that the prosecutor had approved defendant to participate in the Kings County District Attorney’s Drug Treatment Alternative-to-Prison Program (DTAP), which offers substance abuse treatment in lieu of prison to nonviolent, drug-addicted felons who face a mandatory prison sentence under New York’s second felony offender law. That same day, defendant was adjudicated a predicate felon, and pleaded guilty to one count of second-degree burglary. In return, the People agreed to dismissal of the indictment once defendant successfully completed an 18-to-24-month residential drug treatment program and aftercare, to be followed by reentry into the community. The judge advised defendant that if he did not satisfactorily finish the program, he would be sentenced to eight years in prison and five years of postrelease supervision.

Defendant entered a residential drug treatment program soon thereafter. By letter dated September 13, 2006, however, the program’s Assistant Director of Clinical Services informed Supreme Court that defendant was at risk of discharge, essentially for violating conduct rules and displaying an uncooperative attitude. Consequently, at defendant’s court appearance the same day the judge warned that “[t]his is not working,” referring to defendant’s participation in DTAP When defense counsel asked the judge to give her client a second chance, he agreed to consider the request, and adjourned the case until September 27, 2006. At that time, a representative of Treatment Alternatives for Safe Communities (TASC) informed Supreme Court that defendant had been cleared to enter a residential drug treatment program at another facility later that day. TASC, a federally funded statewide agency that operates under the auspices of the Division of Probation and Correctional Alternatives and works in conjunction with DTAP places defendants in treatment programs, monitors their progress, and acts as a liaison between the programs and the court. The judge advised defendant that he would “take another chance” on him, and give him this one “last chance.”

On March 15, 2007, the TASC Program Director wrote to the judge to report that defendant had been discharged from the program he entered the previous September on account of “noncompliance, thus violating the terms of his release and plea.” She enclosed a letter dated March 14, 2007 from the program’s Facility Director, who alleged that “[a]s a result of an extensive and thorough investigation,” defendant had been tagged for thefts from vocational counselors at a school that the program used.

The Director’s letter explained that 21 residents were initially under suspicion for these thefts, and that security at the school was very lax. Yet, the evidence “clearly pointed to” defendant as the thief for several reasons. First, another resident claimed to have seen defendant using keys to open doors to the vocational counselors’ offices, and defendant asked this resident not to mention what he had observed. Second, defendant was involved in an unauthorized “scheme to collect money for weights in the gym,” which netted $90 subsequently stolen from a locker. Third, defendant was found to possess $167, which he claimed to have saved. According to the Director, defendant “admitted that the evidence point[ed] to him,” but had “not officially taken responsibility for the thefts.”

On March 16, 2007, defendant appeared before the judge, who adjourned the case to “[s]ee if [the program] [would] take [defendant] back.” When defendant next appeared on March 27, 2007, the prosecutor asked the judge to sentence him. Defense counsel countered that defendant had been “very successful” in treatment, and had been “clean” for 14 months. She complained that the March 14th letter was “very circumstantial,” and failed to indicate that any “type of proceeding” had been held to establish her client’s responsibility for the thefts. She requested that another program be found for defendant if the program he had been participating in refused to take him back.

The TASC representative stated that DTAP would have to approve any other treatment opportunity for defendant and was “not inclined” to do so. Further, a DTAP representative said that she was “clear” that DTAP was not about to offer defendant a third program. Supreme Court recessed the case so defense counsel could speak to a DTAP supervisor, but predicted that this was “not going to work.” When the case was called again later that day, the prosecutor announced that the DTAP supervisor was unwilling to afford defendant another chance in treatment.

Defense counsel requested a hearing because defendant insisted on his innocence of the thefts. Calling the Director’s letter “speculation,” she asserted that the program’s legal department considered the charges too flimsy to investigate. She also stated that defendant’s family and girlfriend had sent him money, and that he received “a stipend for being involved in a substance abuse program.” Defense counsel told the judge that defendant’s mother was present in the courtroom and willing to confirm that she had sent money to her son.

The following colloquy ensued:

“the court: Well, I’m not here to dispute this. In fact, you were supposed to finish your program. You didn’t finish the program. You had an opportunity. You got kicked out of that program. That’s it.
“[defense counsel]: But it’s based on allegations that. . . [are] unfounded . . .
“the court: Let’s say I agree with you that it was unfounded. They kicked him out of the program. They’re not giving him another chance. What am I going to do?
“[defense counsel]: . . . [H]e was one week away from outpatient status.
“the court: This is not an illegal program. This is the D.A.’s program. The D.A. is not offering him any more programs.”

