author: Pigott, J.

text:
    [49 NE3d 699, 29 NYS3d 230]
    In the Matter of Perlbinder Holdings, LLC, Appellant-Respondent, v Meenakshi Srinivasan, Chairperson, et al., Respondents-Appellants.
    Argued February 17, 2016;
    decided March 24, 2016

      Kaufman Friedman Plotnicki & Grun, LLP, New York City (.Howard Grun of counsel), for appellant-respondent.

      Zachary W. Carter, Corporation Counsel, New York City (Jane L. Gordon and Richard Dearing of counsel), for respondents-appellants.
   OPINION OF THE COURT

Pigott, J.

At issue in this appeal is whether petitioner Perlbinder Holdings, LLC, by virtue of its reliance on an erroneously issued permit for a large outdoor advertising sign that was later revoked by the New York City Department of Buildings (DOB), acquired a vested right to maintain the sign on its property. We hold that it did not. We further conclude that the proper procedure to resolve the issue of its asserted good faith reliance on the erroneously issued permit is an application for a zoning variance. Therefore, we modify the order of the Appellate Division and dismiss the petition.

I.

Petitioner is the owner of property located at 663-669 Second Avenue in Manhattan. For many years, petitioner maintained a large illuminated advertising sign on the side of its building at that location. The DOB had issued a permit for that sign in 1980. Thereafter, the New York City zoning regulations were amended in such a way that no longer permitted the advertising sign. The original sign was, however, “grandfathered” in as a legal, nonconforming use.

In May 2002, petitioner sought, and the New York City Board of Standards and Appeals (BSA) granted, a zoning variance for the construction of a new 34-story mixed-use building on the property. The BSA also approved petitioner’s request to relocate the original sign, with slightly modified dimensions, as part of petitioner’s plans to construct the mixed-used building on the property. To date, petitioner neither built the mixed-use building nor constructed the advertising sign approved under the 2002 zoning variance.

In 2008, the DOB issued petitioner a violation for its failure to maintain the then-vacant building on which the original sign was affixed. After a July 2008 emergency declaration, the building was demolished, and, with it, the sign.

Petitioner then filed two applications with the DOB to erect a new support structure and a new sign. The DOB granted the support structure application, but objected to the proposed sign on the bases that the new sign was different than the original sign because it was a double-sided sign; it was not located in the same position as the original sign; and the replacement sign was 25 feet lower than the original. The DOB noted that, in order to be “grandfathered” in as a legal nonconforming use, the new sign must be single-sided and in the same location as the original sign.

Petitioner sought reconsideration of its application. The then-Manhattan Borough Building Commissioner overruled DOB’s objections and approved the new sign permit, stating: “OK to accept prior sign as grandfathering of existing non-conforming sign. OK to accept lower sign as no increase in degree of non compliance.” Shortly thereafter, DOB issued a permit for the installation of petitioner’s new sign on the support structure.

In the spring of 2010, after petitioner had installed the structure and new sign, the DOB audited its earlier permit approvals. In the course of that audit, the DOB determined that petitioner’s sign had not been lawfully approved. Accordingly, it revoked the permits for both the support structure and the sign, determining that its prior approval was improperly granted.

Petitioner appealed the DOB’s determination to the BSA. Following a public hearing, the BSA affirmed the determination of the DOB, agreeing that the sign violated the New York City Zoning Resolution. It further concluded that any right to continued use of the advertising sign as a nonconforming use had been lost since that use had been discontinued for more than two years when the original sign was demolished along with the building in July 2008. The BSA noted that petitioner’s good faith reliance on the DOB’s approvals did not estop the agency from enforcing its ordinances.

II.

Petitioner then commenced this CPLR article 78 proceeding to, among other things, annul the BSA’s resolution and reinstate the permits revoked by the DOB, thereby restoring petitioner’s right to maintain the new sign on its property. Petitioner argued that it had relied in good faith on the Commissioner’s approval and the subsequently-issued permits in expending substantial funds to install the new sign.

Supreme Court denied the petition and dismissed the proceeding (2013 NY Slip Op 30466 [U] [Sup Ct, NY County 2013]). The court found the BSA’s determination upholding the revocations rational and not arbitrary or capricious. The court also rejected petitioner’s argument that the DOB or the BSA should have considered its good faith reliance on the permits issued by the DOB, concluding that estoppel is not available against an agency even when correction of its prior erroneous determination leads to harsh results.

The Appellate Division reversed Supreme Court’s judgment and “remanded to BSA for further proceedings consistent” with the Court’s decision (114 AD3d 494, 494 [1st Dept 2014]). The Appellate Division noted that the BSA’s conclusion that “it could not consider the issue of petitioner’s good faith under its appellate jurisdiction . . . was incorrect” (id.). Thus, the Court determined that remand to the BSA was required so that it could determine, “in its appellate capacity, . . . whether petitioner is entitled to a variance applying the factors set forth in [NY City Charter §] 666 (7)” (id.). The Court further determined that, “[b]eeause the record was not fully developed as to these criteria, . . . [the] BSA shall permit the parties to make further submissions” (id.). Moreover, the Appellate Division determined that the record established “as a matter of law” that petitioner relied in good faith upon the 2008 determination by the Manhattan Borough Building Commissioner to grant its permit applications (id. at 494-495). Thus, the Court concluded that in deciding whether to grant a variance on remand, the BSA must consider, along with the section 666 (7) factors, petitioner’s “good-faith reliance” (id. at 495, citing Matter of Pantelidis v New York City Bd. of Stds. & Appeals, 43 AD3d 314 [1st Dept 2007]). Lastly, the Court rejected petitioner’s argument that no variance was required, reasoning that the new sign is in a different location and position than the original.

This Court granted both petitioner and the City leave to appeal (24 NY3d 908 [2014]).

III.

The Zoning Resolution did not permit display of advertising signs in the zoning district at issue and the new sign did not qualify as a grandfathered replacement. Thus, the determination that the 2008 permit was invalid and the BSA’s action in revoking the invalid permit were rational (see Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282 [1988]).

However, petitioner maintains that it is entitled to maintain the sign because it acquired a common-law vested right to do so based on the fact that it had spent substantial funds to erect the new sign and did so in good faith reliance on the 2008 permit.

We recently held that

“[a]n owner of real property can acquire a common-law vested right to develop the property in accordance with prior zoning regulations when, in reliance on a ‘legally issued permit,’ the landowner ‘effect [s] substantial changes and incur [s] substantial expenses to further the development’ and ‘[t]he landowner’s actions relying on [the] valid permit [are] so substantial that the municipal action results in serious loss rendering the improvements essentially valueless’ ” (Matter of Exeter Bldg. Corp. v Town of Newburgh, 26 NY3d 1129, 1130-1131 [2016] [emphasis added and citations omitted]).

Vested rights cannot be acquired, however, where there is reliance on an invalid permit (see Matter of Natchev v Klein, 41 NY2d 833 [1977]; see also Matter of Perrotta v City of New York, 107 AD2d 320, 325 [1985], affd for reasons stated 66 NY2d 859 [1985]). When a permit is wrongfully issued in the first instance, the vested rights doctrine does not prevent the municipality from revoking the permit to correct its error. Because the 2008 permit was unlawfully issued, petitioner could not rely on it to acquire vested rights.

IV

For its part, the City argues that the Appellate Division erred in remanding the case for a variance determination and in ruling “as a matter of law” that petitioner has acted in good faith. It contends that the determination of good faith in seeking relief from the Zoning Resolution should be decided by the DOB or the BSA in the event petitioner submits a variance application. We agree.

Petitioner admits that it never sought a variance and is not seeking one now. It was the Appellate Division, sua sponte, that decided petitioner’s appeal was, “in effect, a request for a variance” under New York City Charter § 666 (7) and based its remand on that Charter provision (114 AD3d at 494).

NY City Charter § 666 (7) provides the BSA with the general authority to vary or modify a rule or regulation relating to a wide range of areas, including the construction of buildings or structures. Similarly, section 666 (6) (a) separately authorizes the BSA to broadly hear and decide interpretative “appeals” from decisions of the DOB.

Subdivision (5) of section 666, on the other hand, pertains to zoning variances and provides that the BSA “shall have [the] power . . . [t]o determine and vary the application of the zoning resolution as may be provided in such resolution and pursuant to section [668].” Section 668 sets forth specific mandatory procedures by which the BSA “shall review applications to vary the zoning resolution and applications for special permits” (NY City Charter § 668 [a]). Among other things, section 668 requires the filing of an application, notification to the public, a public hearing (or waiver thereof), determination whether an environmental impact statement is required, and a hearing by the BSA. Thus, the language of section 666 (5) of the NY City Charter is specifically limited to applications for a variance of the Zoning Resolution.

Under principles of statutory construction, whenever there is a general and a specific provision in the same statute, the general applies only where the particular enactment is inapplicable (see McKinney’s Cons Laws of NY, Book 1, Statutes § 238). Thus, the interpretative appeal process necessarily applies in instances other than a zoning variance and does not extend to matters requiring a variance, for which different standards and different procedures are set forth. The Appellate Division therefore erred in remanding the matter for a determination of a variance application pursuant to NY City Charter § 666 (7).

V

Finally, a determination as to petitioner’s good faith reliance should not be resolved by the Court, but rather by the administrative agency, should petitioner seek a variance (see generally Matter of Jayne Estates v Raynor, 22 NY2d 417 [1968]).

