source: Caselaw Access Project

author: Ciparick, J.

license: Public Domain

text:
    [808 NE2d 1260, 777 NYS2d 1]
    In the Matter of Classic Realty LLC, as Agent for RAM I LLC, Appellant, v New York State Division of Housing and Community Renewal, Respondent.
    Argued February 12, 2004;
    decided March 30, 2004

      POINTS OF COUNSEL

      Borah, Goldstein, Altschuler Schwartz & Nahins, P.C., New York City (<Jeffrey R. Metz and Neil Ritter of counsel), for appellant.
    I. In the absence of any statutory authority, the Division of Housing and Community Renewal should not have authorized a reverification of Lacher’s tax return upon receiving notice during the comment period that tax returns had been amended. (Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359; Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42; Matter of Pooler v Public Serv. Commn., 89 Misc 2d 700; City of New York v Maltbie, 274 NY 90; Matter of Jones v Berman, 37 NY2d 42; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Matter of Bates v Toia, 45 NY2d 460; Matter of Schwartfigure v Hartnett, 83 NY2d 296.) II. Since the tenant’s tax return was amended only after the Department of Taxation and Finance found that the tenant’s household income exceeded the threshold for deregulation under luxury decontrol, the Division of Housing and Community Renewal should have granted Classic’s request and directed a hearing as to all aspects of the tenant’s filing of an amended return. (Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359.) III. The Division of Housing and Community Renewal should have granted the request to reopen and review prior and subsequent luxury decontrol proceedings to determine whether relevant tax returns had been amended as a consequence of the 1999 amendment to the 1996 and 1997 tax returns. (Dusenbery v United States, 534 US 161; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135; Goldberg v Kelly, 397 US 254.)

      Roderick J. Walters, New York City, Marcia P. Hirsch and Carl Eckstein for respondent.
    A rational basis supports the Rent Commissioner’s determination which affirmed the Rent Administrator’s denial of the owner’s petition to deregulate. (Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359; Matter of Giffuni Bros. v New York State Div. of Hous. & Community Renewal, 293 AD2d 402;
      Matter of Nestor v New York State Div. of Nous. & Community Renewal, 257 AD2d 395; Matter of 89 Christopher v Joy, 35 NY2d 213; La Guardia v Cavanaugh, 53 NY2d 67; City of New York v New York State Div. of Hous. & Community Renewal, 97 NY2d 216; Sulnac v Whalen, 49 NY2d 224; Stone v Goldberg, 215 AD2d 180; Matter of Evans v Monaghan, 306 NY 312; Matter of Cupo v McGoldrick, 278 App Div 108.)
   OPINION OF THE COURT

Ciparick, J.

This dispute centers on a rent-stabilized apartment located in a cooperative building on 84th Street and Park Avenue in Manhattan. Petitioner Classic Realty is agent for the owner of the shares of the subject apartment. The tenant occupies the 10-room, three-bathroom apartment with her husband and son. It is undisputed that the monthly rent-stabilized rent is currently $3,949.73.

On April 14, 1998, Classic served tenant with an income certification form pursuant to the Rent Stabilization Law. On May 11, 1998, tenant certified on the form that the family’s income was $175,000 or less in either of the two preceding years—1996 and 1997. Tenant noted that while the 1996 tax return was on file, the 1997 return had not yet been filed and was “on extension.” Thereafter, on June 4, 1998, Classic contested tenant’s income certification and filed a petition for high-income deregulation with the Division of Housing and Community Renewal (DHCR). Classic contested the amount of income certified by the tenant and requested that DHCR obtain a verification of income by the Department of Taxation and Finance (DTF).

DTF reported that the household income was over $175,000 for both 1996 and 1997. As a result, on February 18, 1999, DHCR issued a notice of proposed deregulation and afforded each party the opportunity to comment on the results of the verification. Classic responded on February 23, 1999 and asked that DHCR issue a deregulation order at the expiration of the comment period. The tenant responded on March 17, 1999, stating the tax returns would verify that the total annual income for the household was not in excess of $175,000 in 1996 and 1997. The following day the tenant submitted a supplemental answer “to clarify that the [tax] return on file is an amended return.”

DHCR then asked that DTF verify the household income a second time. The results of the second verification indicated that the household income was below the $175,000 limit in one or both of the subject years. On July 8, 1999, DHCR notified the parties of DTF’s finding and again offered them the opportunity to comment. Classic again responded, challenging whether DHCR had statutory authority to reverify income and requesting a hearing to explore the circumstances of the amended return as well as any possible income shifting in prior years. On September 23, 1999, the DHCR Rent Administrator issued an order denying Classic’s request for a hearing and its petition for luxury deregulation. Thereafter, Classic filed a petition for administrative review of the Rent Administrator’s order, which DHCR denied.

Classic then commenced this CPLR article 78 proceeding to annul the DHCR order. Supreme Court denied the petition and dismissed the proceeding. The Appellate Division affirmed, concluding that the Rent Administrator had discretion to reverify the household income after receiving notice of the amended return. Two Justices dissented, finding it arbitrary and capricious for DHCR to deny the petition for luxury deregulation solely on the basis of the amended return, without further inquiry. We now reverse.

Discussion

The Rent Stabilization Law sets forth the procedure for luxury deregulation (see Rent Stabilization Law [Administrative Code of City of NY] § 26-504.3). Rent-stabilized apartments that have a legal regulated rent of at least $2,000 per month are eligible for deregulation if the occupants’ combined statutory threshold income exceeds $175,000 for each of the two years preceding an owner’s petition (see Rent Stabilization Law [Administrative Code of City of NY] § 26-504.1). The owner of an eligible apartment may furnish the tenant with an income certification form and the tenant must certify whether the combined household income was above $175,000 for each of the two previous years (see Administrative Code § 26-504.3 [b]).

If the tenant certifies that the income was below the threshold amount and the owner contests such certification, the owner may ask DHCR to verify the household income (see Administrative Code § 26-504.3 [c] [1]). DHCR must then request the necessary information from the tenant to allow DTE to verify the household, income {see Administrative Code § 26-504.3 [c] [1]). DTE is only authorized to determine whether or not the income is within the statutory threshold {see Administrative Code § 26-504.3 [c] [1]; Tax Law § 171-b [3] [a], [b]). In the event DTE determines the income surpasses $175,000 for each of the two previous years, DHCR must notify the parties and allow them 30 days to comment on the results {see Administrative Code § 26-504.3 [c] [2]). Thereafter, “[w]ithin forty-five days after the expiration of the comment period, the division shall, where appropriate, issue an order providing that such housing accommodation shall not be subject to the provisions of this law upon the expiration of the existing lease” (Administrative Code § 26-504.3 [c] [2]).

Our review of an administrative agency’s action is limited to “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]; see also Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144, 149 [2002]; Matter of Nehorayoff v Mills, 95 NY2d 671, 675 [2001]). We conclude that it was arbitrary and capricious for DHCR to deny deregulation under the circumstances presented, and furthermore, the determination was affected by an error of law. Here, tenant filed an amended tax return after DTE verified that the tenant’s income exceeded $175,000. The tenant never challenged the accuracy or validity of the original verification that had been submitted, which reflected that the income was over $175,000 for the subject years. Rather, tenant utilized the statutory comment period to bring the amended return to DHCR’s attention. Tenant simply noted that an amended tax return would support her assertion that the apartment was not eligible for deregulation. She did not provide an explanation as to why an amended return had been filed or how the amended return differed from the return on file at the time of DTF’s original verification. Tenant’s answer essentially amounted to a request for a “do-over,” rather than a comment on DHCR’s proposed order.

DHCR’s ruling cannot stand as it invites abuse of the luxury decontrol procedures which contemplate a single verification, the result of which is binding on all parties unless it can be shown that DTE made an error. No such showing is present here, and deregulation is therefore required. As the Appellate Division dissent observed, DHCR’s “blind acceptance” of the amended return was irrational (309 AD2d 205, 214 [2003]). We agree and conclude that the order denying the owner’s petition to annul the determination was both arbitrary and capricious and affected by an error of law.

Like the Appellate Division, we recognize that there may exist legitimate reason to amend a given tax return. We also appreciate that the practice allowed below could cause delay in the administration of DHCR luxury decontrol proceedings, and at worst permit a tenant seeking to avoid deregulation to manipulate the timing and filing of tax returns or shift income to earlier years not under consideration. An aggrieved tenant will always have a remedy. Such tenant will have the comment period to contest a proposed order. If still aggrieved, administrative review procedures are available and ultimately an article 78 proceeding.

In light of this disposition, it is not necessary to address Classic’s remaining contentions.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court with instructions to remand to the New York State Division of Housing and Community Renewal for an order of deregulation and further proceedings in accordance with this opinion.

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

Order reversed, etc.

       At the time the petition was brought, the monthly rent was $3,726.16. Petitioner’s reply brief requests that we take judicial notice that the apartment has a fair market rental value of $11,500 per month, and a fair market sales value of $7.35 million. This has not been contested by respondent.


author: Rosenblatt, J. Read, J. (dissenting).

text:
    [809 NE2d 645, 777 NYS2d 416]
    Karen Broadnax et al., Appellants, v Frederick A. Gonzalez et al., Respondents. Debra A. Fahey et al., Appellants, v Anthony C. Canino et al., Respondents.
    Argued February 12, 2004;
    decided April 1, 2004

      POINTS OF COUNSEL

      Margaret C. Jasper, South Salem, for appellants in the first above-entitled action.
    I. The case law requiring plaintiff mother to prove an independent injury as a condition precedent to recovering for the emotional distress she suffered resulting from the loss of her full-term baby due to medical malpractice should be changed. (Endresz v Friedberg, 24 NY2d 478; Tebbutt v Virostek, 65 NY2d 931; Kaniecki v Yost, 166 Misc 2d 408; Johnson v Verrilli, 134 Misc 2d 582; Carlstrand v Kerwin, 204 AD2d 1080; Correa v Maimonides Med. Ctr., 165 Misc 2d 614; Battalia v State of New York, 10 NY2d 237.) II. The lower court should have applied the zone of danger rule and allowed plaintiff mother to recover for her emotional distress resulting from the loss of her full-term baby due to medical malpractice. (Bovsun v Sanperi, 61 NY2d 219; Haught v Maceluch, 681 F2d 291.)

      Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of counsel), for respondents in the first above-entitled action.
    I. The law, which does not permit a parent to recover for emotional distress alone stemming from the loss of a fetus, should not be changed in the context of this obstetrical malpractice case to permit recovery where the creation of a new duty imposing such liability would constitute a radical change in tort law in New York. (Lauer v City of New York, 95 NY2d 95; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Tebbutt v Virostek, 65 NY2d 931; Vaccaro v Squibb Corp., 52 NY2d 809; Johnson v State of New York, 37 NY2d 378; Tobin v Grossman, 24 NY2d 609; Woods v Lancet, 303 NY 349; Endresz v Friedberg, 24 NY2d 478; Howard v Lecher, 42 NY2d 109; Bovsun v Sanperi, 61 NY2d 219.) II. The law requiring proof of an independent physical injury to the mother is not an appropriate issue for review by this Court in this case, since a failure to prove such injury was not the ground for the trial court’s dismissal of the case. (Prete v Rafla-Demetrious, 224 AD2d 674.) III. Assuming the application of Bovsun v Sanperi (61 NY2d 219 [1984]) to childbirth cases, plaintiffs did not establish the requisite elements for recovery under a zone of danger theory. (Miller v Chalom, 269 AD2d 37; Parsons v Chenango Mem. Hosp., 210 AD2d 847, 86 NY2d 778; Prado v Catholic Med. Ctr. of Brooklyn & Queens, 145 AD2d 614.) IV Where plaintiff failed to prove that she suffered a physical injury that was not an aspect of the childbirth procedure itself, as required under Tebbutt v Virostek (65 NY2d 931 [1985]), her action was properly dismissed. (Miller v Chalom, 269 AD2d 37; James v Middletown Community Health Ctr., 278 AD2d 280; Njoku v City of New York, 254 AD2d 223; Saguid v Kingston Hosp., 213 AD2d 770; Parsons v Chenango Mem. Hosp., 210 AD2d 847, 86 NY2d 778; Scott v Capital Area Community Health Plan, 191 AD2d 772, 82 NY2d 656; Bubendey v Winthrop Univ. Hosp., 151 AD2d 713; Sceusa v Mastor, 135 AD2d 117, 72 NY2d 909; Farago v Shulman, 104 AD2d 965, 65 NY2d 763; Howard v Lecher, 42 NY2d 109.)

      O’Connor, Gacioch, Leonard & Cummings, LLP, Binghamton (Patricia A. Cummings of counsel), for appellants in the second above-entitled action.
    I. The sui generis relationship of the fetus and mother contradicts application of New York bystander law in obstetrical malpractice cases. (Tebbutt v Virostek, 65 NY2d 931; Woods v Lancet, 303 NY 349; Tobin v Grossman, 24 NY2d 609; Howard v Lecher, 42 NY2d 109; Becker v Schwartz, 46 NY2d 401; Park v Chessin, 46 NY2d 401; Vaccaro v Squibb Corp., 52 NY2d 809; Endresz v Friedberg, 24 NY2d 478; Ferrara v Bernstein, 179 AD2d 79, 81 NY2d 895; Canty v New York City Health & Hosps. Corp., 158 AD2d 271.) II. Plaintiff met the zone of danger exception to the bystander law. Her complaint, should not have been dismissed. (Bovsun v Sanperi, 61 NY2d 219.)

      Hancock & Estabrook, LLP, Syracuse {Janet D. Callahan of counsel), for respondents in the second above-entitled action.
    I. The law, which does not permit a parent to recover for emotional distress alone stemming from the loss of a fetus, should not be changed in the context of this obstetrical malpractice case to permit recovery where the creation of a new duty imposing such liability would constitute a rádical change in tort law in New York. (Lauer v City of New York, 95 NY2d 95; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Tebbutt v Virostek, 65 NY2d 931; Vaccaro v Squibb Corp., 52 NY2d 809; Johnson v State of New York, 37 NY2d 378; Tobin v Grossman, 24 NY2d 609; Woods v Lancet, 303 NY 349; Endresz v Friedberg, 24 NY2d 478; Howard v Lecher, 42 NY2d 109; Bovsun v Sanperi, 61 NY2d 219.) II. Assuming the application of Bovsun v Sanperi (61 NY2d 219 [1984]) to childbirth cases, plaintiffs did not establish the requisite elements for recovery under a zone of danger theory. (Miller v Chalom, 269 AD2d 37; Parsons v Chenango Mem. Hosp., 210 AD2d 847, 86 NY2d 778; Prado v Catholic Med. Ctr. of Brooklyn & Queens, 145 AD2d 614.) III. Where plaintiff failed to raise a factual issue as to whether she suffered a physical injury that was not an aspect of the childbirth procedure itself, as required under Tebbutt v Virostek (65 NY2d 931 [1985]), the dismissal of her complaint was proper. (Miller v Chalom, 269 AD2d 37; James v Middletown Community Health Ctr., 278 AD2d 280; Njoku v City of New York, 254 AD2d 223; Saguid v Kingston Hosp., 213 AD2d 770; Parsons v Chenango Mem. Hosp., 210 AD2d 847, 86 NY2d 778; Scott v Capital Area Community Health Plan, 191 AD2d 772, 82 NY2d 656; Bubendey v Winthrop Univ. Hosp., 151 AD2d 713; Sceusa v Mastor, 135 AD2d 117, 72 NY2d 909; Farago v Shulman, 104 AD2d 965, 65 NY2d 763.)
   OPINION OF THE COURT

Rosenblatt, J.

These two cases call upon us to revisit a question we last addressed in Tebbutt v Virostek (65 NY2d 931 [1985]): whether, absent a showing of independent physical injury to her, a mother may recover damages for emotional harm when medical malpractice causes a miscarriage or stillbirth.

L

A. Broadnax

While pregnant, plaintiff Karen Broadnax was under the care of defendants Frederick Gonzalez, an obstetrician, and Georgia Rose, a certified nurse-midwife. On September 25, 1994, at 1:45 a.m., plaintiff telephoned Rose to say that her water had broken and that she had expelled a large amount of blood. Rose advised plaintiff and her husband, Jeffrey, to meet her at defendant Westchester Birth Center. When she arrived there, at approximately 3:00 a.m., plaintiff again experienced vaginal bleeding. She and her husband asked Rose whether they should go across the street to St. John’s Riverside Hospital for immediate treatment. Rose telephoned Dr. Gonzalez, who directed that plaintiff be transported to the Columbia Presbyterian Allen Pavilion in Manhattan.

Accompanied by Rose, the Broadnaxes reached the Allen Pavilion at about 3:45 a.m. Dr. Gonzalez had not yet arrived. In his absence, however, Rose did not contact the on-call doctor. About 45 minutes later—almost two hours after plaintiff arrived at the Westchester Birth Center—Dr. Gonzalez examined plaintiff and detected fetal heart rate decelerations. Rather than performing an emergency cesarean section, Dr. Gonzalez conducted a vaginal and pelvic examination. He then performed a sonogram, but could no longer detect a fetal heartbeat. Approximately half an hour later, around 5:15 a.m., Dr. Gonzalez undertook a cesarean section, delivering a full-term stillborn girl. Autopsy reports indicated that a placental abruption caused the fetus to die before delivery.

The Broadnaxes sued defendants, alleging that their failure to recognize and properly treat plaintiffs placental abruption supported a cause of action for medical malpractice and related claims. At the close of plaintiffs’ case, Supreme Court granted defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law. The Appellate Division affirmed, holding that Tebbutt v Virostek barred plaintiff from recovering damages for emotional or psychological harm stemming from the stillbirth because she adduced no evidence of having suffered a legally cognizable physical injury distinct from the fetus’s.

B. Fahey

Plaintiff Debra Ann Fahey became an obstetrical patient of Dr. Anthony C. Canino, of defendant OBGYN Health Care Associates, EC. (OBGYN). In August 1999, Dr. Canino informed her that she was carrying twins. On October 28, 1999, on a follow-up visit with Dr. Canino’s partner, defendant Dr. Patrick F. Ruggiero, plaintiff complained of lower abdominal pains and cramping. Based on an ultrasound, Dr. Ruggiero concluded that one of the twins was pressing against plaintiffs sciatic nerve. Two days later, during the eighteenth week of pregnancy, plaintiff called Dr. Canino and complained of increasingly intense pain along with nausea. Relying on Dr. Ruggiero’s examination, Dr. Canino advised plaintiff to lie down, explaining that the pain was likely related to her sciatic nerve and the nausea probably resulted from something she ate for lunch. Less than two hours later, while sitting on the toilet, plaintiff gave birth to one of the twins. Still linked to the fetus by the umbilical cord, she went by ambulance to the hospital, where she delivered the second twin. Neither twin survived.

Other doctors later diagnosed plaintiff as having an “incompetent cervix.” In a subsequent pregnancy, she underwent a cerclage procedure to suture her cervix, and thereby prevent the premature expulsion of the fetus. Plaintiff delivered a six-week premature daughter the following year.

The Faheys brought this action for medical malpractice asserting that defendants negligently failed to diagnose and treat plaintiffs cervical condition. Supreme Court granted defendants’ motion for summary judgment dismissing the complaint. With one Justice dissenting, the Appellate Division, also citing Tebbutt, affirmed on the ground that defendants’ alleged malpractice did not cause the mother an independent physical injury.

We now reverse the Appellate Division orders in both cases.