When defense counsel suggested that the judge could offer defendant another program, he responded, “My program is eight years in jail. I have no alternative. I can’t do it. To dismiss the case is up to the D.A.”

Defense counsel reiterated her request for a hearing, to which Supreme Court responded, “Assuming I find in your favor at the hearing . . . what do I do then?” Counsel suggested that the information obtained at a hearing might persuade the DTAP supervisor to relent; if it did not, the Legal Aid Society should be allowed to seek out another program for defendant, or the judge might sentence defendant to a reduced prison term.

Supreme Court adjourned the case until April 2, 2007, so defense counsel could “speak to the people at [the program]” and “be comfortable in what they have done.” The judge stated that he did not intend to hold a hearing because “[t]hese are not issues [for which] a hearing is held. If he flunks out of the program for whatever reason, he flunk[s] out of the program.”

On April 2, 2007, defense counsel reported to the judge that the Director now believed that defendant had been “set up,” and was willing to take him back; that the person who claimed to have seen defendant with keys had “a history,” including “several reprimands”; and that theft was a common occurrence at the program. Defense counsel mentioned that defendant’s mother and girlfriend were both present in court, and that she had letters documenting the funds they had sent him.

The prosecutor countered that DTAP was unwilling to give defendant another chance, and that the program was, in any event, not prepared to readmit him. The judge suggested that the DTAP supervisor might call the Director and confirm the program’s stance, but the prosecutor took the position that “[r]egardless whether the program or any program is willing to take the defendant back, the D.A.’s office is not willing” because the case was “very serious.”

Defense counsel continued to ask for a hearing, and Supreme Court reiterated that a hearing would not resolve anything, remarking that “[t]he program kicked him out. The People aren’t willing to give him another program. And we’re stuck with that situation here . . . Let’s say I . . . find that he didn’t violate. What am I going to do? Sue the program? Sue the D.A.’s office?” The judge did, however, adjourn the case so that he could talk to the Director. When defendant appeared in court again on April 4, 2007, Supreme Court described his conversation with the Director as follows:

“I spoke at length with [the Director] from the program. It is clear that they firmly believe [that defendant] was responsible for the theft, and they do not want him back, so I have nothing more to do but to sentence the defendant pursuant to our agreement.”

Defense counsel replied that she had also spoken to the Director, and had asked him “why the change of heart.” She recounted that he was “very vague,” but said “once again [that] he believes that [defendant] was set up due to the conditions of the . . . program.” She also informed the judge that the Director told defendant’s girlfriend that whether to take defendant back was “not his decision.” Defense counsel asked to be allowed to speak to the person who had actually decided to discharge defendant from the program, and again complained that defendant was the victim of conjecture. She suggested that the judge might consider placing defendant in a different program, or sentencing him to the minimum available prison term of five years. The prosecutor responded that she had spoken with someone from the program, who had reviewed defendant’s file. This individual expressed the “firm” belief that defendant was the thief, and confirmed that he would not be readmitted.

Supreme Court next asked defendant if he wished to say anything, to which he responded, “Your Honor, there’s so much, but I—no.” The judge then sentenced him to eight years in prison and five years of postrelease supervision. Defendant subsequently appealed.

On December 30, 2008, the Appellate Division affirmed, concluding that Supreme Court’s “inquiry regarding the circumstances concerning the defendant’s discharge from a drug treatment program was sufficient to determine that [he] violated the plea agreement” (People v Fiammegta, 57 AD3d 1003 [2d Dept 2008]). A Judge of this Court granted defendant permission to appeal (12 NY3d 853 [2009]), and we now reverse.

Supreme Court has broad discretion when supervising a defendant subject to DTAE] and deciding whether the conditions of a DTAP plea agreement have been met (see People v Jenkins, 11 NY3d 282, 289 [2008]). And although DTAP is not the same as the judicial diversion program, the Legislature has endorsed judicial flexibility in CPL 216.05 (9) (b), effective October 7, 2009, which provides that “[i]n determining whether a defendant violated a condition of his or her release under the judicial diversion program [for substance abuse or dependence], the court may conduct a summary hearing consistent with due process and sufficient to satisfy the court that the defendant has, in fact, violated the condition” (emphasis added).