Accordingly, the order of the Appellate Division should be modified, with costs to the City of New York respondents, by dismissing the petition in its entirety and, as so modified, affirmed.

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order modified, with costs to the City of New York respondents, by dismissing the petition in its entirety and, as so modified, affirmed.

       The Appellate Division had issued a prior order granting the petition and directing the DOB to reinstate the permits and vacate the fines that had been imposed in connection with the sign (110 AD3d 611 [1st Dept 2013]). However, upon reargument, the Appellate Division recalled and vacated that order and substituted in its place the order now before us.


source: Caselaw Access Project

license: Public Domain

text:
    [49 NE3d 703, 29 NYS3d 234]
    The People of the State of New York, Respondent, v Oliver Berry, Also Known as Chris Tucker, Appellant.
    Argued February 9, 2016;
    decided March 29, 2016

      Lynn W.L. Fahey, Appellate Advocates, New York City (Erica Horwitz of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Roña I. Kugler and John M. Castellano of counsel), for respondent.
   OPINION OF THE COURT

Pigott, J.

A near collision on July 16, 2002 at the intersection of Foch Boulevard and Guy R. Brewer Boulevard in Queens, New York, led to a heated argument between defendant and Korin Bush, a passenger in a vehicle being driven by Josiah Salley. The confrontation lasted for a considerable period of time — 5 to 10 minutes by some estimates — before the participants parted and Salley and Bush drove away.

Approximately 90 minutes later, Salley and Bush approached the same intersection from the opposite direction. Bush saw defendant and another man standing by a fence. Bush would later testify that, as the light changed, defendant ran toward their vehicle and fired several shots, shattering the windows and striking Salley. Bullets also pierced the passenger side door. Defendant then ran away, past a playground and into a nearby housing development. Salley died from gunshot wounds.

Detectives, who were nearby working on an unrelated case, heard the gunshots and saw two individuals running from the scene. Although defendant eluded capture, a detective apprehended the other person — later identified as Kevin Kir-ven — and returned him to the scene of the shooting. Bush identified Kirven as the man that had been standing with defendant at the fence before the shooting, but told police Kirven was not the shooter. Kirven was taken to the police precinct, where he gave a signed statement to detectives and was released. Defendant evaded capture for nearly two years. He was finally apprehended on May 5, 2004. At a six-person lineup conducted that afternoon, Bush identified defendant as the shooter.

Defendant was then charged with murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon in the second and third degrees. At the subsequent trial, defendant was found guilty as charged; however, the Appellate Division reversed the judgment and ordered a new trial (49 AD3d 888, 889 [2d Dept 2008]).

At the second trial, Kirven, who had been unavailable at the first trial, was called by the People. His testimony is the focus of a number of rulings that form the basis of this appeal.

Kirven testified that he and defendant had been friends, and that he knew defendant to go by the name of “Fuzzy.” Kirven had written the name “Fuzzy” and “Fuzzy’s” phone number in his address book. When asked if he was at the intersection of Foch and Guy R. Brewer on the day of the shooting, Kirven invoked his Fifth Amendment privilege against self-incrimination. He continued to invoke that privilege with regard to five additional questions posed by the prosecutor concerning: whether he had heard shots; whether he had observed defendant fire any shots; where he had been standing when he had heard gunfire; whether he and defendant had conversed prior to the shooting; and what type of shirt he was wearing on that day.

Once Kirven received immunity concerning questions as to where he was standing and whether he and defendant had engaged in a conversation prior to the shooting, he testified that he was in the park when the shooting had occurred but that he and defendant had not engaged in any conversation. As to other questions, the court directed Kirven to answer and he did so, testifying that he had seen defendant at the park approximately 15 to 20 minutes prior to the shooting, and that he was present at the time but heard only one gunshot. Because his answers were contrary to what he had told police, the prosecutor sought to impeach Kirven with the statement that he had given shortly after the shooting. Over defense counsel’s objection, the court allowed a redacted version of the statement to be introduced into evidence for impeachment purposes, with a limiting instruction that the statement was admitted not for its truthfulness but for the sole purpose of impeaching Kirven’s credibility.

After the defense presented its case, which included the testimony of an expert in the field of eyewitness identification, defendant was convicted of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon in the second and third degrees.

The Appellate Division affirmed the judgment, rejecting defendant’s contention that Kirven’s invocation of his Fifth Amendment privilege added “critical weight” to the People’s case and that Kirven’s testimony deprived him of a fair trial (110 AD3d 1002, 1002 [2d Dept 2013]). The Court also held that the trial court properly allowed the People to impeach Kir-ven with his prior inconsistent statements (id.).

A Judge of this Court granted defendant leave to appeal (24 NY3d 1042 [2014]), and we now affirm.

I.

Defendant first contends that the trial court committed reversible error by allowing the People to “deliberately” call Kirven “solely to elicit a claim of privilege,” with Kirven’s invocation of the privilege allegedly adding “critical weight” to the People’s case. It is defendant’s contention that the People called Kirven in bad faith so that they could question him about topics that they knew would require him to invoke his Fifth Amendment privilege in front of the jury. The trial court rejected that claim and we conclude that its determination in this regard was proper.

The Fifth Amendment of the United States Constitution directs that no person “shall be compelled in any criminal case to be a witness against himself” (US Const Amend V). When a witness invokes the Fifth Amendment privilege in front of the jury, “the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant’s right to a fair trial” (People v Vargas, 86 NY2d 215, 221 [1995], citing People v Pollock, 21 NY2d 206, 212 [1967], United States v Maloney, 262 F2d 535, 537-538 [2d Cir 1959], Namet v United States, 373 US 179, 185-186 [1963]). It is therefore reversible error for the trial court to permit the prosecutor to deliberately call a witness for the sole purpose of eliciting a claim of privilege (see Pollock, 21 NY2d at 212-213; see also Vargas, 86 NY2d at 221). The critical inquiry is whether the prosecution exploited the witness’s invocation of the privilege, either by attempting “to build its case on inferences drawn from the witness’s assertion of the privilege” or utilizing those inferences to “unfairly prejudice [the] defendant by adding ‘critical weight’ to the prosecution’s case in a form not subject to cross-examination” (Vargas, 86 NY2d at 221, quoting Namet, 373 US at 186-187).

It is clear that the People did not call Kirven for the sole purpose of eliciting his invocation of the privilege or in “a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege” (Namet, 373 US at 186; see Pollock, 21 NY2d at 209-211 [in a case where joint defendants denied killing the victim and claimed their confessions were false and extracted by force, but where each confession specifically referred to one Earl James as an accomplice, it was error for the People to call James for the sole purpose of having him invoke the testimonial privilege, which created in the jurors’ mind the inference that James was incriminating not only himself but the joint defendants as well]; Vargas, 86 NY2d at 223-224 [prosecutor’s awareness of the witness’s intent to invoke testimonial privilege, coupled with her repeated violations of the court’s order not to question the witness on those matters and her summation references to the invocation of the privilege, constituted an improper attempt on the part of the People to build their case on improper inferences that could be drawn from the invocation of the privilege]).

There were other matters, as conceded by the defense, that warranted Kirven being called. Nor did the People utilize Kir-ven’s invocation on summation to raise impermissible inferences that defendant committed the crimes. There is also no indication that the People’s motive for calling Kirven was solely to raise inferences of defendant’s guilt based on his invocation of the privilege. The People were prepared to, and in fact did, grant immunity to Kirven with regard to specific questions in an effort to provide a clear picture of events leading up to the shooting and its immediate aftermath.

II

Defendant next argues that the People’s impeachment of Kirven violated CPL 60.35, which modified the common-law rule against impeachment of one’s own witness by allowing a party who called the witness to show that the witness has made statements that are inconsistent with his or her trial testimony. That provision states, as relevant here, that when a witness called by a party “gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made ... a written statement signed by him . . . contradictory to such testimony” (CPL 60.35 [1]).

Evidence of a prior contradictory statement may be received for the limited purpose of impeaching the witness’s credibility with respect to his or her testimony, and, upon its receipt of the evidence, the court must instruct the jury that the evidence is for impeachment purposes only and does not constitute evidence-in-chief (see CPL 60.35 [2]). The evidence of the prior statement is not admissible, however, if the testimony of the witness “does not tend to disprove the position of the party who called him [or her] and elicited [the contradictory] testimony” (CPL 60.35 [3]). Thus, before a party may impeach its own witness, the testimony on a “material fact” must “tend[ ] to disprove the party’s position or affirmatively damage [ ] the party’s case” (People v Saez, 69 NY2d 802, 804 [1987], citing CPL 60.35 [1]; People v Fitzpatrick, 40 NY2d 44, 51-52 [1976] [witness who merely states that he cannot recall events in question does not “tend( ) to disprove” the prosecution’s case]).