IL

In Tebbutt v Virostek (65 NY2d 931 [1985]), we held that a mother could not recover for emotional injuries when medical malpractice caused a stillbirth or miscarriage, absent a showing that she suffered a physical injury that was both distinct from that suffered by the fetus and not a normal incident of childbirth. Plaintiffs assert that Tebbutt is arbitrary and unfair, and should be overturned.

Tebbutt reflected our longstanding reluctance to recognize causes of action for negligent infliction of emotional distress, especially in cases where the plaintiff suffered no independent physical or economic injury. Its holding was in keeping with our view that tort liability is not a panacea capable of redressing every substantial wrong. Although these concerns weigh heavily on us today, we are no longer able to defend Tebbutt’s logic or reasoning.

As its dissenters recognized, the rule articulated in Tebbutt fits uncomfortably into our tort jurisprudence. Infants who are injured in the womb and survive the pregnancy may maintain causes of action against tortfeasors responsible for their injuries (see Woods v Lancet, 303 NY 349 [1951]). Further, a pregnant mother may sue for any injury she suffers independently. A parent, however, cannot bring a cause of action for wrongful death when a pregnancy terminates in miscarriage or stillbirth (see Endresz v Friedberg, 24 NY2d 478 [1969]).

Injected into this common-law framework, Tebbutt engendered a peculiar result: it exposed medical caregivers to malpractice liability for in útero injuries when the fetus survived, but immunized them against any liability when their malpractice caused a miscarriage or stillbirth. In categorically denying recovery to a narrow, but indisputably aggrieved, class of plaintiffs, Tebbutt is at odds with the spirit and direction of our decisional law in this area. The Endresz court, for example, justified its holding— barring parents from suing in wrongful death on behalf of an unborn child—in part on the assumption that parents would have some legal recourse for a miscarriage or stillbirth resulting from negligent conduct (id. at 486).

On its own terms, Tebbutt may make formal sense, but it created a logical gap in which the fetus is consigned to a state of “juridical limbo” (65 NY2d at 933 [Jasen, J., dissenting]). It is time to fill the gap. If the fetus cannot bring suit, “it must follow in the eyes of the law that any injury here was done to the mother” (65 NY2d at 940 [Kaye, J., dissenting]).

Defendants maintain that Tebbutt states a sensible rule, one worth preserving, because the defendant physician in that case did not violate a duty to the expectant mother. We are not persuaded. In Ferrara v Bernstein (81 NY2d 895 [1993]), we permitted a plaintiff to recover damages for emotional distress when she miscarried, following an unsuccessful abortion, on the ground that the treating physician violated a duty of care to his patient. Defendants would have us distinguish Ferrara, arguing that, in the cases before us, their alleged conduct injured only the fetuses, and, accordingly, they did not violate a duty to the expectant mothers. Defendants’ reasoning is tortured. Although, in treating a pregnancy, medical professionals owe a duty of care to the developing fetus (as we impliedly recognized in Woods v Lancet, 303 NY 349 [1951]), they surely owe a duty of reasonable care to the expectant mother, who is, after all, the patient. Because the health of the mother and fetus are linked, we will not force them into legalistic pigeonholes.

We therefore hold that, even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress.

Our dissenting colleague has expressed concern over the possible repercussions of what she concedes to be a “modest” advance in our tort jurisprudence. Significantly, on this appeal, no one from any quarter came forward to support any such concerns. While we are well aware of the importance of precedent, Tebbutt has failed to withstand the cold light of logic and experience. To be sure, line drawing is often an inevitable element of the common-law process, but the imperative to define the scope of a duty—the need to draw difficult distinctions— does not justify our clinging to a line that has proved indefensible.

Accordingly, the orders of the Appellate Division should be reversed, with costs, and the cases remitted to Supreme Court for further proceedings consistent with this opinion.

Read, J. (dissenting).

In 1985, we were asked whether a woman may recover damages for emotional distress where medical malpractice causes her to suffer a stillbirth. We concluded in Tebbutt v Virostek (65 NY2d 931 [1985]) that no recovery could be had in the absence of an independent physical injury, thus clearly and reasonably circumscribing a medical caregiver’s duty to a pregnant patient. Appellants now invite us to reconsider and revise our holding in Tebbutt. Unlike the majority, I would decline the invitation.

True, the new rule articulated by the majority expands existing law sparingly. The new rule does not alter the legal rights or status of a fetus; it does not create any new duties on the part of a physician. Nonetheless, the majority’s justification for redefining the duty of care owed to a pregnant woman by her medical caregivers is insufficient for me to vote to overrule a 20-year-old precedent.

Stare decisis teaches that “common-law decisions should stand as precedents for guidance in cases arising in the future” for substantial reasons of stability and legitimacy (People v Damiano, 87 NY2d 477, 488 [1996] [Simons, J., concurring]). As Judge Simons also observed, however, stare decisis is not “inflexible,” and our holdings are “always open to reexamination if there is some evidence that the policy concerns underlying them are outdated or if they have proved unworkable” (id. at 489). Here, there is no suggestion that the Tebbutt rule is unworkable. To the contrary, Tebbutt established a bright-line rule, which is easily applied. The majority considers Tebbutt outdated, however, because a “narrow, but indisputably aggrieved, class of plaintiffs” (majority op at 154) is denied recovery, creating a gap in the law. But this same gap was manifest in 1985 when we decided to limit a physician’s exposure to damages for emotional distress to those cases in which the woman sustains a physical injury distinct from that suffered by the fetus. Nor does the majority’s new rule do away with all seeming gaps. As we acknowledged in Bovsun v Sanperi (61 NY2d 219, 228 [1984]), “arbitrary distinctions are an inevitable result of the drawing of lines which circumscribe legal duties.”

Today’s ruling exposes medical caregivers to additional liability for the treatment they provide to pregnant women. Juries will be asked to quantify the emotional distress that a woman feels upon suffering a miscarriage or stillbirth. Importantly, there is no way for us to predict or assess the potential effect of this expansion of liability, however modest it may appear, on the .cost and availability of gynecological and obstetrical services in New York State.

No one disputes the heartache experienced by a woman who miscarries or delivers a stillborn fetus. Nonetheless, Tebbutt established a rational and workable rule to limit the scope of duty in obstetrical malpractice. I see insufficient reason to overrule Tebbutt and create a different rule. Accordingly, I would affirm the orders of the Appellate Division.

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

In Broadnax v Gonzalez: Order reversed, with costs, and case remitted to Supreme Court, Westchester County, for further proceedings in accordance with the opinion herein.

In Fahey v Canino: Order reversed, with costs, and the motion of defendants Canino and Ruggiero for summary judgment denied.

      . We take no position on the ultimate merits of either case. We note only that, on the records before us, the cases were sufficient to withstand respectively a motion for a trial order of dismissal and a motion for summary judgment.

      . In Endresz, an automobile accident both caused injuries to the mother and resulted in her miscarrying. The Court reasoned that no cause of action should lie in wrongful death because the damages recoverable by the mother for her independent physical injuries would “afford ample redress for the wrong done” (id.).

      . The treating physician owes no duty of care to the expectant father. It of course remains true that, where the mother has a cause of action, her husband may recover for loss of services and consortium if the facts support such a claim.

      . In rejecting Tebbutt, we recognize that a majority of jurisdictions permit some form of recovery for negligently caused stillbirths or miscarriages (see e.g. Eich v Town of Gulf Shores, 293 Ala 95, 300 So 2d 354 [1974]; Summer-field v Superior Ct. In & For Maricopa County, 144 Ariz 467, 698 P2d 712 [1985]; Gorke v Le Clerc, 23 Conn Supp 256, 181 A2d 448 [Super Ct, Hartford County 1962]; Worgan v Greggo & Ferrara, Inc., 50 Del 258, 128 A2d 557 [Super Ct, New Castle County 1956]; Simmons v Howard Univ., 323 F Supp 529 [D DC 1971]; Shirley v Bacon, 154 Ga App 203, 267 SE2d 809 [1980]; Seef v Sutkus, 205 111 App 3d 312, 562 NE2d 606 [1st Dist 1990]; Bolin v Wingert, 764 NE2d 201 [Ind 2002]; Hale v Manion, 189 Kan 143, 368 P2d 1 [1962]; Mitchell v Couch, 285 SW2d 901 [Ky 1955]; State, TJse of Odham v Sherman, 234 Md 179, 198 A2d 71 [1964]; Wascom v American Indem. Corp., 383 So 2d 1037 [La App, 1st Cir 1980]; Mone v Greyhound Lines, Inc., 368 Mass 354, 331 NE2d 916 [1975]; O’Neill v Morse, 385 Mich 130, 188 NW2d 785 [1971]; Verkennes v Corniea, 229 Minn 365, 38 NW2d 838 [1949]; Rainey v Horn, 221 Miss 269, 72 So 2d 434 [1954]; Strzelczyk v Jett, 264 Mont 153, 870 P2d 730 [1994]; White v Yup, 85 Nev 527, 458 P2d 617 [1969]; Poliquin v MacDonald, 101 NH 104, 135 A2d 249 [1957]; Giardina v Bennett, 111 NJ 412, 545 A2d 139 [1988]; Salazar v St. Vincent Hosp., 95 NM 150, 619 P2d 826 [Ct App 1980]; Hopkins v McBane, 427 NW2d 85 [ND 1988]; Werling v Sandy, 17 Ohio St 3d 45, 476 NE2d 1053 [1985]; Evans v Olson, 1976 OK 64, 550 P2d 924 [1976]; Libbee v Permanente Clinic, 268 Or 258, 518 P2d 636 [1974]; Amadio v Levin, 509 Pa 199, 501 A2d 1085 [1985]; Presley v Newport Hosp., 117 RI 177, 365 A2d 748 [1976]; Fowler v Woodward, 244 SC 608, 138 SE2d 42 [1964]; Parvin v Dean, 7 SW3d 264 [Tex Ct App 1999]; Vaillancourt v Medical Ctr. Hosp. of Vt., Inc., 139 Vt 138, 425 A2d 92 [1980]; Moen v Hanson, 85 Wash 2d 597, 537 P2d 266 [1975]; Baldwin v Butcher, 155 W Va 431, 184 SE2d 428 [1971]; Kwaterski v State Farm Mut. Auto. Ins. Co., 34 Wis 2d 14, 148 NW2d 107 [1967]). Unlike most of these jurisdictions, however, we limit a mother’s recovery only to damages for the emotional distress attending a stillbirth or miscarriage caused by medical malpractice. We do not depart from our holding in Endresz v Friedberg (24 NY2d 478 [1969]) barring wrongful death actions under these circumstances.