This provision is consistent with our decision in People v Outley (80 NY2d 702, 712 [1993]), where we adverted to the settled rule that “sentencing is a critical stage of the criminal proceeding and that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause” (internal quotation marks omitted). And in order “[t]o comply with due process, . . . the sentencing court must assure itself that the information upon which it bases the sentence is reliable and accurate” (id.).

In Outley, we considered what process was due when a defendant “breached a no-arrest condition [of a plea bargain] by being arrested before the sentence but denies any complicity in the underlying crime” (id.). In each of the three cases consolidated for decision in Outley, the defendants maintained that “when a defendant denies the postplea criminal conduct, the court must conduct an evidentiary hearing to satisfy itself by a preponderance of the evidence that the defendant has, in fact, committed the crime for which he was arrested” (id.). We rejected that notion because it changed the condition of the plea from not being arrested for a crime to not actually committing a crime.

But we recognized in Outley that in order for a court to impose the enhanced sentence, “the mere fact of the arrest, without more, is not enough. A no-arrest condition could certainly not be held to have been breached by arrests which are malicious or merely baseless” (id. at 713). We therefore held that

“[w]hen an issue is raised concerning the validity of the postplea charge or there is a denial of any involvement in the underlying crime, the court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation . . . The nature and extent of the inquiry—whether through a summary hearing pursuant to CPL 400.10 or some other fair means—is within the court’s discretion. The inquiry must be of sufficient depth, however, so that the court can be satisfied—not of defendant’s guilt of the new criminal charge but of the existence of a legitimate basis for the arrest on that charge” (id. [citations omitted]).

Defendant asks us to reject Outley in favor of Torres v Berbary (340 F3d 63, 71 [2d Cir 2003]), and to hold that a defendant who faces termination from a drug treatment program on account of contested allegations of wrongdoing is entitled to a hearing akin to that afforded a defendant subject to probation or parole revocation because “due process in sentencing requires at least a showing by a preponderance of evidence to resolve disputed factual issues” (but see Janick v Superintendent of Franklin Correctional Facility, 253 Fed Appx 65, 66 [2d Cir 2007] [acknowledging that the United States Supreme Court has “not shed much light on the minimum burden of proof that must be met when factual contentions are subject to dispute at sentencing”]). That is, defendant contends that he should have been provided the opportunity to testify and present evidence; to confront and cross-examine adverse witnesses, unless the court found good cause for not allowing this; to have the accusations proven by a preponderance of the evidence; and to a resolution of the relevant facts by the court.

In our view, though, the Outley rule is better suited for those circumstances where a defendant is expelled from a drug treatment program for misconduct. As an initial matter, DTAP is a diversion program; a defendant must successfully complete drug treatment in order to escape otherwise mandatory incarceration. This is not the same as the situation where the court changes the defendant’s sentence by revoking a sentence of probation or parole at the request of the government. Moreover, it is not practical to require an evidentiary hearing every time a defendant disputes discharge from a drug treatment program for reasons unrelated to making satisfactory progress in treatment. Faced with a prison term, many—if not most—defendants will challenge their dismissal. Analogizing to Outley, the condition of a DTAP plea is that the defendant satisfactorily finish a drug treatment program. Accordingly, when a program discharges a defendant for misconduct, the court must carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis for the program’s decision, and must explain, on the record, the nature of its inquiry, its conclusions, and the basis for them.

Accordingly, Supreme Court was not required to conduct an evidentiary hearing in this case, or to determine by a preponderance of the evidence that defendant was guilty of the thefts of which he was accused. But the judge should have considered defendant’s argument that he was kicked out of the program based on thin evidence of wrongdoing after inadequate investigation; and he should have allowed defendant to submit letters and testimony or affidavits from his mother and girlfriend about the money they claimed to have sent him.

Supreme Court understandably felt hamstrung by the District Attorney’s refusal to endorse any further treatment opportunity for defendant. Nonetheless, in his supervision of this DTAP plea and as a measure of the due process owed defendant, the judge was obligated to make the requisite inquiry into the merits of defendant’s discharge. Concededly, the judge’s options would have been limited in the event that he concluded that the program, in fact, did not possess a legitimate basis for expelling defendant, and the District Attorney remained unwilling to approve defendant’s participation in another program. Under those circumstances, however, Supreme Court could at least offer defendant the opportunity to withdraw his plea before imposing sentence.