Here the trial court properly allowed the People to introduce Kirven’s redacted statement for the purpose of impeaching him because portions of his testimony were contrary to what he had told police two years earlier and “affirmatively damaged” the People’s case. Kirven’s testimony that he heard only one shot and did not see defendant firing at a car had the possibility of jeopardizing charges of both second-degree murder for the death of Salley and attempted murder for shooting at Bush. Kirven’s testimony that he had heard only one shot tended to disprove the People’s theory of multiple shots fired at both Salley and Bush, and would have disproved the position that defendant intended to cause the death of both. In addition, Kirven had previously signed a statement indicating that defendant was the shooter, but at trial stated that he did not see defendant at the scene. Importantly, the trial court instructed the jury on three separate occasions— twice during trial and once during its reading of the jury instructions — that the redacted statement was admitted solely for the purpose of impeaching Kirven’s credibility and not for its truthfulness. On this record, it cannot be said that the trial court erred in allowing the People to introduce the redacted statement for its limited purpose of impeachment.

III.

Defendant’s final contention is that he was deprived of his right.to a fair trial and to present a defense by the trial court’s ruling precluding his identification expert from testifying about the effect of high stress on the accuracy of an identification.

During the trial, defense counsel sought testimony from an identification expert to address, among other things, “weapon focus,” the lack of correlation between certainty and accuracy by identifying witnesses, i.e., “witness confidence,” and, as relevant here, the effect of a witness undergoing a traumatic or significant event, i.e., “event stress.” The court ruled that defendant’s expert could testify relative to weapon focus and witness confidence, but could not testify as to the effect of event stress because, based on its research, that topic was not generally accepted in the scientific community.

Expert testimony that is proffered relative to the reliability of eyewitness identification “is not inadmissible per se,” but “the decision whether to admit it rests in the sound discretion of the trial court” (People v Lee, 96 NY2d 157, 160 [2001]). Such decision should be guided by “whether the proffered expert testimony would aid a lay jury in reaching a verdict” (id. at 162 [internal quotation marks omitted]). We have acknowledged, however, that

“where [a] case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for [the] trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” (People v LeGrand, 8 NY3d 449, 452 [2007]).

Under the circumstances of this case, it cannot be said that the trial court abused its discretion in not allowing the defense expert to testify with regard to the effect of stress on the reliability of eyewitness identification. The People sought a ruling at trial concerning the parameters of the defense expert’s testimony. The defense failed to submit any evidence demonstrating that its expert’s testimony on the topic of event stress met the reliability concerns of Frye v United States (293 F 1013 [DC Cir 1923]).

In any event, the trial court did not wholly preclude the defense expert from offering any expert testimony concerning eyewitness identification. It permitted the expert to testify on the topic of witness confidence, which we have held is an area that has been deemed generally acceptable in the relevant scientific community, namely, correlation between witness confidence and accuracy of identification (see e.g. People v Santiago, 17 NY3d 661, 672 [2011]; People v Abney, 13 NY3d 251, 268 [2009]; LeGrand, 8 NY3d at 457-458 [noting that once a scientific procedure has been deemed reliable, a Frye inquiry need not be conducted each time such evidence is offered and courts may take judicial notice of the reliability of the general procedure]). The court also permitted the expert to testify concerning weapon focus without first conducting a Frye hearing (see Abney, 13 NY3d at 268 [holding that the trial court should have conducted a Frye hearing on the issue of weapon focus]; LeGrand, 8 NY3d at 458 [holding that there was insufficient evidence to confirm that the principles expounded by the defense expert witness on weapon focus were generally accepted by the relevant scientific community]).

Unlike the situations in Santiago, Abney, and LeGrand, where the trial courts precluded all expert testimony concerning the reliability of eyewitness identification, the trial court here made a reasoned determination concerning the kinds of expert testimony that were relevant. The defense in the three aforementioned cases moved in limine for a pretrial determination concerning what topics the respective experts could render, whereas the defense here made no such motion, leaving it up to the People to request that the court discuss the parameters of the expert’s testimony.

Defendant, relying on our holding in Abney, argues that the trial court improperly precluded the event stress testimony without a Frye hearing. Abney, however, is distinguishable. There the victim, in an encounter that this Court deemed “fleeting,” was robbed at knifepoint by a man on the subway stairs (Abney, 13 NY3d at 257). The court excluded all of the proposed expert witness testimony, holding that there was “nothing unique about [the] case” that presented issues that were beyond the ken of the jury (id. at 260). We held that the trial judge abused his discretion in not allowing the defense expert to testify on the issue of witness confidence, which we acknowledged is generally accepted within the relevant scientific community (see id. at 268). With respect to “the remaining relevant proposed areas of expert testimony,” two of which were event stress and weapon focus, we held that the trial court should have held a Frye hearing (id. [emphasis supplied]).

Unlike the situation in Abney, the encounter between Bush and defendant was anything but “fleeting.” Bush had the opportunity to observe defendant for 5 to 10 minutes in a confrontation just an hour and a half prior to the shooting. This was not an instance where the witness had never seen the alleged perpetrator before.

We have acknowledged that even when expert testimony is required, the trial court is “obliged to exercise its discretion with regard to the relevance and scope of such expert testimony” and that “not all categories of such testimony are applicable or relevant in every case” (LeGrand, 8 NY3d at 459). The trial court here permitted the expert to testify in two key areas — witness confidence and weapon focus — both of which were particularly relevant in this case, where Bush had testified that he had concentrated on defendant’s face during the shooting. Moreover, in light of Bush having observed defendant on a prior occasion just 90 minutes prior to the shooting, it cannot be said that the trial court abused its discretion by precluding the expert’s testimony with regard to so-called event stress on the ground that it was not relevant.

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

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed.

      . Days later, after being re-called to the stand, Kirven testified that he did not see defendant at the park on the day of the shooting, contradicting his earlier testimony that defendant was present.

      . Nor can it be said that Kirven’s invocation of the privilege lent “critical weight” to the People’s case in a manner not subject to cross-examination (Namet, 373 US at 187). Kirven invoked the testimonial privilege only six times in over 80 pages of transcript. Moreover, on all but one of those occasions, he was either directed to answer by the trial court or was granted immunity in regard to his answers as to the particular questions. Thus, inasmuch as Kirven answered and was subject to cross-examination in those instances, there was no danger of the jury drawing improper inferences.


author: Rivera, J.

text:
    [49 NE3d 711, 29 NYS3d 242]
    Government Employees Insurance Co. et al., Respondents, v Avanguard Medical Group, PLLC, Appellant.
    Argued February 10, 2016;
    decided March 31, 2016

      Steptoe & Johnson, LLP, New York City (Charles A. Michael of counsel), and Bruñe & Richard LLP, New York City, for appellant.

      Rivkin Radler LLP, Uniondale (Barry I. Levy, Evan H. Krin-ick and Henry M. Mascia of counsel) and Melito & Adolfsen, PC., New York City, for respondents.

      Law Offices of Gary I. Fields, PLLC, New York City (Gary I. Fields of counsel), for Medical Society of the State of New York and another, amici curiae.

      Greenberg Traurig, LLP, New York City (Carmen Beauchamp Ciparick, Francis J. Serbaroli and Anne C. Reddy of counsel), for New York State Association of Ambulatory Surgery Centers, Inc., amicus curiae.
   OPINION OF THE COURT

Rivera, J.

Defendant Avanguard Medical Group, PLLC claims that Insurance Law § 5102 requires a no-fault insurance carrier to pay a facility fee to a New York State-accredited office-based surgery (OBS) center for the use of its physical location and related support services. We conclude that neither the applicable statutory nor regulatory frameworks mandate payment for OBS facility fees.

I.

Avanguard is a professional service limited liability company, accredited under New York’s Public Health Law as a facility for the provision of OBS, defined as “any surgical or other invasive procedure, requiring general anesthesia, moderate sedation, or deep sedation” performed “in a location other than a hospital” (Public Health Law § 230-d [1] [h]). Its owner is a medical doctor who conducts OBS procedures at Avanguard on patients covered under article 51 of the Insurance Law, enacted as the Comprehensive Automobile Insurance Reparations Act (see L 1973, ch 13), commonly referred to as the “No-Fault Law” (see Pommells v Perez, 4 NY3d 566, 570 [2005]). The doctor billed for his professional services through Metropolitan Medical & Surgical P.C., and separately billed for facility fees associated with his OBS services through Avanguard. According to Avanguard, the OBS facility fees are a charge for the use of the physical location and equipment, and also include payment for technicians and medical assistants who helped with the surgical procedures.

Plaintiffs, insurers Government Employees Insurance Co.; GEICO Indemnity Co.; GEICO General Insurance Co., and GEICO Casualty Co. (collectively GEICO), paid the doctor’s professional fees, but declined reimbursement for the facility fees. GEICO then commenced this action in Supreme Court for a declaratory judgment that GEICO is not legally obligated under Insurance Law § 5102 to reimburse Avanguard for OBS facility fees. The disputed fees total in excess of $1.3 million.

GEICO unsuccessfully moved to stay Avanguard’s pending arbitration and judicial actions, and for a preliminary injunction against any new filings (2012 NY Slip Op 31516[U] [Sup Ct, Nassau County 2012]). GEICO thereafter sought summary judgment, which Supreme Court also denied (2013 NY Slip Op 33849[U] [Sup Ct, Nassau County 2013]). The Second Department reversed and granted GEICO’s motion for summary judgment declaring GEICO is not required to reimburse Avanguard for OBS facility fees (127 AD3d 60 [2d Dept 2015]). Subsequently the Second Department dismissed GEICO’s appeal from the order denying the preliminary injunction as “academic” (125 AD3d 803, 803 [2d Dept 2015]). We granted leave to appeal from the Appellate Division’s order granting GEICO’s motion for summary judgment (25 NY3d 907 [2015]).