author: R.S. Smith, J.

text:
    [808 NE2d 1263, 777 NYS2d 4]
    RJC Realty Holding Corp., Doing Business as Pure Maximus Spa/Salon, Appellant, v Republic Franklin Insurance Company et al., Respondents, et al., Defendants.
    Argued February 11, 2004;
    decided April 1, 2004

      POINTS OF COUNSEL

      Shayne, Dachs, Stanisci, Corker & Sauer; Mineóla (Norman H. Dachs of counsel), for appellant.
    I. Where an insurance policy does not contain an “assault and battery” exclusion, the insurer must defend and indemnify an insured employer whose employee commits an assault not expected or intended from the standpoint of the insured employer. (Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141; Miller v Continental Ins. Co., 40 NY2d 675; Landress v Phoenix Mut. Life Ins. Co., 291 US 491; Park Terrace Arms Corp. v Nationwide Ins. Co., 268 AD2d 297; Slayko v Security Mut. Ins. Co., 285 AD2d 875, 98 NY2d 289; Jubin v St. Paul Fire & Mar. Ins. Co., 236 AD2d 712; Pistolesi v Nationwide Mut. Fire Ins. Co., 223 AD2d 94, 88 NY2d 816; Pecker Iron Works of N.Y. v Traveler’s Ins. Co., 99 NY2d 391; Greaves v Public Serv. Mut. Ins. Co., 5 NY2d 120; Morgan v Greater N.Y. Taxpayers Mut. Ins. Assn., 305 NY 243.) II. In any event, respondent’s disclaimer was untimely as a matter of law. The right to disclaim was, therefore, waived. (Matter of Firemen’s Fund Ins. Co. of Newark v Hopkins, 88 NY2d 836; Wasserheit v New York Cent. Mut. Fire Ins. Co., 271 AD2d 439; North Country Ins. Co. v Tucker, 273 AD2d 683; Mount Vernon

      Fire Ins. Co. v Gatesington Equities, 204 AD2d 419; Matter of Brandon [Nationwide Mut. Ins. Co.], 284 AD2d 886, 97 NY2d 491; West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278; Matter of Colonial Penn Ins. Co. v Pevzner, 266 AD2d 391; Matter of Nationwide Mut. Ins. Co. v Steiner, 199 AD2d 507; Poluliah v Fidelity High Income Fund, 102 AD2d 720; Alvarez v Prospect Hosp., 68 NY2d 320.)

      Lustig & Brown, LLP, Buffalo (Randolph E. Sarnacki of counsel), for respondents.
    I. The alleged incident of sexual assault does not represent an “occurrence” under the Republic Franklin Insurance Company/Utica National Insurance Company business owners general liability insurance policy issued to RJC Realty Holding Corp. (Allstate Ins. Co. v Mugavero, 79 NY2d 153; Board of Educ. of E. Syracuse-Minoa Cent. School Dist. v Continental Ins. Co., 198 AD2d 816; Public Serv. Mut. Ins. Co. v Camp Raleigh, 233 AD2d 273, 90 NY2d 801; Green Chimneys School for Little Folk v National Union Fire Ins. Co. of Pittsburgh, Pa., 244 AD2d 387; General Acc. Ins. Co. v 35 Jackson Ave. Corp., 258 AD2d 616; Matter of Sormani v Orange County Community Coll., 263 AD2d 511; Sweet Home Cent. School Dist. v Aetna Commercial Ins. Co., 263 AD2d 949, 94 NY2d 915; Agoado Realty Corp. v United Intl. Ins. Co., 95 NY2d 141; Miller v Continental Ins. Co., 40 NY2d 675; American Natl. Gen. Ins. Co. v Ryan, 274 F3d 319.) II. The Appellate Division properly determined that coverage for the incident of sexual assault alleged in the underlying litigation is excluded pursuant to the exclusion for “bodily injury . . . expected or intended from the standpoint of the insured.” (Gibbs v CNA Ins. Cos., 263 AD2d 836, 94 NY2d 755; Riviello v Waldron, 47 NY2d 297; Judith M. v Sisters of Charity Hosp., 93 NY2d 932; Kladstrup v Westfall Health Care Ctr., 183 Misc 2d 11; Matijiw v New York Cent. Mut. Fire Ins. Co., 292 AD2d 865; Slayko v Security Mut. Ins. Co., 285 AD2d 875, 98 NY2d 289; Allstate Ins. Co. v Mugavero, 79 NY2d 153; Pistolesi v Nationwide Mut. Fire Ins. Co., 223 AD2d 94, 88 NY2d 816; Mattress Discounters of N.Y. v United States Fire Ins. Co., 251 AD2d 384, 92 NY2d 817; Park Terrace Arms Corp. v Nationwide Ins. Co., 268 AD2d 297.) III. Coverage for the alleged sexual assault is excluded pursuant to the exclusion for bodily injury or personal injury arising out of body massage other than facial massage. (US. Underwriters Ins. Co. v Val-Blue Corp., 85 NY2d 821; Mount Vernon Fire Ins. Co. v Creative Hous., 88 NY2d 347; Agoado Realty Corp. v United Intl. Ins., 95 NY2d 141.) IV Republic Franklin Insurance Company/Utica National Insurance Group properly and timely issued its disclaimer. (Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 47 NY2d 951; Allstate Ins. Co. v Gross, 27 NY2d 263; Silk v City of New York, 203 AD2d 103, 84 NY2d 810; Aetna Cas. & Sur. Co. v Brice, 72 AD2d 927, 50 NY2d 958; Brooklyn Hosp. Ctr. v Centennial Ins. Co., 258 AD2d 491, 93 NY2d 814; Sphere Drake Ins. Co. v Block 7206 Corp., 265 AL)2d 78; Matter of Nationwide Mut. Ins. Co. v Steiner, 199 AD2d 507; Matter of Colonial Penn Ins. Co. v Pevzner, 266 AD2d 391; West 16th St. Tenants Corp. v Public Serv. Mut. Ins. Co., 290 AD2d 278, 98 NY2d 605; Wasserheit v New York Cent. Mut. Fire. Ins. Co., 271 AD2d 439.) V The timeliness of Republic Franklin Insurance Company/Utica National Insurance Group’s disclaimer is irrelevant since RJC Realty Holding Corp. has failed to demonstrate that the insuring agreement of the Republic Franklin Insurance Company/Utica National Insurance Group policy provided coverage for the incident at bar. (Schiff Assoc. v Flack, 51 NY2d 692; Zappone v Home Ins. Co., 55 NY2d 131; Handelsman v Sea Ins. Co., 85 NY2d 96; Markevics v Liberty Mut. Ins. Co., 97 NY2d 646; Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208.)
   OPINION OF THE COURT

R.S. Smith, J.

The issue here is whether a liability insurer is obligated to defend and indemnify its insured, a “beauty salon/health spa,” in an action brought against the insured based on an alleged sexual assault by the insured’s employee. We hold that the alleged assault was an “accident” within the meaning of the policy, and that the policy’s exclusions for injuries expected or intended from the standpoint of the insured and for bodily injury arising out of body massage do not apply. We therefore hold that the insurer is obligated to defend and indemnify.

Facts and Procedural History

Appellant, RJC Realty Holding Corp., doing business as “Pure Maximus Spa/Salon,” obtained an insurance policy including “Businessowners Liability Coverage” from respondent Republic Franklin Insurance Co. In the policy, Republic agreed to indemnify and defend RJC against claims for “bodily injury” caused by an “occurrence” as defined in the policy. “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

Two exclusions in the policy are also relevant here. The policy states that it is not applicable to “ ‘[bjodily injury’ . . . expected or intended from the standpoint of the insured” or to “ ‘[b]odily injury’ . . . arising out of . . . [b]ody massage other than facial massage.”

Marie and Thomas Harrison brought an action against RJC and a masseur employed by RJC, alleging that the masseur performed a body massage on Marie Harrison and that Marie Harrison “was the victim of improper sexual contact.” The Harrisons alleged that RJC was liable to them for negligently hiring and retaining the masseur, and for failing properly to supervise his activities.

RJC notified Republic of the alleged sexual assault, and subsequently provided Republic with a copy of the Harrison complaint. Republic responded by disclaiming coverage, relying on the definition of “occurrence” and the two exclusions quoted above.

RJC sued Republic, seeking a declaratory judgment that Republic was obligated to defend and indemnify RJC in the Harrison action. On cross motions for summary judgment, Supreme Court ruled in RJC’s favor. Supreme Court found the issue under the “expected or intended” exclusion to be controlled by our decision in Agoado Realty Corp. v United Intl. Ins. Co. (95 NY2d 141 [2000]) and stated: “Since the conduct was not intentional on the part of the insured, the exclusion does not apply.” Supreme Court found the issue under the “body massage” exclusion a “closer question,” but decided that question in the insured’s favor also.

On Republic’s appeal, the Appellate Division reversed, holding that the “expected or intended” exclusion applied. In the view of the Appellate Division, the decisive fact was that the Harrison complaint alleged “an intentional sexual assault by RJC’s employee,” which the Appellate Division held “falls within the exclusionary language of the policy.” (303 AD2d 573, 574 [2003].) We granted RJC’s motion for leave to appeal, and now reverse the Appellate Division order and reinstate the Supreme Court judgment.