Accordingly, the order of the Appellate Division should be reversed, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Chief Judge Lippman and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

Order reversed, etc.


author: Smith, J.

text:
    [923 NE2d 1129, 896 NYS2d 741]
    In the Matter of the Adoption of John Doe, an Infant. LMB, Respondent; ERJ, Appellant.
    Argued January 13, 2010;
    decided February 16, 2010

      POINTS OF COUNSEL

      Newman & Greenberg, New York City (Richard A. Greenberg and Steven Y. Yurowitz of counsel), for appellant.
    I. The Act of State Doctrine applies to a foreign adoption granted by the highest levels of a foreign government. (Banco Nacional de Cuba v Sabbatino, 376 US 398; F. & H.R. Farman-Farmaian Consulting Engrs. Firm v Harza Eng’g Co., 882 F2d 281; People ex rel. Arcara v Cloud Books, 68 NY2d 553; People v P.J. Video, 68 NY2d 296; People v Scott, 79 NY2d 474; Occidental of Umm al Qaywayn, Inc. v A Certain Cargo of Petroleum Laden Aboard Tanker Dauntless Colocotronis, 577 F2d 1196; Callejo v Bancomer, S.A., 764 F2d 1101; In re Philippine Natl. Bank, 397 F3d 768; United States v Merritt, 962 F2d 917; Galu v Swissair: Swiss Air Transp. Co., Ltd., 873 F2d 650.) II. Cambodian law governs the validity of LMB’s written relinquishment, conveyed to and accepted by Cambodia, of his Cambodian-granted adoption of a Cambodian orphan-citizen, and under Cambodian law LMB’s relinquishment was valid. (Matter of Hollinger, 93 Misc 2d 926; Matter of Female Infant F, 191 AD2d 437; Mountain View Coach Lines v Storms, 102 AD2d 663; People v Shakur, 215 AD2d 184; Blackmer v United States, 284 US 421; Schultz v Boy Scouts of Am., 65 NY2d 189; Anh v Levi, 586 F2d 625; Babcock v Jackson, 12 NY2d 473; Matter of Crichton, 20 NY2d 124; Auten v Auten, 308 NY 155.) III. A best interest analysis is required in a contested adoption between nonbiological parents, and the Surrogate’s failure to consider John Doe’s best interests before vacating ERJ’s adoption was reversible error. (Matter of Male Infant L., 61 NY2d 420; Matter of Bennett v Jeffreys, 40 NY2d 543; Friederwitzer v Friederwitzer, 55 NY2d 89; Matter of Gale v Gray, 39 AD3d 903; Matter of Alfredo S. v Nassau County Dept. of Social Servs., 172 AD2d 528; Matter of Hicks v Bridges, 2 AD2d 335; Matter of O’Rourke v Kirby, 54 NY2d 8; Matter of Kevin G., 227 AD2d 622; Matter of George L. v Commissioner of

      Fulton County Dept. of Social Servs., 194 AD2d 955; People ex rel. Turner v Hembrooke, 12 AD3d 966.)

      Cohen Hennessey Bienstock & Rabin P.C., New York City (Bonnie E. Rabin and Timothy W. James of counsel), for respondent.
    I. New York law governs the MOSAVY letter’s effectiveness as a surrender of parental rights. (Matter of Female Infant F., 191 AD2d 437; Anh v Levi, 586 F2d 625; Babcock v Jackson, 12 NY2d 473; Indosuez Intl. Fin. v National Reserve Bank, 98 NY2d 238; Matter of Crichton, 20 NY2d 124; Auten v Auten, 308 NY 155; Reale v Herco, Inc., 183 AD2d 163; Merrick v Merrick, 180 AD2d 546; McKoan v McKoan, 15 Misc 3d 1115[A], 2007 NY Slip Op 50653[U]; Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309.) II. The MOSAVY letter did not meet New York law’s requirements for an effective surrender of parental rights. (Dennis T. v Joseph C., 82 AD2d 125.) III. The MOSAVY letter would not be a legally effective surrender of LMB’s parental rights under Cambodian law. IV The Act of State Doctrine does not apply. (Banco Nacional de Cuba v Sabbatino, 376 US 398; W. S. Kirkpatrick & Co. v Environmental Tectonics Corp., Int’l, 493 US 400; Riggs Natl. Corp. & Subsidiaries v Commissioner of Internal Revenue Serv., 163 F3d 1363; Alfred Dunhill of London, Inc. v Republic of Cuba, 425 US 682; Republic of Philippines v Marcos, 806 F2d 344; In re Grand Jury Proceedings Bank of Nova Scotia, 740 F2d 817; Timberlane Lbr. Co. v Bank of Am., N.T. & S.A., 549 F2d 597; United States v Evans, 667 F Supp 974; Matter of Jarrett, 230 AD2d 513; Morrison v Budget Rent A Car Sys., 230 AD2d 253.) V. No best interests hearing was required or appropriate. (Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Male Infant L., 61 NY2d 420; Carpenter v Buffalo Gen. Elec. Co., 213 NY 101; Matter of Upjohn, 304 NY 366; Matter of Robert Paul P., 63 NY2d 233.)
   OPINION OF THE COURT