II.

Avanguard asserts that pursuant to Insurance Law § 5102 (a) (1), OBS centers may recover a facility fee as a reimbursable “basic economic loss,” payable at a rate to be determined in accordance with 11 NYCRR 68.5. We reject Avanguard’s interpretation of the No-Fault Law framework, because it would permit Avanguard and other OBS centers to collect facility fees even though these types of fees are not expressly permitted by statute or payment schedules authorized thereby, and regardless of the fact that costs for the use of an OBS center are not reimbursable services under 11 NYCRR 68.5. Moreover, Avanguard’s view of the law undermines the obvious legislative purpose behind this framework, to contain costs by subjecting service charges to statutory ceilings and regulatory-fixed rates.

A. Legal Framework

Our analysis begins, as it must, with the statute. Indeed, “the text of a provision ‘is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning’ ” (Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120 [2012], quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). In accordance with the No-Fault Law, automobile insurers, like GEICO, must provide up to $50,000 of coverage for an insured’s “basic economic loss” (Insurance Law § 5102 [a]), which includes,

“[a] 11 necessary expenses incurred for: (i) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical therapy (provided that treatment is rendered pursuant to a referral) and occupational therapy and rehabilitation; (iii) any non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services” (Insurance Law § 5102 [a] [1]).

Expenses for basic economic loss, as described in this paragraph, “shall be in accordance with the limitations of” Insurance Law § 5108 (id.). Section 5108, titled “Limit on charges by providers of health services,” authorizes the Chair of the Workers’ Compensation Board to adopt fee schedules for basic economic losses, and mandates the Superintendent of the Department of Financial Services, in consultation with the Chair, to establish fee schedules “for all such services” not covered by the Chair’s schedules (Insurance Law § 5108 [b]).

Section 5108 also provides that basic economic loss service charges “shall not exceed the charges permissible” under the Chair’s schedule, “except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108 [a]). Furthermore, a health care provider may not “demand or request any payment in addition to the charges authorized pursuant to this section” under the Chair and Superintendent’s fee schedules (Insurance Law § 5108 [c]). Enforcement is, in part, facilitated by mandated self-regulation, which requires an insurer to report to the Commissioner of Health, among other improper conduct, “any patterns of overcharging, excessive treatment or other improper actions by a health provider” (id.). As this language illustrates, the legislature sought to cap payments and impose uniform fee rates in accordance with the regulatory schedules.

The Chair and the Superintendent have promulgated fee schedules for a wide variety of reimbursable services (see Official New York Workers’ Compensation Medical Fee Schedule [eff June 1, 2012] [these services include, among others, allergy/ immunology, anesthesiology, critical care, pain management, dermatology, and sports medicine]). This includes facility fees for hospitals and ambulatory surgery centers (ASC) (see New York State, Workers’ Compensation Board, Health Care Information, 2014 Medical Fee Schedules, http:// www.wcb.ny.gov/content/main/hcpp/MedFeeSchedules/ 2014medfee.jsp [accessed Mar. 3, 2016], cached at http:// www.nycourts.gov/reporter/webdocs/2014MedicalFee Schedules.pdf). In addition, the Superintendent has promulgated Regulation 83, codified at 11 NYCRR 68.5, which provides two alternative methods for establishing payment for a health service, “reimbursable under section 5102(a)(1) . . . but is not set forth in fee schedules adopted or established by the superintendent.”

Under 11 NYCRR 68.5, “if the superintendent has adopted or established a fee schedule applicable to the provider, then the provider . . . establish [es] a fee or unit value consistent with other fees or unit values for comparable procedures shown in such schedule” (11 NYCRR 68.5 [a]). In those cases where the

“superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for [the] service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5 [b]).

As is obvious from its text, the regulation allows payment only for reimbursable services, and is structured to ensure consistency between those payments issued under the regulation, and those made pursuant to the Superintendent’s existing fee schedules.

B. Analysis of Avanguard’s Claims

It is undisputed that the fee schedules provide reimbursement for professional services delivered in an OBS setting, and include payment for a doctor’s services. It is also undisputed that the schedules do not expressly permit reimbursement for OBS facility fees, but do allow facility fee payments for hospitals and ASCs.

In support of its claim that the statute requires payment of OBS facility fees, Avanguard argues that a suitable facility is necessary to the provision of the surgical services covered by section 5102, and, therefore, costs associated with the facility constitute a “necessary expense” that are part of the reimbursable “basic economic loss.” Avanguard notes that arbitrators have awarded payment for OBS facility fees, suggesting that such fees are understood to fall within the statute’s intended coverage.

Avanguard’s argument misses the mark because the basic economic loss provided for under Insurance Law § 5102 (a) (1) is subject to the limitations of section 5108, which provides that charges for services “shall not exceed the [permissible] charges” promulgated under the Chair’s schedules. Here, no existing schedules provide reimbursement for OBS facility fees. Moreover, since facility fees are specifically mentioned and intended to be paid to hospitals and ASCs, the absence of such language with regard to OBS facilities is no mere oversight.

Avanguard argues alternatively that because the Superintendent has also failed to adopt a fee schedule that includes OBS facility fees, those fees are reimbursable under 11 NYCRR 68.5, which Avanguard claims serves as a catchall for all other services. Avanguard’s reliance on the Superintendent’s regulation is misplaced because 11 NYCRR 68.5 expressly applies solely to “professional health services” and facility fees are not services. Instead, they are expenses incurred for services. The difference is recognized in section 5102 (a) (1) which provides for reimbursement of expenses for services, and categorizes the types of procedures — e.g., medical, dental, surgical — and includes “any other professional health services” (Insurance Law § 5102 [a] [1] [iv] [emphasis added]). Since facility fees are not services, for purposes of 11 NYCRR 68.5, the fees cannot be recouped under the authority of this section.

Moreover, the intent gleaned from the language of 11 NYCRR 68.5 is that reimbursement for services should be provided in a manner that ensures consistency and thus inherently limits the range of payment amounts. However, because an OBS facility fee is a separate and recurring cost associated with a service, the inclusion of such a fee necessarily produces inconsistent results in total payment amounts within service categories.

To the extent Avanguard argues that based on the surgical and medical services it provides in its facility it should be treated similarly to hospitals and ASCs we note that unlike OBS centers, hospitals and ASCs are regulated under Public Health Law article 28, and are subject to strict standards under the Public Health Law and State Department of Health Regulations that cover, inter alia, facility licensing and maintenance Csee 10 NYCRR part 446 [detailing the extensive reporting requirements], 10 NYCRR 400.3 [requiring all hospitals and ASCs to maintain and, if required, reproduce any medical report or record]). Their reimbursable facility fees are based on calculations implemented in the fee schedules and include a surcharge imposed by the State Health Care Reform Act (Public Health Law § 2807-j [1]), which helps subsidize uncompensated care (see Governor’s Approval Mem at 2, Bill Jacket, L 1996, ch 639, 1996 Legis Ann at 470).

By comparison, OBS facilities are not licensed by New York State or regulated by the Department of Health. Although Public Health Law § 230-d (1) requires that OBS providers meet the standards of a nationally-recognized accrediting agency, the Department of Health does not permit OBS practices to include the terms “facility,” “center,” or “clinic” as part of the business name (New York State, Department of Health, Office-Based Surgery [OBS] Frequently Asked Questions [FAQ’s] for Practitioners, https://www.health.ny.gov/ professionals/office-based_surgery/obs_faq.htm [accessed Mar. 2, 2016], cached at http://www.nycourts.gov/reporter/webdocs/ Office-BasedSurgery(OBS)FrequentlyAskedQuestions(FAQs) forPractition.pdf). Thus, we agree with the Appellate Division that given these differences between hospitals and ASCs, and OBS centers, there is no basis to interpret the statute to mandate reimbursement for OBS facility fees.

Notably, Avanguard does not challenge the legality of the fee schedules on the ground that the schedules fail to incorporate OBS facility fees. Indeed, Avanguard concedes that the Chair and Superintendent are authorized to promulgate schedules that deny reimbursement. Avanguard simply argues that in order to do so the administrators must expressly disallow payment. We disagree for several reasons. First, there is no statutory duty imposed on the Chair and Superintendent to announce the services and fees they intend to exclude from their schedules. Second, contrary to Avanguard’s suggestion, the administrators may exercise their administrative authority through silence, and as such implicitly reject reimbursement for OBS facility fees. Third, it would be unreasonable to interpret the No-Fault Law, which was intended “to establish a quick, sure and efficient system for obtaining compensation for economic loss suffered as a result of [vehicular] accidents” ('Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]), in a manner that encourages an even greater level of administrative minutia in the promulgation of what already are mathematically technical, complex fee schedules (see Official New York Workers’ Compensation Medical Fee Schedule [eff June 1, 2012]).

III.

As the statutory language illustrates, the legislature capped total payments for basic economic loss, and delegated the determination of fee rates to the Chair and the Superintendent. Neither administrator has chosen to include OBS facility fees in the regulatory schedules. It is not for this Court to decide, contrary to Avanguard’s contention, whether this is a “good idea” or if it would be better for patients covered by no-fault insurance, and for the efficient management of our health care system, to require reimbursement of OBS facility fees as a means to ensure that OBS facilities continue to be viable options for patients. “These policy determinations are beyond our authority and instead best left for the legislature” (People v Jones, 26 NY3d 730, 741 [2016], citing Matter of Manouel v Board of Assessors, 25 NY3d 46, 54 [2015]).