Discussion

A. The “Accident” and “Expected or Intended” Issues

The questions of whether the alleged sexual assault was an “accident” and therefore an “occurrence” within the meaning of the policy, and whether it was excluded from coverage as an act “expected or intended from the standpoint of the insured” are both controlled by Agoado, where we construed a policy containing identical language.

In Agoado, the issue was whether the insurer was required to indemnify its insureds, the landlords of a building, against a claim brought by the estate of a tenant who had been murdered in the building by an unknown assailant. We held that the murder, though obviously intended from the murderer’s point of view, was an “accident” within the meaning of the policy. Relying on Miller v Continental Ins. Co. (40 NY2d 675 [1976]), we said that: “in deciding whether a loss is the result of an accident, it must be determined, from the point of view of the insured, whether the loss was unexpected, unusual and unforeseen.” (95 NY2d at 145 [emphasis in original].) Since the landlords in Agoado obviously did not expect or intend the tenant’s murder, we held that it was an “accident” from their point of view. We also held that—as seems self-evident on the facts of Agoado—the murder was not within the policy exclusion for conduct “expected or intended from the standpoint of’ the landlords (id. at 146).

The only significant difference between this case and Agoado is that here the alleged perpetrator of the assault was the insured’s employee. If—as we must assume for present purposes—the assault occurred at all, it was obviously expected and intended by the masseur, and was not an accident from his point of view. Thus, the critical question is whether the masseur’s expectation and intention in committing the assault should be attributed to his employer, RJC.

This question is answered in the negative by our decision in Judith M. v Sisters of Charity Hosp. (93 NY2d 932 [1999]). In that case, a hospital patient sued the hospital for a sexual assault allegedly committed by the hospital’s employee. The patient claimed that the hospital was vicariously liable under the doctrine of respondeat superior. We rejected this contention, saying:

“The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment (Riviello v Waldron, 47 NY2d 297, 304). If, however, an employee ‘for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable’ (Jones v Weigand, 134 App Div 644, 645, quoted in Baker v Allen & Arnink Auto Renting Co., 231 NY 8, 13). Assuming plaintiff’s allegations of sexual abuse are true, it is clear that the employee here departed from his duties for solely personal motives unrelated to the furtherance of the Hospital’s business (see, Mataxas v North Shore Univ. Hosp., 211 AD2d 762, 763). Accordingly, the courts below properly dismissed plaintiffs respondeat superior cause of action.” (93 NY2d at 933 [emphasis added].)

Under Judith M., the masseur’s alleged act here could not be attributed to RJC for purposes of the respondeat superior doctrine. Here too, if the allegation of sexual abuse is true, the masseur “departed from his duties for solely personal motives unrelated to the furtherance of [RJC’s] business.” We see no reason not to apply the same test to the question of whether the masseur’s expectations or intentions should be attributed to RJC in determining the applicability of Republic’s insurance policy.

The parties here agreed that the policy would cover only an “accident” and would not apply to certain acts “expected or intended” by RJC. When they did so, they could reasonably have anticipated that the rules of respondeat superior would govern the question of when a corporate entity is deemed to expect or intend its employee’s actions. Since the masseur’s actions here were not RJC’s actions for purposes of the respondeat superior doctrine, they were “unexpected, unusual and unforeseen” from RJC’s point of view, and were not “expected or intended” by RJC. Accordingly, they were an “accident,” within the coverage of the policy, and were not excluded by the “expected or intended” clause.

B. The “Body Massage” Issue

Like Supreme Court, we find the question of whether the “bodily injury” for which the Harrisons sued RJC arose out of a “body massage” to be a closer one, but like Supreme Court we resolve it in RJC’s favor.

It is true that the alleged act for which the Harrisons sued RJC occurred during a body massage. The insurance policy, however, does not exclude coverage for all alleged conduct during a body massage, but only for “injury . . . arising out of . . . [b]ody massage.” (Emphasis added.) We think the words of the exclusion are most plausibly read to refer to a bruise or similar injury inflicted on the customer by a massage itself, not to the emotional or physical injury resulting from a sexual assault by a masseur. At least that is a reasonable reading of the words, and an exclusion in an insurance policy can negate coverage only where it is stated “in clear and unmistakable language [and] is subject to no other reasonable interpretation.” (Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652 [1993].) We therefore hold the “body massage” exclusion to be inapplicable here.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

Chief Judge Kaye and Judges G.B. Smith, Cipabick, Geaffeo and Read concur; Judge Rosenblatt taking no part.

Order reversed, etc.

      . Utica National Insurance Group, apparently Republic’s parent or affiliate, is also a party in this case. It appears from the record that Republic is the corporation that actually issued the policy. “Republic” in this opinion refers both to Republic and to Utica National.

      . The policy’s definition of “bodily injury” includes “[s]hock, mental anguish or mental injury.” It is not disputed that the injury involved in this case is “bodily injury” within the meaning of the policy.

      . RJC raises an issue as to the timeliness of Republic’s disclaimer. That issue is moot in light of our holding.

      . The Harrisons’ complaint alleges that the masseur gave Mrs. Harrison a body massage and that he committed sexual assault, but does not specifically say that the two acts were simultaneous. That is the likeliest inference from the complaint, however, and the letter from RJC’s attorney notifying Republic of the claim specifically refers to “sexual abuse involving a customer during the course of a massage.”


author: Read, J. Graffeo, J. (concurring in part and dissenting in part).

text:
    [809 NE2d 651, 777 NYS2d 422]
    In the Matter of Excellus Health Plan, Inc., Respondent, v Gregory V. Serio, as Superintendent of Insurance, Appellant.
    Argued February 11, 2004;
    decided April 6, 2004

      POINTS OF COUNSEL

      Eliot Spitzer; Attorney General, Albany (Victor Paladino, Caitlin J. Halligan, Daniel Smirlock and Nancy A. Spiegel of counsel), for appellant.
    Insurance Law § 4308 (b) vests the Superintendent of Insurance with the authority to review health insurance premium rate applications filed under the file and use provisions and to approve, deny or modify the proposed rates. (Matter of New York State Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444; Matter of Levko v Corcoran, 158 AD2d 416; Weingarten v Board of Trustees, 98 NY2d 575; Huang v Johnson, 96 NY2d 599; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 62 NY2d 965; Matter of Medical Socy. of State of N.Y. v State of New York Dept. of Health, 83 NY2d 447; Matter of State Farm Fire & Cas. Co. v Superintendent of Ins. of State of N.Y., 162 AD2d 313.)

      Hinman Straub PC., Albany (Bartley J. Costello, III, Kimberly C. Lawrence and David W. Novak of counsel), for respondent.
    I. The Superintendent of Insurance has no authority under Insurance Law § 4308 (b) or elsewhere to review and modify premium health insurance rate changes filed pursuant to section 4308 (g), because rates filed pursuant thereto and complying therewith are deemed approved by operation of law upon filing. (Boreali v Axelrod, 130 AD2d 107, 71 NY2d 1; Matter of Beer Garden v New York State Liq. Auth., 79 NY2d 266; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Guido v New York State Teachers’ Retirement Sys., 94 NY2d 64; Matter of Gruber [New York City Dept, of Personnel—Sweeney], 89 NY2d 225; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; State Div. of Human Rights [Valdemarsen] v Genesee Hosp., 50 NY2d 113; Town of E. Hampton v Cuomo, 179 AD2d 337; Matter of

      U.S. Healthcare v Curíale, 162 Mise 2d 833; Rozell v Rozell, 256 App Div 61, 281 NY 106.) II. The rules adopted by the Superintendent of Insurance violate the State Administrative Procedure Act. (People v Cull, 10 NY2d 123; Long Is. Coll. Hosp. v New York State Dept, of Health, 151 Mise 2d 370, 203 AD2d 292; Matter of Eden Park Health Servs. v Axelrod, 114 AD2d 721; Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 109 AD2d 140, 66 NY2d 948; People v Fogerty, 18 NY2d 664; Matter of Hudson Val. Nursing Ctr. v Axelrod, 130 AD2d 862; Matter of Connell v Regan, 114 AD2d 273; Matter of Cordero v Corbisiero, 80 NY2d 771; Matter of Robinson v Perales, 166 AD2d 594.)
   OPINION OF THE COURT

Read, J.

This appeal calls upon us to decide whether the Superintendent of Insurance may exercise his premium rate review and approval authority to disapprove or modify rate increases or decreases deemed approved under file and use provisions. For the reasons that follow, we conclude that he may not.

I.

In 1995, the Legislature enacted Insurance Law §§ 4321 and 4322 (L 1995, ch 504, § 12), which were intended to make affordable health care coverage available to individuals who buy their own health insurance. These provisions mandate all Insurance Law article 43 not-for-profit health insurers and health management organizations (HMOs) certified under Public Health Law article 44 (for purposes of this decision, referred to collectively as “insurers”) to offer, on an open enrollment, community-rated basis, individual direct-payment HMO contracts and point-of-service (POS) contracts providing comprehensive and standardized benefits.

At the time sections 4321 and 4322 were enacted, Insurance Law § 4308 required the Superintendent to approve all insuranee contracts as well as initial premium rates and subsequent rate modifications before they became effective. As is relevant on this appeal, subsection (b) authorized the Superintendent to disapprove proposed initial premiums upon finding that they were “excessive, inadequate or unfairly discriminatory” (see Insurance Law § 4308 [b]). After approval, premiums could only be modified after public hearings and the Superintendent’s prior written approval, a lengthy and often costly process prescribed by subsection (c) (see Insurance Law § 4308 [c] [l]-[3]).

As part of the 1995 amendments, however, the Legislature enacted new subsections (g) through (j), dubbed the file and use provisions. Under the file and use methodology, insurers seeking to increase or decrease premiums may submit a rate filing or application to the Superintendent, which “shall be deemed approved, provided that . . . the anticipated incurred loss ratio for [the] contract form [falls within prescribed minimum and maximum loss ratios (between 80% and 105% for individual direct-payment contracts) as certified by an actuary]” (Insurance Law § 4308 [g] [1]; [j] [emphasis added]).