Smith, J.

The parties to this proceeding are former lovers who never married but who, while they were romantically involved, brought a Cambodian child to the United States, and planned to adopt him together. The adoption proceedings became complicated; the couple broke up; and now each claims to be the child’s only parent.

Before us on this appeal is an order of the Surrogate, affirmed by the Appellate Division, which granted the petition of LMB, who asserts he is the child’s father, to vacate an adoption decree previously granted to ERJ, who claims the status of mother. We agree with the courts below that the adoption decree must be vacated.

I

Many facts in this case are disputed, but few if any of the factual disputes are material to the legal issues. In the following account, we try to confine ourselves to facts that are agreed on or, at least, asserted by one party and not contradicted by the other.

In January 2003, John Doe, apparently about two months old, was found abandoned in a village market in Cambodia and taken to an orphanage. ERJ, a wealthy New York resident who had taken a philanthropic interest in the plight of Cambodian orphans, saw him for the first time on a tour of the orphanage in June 2003.

LMB, ERJ’s then boyfriend, also met John Doe in Cambodia, in July 2003. The child suffered from a heart ailment that could not be properly treated in Cambodia, and in late August or early September 2003 he was brought to New York on a six-month visa (later extended for another six months) for the purpose of receiving medical care. John Doe has lived at ERJ’s home in New York City since that time. LMB was, until late 2005, at least a frequent visitor to the home, if not an inhabitant of it. Both parties love the child, and have participated in caring for him.

At some point either before or after the child was brought to the United States, ERJ decided she wanted to adopt him. The parties agreed—either at the outset, or at some later time—that LMB would adopt him also. United States law presented an obstacle to the adoption, or so the parties believed; they understood that the United States had put a moratorium on adoption of Cambodian children, in response to reports of trafficking in Cambodian babies. The parties devised a fairly complicated solution to this problem. LMB, though a United States citizen, was born in Trinidad and Tobago. The plan was that he would reestablish Trinidadian citizenship (which he could do without relinquishing United States citizenship); that he would adopt John Doe in Trinidad and Tobago; and that the child—no longer a Cambodian—could then also be adopted by ERJ in New York.

LMB did reclaim his Trinidadian citizenship, and applied to the Cambodian government for permission to adopt John Doe.

On June 23, 2004, the Cambodian Ministry of Social Affairs, Labor, Vocational Training and Youth Rehabilitation (which later changed its name, and is referred to by its current acronym, MOSAVY), issued a document to LMB approving his request. In the translation submitted by LMB, the document is titled “ADOPTION CERTIFICATE” and says that LMB “is allowed to adopt the orphan child [John Doe].”

The parties’ plan to arrange a Trinidadian adoption as a prelude to a New York adoption did not work out. LMB was advised (belatedly, it seems) that single men could not adopt children under Trinidadian law. Meanwhile, in August 2004, the romantic relationship between LMB and ERJ ended, though the two remained, for the time being, on more or less friendly terms.

In the fall of 2004, ERJ was told that it might be possible for her to adopt John Doe in New York after all, even if there was no previous Trinidadian adoption. In an effort to help her accomplish this, on March 14, 2005 LMB signed, at ERJ’s request, a letter to MOSAVY saying: “I wish to relinquish the permission that was granted to me by the Kingdom of Cambodia to adopt the orphan child.” ERJ made her own application to Cambodian authorities, and on October 11, 2005 MOSAVY issued her a certificate identical in form to the one it had issued to LMB in June 2004. In December 2005, the parties quarreled, apparently because each disapproved of the other’s approach to bringing up children, and their relations have been hostile since that time.