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

Chief Judge DiFiore and Judges Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed, with costs.


author: Pigott, J. Stein, J.

text:
    [49 NE3d 1156, 29 NYS3d 864]
    In the Matter of Kevin Aoki et al., Petitioners, v Echo Aoki et al., Respondents, Devon Aoki et al., Respondents, and Keiko Ono Aoki, Appellant.
    Argued February 10, 2016;
    decided March 31, 2016

      Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C. 0Seth P Waxman, of the District of Columbia bar, admitted pro hac vice, Daniel S. Volchok, of the District of Columbia bar, admitted pro hac vice, Adam I. Klein, and Thomas G. Sprankling, of the District of Columbia bar, admitted pro hac vice, of counsel), and Wilmer Cutler Pickering Hale and Dorr LLP, New York City (Alan E. Schoenfeld of counsel), for appellant.

      Pryor Cashman LLP, New York City (David C. Rose and Andrew M. Goldsmith of counsel), for respondents.

      Lauro Law Firm, New York City (John F. Lauro of counsel), for Alex Long and another, amici curiae.

      MoloLamken LLP, Washington, D.C. (Lauren M. Weinstein of counsel), for Geoffrey C. Hazard, Jr., amicus curiae.
   OPINION OF THE COURT

Pigott, J.

This appeal involves a challenge to the validity of two partial releases of testamentary powers of appointment executed by the decedent Hiroaki (Rocky) Aoki, the founder of the Beni-hana restaurant chain. The Appellate Division’s order declaring the partial releases valid should be affirmed.

I.

Rocky formed the Benihana Protective Trust (BPT) in 1998 to hold stock and other assets relating to Benihana. In creating the trust Rocky named his attorney. Darwin Dornbush, and two of his children, Kevin and Kana, as trustees. The trust instrument, which was prepared by attorney Norman Shaw, contained a provision that granted Rocky an unlimited power “to appoint any of the principal and accumulated net income remaining at his death,” with such power of appointment being “exercisable only by a provision in [Rocky’s] Will specifically referring to and exercising the power.”

In July 2002, Rocky married Keiko (Ono) Aoki. Shortly after the wedding, Kevin and Kana met with Dornbush to express their concerns that Rocky had married Keiko without first having Keiko execute a prenuptial agreement. Dornbush arranged a meeting with Kevin, Kana and Rocky the following day. During that meeting, it was agreed that a potential solution to the problem was that Keiko execute a postnuptial agreement. Efforts to get Keiko to sign a postnuptial agreement, however, proved fruitless. When it became clear that Keiko would not execute such an agreement, Shaw proposed that Rocky execute a partial release of his power of appointment whereby Rocky could appoint only his descendants at the time of his death.

On September 23, 2002, Kevin, Kana and Rocky met with Dornbush. Rocky reviewed a “final draft” of the partial release (September release), and Rocky executed the partial release the following day. As relevant here, the September release provides as follows:

“I hereby irrevocably partially release that power of appointment so that, from now on, I shall have only the following power:
“I shall have a testamentary power to appoint any of the principal and accumulated net income remaining at my death to or for the benefit of any one or more of my descendants. My right to select appointees from among my descendants, to decide the share of the appointive property that each appointee shall receive, and to decide the terms (in trust or otherwise) upon which each appointee shall take the appointive property, shall be unlimited in all respects. My power of appointment shall be exercisable only by a provision in my Will specifically referring to and exercising the power” (emphases supplied).

Three months later, due to changes in IRS regulations, Rocky executed a second release (December release) that further irrevocably restricted his power to appoint by excluding any descendants who were nonresident aliens.

In August 2003, Rocky retained attorney Joseph Manson to draft a codicil to his will. The codicil, which made no mention of the September or December releases, appointed Keiko to receive 25% of the trust assets upon Rocky’s death, and income from the remaining 75% for the rest of her life. It also provided that upon Keiko’s death, Keiko had the power to bequeath the principal to one or more of Rocky’s descendants in her will.

At Manson’s request, Shaw provided an opinion as to whether Rocky’s exercise of the power of appointment in the codicil was valid. Shaw’s opinion was that the portion of the codicil granting Keiko a beneficial interest in the trust was invalid because the September release rendered Keiko an impermissible appointee of the trust. Weeks later, Rocky executed an affidavit stating that he did not realize that, by executing the September and December releases, he could no longer leave his Benihana stock to Keiko or any other party, and, had he known that that was the effect of the documents, he would not have signed them.

Four years later, in September 2007, Rocky executed a new last will and testament, whereby he attempted to exercise his power of appointment consistent with the August 2003 codicil. However, Rocky also hedged his bets, stating that if it was determined that the exercise of his power of appointment in that regard was “invalid because, contrary to my desires, the [September and December releases] are found to be valid,” then he exercised his power 50% in favor of his daughter, Devon, and 50% in favor of his son, Steven.

Rocky died in July 2008, survived by Keiko and his six children. At no time prior to his death did Rocky attempt to have either the September or December releases declared invalid.

II.

The BPT trustees commenced this proceeding seeking a determination as to the validity of the September and December releases. Devon and Steven interposed an answer. Keiko also answered, asserting in one of her five affirmative defenses that the releases were invalid as “the product of fraud” or having been “obtained through fraudulent devices.” At the conclusion of discovery, Devon and Steven moved for summary judgment seeking an order declaring the releases valid and dismissing Keiko’s affirmative defenses. Keiko opposed the motion, asserting that there was a question of fact as to whether Rocky would have signed the releases had he known that in signing them he was foreclosed from changing his mind in the future.

The Surrogate dismissed four of the affirmative defenses, but allowed the fraud affirmative defense to remain. As to that defense, the court held that there was a triable issue of fact on the issue of constructive fraud, and whether the proponents of the releases (as opposed to Keiko) could meet their burden of demonstrating that Rocky’s signature on the releases was voluntary and not the result of misrepresentation or omission by attorneys Dornbush and Shaw.

The case proceeded to trial before the Surrogate, who determined that a preponderance of the evidence established that Rocky was not aware that the releases were irrevocable, and that Devon and Steven failed to meet their burden of establishing that Rocky’s execution of the releases was voluntary and not the result of the “misrepresentation, omission or concealment” by Rocky’s fiduciaries, Dornbush and Shaw. The Surrogate therefore decreed the September and December releases invalid.

The Appellate Division unanimously reversed the Surrogate’s Court decree and declared the releases valid (117 AD3d 499, 499 [1st Dept 2014]). It ruled that the Surrogate “erroneously shifted the burden of proof to Devon and Steven to prove that the releases were not procured by fraud,” pointing out that neither Dornbush nor Shaw were parties to the releases and therefore could not benefit from them (see id. at 503). The Appellate Division held that the record demonstrated that Rocky understood that the releases were irrevocable (as evidenced by his deposition testimony), and that Dornbush and Shaw never represented to Rocky that the releases were anything but irrevocable (see id.). Nor was there any indication that Dornbush or Shaw “either concealed from or did not affirmatively provide Rocky with any information he needed to make an informed decision” (id.). And, it was of no moment that Rocky failed to ask any questions before signing the releases, because a party who signs a document without any valid excuse for not having read it is bound by its terms (id.).

This Court granted Keiko leave to appeal, and we now affirm.

III.

Keiko argues that the Surrogate properly applied the constructive fraud doctrine in shifting the burden of proof to Devon and Steven to establish that the releases were not procured by fraud. According to Keiko, because Dornbush and Shaw, as fiduciaries of Rocky, allegedly worked to further the interests of other parties, the Appellate Division erred when it held that the burden of proof was on Keiko to establish that the releases were procured by fraud. We disagree.

It is a well-settled rule that “ ‘fraud vitiates all contracts, but as a general thing it is not presumed but must be proved by the party seeking to [be] relieve [d] . . . from an obligation on that ground’ ” (Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692, 698 [1978], quoting Cowee v Cornell, 75 NY 91, 99 [1878]). However, an exception to that general rule provides that where a fiduciary relationship exists between the parties, the law of constructive fraud will operate to shift the burden to the party seeking to uphold the transaction to demonstrate the absence of fraud (see Matter of Greiff, 92 NY2d 341, 345 [1998]). In addressing the doctrine of constructive fraud, we have explained that when

“the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood” (Cowee, 75 NY at 99-100 [emphasis supplied]).

We have applied the constructive fraud doctrine in different contexts, but in each one, the pertinent factor present is that the fiduciary stood to benefit from the transaction itself. For example, in Matter of Gordon, we held that there was a fiduciary relationship between an elderly nursing home resident and the nursing home, such that the law of constructive fraud applied and the burden of proof shifted to the nursing home to demonstrate that the resident’s large donation to the nursing home was freely and voluntarily made (45 NY2d at 698-700).