A loss ratio is determined by dividing claims incurred by premiums earned. The “anticipated incurred loss ratio” is an actuarial prediction of the loss ratio for the upcoming calendar year. Insurers annually report their actual loss ratio for the previous calendar year (see Insurance Law § 4308 [h] [1]). If the actual loss ratio is below 80% the insurer must issue a refund to its subscribers or credit a dividend against future premiums by September 30th of the year following the year in which the loss ratio requirements were not satisfied (see Insurance Law § 4308 [h] [2]). Conversely, if the actual loss ratio exceeds 105% the insurer must increase its premium rates accordingly (see id. § 4308 [h] [3]).

Because the file and use provisions require insurers to give each subscriber at least 30 days written , notice of a premium rate increase (see Insurance Law § 4308 [g] [2]), insurers typically submit rate filings to the Superintendent and notify their subscribers simultaneously at year-end. A cap limiting premium increases or decreases to 10% per year was in force from 1996 through 1999 (id.).

By letter dated November 13, 2001, the Superintendent informed Excellus, which provides health care coverage in 45 upstate counties, that he was modifying his review procedures for certain file and use rate applications “to provide [him] with sufficient time to make the necessary determination that the requested premium rates [were] in compliance with the requirements of Section 4308.” The Superintendent also advised Excellus that premium rate adjustments for individual direct-pay HMO and POS contracts could “not be implemented until the [Superintendent’s] review [was] completed and the company [was] so advised in writing”; however, Excellus “should continue to provide the required 30 day written notice to [its] subscribers based upon the requested effective date.”

In late November 2001, Excellus submitted its rate filing for new premium rates effective January 1, 2002, accompanied by the required actuarial certifications. On November 30, 2001, the Superintendent acknowledged receipt of Excellus’s submission; stated that the requested rates were being reviewed for compliance with section 4308; asked for further information; and cautioned that “the requested premium adjustments . . . may not be implemented until the [Superintendent’s] review is completed and [Excellus] receives a written confirmation that the requested rates have been placed on file.”

By letter dated January 10, 2002, the Superintendent notified Excellus that he had reviewed the rates and was modifying some of them by reducing increases and, in two instances, denying any increase at all. Excellus thereafter commenced this CPLR article 78 proceeding to challenge the Superintendent’s actions.

Excellus argued that the Superintendent’s actions ran afoul of the file and use statutory scheme by improperly conditioning a premium rate change on his review and approval. The Superintendent took the position that he acted properly because section 4308 (b) authorizes him to disapprove any premium that is “excessive, inadequate or unfairly discriminatory.” He asserted that he properly reviewed Excellus’s filed rates under subsection (b), given the “steep” increases and wide discrepancies in premium rates, the sharp decline in direct-pay subscribers and the largely competition-free insurance market involved. The Superintendent also argued that his review was necessary because many rate filings were based on extremely small populations, not reflecting a true basis for community rating. Since insurers use certain market stabilization mechanisms, which may provide them with additional funds to offset losses, the Superintendent further contended that he needed to verify whether the actuaries properly accounted for recoveries from these programs in their rate analysis.

Supreme Court annulled the Superintendent’s letters and determined that Excellus’s filed rates were approved as a matter of law, effective on January 1, 2002. The Appellate Division unanimously affirmed, relying on a plain language analysis (303 AD2d 864 [3d Dept 2003]). The Court observed that “[h]ad the Legislature wished to require [the Superintendent’s] subsequent approval of a rate filing or application, it could have done so through appropriate wording” and concluded that “[the Superintendent’s] interpretation, however laudable its purpose, imports a policy not expressed in the plain words of the statute” (id. at 868). We granted the Superintendent leave to appeal.

II.

When interpreting a statute, we turn first to the statutory text as the best evidence of the Legislature’s intent. “As a general rule, unambiguous language of a statute is alone determinative” (Riley v County of Broome, 95 NY2d 455, 463 [2000] [citation omitted]). Further, although an agency’s rational construction of a statute is normally entitled to deference, “a determination by the agency that runs counter to the clear wording of a statutory provision is given little weight” (Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 103 [1997] [internal quotation marks and citations omitted]).

Here, the “clear wording” of section 4308 (g) (1) unambiguously states that a rate filing or application submitted to the Superintendent “shall be deemed approved,” provided that it is accompanied by an actuarial document certifying that the anticipated loss ratios fall within the statutorily prescribed range. Thus, once the Superintendent receives a new premium rate filing, accompanied by the requisite actuarial certification, the rates specified in the filing are approved by operation of law.

The Superintendent and the dissent would read the statute to mandate approval of file and use rates under the requirements of subsection (g) unless (and, in the case of the dissent, until) the Superintendent subsequently disapproves these rates as “excessive, inadequate or unfairly discriminatory,” which is the standard under subsection (b). We decline to interpolate into subsection (g) an exception unexpressed by the Legislature. This reading of the statute would create a “forced [and] unnatural interpretation[ ]” of “shall be deemed approved” by making approval by operation of law, in fact, contingent upon the Superintendent’s assent (see Castro v United Container Mach. Group, 96 NY2d 398, 401 [2001]; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 94 [legislative intent must be ascertained “according to its natural and most obvious sense, without resorting to an artificial or forced construction”]).

Our interpretation comports not only with the statute’s plain language, but also with its legislative history and overall purpose. In enacting the file and use provisions, the Legislature sought to “reform[ ] the costly and time-consuming system for the approval of [ ] premium rates . . . , allow appropriate rate increases to be implemented on a more timely basis and also help assure that rates are equitable” (Governor’s Approval Mem No. 72, Bill Jacket, L 1995, ch 504, at 6 [emphasis added]). To implement timely rate increases that are fair to consumers, the Legislature established anticipated loss ratios as the gauge of reasonableness, and provided for automatic refunds or credits if actual loss ratios were less.

A letter from former Superintendent Muhl to the Governor’s Counsel—noting that the Insurance Department participated in the drafting of the bill and recommending its approval—emphasizes that the file and use methodology not only “ensures that appropriate rate increases or decreases will be implemented on a timely basis . . . and enables HMOs and insurers to recognize savings in administrative costs” but also “assures that rates are equitable” and “is beneficial to [both] consumers and carriers” (Letter of Superintendent Muhl to Honorable Michael C. Finnegan, Counsel to the Governor, dated July 19, 1995, Bill Jacket, L 1995, ch 504, at 15 [emphasis added]). Indeed, the Department’s regulations state that using a preapproved loss ratio is a proper method to determine the propriety of rates:

“One method of determining whether benefits are reasonable, in relation to the premium charged, is to determine the percentage of the premium collected which is expected to be returned to all policyholders in the form of benefits. This percentage of return is known as the expected loss ratio. In order to prevent the insurer from retaining an unreasonable percentage of the premiums collected for expenses, commissions and profit, minimum expected loss ratio standards have been established” (11 NYCRR 52.1 [f] [emphasis added]).

In short, the legislative history of the file and use provisions is consonant with the statutory language. Neither intimates that the Legislature expected the Superintendent to exercise his traditional rate review powers with respect to premium rates “deemed approved.” The Superintendent protests that the file and use statutory scheme, unmoderated by his review and potential intervention, undercuts affordable health care for direct-pay customers. Even if this is so, we must hew to the statute’s text. The remedy sought by the Superintendent on grounds of public policy lies with the Legislature, not with the courts.

Finally, we note that the Superintendent may always act to ensure that initial contract terms and premiums are not “excessive, inadequate or unfairly discriminatory” under subsections (a) and (b) of section 4308, as previously discussed. He may review rates pursuant to the “excessive management salary” provision of subsection (b) or the audit provisions of subsections (d) through (f). The Superintendent may ensure that the file and use actuarial certifications are correct, and he may issue regulations regarding how loss ratio certifications are to be prepared.

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

Graffeo, J. (concurring in part and dissenting in part).

Since 1934, the Superintendent of Insurance has been authorized to review rates charged by health insurance providers (L 1934, ch 595). The majority nonetheless holds that the Superintendent may no longer review rate increases to determine whether they are excessive, inadequate or discriminatory when a health insurance provider uses the “file and use” procedure set forth in Insurance Law § 4308 (g). Because subsection (g) contains no language clearly stripping the Superintendent of this power, I respectfully dissent from that part of the majority’s analysis.

Although I agree with the majority that by adopting the file and use procedure, the Legislature clearly intended to expedite rate increases for certain health insurance providers, I find nothing in the statute or its history supporting the majority’s conclusion that the Legislature also intended to divest the Superintendent of his authority to review rates to determine if they are “excessive, inadequate or unfairly discriminatory” as authorized in Insurance Law § 4308 (b). In fact, the plain language of subsection (g) suggests otherwise. The Legislature merely referred to the file and use methodology as an “alternate procedure” to the lengthy and costly public hearing process required by subsection (c) of the provision. No mention was made of a new standard for reviewing rates—much less the elimination of the Superintendent’s review authority altogether. And, critically, by its plain terms subsection (g) did not supplant or limit the Superintendent’s authority under subsection (b) to review rates to determine whether they are excessive, inadequate or discriminatory.

Like the statutory language, the legislative history is devoid of any indication that the Superintendent’s power to oversee health insurance rates was being diminished. The purpose of the 1995 legislation was to make health insurance more affordable and available for direct pay consumers (see L 1995, ch 504). The legislation created two new standardized health insurance products for these consumers, an HMO plan and a point of service plan, and mandated that such plans be offered by certain health insurance providers, including Excellus. Governor Pataki, who submitted the reform package as part of his insurance program, stated that the legislation was intended to address problems faced by direct pay consumers, who had “limited choices” in health insurance coverage because most insurers did not offer direct pay policies (Governor’s Approval Mem, Bill Jacket, L 1995, ch 504, at 5). As for those consumers who already had insurance, the Governor observed: “Because of continuing rate increases, this critical coverage is becoming more and more expensive for the existing policyholders” (id.).