On January 12, 2006, ERJ filed a petition with the New York County Surrogate to adopt John Doe. She did not give LMB notice of the adoption proceeding. In her petition, she characterized the relief she sought as “a re-adoption,” a characterization she later said was mistaken. ERJ’s adoption petition also contained another flaw, one she later called “a very stupid error”; she acknowledged that she “was not candid” with the Surrogate, in that she failed to disclose a recent stay at an alcohol treatment facility.

The New York adoption ERJ sought was not opposed, and was granted on April 12, 2006. On August 1, 2006, LMB, having learned of the adoption, began the present proceeding to vacate it. While this proceeding was pending, the Cambodian government issued two documents that ERJ now relies on. The first, a letter dated October 24, 2006 from MOSAVY to ERJ, states in substance that the Cambodian government validly granted ERJ permission to adopt John Doe. It adds that LMB “also submitted an application” but “failed to attend a handing over ceremony . . . and he also submitted a letter of refusal to adopt.” It authorizes ERJ to “use this letter as you see fit for the best interest of’ John Doe.

The second document, dated December 1, 2006, was issued by the Cambodian Council of Ministers and is referred to by the parties as a “Sor Chor Nor”—a phrase translated by ERJ as “governmental edict or clarification of rights.” The Sor Chor Nor refers to and repeats the substance of MOSAVY’s October 24, 2006 letter, and adds that LMB’s “request to adopt this child is considered as null and void.”

After a trial in which experts on Cambodian law testified for both sides, the Surrogate, in a lengthy and carefully reasoned decision, granted LMB’s petition to vacate the adoption decree. The Appellate Division affirmed, with one Justice dissenting (Matter of Doe, 58 AD3d 186 [1st Dept 2008]). The Appellate Division granted leave to appeal to this Court, and we now affirm.

II

The substance of LMB’s argument, which the courts below upheld, is that he became John Doe’s father by virtue of the certificate issued to him by MOSAVY on June 23, 2004; that his parental rights have never been effectively relinquished or extinguished; and that therefore ERJ could not adopt John Doe without LMB’s consent (see Domestic Relations Law § 111 [1] [b] [requiring the consent of parents to the adoption “of a child conceived or born in wedlock”] and [5] [providing that a child “who has once been lawfully adopted may be readopted directly from such child’s adoptive parents in the same manner as from its birth parents”]). We do not find it necessary to endorse all of LMB’s argument, or all the conclusions reached by the courts below; but we agree with much of their reasoning, and agree that the adoption decree issued to ERJ was correctly vacated.

To explain our conclusion, we discuss five issues: (1) the effect under Cambodian law of the June 23, 2004 certificate; (2) whether comity should be accorded to that certificate under New York law; (3) the effect, if any, of the “relinquishment” letter signed by LMB on March 14, 2005; (4) whether the documents issued by the Cambodian government in 2006 were “acts of state” nullifying LMB’s parental rights; and (5) whether the courts below should have considered the best interests of the child in deciding whether to vacate ERJ’s adoption.

1. The effect of the June 2004 certificate under Cambodian law

Whether, under Cambodian law, LMB validly adopted John Doe in June 2004 was a major issue below, generating a duel between experts at trial and occupying a large part of the Surrogate’s decision. But there is no need for us to examine this question in similar detail here. The Surrogate concluded that, under Cambodian law, the June 2004 certificate evidenced not just “permission to adopt” but a “full and final adoption”; and that neither LMB’s failure to participate in a “giving and receiving ceremony” nor the absence of approval of the adoption from Trinidad and Tobago altered the Cambodian-law effect of the adoption. We find the Surrogate’s reasoning on these issues to be compelling, and ERJ has not challenged the Surrogate’s resolution of the Cambodian law question in this Court. We are satisfied that, under Cambodian law, LMB validly adopted John Doe in June 2004.

2. The comity issue

Whether the Cambodian adoption certificate of June 2004 should be given comity by the New York courts—i.e., whether being John Doe’s father under Cambodian law made LMB his father under New York law also—is a question that received less attention below, but requires more discussion by us here.