In Fisher v Bishop, we set aside a mortgage executed by an elderly farmer, which was executed on the advice of his counsel (one Wattles) and for the satisfaction of the farmer’s creditors (108 NY 25, 27-28 [1888]). In that case, the farmer’s son, with the assistance of Wattles (who had also done legal work for the farmer), executed a deed and transfer of personal property by the son to the farmer to pay off debts that he owed the farmer (see id. at 27). The son thereafter absconded, leaving the surety defendants — Wattles and Bishop — to pay off the son’s debt to a third party. Wattles and Bishop obtained the bond and mortgage from the farmer after making repeated threats that the underlying transfer from the son to the farmer was fraudulent as against creditors (see id. at 27-28). In setting aside that transaction on the ground of undue influence, we found that there was a fiduciary relationship between the farmer and Wattles:

“The extent to which the [farmer] confided in the defendant Wattles is clearly shown by the fact that he had frequently employed him in business transactions and that the conveyances which he then threatened to annul and overthrow were drawn by him, and accepted under his advice and cooperation. It was a gross breach of good faith for a person thus trusted, and who had by conducting the business, vouched for its validity and lawfulness, to turn around for the purpose of gaining a personal advantage, and assert that he had been engaged in an illegal transaction, which he could at his own option annul and destroy” {id. at 29-30 [emphasis supplied]).

Dornbush and Shaw were clearly Rocky’s fiduciaries. But that is only one part of the equation. The critical inquiry is whether they were either parties to the releases or stood to directly benefit from their execution, such that the burden shifted to Devon and Steven to demonstrate that the releases were not procured by fraud.

Here, the only individuals who stood to benefit from Rocky’s execution of the releases were his descendants. Neither Dorn-bush nor Shaw were parties to the releases or stood to directly benefit from their execution (c/I Matter of Gordon, 45 NY2d at 698-700; Fisher, 108 NY at 29-30). If anything, the execution of the releases all but ensured that Dornbush and Shaw would have no interest in, nor would receive any benefit from, the trust assets. Therefore, the Appellate Division correctly determined that, because the fiduciary exception does not apply in this case, the Surrogate had improperly shifted the burden of proof to Devon and Steven to demonstrate that the releases were not procured by fraud.

In support of their motion for summary judgment, Devon and Steven submitted copies of the releases, which, on their face, state that they are irrevocable and carefully set out their legal effect, namely, that Rocky was limiting his power of appointment to his descendants who were not nonresident aliens. Devon and Steven also submitted the deposition testimony of Rocky (taken in an unrelated action) whereby Rocky admitted that he remembered signing the releases. Excerpts from the depositions of Dornbush and Shaw, the latter testifying that he explained to Rocky the significance of the releases and what they were meant to accomplish, were also submitted.

In response, Keiko submitted, among other things, the deposition transcript of Rocky whereby he conceded that Shaw had explained to him the overall purpose of the September release. In light of this submission, it is undisputed that Shaw explained the overall effect of the September release to Rocky, and that Rocky signed it. As Keiko points out, Rocky testified that he may have signed the releases without actually reading them, but that was not the result of any alleged misrepresentations or omissions by Dornbush and/or Shaw, the latter having explained to Rocky what he was signing and receiving confirmation from Rocky that he wanted to sign the releases.

Absent any evidence of fraud, one who signs a document is bound by its terms (see Da Silva v Musso, 53 NY2d 543, 550 [1981]). Because Keiko failed to raise a triable issue of fact that the releases were signed as a result of fraud or other wrongful conduct, the Appellate Division properly granted Devon and Steven summary judgment. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Stein, J.

(dissenting). While I generally agree with the majority’s articulation of the law of constructive fraud, I disagree with its application of that law to the circumstances here. In determining whether Keiko Aoki’s claim of constructive fraud was properly supported, the majority frames the issue, in part, as whether Darwin Dornbush and Norman Shaw (the attorneys) “were parties to the releases or stood to directly benefit from their execution” (majority op at 41). Regarding that same element, however, Keiko raised another possibility— that the attorneys acted as agents of two of Rocky Aoki’s children, Kevin and Kana Aoki (who, in turn, stood to benefit from the releases), when the attorneys allegedly breached their fiduciary duty to Rocky (see generally Kirschner v KPMG LLP, 15 NY3d 446, 465, 468 [2010] [acts of agents are imputed to their principals]). In my view, the existence of such an agency relationship would, if proved, bring this case within the doctrine of constructive fraud.

Initially, we must be cognizant of the procedural posture of this case and the burdens of proof attendant thereto. While Surrogate’s Court ultimately held a full bench trial after denying Devon and Steven Aoki’s motion for summary judgment, the Appellate Division’s reversal of the order of Surrogate’s Court was limited to its determination of the summary judgment motion; the Appellate Division did not reach the trial evidence or the Surrogate’s decision after trial. Thus, our review is necessarily so limited, as well. Accordingly, the question before this Court is whether, as the Appellate Division found, Devon and Steven met their initial burden of establishing their entitlement to judgment as a matter of law and, if so, whether Keiko presented sufficient evidence to raise a triable question of fact in opposition (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). I agree with the majority’s conclusion as to the first part of that inquiry, but not the latter.

Pursuant to the law of constructive fraud, when a fiduciary relationship exists between the parties, the burden shifts from the party attempting to establish fraud to the party seeking to uphold the transaction, who then must demonstrate the absence of fraud (see Matter of Greiff, 92 NY2d 341, 345 [1998]; Matter of Paul, 105 AD2d 928, 929 [3d Dept 1984]). There can be no question in this case that the attorneys stood in a fiduciary relationship to Rocky, and I concur with the majority’s conclusion that there is no proof that they were, themselves, parties to the transaction or that they stood to gain, personally, from the execution of the releases. However, in my view, when we consider the evidence in a light most favorable to Keiko, as we must because she is the nonmoving party (see Vega, 18 NY3d at 503), a question of fact exists on the summary judgment record as to the attorneys’ possible agency relationship with Rocky’s children — who did stand to gain from the releases — such that the burden shifted to the children to establish the absence of fraud. Because that burden was not met, summary judgment was inappropriate.

Keiko asserts that the attorneys drafted the releases based on the wishes of Kevin and Kana — and thereby entered into an attorney-client relationship with them — rather than acting at the insistence of, and in the sole best interests of, their client Rocky. Although Keiko argues that the attorneys suffered from an impermissible conflict of interest if they represented both Rocky and the children, for our purposes here we need not make any such determination, as it is irrevelant whether an actual attorney-client relationship was formed with the children. That is, in the context of this summary judgment motion, even if the relationship was not one of attorney and client, the evidence was sufficient to create questions of fact as to whether the attorneys drafted the releases for the benefit of the children, rather than for Rocky, and, if they were acting for the children’s benefit, whether they should be considered agents for a party to the transaction and, thus, fall within the constructive fraud doctrine.

In this regard, the record reflects several instances of conflicting evidence with respect to the nature of the relationship between the attorneys and Rocky’s children and, ultimately, whether the releases should be set aside as the product of improper conduct by the attorneys. For example, Dornbush testified at his deposition that, after Keiko refused to sign a postnuptial agreement, Kevin and Kana asked him and Shaw if anything could be done to protect the business for the children. Dornbush admitted that he was receptive to their concerns, although he was not sure if they sought legal advice, business advice, or “parental” advice because they considered him to be like an uncle. Shaw testified that he performed some legal work for Kevin and Kana as trustees, as well as for Kana, individually.

According to Shaw’s deposition testimony, the attorneys’ aim in generating possible solutions to Keiko’s refusal to sign a postnuptial agreement was to assuage concerns being raised by the children, both directly and as transmitted through Rocky, that Rocky’s assets would be vulnerable to Keiko after his death. Shaw acknowledged that he formulated the idea for the releases, purportedly for the purpose of relieving family strain caused by the lack of a prenuptial agreement, without consulting with Rocky or anyone else other than Dornbush. Shaw further testified that he may have had a conversation with Kevin about relieving this family strain. In a September 13, 2002 outline for a meeting with Rocky, Shaw listed several options, including a postnuptial agreement and releases, to insulate Rocky against pressure to appoint shares away from the children; it is unclear who asked the attorneys for these options, or who mentioned this supposed pressure on Rocky. Shaw also testified that he and Dornbush represented Rocky and the children, but that the attorneys saw a potential conflict once Rocky’s new lawyer asked them to review the proposed codicil to Rocky’s will for validity. When questioned about the September 2002 release, Dornbush testified that he did not have any notion as to whether or not it was beneficial to Rocky; this raises a question as to why he would have had his client sign such a document. In addition, Dornbush wrote in a memo that “fur will fly” when Rocky and Keiko discovered the existence of the executed releases, suggesting that Dornbush believed that Rocky was unaware of the releases, or at least their meaning, even though he had signed them.

As further evidence that the attorneys may not have been acting on Rocky’s behalf in the drafting and execution of the releases, Keiko points to the statement in Rocky’s will that it would be “contrary to [his] desires” for the releases to be found valid. In addition, Rocky’s affidavit stated that he did not understand that, after he signed the releases, he would be unable to change his will to select his wife or any unrelated person as a stock beneficiary, and that he never intended to limit his ability to makes those choices. While the majority aptly notes the suspect nature of that affidavit — and the same can arguably be said about some of the other evidence — it is beyond cavil that courts are not at liberty to make credibility determinations or weigh evidence on a summary judgment motion (see Vega, 18 NY3d at 505; Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315 [2004]; Bliss v State of New York, 95 NY2d 911, 913 [2000]).