The streamlined procedure for establishing rate changes was but one aspect of this comprehensive health insurance reform legislation. In discussing the new file and use method, the Governor noted that

“[t]he bill also reforms the costly and time-consuming system for the approval of the premium rates offered by HMOs and Blue Cross Plans on their community-rated business. At the same time, it also preserves certain consumer protections. The adoption of a file and use rating methodology for community rated contracts of HMOs and Article 43 corporations with minimum and maximum loss ratios will yield savings in administrative costs, allow appropriate rate increases to be implemented on a more timely basis and also help assure that rates are equitable” (Governor’s Approval Mem, Bill Jacket, L 1995, ch 504, at 6 [emphasis added]).

It appears that the Governor expected the amendment to create an alternative to the costly, time-consuming public hearing prior-approval procedure of subsection (c) while preserving “consumer protections” that would help assure equitable rates. Since the subsection (b) standard provides the framework for assuring such protections for consumers, I am unpersuaded that the file and use procedure was intended to repeal that subsection—particularly since the Legislature could have easily so provided.

Though not a model of clarity, the statute’s provisions can be read together in a manner that gives meaning to each of its terms and effect to the overriding intent of the 1995 legislation. And where a statute’s terms can be harmonized, the canons of statutory construction require that we do so (see generally, Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals, 97 NY2d 86, 91 [2001]). While the majority gives great weight to subsection (g)’s “deemed approved” language, this is just one phrase in a lengthy statute. There is no basis to conclude that the “deemed approved” language vitiates the long-standing “excessive, inadequate or unfairly discriminatory” standard set forth in subsection (b). Both subsections can and should be given effect.

As I read the statute, the 1995 amendment offers insurers a more efficient and cost-effective means of securing rate approval. If rate increases fall within the minimum and maximum loss ratios established in subsection (g), the rates are “deemed approved,” meaning that insurance providers can collect the new rates from consumers. Thus, under the file and use method, the Superintendent is precluded from requiring insurance companies to submit to prior review or approval by the Insurance Department before rate increases go into effect. If the Superintendent decides to exercise his review authority under subsection (b) and finds that the rates are excessive, inadequate or discriminatory, the rates may no longer be charged prospectively, although the Superintendent’s determination can be challenged in a CPLR article 78 proceeding (as occurred in this case). This interpretation of the statute gives effect to all of its terms and is consistent with the history of the reform legislation as a whole and of subsection (g) in particular.

Excellus’ argument that the minimum and maximum loss ratios, used to calculate rates under the file and use procedure, will protect consumers from excessive or discriminatory rates does not withstand scrutiny. In the absence of the Superintendent’s intervention, the file and use procedure has produced HMO rates for direct pay consumers that increased 69.3% between 1999 and 2002 (testimony of Gregory V Serio, Superintendent of Insurance, before the New York State Senate Standing Committee on Insurance, Apr. 15, 2003). The climb in point of service contract rates was even more precipitous: 82.7% during the same time frame (id.).

In addition to resulting in exponential rate increases, the file and use procedure has apparently led to divergences in rates from county to county which, according to the Superintendent, are not justified by regional differences in health care costs. While the loss ratios restrict the percentage of rate increase adopted for a particular plan, they do not require that a provider take a uniform approach to rate increases from plan to plan or region to region. Consequently, as long as rate increases fall within the loss ratios, the file and use procedure does not prevent a provider from increasing rates 50% in one county and not at all in the adjoining county. Absent review, a provider could charge divergent rates without justification and compound the differences in the next filing—even if the rates are patently discriminatory.

Left unchecked, the file and use procedure can lead to precipitous rate fluctuations and unjustified regional discrepancies that could thwart the underlying purpose of the 1995 legislation. While the Superintendent retains the authority to order an independent management and financial audit under the majority’s reading of the statute, audit review may come too late to meaningfully protect direct pay consumers who must meet premium payments each month. If this class of vulnerable insurance subscribers cannot afford the increased rates, they will drop off the insurance rolls and join the ranks of the uninsured—a result completely contrary to the overriding legislative motivation to increase availability of coverage for direct pay consumers.

The Superintendent has alleged that misuse of the file and use procedure was precisely what prompted him to exercise his review authority to reduce Excellus’ rate increases in January 2002. The merits of this determination were never reviewed because the lower courts each concluded that the “deemed approved” language divested the Superintendent of rate increase review authority. Because I believe the Superintendent retains authority under subsection (b), I would remit this matter to Supreme Court to assess whether the Superintendent’s prospective alteration of Excellus’ rate increases was arbitrary or capricious, i.e., whether the Superintendent rationally concluded that the provider’s rate increases were excessive, inadequate or discriminatory.

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

Order affirmed, with costs.

      . Under open enrollment, the insurer must provide health insurance coverage to all willing purchasers.

      . A community rate is determined by the insurer’s average cost per person in the relevant geographic area. Insurers consequently charge subscribers uniform rates regardless of individual health risks or medical history.

      . Insurers are thus required to offer two forms of direct-payment contract: the usual HMO contract to cover statutorily specified services from hospitals and physicians approved by the HMO; or a point-of-service contract, where, in addition, the same benefits are available from the hospital or physician of the enrollee’s choosing, typically covered at a percent of the fee.

      . The Department’s regulations establish specified loss ratios for different insurance products to ensure that rates are equitable. In many instances, those loss ratios are lower than the 80% allowed by the Legislature in the file and use context (see e.g. 11 NYCRR 52.15 [allowing loss ratios as low as 60% for specified disease coverage]).

      . Notably, in recent years the Legislature has created or expanded several health care programs aimed at solving the complicated problem of New York’s uninsureds (see L 1996, ch 639 [New York Health Care Reform Act of 1996]; L 1999, ch 1 [New York Health Care Reform Act of 2000]).

      . Section 4308 (b) provides, in relevant part, that “[notwithstanding any other provision of law, the superintendent, as part of the rate increase approval process, may defer, reduce or reject a rate increase if, in the judgment of the superintendent, the salary increases for senior level management executives . . . are excessive or unwarranted given the financial condition or overall performance of such corporation.”

      . Section 4308 (e) provides that “ [n]otwithstanding any other provision of law, the superintendent shall have the power to require independent management and financial audits of corporations subject to the provisions of this article whenever in the judgment of the superintendent, losses sustained by a corporation jeopardize its ability to provide meaningful coverage at affordable rates or when such audit would be necessary to protect the interests of subscribers.” Section 4308 (f) provides that “[t]he superintendent shall have the authority to direct the corporation in writing to implement any recommendations resulting from the audit that the superintendent finds to be necessary and reasonable . . . Upon any application for a rate adjustment. . . , the superintendent shall review the corporation’s compliance with the directions and recommendations made previously by the superintendent, as a result of the most recently completed management or financial audit and shall include such findings in any written decision concerning such application.”

      . In prior cases, this Court has interpreted a statute containing the phrase “deemed approved” in a manner consistent with and appropriate to its context. For example, in Matter of King v Chmielewski (76 NY2d 182 [1990]), we rejected the argument that a subdivision application was automatically approved by operation of law 45 days after the public hearing even though Town Law § 276 (4) provided that the application would be “deemed approved” if not acted upon within that period. Instead of reading the phrase “deemed approved” in isolation, we considered it in the context of other relevant provisions of law, declining to adopt a narrow interpretation of the statute that “would be inconsistent with the legislative design” (id. at 188; see also, Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367 [2d Dept 1983], affd 62 NY2d 965 [1984] [Town Law’s 45-day “deemed approved” provision must be harmonized with SEQRA’s more extended review process]).

      . This confers a significant benefit. For several years after the file and use procedure was adopted, the Superintendent apparently saw no need to exercise his review power at all and providers’ rates were not disturbed once filed.

      . Given my reading of the statute, I concur with the majority holding insofar as it annuls the Superintendent’s November 2001 letter because it attempted to impose a prior approval requirement on providers who use the subsection (g) file and use procedure. I would also strike that portion of the Superintendent’s rate review determination directing retroactive application of the Superintendent’s rate modifications.


text:
    [809 NE2d 1102, 777 NYS2d 794]
    The People of the State of New York, Respondent, v Jamal Massie, Appellant.
    Argued February 19, 2004;
    decided April 6, 2004

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Jonathan M. Kirshhaum and Robert S. Dean of counsel), for appellant.
    The trial court violated appellant’s due process right to a fair trial when it erroneously held that questioning the eyewitnesses about the circumstances surrounding the photo identification procedures would open the door to admit the constitutionally suppressed lineups as direct evidence of guilt. The admission of the lineups would not have been necessary to rebut any unfair prejudice to the People, and the defense was not seeking to take extraordinary advantage of the fact of suppression. (Delaware v Van Arsdall, 475 US 673; Davis v Alaska, 415 US 308; Pointer v Texas, 380 US 400; People v Hudy, 73 NY2d 40; Chambers v Mississippi, 410 US 284; United States v Wade, 388 US 218; People v Fernandez, 82 AD2d 922; People v Burts, 156 AD2d 1010; People v Gonzalez, 145 AD2d 923, 73 NY2d 1015; People v Gaddy, 115 AD2d 658; People v Mosley, 110 AD2d 937.)

      Robert M. Morgenthau, District Attorney, New York City (Sylvia Wertheimer and Susan Gliner of counsel), for respondent.
    Defendant’s arguments before the trial court were not made with sufficient specificity to preserve his present claim for appellate review. In any event, the disputed evidentiary ruling was consistent with the balance of values underlying the exclusionary rule. (People v Mahone, 206 AD2d 263; People v Robinson, 88 NY2d 1001; People v Waters, 90 NY2d 826; People v Reed, 84 NY2d 945; People v Davidson, 98 NY2d 738; People v Padro, 75 NY2d 820; People v Shabazz, 99 NY2d 634; People v Melendez, 55 NY2d 445; People v Rojas, 97 NY2d 32; United States v Gambino, 59 F3d 353, 517 US 1187.)
   OPINION OF THE COURT

R.S. Smith, J.