It seems from the Surrogate’s opinion that ERJ opposed according comity to LMB’s Cambodian adoption solely on the ground that “New York State and Federal public policy” precluded it. In support of this argument, ERJ pointed out that: (1) Cambodian law, unlike New York law and federal immigration regulations, did not require a pre-adoption “investigation by a disinterested person or by an authorized agency” (Domestic Relations Law § 112 [7]) or “home study” (8 CFR 204.3 [e]); and (2) Cambodia did not require approval of an international adoption by the “receiving State,” as does the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (32 ILM 1134 [1993]). The Surrogate had little difficulty in disposing of these arguments. She rejected both of them on the ground that foreign adoptions should generally be accorded comity “unless enforcement would result in the recognition of a transaction which is inherently vicious, wicked or immoral, or shocking to the prevailing moral sense” (quoting Greschler v Greschler, 51 NY2d 368, 377 [1980] [internal quotation marks omitted]); and she rejected the second argument on the additional ground that the United States had not ratified the Hague Convention. Again, the reasoning of the Surrogate on these issues is convincing, and ERJ takes no issue with it on this appeal.

ERJ apparently did not advance, and the Surrogate did not address, a perhaps better reason for denying comity to LMB’s Cambodian adoption of John Doe: at the time of that adoption, John Doe and LMB were in New York, not Cambodia. It is true that the child was a Cambodian citizen, and that his presence in New York was theoretically temporary; he was here on a visa, originally granted for six months and extended for another six months, for the purpose of receiving medical treatment. On the other hand, it is a reasonable inference from the record that, as of June 2004, John Doe was highly unlikely ever to return to live in Cambodia. On these facts, it is not self-evident that New York should defer to Cambodia to decide the question of whether John Doe should be adopted, or by whom; arguably, as of June 2004, New York’s interest in that subject was not less than Cambodia’s (cf. Barry E. v Ingraham, 43 NY2d 87 [1977]).

Since ERJ has not made this argument, we need not accept or reject it, and our opinion should not be taken as expressing any view on it. We add, however, that even if the argument had been made and accepted, it might not have altered the outcome of this case. To say that a New York court would not automatically accord comity to the June 2004 Cambodian adoption is not to say that that adoption is necessarily a nullity. ERJ treated it as a nullity when she petitioned the Surrogate for the adoption of John Doe in January 2006. She gave no notice of the proceeding to LMB, and she apparently did not inform the Surrogate that the June 2004 adoption had ever happened. It would be no great stretch to say that Cambodia’s determination, in June 2004, of the status of its own citizen was entitled to more respect than this—that ERJ should not have been allowed to adopt John Doe without notice to the person who was John Doe’s father under Cambodian law.

3. The March 2005 letter

For the reasons we have explained, the Surrogate and the Appellate Division were correct to hold, for purposes of this proceeding, that LMB became John Doe’s father in June 2004, not only under the law of Cambodia but also under the law of New York. Under Domestic Relations Law § 111 (1) (b) and (5), ERJ could not adopt John Doe without the consent of his existing parent. The next question is whether LMB effectively gave that consent in March 2005, by signing a letter saying that he wished to relinquish the permission to adopt John Doe that the Cambodian government had granted him. We agree with the courts below that no effective consent was given.

Domestic Relations Law § 115-b provides two methods by which a parent may consent to a private-placement adoption (i.e., an adoption other than through an authorized agency) of his or her child. Section 115-b (2) (a) says that such a consent “may be executed or acknowledged before any judge or surrogate in this state having jurisdiction over adoption proceedings.” All consents not given before a judge or surrogate are subject to the formal requirements of section 115-b (4), which requires, among other things, a statement “in conspicuous print of at least eighteen point type” of the name and address of the court in which an adoption proceeding has been or is to be commenced (§ 115-b [4] [a] [i]); an equally conspicuous description of the consenting parent’s right to revoke his or her consent (§ 115-b [4] [a] [ii]); and execution or acknowledgment of the consent before a notary public or another officer (Domestic Relations Law § 115-b [4] [b]). It is undisputed that the March 2005 relinquishment letter does not meet the requirements of Domestic Relations Law § 115-b.

ERJ does not defend the validity of the relinquishment under New York law. Her sole argument on this issue is that Cambodian law should govern the question. She cites no authority supporting this suggestion, and we reject it. It may be debatable, as we explained above, whether parental rights created by a Cambodian adoption should, under circumstances like these, be treated as valid in New York. But once parental rights have been validly established under New York law, between an adoptive parent and child who continue to live in New York, the choice of law governing the parental relationship is much less difficult: New York law applies.