To be sure, nothing in the record provides uncontroverted proof that the attorneys drafted, and arranged to have Rocky execute, the releases at the behest of the children, only, and in the absence of a request by Rocky. In fact, there is some evidence to indicate that Rocky was present at all of the meetings attended by Kevin and Kana, perhaps demonstrating that the attorneys were not in an attorney-client or agency relationship with the children, but met with them only in furtherance of their professional and fiduciary obligations to Rocky. Nevertheless, all of the conflicting evidence, considered together, is sufficient to create a triable question of fact regarding whether the attorneys were acting on behalf of — or as agents of — the children, and not Rocky, when they drafted the releases and supervised their execution (see McLenithan v McLenithan, 273 AD2d 757, 758-759 [3d Dept 2000]; Matter of Paul, 105 AD2d at 930). Accordingly, I would reverse the Appellate Division order granting summary judgment to Devon and Steven Aoki, and remit the case to that Court for a review of the Surrogate’s decision after trial.

Chief Judge DiFiore and Judges Abdus-Salaam, Fahey and Garcia concur; Judge Stein dissents in an opinion in which Judge Rivera concurs.

Order affirmed, with costs.

      . Another of Rocky’s children, Kyle, was added as trustee in 1999. In 2004, Dornbush resigned as trustee and was replaced by attorney Kenneth Podziba. Thus, at the time this proceeding was commenced, the trustees of the BPT were Kevin, Kana, Kyle and Podziba.

      . The record is unclear as to why Rocky executed this particular affidavit. It is not captioned and does not appear to have been prepared for use in an action or proceeding. Notwithstanding Rocky’s contentions in this affidavit, however, four years later, Rocky conceded at his deposition that Shaw had explained to him the overall legal effect of the September release.

      . This particular fact is contained in the Appellate Division decision (see Fisher v Bishop, 36 Hun 112, 113 [4th Dept 1885]).

      . Keiko’s contention that Dornbush and Shaw had formed an attorney-client relationship with Kevin and Kana when the releases were signed, such that the attorneys were “effective parties” to the releases, is without merit. The record establishes that Dornbush and Shaw executed the releases at Rocky’s direction. Moreover, Keiko’s assertion that Dornbush and Shaw possessed an “interest” in the transaction because they allegedly expected to receive profitable business from the children in the future is mere speculation.

       In light of the Appellate Division’s determination on the summary judgment motion, that Court never addressed the trial evidence or the Surrogate’s decision after trial, although it had been asked to do so. Thus, it would be appropriate for the Appellate Division to conduct such a review based on the full trial record.


author: Stein, J.

text:
    [49 NE3d 1171, 29 NYS3d 879]
    Anita Chanko, Individually and as Executor of Mark S. Chanko, Deceased, et al., Appellants, v American Broadcasting Companies, Inc., et al., Respondents, et al., Defendants.
    Argued February 18, 2016;
    decided March 31, 2016

      Norman A. Olch, New York City, and Law Offices of Mark J. Fox, New York City, for appellants.

      Nixon Peabody LLP, Jericho (Michael S. Cohen, Christopher J. Porzio and Michelle Yuen of counsel), for New York and Presbyterian Hospital and another, respondents.

      Levine Sullivan Koch & Schulz, LLP, New York City (Nathan Siegel of counsel), for American Broadcasting Companies, Inc., respondent.
   OPINION OF THE COURT

Stein, J.

Defendants’ actions in filming a patient’s medical treatment and death in a hospital emergency room without consent, and then broadcasting a portion of the footage as part of a documentary series about medical trauma, were not so extreme and outrageous as to support a cause of action by the patient’s family members for intentional infliction of emotional distress. However, the complaint sufficiently states a cause of action against the hospital and treating physician for breach of physician-patient confidentiality. Therefore, the Appellate Division order should be modified to reinstate that cause of action against those two defendants.

I.

Mark Chanko (decedent) was brought into the emergency room of defendant The New York and Presbyterian Hospital (the Hospital). He had been hit by a vehicle, but was alert and responding to questions. Defendant Sebastian Schubl was the Hospital’s chief surgical resident and was responsible for decedent’s treatment. While decedent was being treated, employees of ABC News, a division of defendant American Broadcasting Companies, Inc. (ABC), were in the Hospital— with the Hospital’s knowledge and permission — filming a documentary series (NY Med) about medical trauma and the professionals who attend to the patients suffering from such trauma. No one informed decedent or any of the individual plaintiffs — most of whom were at the Hospital — that a camera crew was present and filming, nor was their consent obtained for filming or for the crew’s presence.

Less than an hour after decedent arrived at the Hospital, Schubl declared him dead. That declaration was filmed by ABC, and decedent’s prior treatment was apparently filmed as well. Schubl then informed the family of decedent’s death, with that moment also being recorded without their knowledge.

Sixteen months later, decedent’s widow, plaintiff Anita Chanko, watched an episode of NY Med on her television at home. She recognized the scene, heard decedent’s voice asking about her, saw him on a stretcher, heard him moaning, and watched him die. In addition, she saw, and relived, Schubl telling the family of his death. She then told the other plaintiffs, who also watched the episode. This was the first time plaintiffs became aware of the recording of decedent’s medical treatment and death.

Plaintiffs commenced this action against, among others, ABC, the Hospital and Schubl. Defendants separately moved to dismiss the complaint. Supreme Court partially granted the motions, dismissing all causes of action except breach of physician-patient confidentiality against the Hospital and Schubl (the fourth cause of action), and intentional infliction of emotional distress against ABC, the Hospital and Schubl (the fifth cause of action) (2014 NY Slip Op 30116[U] [2014]). Defendants separately appealed the order insofar as the motions to dismiss were denied. Plaintiffs did not cross-appeal.

The Appellate Division modified Supreme Court’s order by reversing the portions of the order that were appealed, granted the motions in their entirety and dismissed the entire complaint (122 AD3d 487 [1st Dept 2014]). That Court granted plaintiffs leave to appeal.

II.

A. Breach of Physician-Patient Privilege

Initially, we note that plaintiffs did not cross-appeal to the Appellate Division from Supreme Court’s dismissal of the cause of action for breach of physician-patient confidentiality as asserted against ABC. Thus, we may consider only whether that cause of action was adequately alleged against the Hospital and Schubl (see CPLR 5515; Hecht v City of New York, 60 NY2d 57, 60-61 [1983]; Matter of Harmon, 73 AD3d 1059, 1062 [2d Dept 2010]). To the extent plaintiffs belatedly attempt to argue that ABC aided and abetted those defendants in breaching confidentiality, that argument is not properly before us.

When considering these pre-answer motions to dismiss the complaint for failure to state a cause of action, we must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiffs every possible favorable inference (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). We may also consider affidavits submitted by plaintiffs to remedy any defects in the complaint, because the question is whether plaintiffs have a cause of action, not whether they have properly labeled or artfully stated one (see Leon v Martinez, 84 NY2d 83, 88 [1994]).

With that standard in mind, we begin by observing that the physician-patient privilege did not exist at common law; it was created by statute, with New York having the first such statute in the nation, now codified at CPLR 4504 (see Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 529 [2002]; Dillenbeck v Hess, 73 NY2d 278, 283 [1989]). That statute provides that, “[ujnless the patient waives the privilege, a person authorized to practice medicine . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity” (CPLR 4504 [a]).

The policy objectives of the statute are to: (1) maximize unfettered communication between patients and medical professionals, so that people will not be deterred by possible public disclosure “from seeking medical help and securing adequate diagnosis and treatment”; (2) encourage physicians to candidly record confidential information in medical records, so they are not torn between the legal duty to testify and the professional obligation to honor patient confidences; and (3) protect the reasonable privacy expectations of patients that their sensitive personal information will not be disclosed (Dillenbeck, 73 NY2d at 285 [internal quotation marks and citation omitted]; see Matter of Grand Jury Investigation in N.Y. County, 98 NY2d at 529). The privilege should “be given a broad and liberal construction to carry out its policy” (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d at 530 [internal quotation marks and citations omitted]).

The privilege applies not only to information orally communicated by the patient, but also to information ascertained by observing the patient’s appearance and symptoms, unless those factual observations would be obvious to lay observers (see Dillenbeck, 73 NY2d at 284). Generally, the privilege covers all “ ‘information relating to the nature of the treatment rendered and the diagnosis made’ ” (Laura Inger M. v Hillside Children’s Ctr., 17 AD3d 293, 295 [1st Dept 2005], quoting Hughson v St. Francis Hosp. of Port Jervis, 93 AD2d 491, 499 [2d Dept 1983]). Although not covered by the statute, “information obtained in a professional capacity but not necessary to enable the physician to fulfill his or her medical role is a protected confidence, the disclosure of which constitutes professional misconduct in the absence of patient consent or legal authorization” (Lightman v Flaum, 97 NY2d 128, 136 [2001], cert denied 535 US 1096 [2002]; see Education Law § 6530 [23]).

A physician’s disclosure of secrets acquired when treating a patient “naturally shocks our sense of decency and propriety,” which is one reason it is forbidden (Dillenbeck, 73 NY2d at 285 [internal quotation marks omitted]). Even apart from CPLR 4504, the legislature has declared that it is the public policy of this State to protect the “privacy and confidentiality of sensitive medical information” (Randi A. J. v Long Is. Surgi-Ctr., 46 AD3d 74, 82 [2d Dept 2007]; see Public Health Law §§ 2803-c [1], [3] [f]; 4410 [2]). As relates to emergency rooms, specifically, this Court has stated that “[p]atients should not fear that merely by obtaining emergency medical care they may lose the confidentiality of their medical records and their physicians’ medical determinations. A contrary result would discourage critical emergency care, intrude on patients’ confidential medical relationships and undermine patients’ reasonable expectations of privacy” (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d at 532). The physician-patient privilege, together with its concomitant duty of confidentiality, belongs to the patient and is not terminated by death alone (see Prink v Rockefeller Ctr., 48 NY2d 309, 314 [1979]).