The issue here is whether Supreme Court correctly applied the rule that otherwise inadmissible evidence may become admissible where the adverse party has “opened the door” to it by offering evidence, or making an argument based on the evidence, which might otherwise mislead the factfinder (People v Melendez, 55 NY2d 445 [1982]; People v Rojas, 97 NY2d 32 [2001]). In this case, a witness to a robbery identified defendant as the robber on two occasions before trial; the prosecution conceded that evidence as to both pretrial identifications was inadmissible. Supreme Court held that, if defendant chose to cross-examine the witness about the first of the two identifications, the door would be opened to evidence of the second. We hold that Supreme Court did not abuse its discretion.

Facts

A McDonald’s restaurant was robbed at gunpoint on October 10, 1998. There were three witnesses to the robbery: Alloma Stewart, the cashier, Teodora Castro, the store manager, and Penelope Gamble, a customer.

On October 16, 1998, Stewart and Castro selected defendant’s picture from a number of computer images they viewed at the police station. Stewart and Castro viewed the images together, with no police officer present, and discussed their selection of defendant’s photograph with each other. Stewart testified at a pretrial hearing that when she first saw defendant’s photograph, “it was 50/50, it could have been him, it could have been other people.” After she and Castro put a piece of paper on the picture to simulate a cap, visualized defendant with a brown leather jacket, a white T-shirt and facial hair, and compared the photograph to several others, Stewart became “a hundred percent sure it was him.” Stewart and Castro reported their selection of defendant’s picture to Detective Brian Costello.

Costello subsequently learned that defendant had been arrested on another charge, and was in jail. He obtained a judicial “take-out order” to remove defendant from Bikers Island and place him in a lineup, but he made no attempt to contact an attorney for defendant; the lineup took place on January 24, 1999 with no defense counsel present. Stewart picked out defendant as the robber, as did Gamble, who had not been present at the viewing of the photographs. Castro did not attend the lineup.

Evidence of the photographic identifications was clearly inadmissible (see e.g., People v Caseria, 19 NY2d 18 [1966]; People v Baker, 23 NY2d 307 [1968]). The prosecution conceded that the absence of counsel at the lineup rendered evidence of the lineup identifications inadmissible also {People v Coleman, 43 NY2d 222 [1977]; People v Sugden, 35 NY2d 453 [1974]), and consented to an “independent source” hearing (People v Dodt, 61 NY2d 408, 417 [1984]). After holding such a hearing, Supreme Court found that Stewart and Gamble had an independent source for their in-court identifications of defendant, and denied a motion to suppress those in-court identifications.

Following the independent source hearing, defendant’s counsel made the strategic judgment that it would do defendant more good than harm if the jury learned about the arguably suggestive viewing of the photographs on October 16—as long as the jury did not also learn about the January 24 lineup. Defendant therefore requested an in limine ruling from the trial judge: “If I were to question Miss Stewart or Miss Castro or bring out the fact that there was that type of identification procedure based on the photographs, would that open up the door to the lineup testimony?” Supreme Court ruled that it would, saying that to inform the jury about the photographic identification and not the lineup would be to give it “incomplete information.” Defense counsel then said that he would not ask any questions that would open the door, and he did not refer to the photographic identification at trial. Defendant was convicted and his conviction was affirmed by the Appellate Division. A Judge of this Court granted defendant leave to appeal, and we now affirm.

Discussion

The leading case in this Court on “opening the door” is People v Melendez (55 NY2d 445 [1982]). That was a murder case in which the key prosecution witness was a man named Marrero. Marrero had previously been a suspect: a “concerned citizen” had told the police that both Melendez and Marrero were involved in the crime (id. at 449).

The arresting officer who had spoken to the “concerned citizen” testified at trial, but of course did not relate under direct examination the informant’s hearsay statement (id. at 448). On cross-examination of the detective, Melendez’s counsel brought out that Marrero “was a suspect” at one point in the investigation (id.). On redirect, the prosecutor asked on what basis Marrero was a suspect, and the detective was permitted, over objection, to relate the “concerned citizen[’s]” detailed allegations about both Marrero (who, apparently, the informant had confused with Melendez’s codefendant) and Melendez (id. at 449-450).

We held in Melendez that the cross-examination had “open[ed] the door” to some, but not all, of the hearsay testimony: it was appropriate for the detective to repeat the statements of the informant about Marrero, showing that the police suspicion of him resulted from mistaken identity, but not the informant’s accusation of Melendez (id. at 452-453). Noting that “[t]he extent of redirect examination is, for the most part, governed by the sound discretion of the trial court,” we made the following observations about when, and how far, questions asked on direct examination may open the door to otherwise inadmissible evidence on redirect:

“The ‘opening the door’ theory must necessarily be approached on a case-by-case basis. As a result, this principle is not readily amenable to any prescribed set of rules. (See McCormick, Evidence [2d ed], § 57.) Nonetheless, it does have its limitations. By simply broaching a new issue on cross-examination, a party does not thereby run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on redirect. Rather, the trial court must limit the inquiry on redirect to the ‘subject-matter of the cross-examination [which] hearts] upon the question at issue.’ (People v Buchanan, 145 NY 1, 24, supra.) Moreover, the court should only allow so much additional evidence to be introduced on redirect as is necessary to ‘meet what has been brought out in the meantime upon the cross-examination. ’ (6 Wig-more, Evidence [Chadbourn rev ed], § 1896, p 737; accord People v Schlessel, 196 NY 476, 481, supra-, People v Lewis, 18 AD2d 277, 279-280.) . . . and the trial court should normally ‘exclude all evidence which has not been made necessary by the opponent’s case in reply.’ (6 Wigmore, § 1873, p 672 [emphasis in original].)” (Id. at 451, 452.)

While Melendez discussed only the issue of when cross-examination questions open the door to redirect examination, we have employed a similar analysis in deciding other “opening the door” issues. For example, in People v Rojas (97 NY2d 32 [2001]), we held that the door was opened to evidence of a prior alleged crime by the defendant, a prison inmate, when he tried to show that his placement in segregation within the prison was a harsh and unjustifiable punishment that led to the conduct for which he was on trial. These cases establish that a trial court should decide “door-opening” issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression.

Following the approach taken in Melendez and Rojas, we conclude that Supreme Court’s ruling here was within its discretion. Defendant wanted to bring out before the jury the suggestive nature of the photographic identifications and Stewart’s initial uncertainty on viewing the photographs. The point of doing this, of course, was to attack Stewart’s in-court identification of defendant as the robber—specifically, to suggest to the jury that Stewart could not confidently identify him without being helped or coached. Indeed, defendant’s counsel made that suggestion in closing argument at trial even without the help of the photographic identifications: “look at the setting. We’re here in a courtroom. I’m the defense attorney. I’m asking the questions. He is sitting next to me. Who else are they going to identify in this courtroom?” If evidence of the photographic identifications, but not the lineup, had been admitted, counsel would have been free to argue that the suggestive in-court identification was preceded by a suggestive viewing of photographs—while the jury remained ignorant that a lineup identification, not in any way suggestive as far as the record shows, occurred between the two.

Supreme Court was well within its discretion in concluding that the course defendant wanted to take would mislead the jury, and that the jury should hear about both of Stewart’s pretrial identifications, if it heard about either of them. This is not a case where, to use the words of Melendez, the prosecution offered evidence that was “remote” or “tangential” to the subject matter the defendant brought up. The lineup evidence would have directly contradicted the impression given by the evidence about the viewing of photographs, that Stewart had always needed help to identify defendant as the robber. Thus Supreme Court had ample basis for concluding that the lineup evidence was “necessary to meet” the evidence defendant proposed to introduce.

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

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

Order affirmed.

      . Defendant was tried twice because his first trial ended in a hung jury. The in limine ruling at issue here was made in connection with the second trial; the judge at the first trial made a similar ruling on a similar application.

      . There is some confusion in the rulings of both Supreme Court and the Appellate Division. Supreme Court referred to “a lineup in which each individually I presume without reference to the other picked the defendant out of a group of similar-looking people.” Thus, the trial judge apparently thought that she was ruling on whether the door was opened to two lineup identifications. Similarly, the Appellate Division memorandum refers to “lineup identifications” in the plural (305 AD2d 116, 116 [2003]). In fact, Castro did not make a lineup identification and Gamble, who did, had no involvement in the viewing of the photographs. Only Stewart was involved in both events, and thus inquiry into the photographic identification could have “opened the door” only to evidence of Stewart’s lineup identification, not Gamble’s. Defendant did not complain of this apparent confusion below and does not rely on it here. The record indicates that defense counsel was not going to inquire about the viewing of photographs if it opened the door to any testimony about the lineup.

      . Defendant contends that the Melendez/Rojas approach is unacceptable here, and that a different and stricter rule should be followed, because the evidence to which the door was held to be opened—Stewart’s lineup identification of defendant—was obtained in violation of defendant’s constitutional rights. Defendant did not present this argument to Supreme Court. The issue is not preserved for our review, and we do not address it.

      . Defendant’s counsel, in presenting the motion in limine, detailed for the judge the facts he wanted to elicit: that Stewart was “only fifty percent sure,” that “she and Miss Castro . . . put a piece of paper over his head to simulate the hat. . . and imaginefd] what he would look like in a brown leather coat,” and that “ [subsequent to that they looked at a few more photographs, four or five. They imagined a few others with a brown leather coat and a piece of paper over their head[s] and went back to Mr. Massie and made a determination Mr. Massie was the perpetrator of the crime.”