Under established conflict of laws principles, the applicable law should be that of “the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation” (Babcock v Jackson, 12 NY2d 473, 481 [1963]). New York’s interest in a parent-child relationship between two of its residents is plainly greater than the interest of Cambodia in a relationship between an adult who never lived in Cambodia and a child who, with the approval of the Cambodian government, has been adopted by a non-Cambodian and taken to live elsewhere. When New York parents have acquired, by virtue of a foreign country adoption, parental rights that are recognized in New York, those rights can no longer depend upon the vagaries of a foreign country’s law. The rule ERJ seeks would create unacceptable uncertainty for every New York parent raising a child he or she has adopted in a foreign country.

4. The Act of State Doctrine

ERJ’s main argument on this appeal is that two Cambodian documents issued during the course of the litigation—the MOSAVY letter of October 24, 2006 and the Sor Chor Nor of December 1, 2006—are “acts of state” of the Cambodian government, which must be respected by United States courts and control the outcome of this litigation. This argument lacks merit.

The Act of State Doctrine is that “the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory” (Banco Nacional de Cuba v Sabbatino, 376 US 398, 416 [1964]). The inapplicability of this doctrine to the present case seems obvious. Assuming that the MOSAVY letter and the Sor Chor Nor were acts of the Cambodian government, and that they purported to terminate LMB’s parental rights over John Doe, and to authorize ERJ to adopt him, they certainly were not acts “done within [Cambodia’s] own territory.” All three of the people that these supposed governmental acts would have affected—LMB, ERJ and John Doe—were living in New York in 2006.

ERJ points out that courts have made exceptions to the territoriality limitation on the Act of State Doctrine (see Callejo, v Bancomer, S.A., 764 F2d 1101, 1121 n 29 [5th Cir 1985]). But the exceptions are rare. The only examples that have been called to our attention involve international banking transactions of exceptional political sensitivity (United States v Belmont, 301 US 324 [1937]; In re Philippine Natl. Bank, 397 F3d 768, 773 [9th Cir 2005]). ERJ suggests no persuasive reason why this case should be added to the list of exceptions, and there are excellent reasons why it should not be. In the previous section of this opinion, we held that the continued existence of a parent-child relationship between two New York residents should be governed by New York law, because the contrary rule would subject New York parents to intolerable uncertainty. A fortiori, parents living in New York with their adopted children should not run the risk that those adoptions can be nullified by the decree of a foreign government.

5. The best interests of the child

ERJ’s claim, that the courts below erred in failing to consider whether it would be in John Doe’s best interests for ERJ to adopt him misconceives the grounds for their rulings.

The Surrogate vacated ERJ’s adoption of John Doe, and the Appellate Division affirmed the Surrogate’s order, because that adoption was gravely flawed as a matter of law. Their decision rested, as does ours, on the failure to give notice to or obtain the consent of LMB, who for purposes of this proceeding must be considered John Doe’s father. Other flaws in the adoption might have compelled the same result: ERJ’s adoption petition represented that she sought a “re-adoption”—a claim that she later disavowed—and failed to disclose a recent substance abuse problem.

The best interests of a child, important though they are, do not automatically validate an otherwise illegal adoption. In particular, the parental rights of a child’s father cannot simply be ignored because a court thinks it would be in the child’s best interests to be adopted by someone else. The courts below were clearly correct in declining to hold the best interests of the child to be dispositive in this case.

Of course we do not imply that we are indifferent, or that we believe the lower courts were or should be indifferent, to John Doe’s best interests. For all the legal complexities in this case, no one dealing with it can forget that its subject is a child, now seven years old, and that that child has lived for virtually his whole life with ERJ, who he no doubt thinks is his mother.

LMB assured the courts below, and has assured us, that his own first concern is John Doe’s best interests, and that he has no intention of removing the child from the only home he has ever known. Indeed, LMB’s brief in this Court says that if ERJ accepts his status as father, he is still willing to agree to a second-parent adoption by ERJ. LMB does maintain that, as John Doe’s father and only legal parent, he is legally free to prevent the boy’s adoption by ERJ, and to remove him from ERJ’s home, if he wants to. But since he says he does not want to, neither we nor the courts below have had any occasion to decide whether LMB’s rights are as extensive as he claims. That question is academic, and we hope it will remain so.

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

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

Order affirmed, etc.