The elements of a cause of action for breach of physician-patient confidentiality are: (1) the existence of a physician-patient relationship; (2) the physician’s acquisition of information relating to the patient’s treatment or diagnosis; (3) the disclosure of such confidential information to a person not connected with the patient’s medical treatment, in a manner that allows the patient to be identified; (4) lack of consent for that disclosure; and (5) damages (see Burton v Matteliano, 81 AD3d 1272, 1274 [4th Dept 2011], lv denied 17 NY3d 703 [2011]; MacDonald v Clinger, 84 AD2d 482, 485-486 [4th Dept 1982]; Doe v Roe, 93 Misc 2d 201, 210-213, 217-218 [Sup Ct, NY County 1977]; see also Rut v Young Adult Inst., Inc., 74 AD3d 776, 777 [2d Dept 2010]). Here, the complaint alleges that decedent was a patient at the Hospital and that Schubl was his treating physician. In the complaint’s fourth cause of action, decedent’s estate alleges “[t]hat defendants! ] unnecessarily, recklessly, willfully, maliciously and in conscious disregard of [decedent’s] rights disclosed and discussed his medical condition with cast members of NY MED and allowed them to videotape said conversations and videotape his medical treatment for broadcast and dissemination to the public in an episode of that television show.” Asserting that the public does not have any legitimate interest in this information, the complaint states that “[defendants’ disclosure of [decedent’s] medical information constitutes a violation of physician [-] patient confidentiality and an invasion of his privacy and is a violation of State and Federal statutes protecting the privacy of medical records and information.” The complaint seeks damages for injuries and loss as determined at trial.

The fourth cause of action, when liberally construed, can be read to state a claim sounding in breach of physician-patient confidentiality. Initially, we reject the assertion of the Hospital and Schubl that, in order to support such a cause of action, the disclosed medical information must be embarrassing or something that patients would naturally wish to keep secret. While the disclosures of medical information considered in various prior court decisions may have fit within those categories (see e.g. Doe v Guthrie Clinic, Ltd., 22 NY3d 480, 482-483 [2014] [nurse revealed to patient’s girlfriend that patient had sexually transmitted disease]; Randi A. J., 46 AD3d at 75-76 [clinic revealed to patient’s mother that patient had an abortion]), that is not an element of the cause of action. Stated otherwise, whether the confidentiality inherent in the fiduciary physician-patient relationship is breached does not depend on the nature of the medical treatment or diagnosis about which information is revealed. Our broad rule protects all types of medical information and provides consistency, avoiding case-by-case determinations of what is considered embarrassing to any particular patient.

Here, defendants do not contest the existence of a physician-patient relationship or that the Hospital and Schubl obtained confidential medical information regarding decedent. Rather, defendants assert that, inasmuch as decedent was not identifiable on the aired episode of the television program, his confidential information was not disclosed. Indeed, in concluding that the complaint did not sufficiently state a cause of action for breach of physician-patient confidentiality, the Appellate Division appears to have focused only on the aired television episode and the fact that decedent’s image was blurred and his name was not used in the episode (122 AD3d at 488). However, affidavits submitted in opposition to defendants’ motions allege that at least one other person who watched the broadcast recognized decedent.

Moreover, even if no one who actually viewed the televised program recognized decedent, thereby rendering plaintiffs unable to state a cause of action based solely on the broadcast of the program, the complaint expressly alleges an improper disclosure of medical information to the ABC employees who filmed and edited the recording, in addition to the broadcast itself. Thus, the Appellate Division viewed the allegations too narrowly, in contravention of the liberal standard for reviewing pleadings at this stage of the litigation. Specifically, the complaint clearly alleges that the Hospital and Schubl revealed confidential medical information concerning decedent’s treatment and diagnosis to the ABC film crew that was present in the Hospital while the treatment was occurring. As expanded by the motion papers, plaintiffs also allege that decedent’s medical information was depicted in the raw footage of the recordings, and 13 people are listed on the DVD as being involved in the editing process, any of whom may have seen such information. At this pre-discovery stage of the litigation, it is unclear exactly what information was contained in that raw footage, who saw it, and to what degree decedent could be identified by anyone who viewed it.

In sum, the pleadings, together with the submitted affidavits, allege that a fiduciary physician-patient relationship existed, and that the duty of confidentiality springing from that relationship was breached when the Hospital and Schubl allowed the ABC crew to be present during the filming of decedent’s medical treatment and/or to view such film at a later time. Although the complaint does not explicitly state that decedent’s consent was not obtained for that disclosure, a lack of consent can be inferred from the allegation that the disclosure violated privacy statutes and patient confidentiality. Hence, at this point, the only element for which the sufficiency of the allegations is truly at issue is damages.

In that regard, defendants argue that plaintiffs have not alleged any specific damages. However, as noted, discovery has not yet taken place, and plaintiffs have viewed only a few minutes of aired video footage from which to craft their allegations. In discovery, they will presumably have access to the raw footage of film covering the nearly 50 minutes that decedent was in the Hospital before he died, as well as deposition testimony of witnesses who were in decedent’s presence there. That evidence could very well reveal the level of decedent’s awareness that others were present while he was being treated, and any reaction he may have had to their presence. Defendants can then demand that plaintiffs clarify the alleged damages in a bill of particulars. Notably, damages may be awarded for injury even if it only lasted for a short period of time before death (see generally Cummins v County of Onondaga, 84 NY2d 322, 324-326 [1994]).

Thus, although the allegations of damages here lacked detail, they were sufficient in view of the pre-answer, pre-discovery posture of defendants’ motions, particularly given that defendants hold the evidence that plaintiffs need to formulate their allegations. Viewing the complaint liberally, and granting plaintiffs every favorable inference, we conclude that the estate has stated a cause of action against the Hospital and Schubl for breach of physician-patient confidentiality.

B. Intentional Infliction of Emotional Distress

This Court has enumerated four elements of a cause of action for intentional infliction of emotional distress: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress” (Howell v New York Post Co., 81 NY2d 115, 121 [1993]). “ ‘Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ ” (Howell, 81 NY2d at 122 [internal quotation marks and citation omitted], quoting Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]). Here, the complaint’s fifth cause of action addresses each element above and alleges that the Hospital and Schubl allowed ABC to broadcast and disseminate the footage of the final moments of decedent’s life, without the knowledge or consent of decedent or plaintiffs. The complaint alleges that plaintiffs watched the episode and were shocked and upset, that “[defendants acted intentionally, recklessly, willfully, maliciously and deliberately,” and that it was foreseeable that plaintiffs would be caused to suffer emotional distress. Alternatively, the complaint alleges that “defendants acted with reckless disregard for the probability that they would cause plaintiffs to suffer emotional distress,” and that defendants knew or should have known that emotional distress was a likely result of their actions. The complaint further alleges that plaintiffs experienced emotional distress due to defendants’ conduct, and that “ [defendants’ conduct was extreme and outrageous, beyond all possible bounds of decency, utterly intolerable in a civilized community, and without privilege.”

Although these allegations facially address all of the required elements, they are not sufficient to support this cause of action because they do not rise to the level necessary to satisfy the outrageousness element — the element most susceptible to a determination as a matter of law — which is designed to filter out petty complaints and assure that the emotional distress is genuine (see Howell, 81 NY2d at 121). Noting that “the requirements . . . are rigorous, and difficult to satisfy,” we have commented that, “of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous” (Howell, 81 NY2d at 122 [internal quotation marks and citations omitted and emphasis added]).

The conduct at issue here for purposes of the fifth cause of action — the broadcasting of a recording of a patient’s last moments of life without consent — would likely be considered reprehensible by most people, and we do not condone it. Nevertheless, it was not so extreme and outrageous as to satisfy our exceedingly high legal standard. The footage aired by ABC was edited so that it did not include decedent’s name, his image was blurred, and the episode included less than three minutes devoted to decedent and his circumstances. We cannot conclude that defendants’ conduct in allowing the broadcasting of that brief, edited segment is more outrageous than other conduct that this Court and the Appellate Division Departments have determined did not rise to the level required to establish “extreme and outrageous conduct” sufficient to state a cause of action for intentional infliction of emotional distress. For example, we did not deem a newspaper’s conduct sufficiently outrageous when it published a picture of a person in a psychiatric facility — thereby informing the world that the photographed person was a patient at such a facility — even though the residents were photographed by someone trespassing on facility grounds and the facility had expressly requested that the newspaper not publish pictures of residents (see Howell, 81 NY2d at 118). Similarly, the conduct of a television station has been deemed insufficiently outrageous when the station displayed recognizable images of rape victims after repeatedly assuring them that they would not be identifiable (see Doe v American Broadcasting Cos., 152 AD2d 482, 483 [1st Dept 1989], appeal dismissed 74 NY2d 945 [1989]).

We conclude that defendants’ conduct here, while offensive, was not so atrocious and utterly intolerable as to support a cause of action in the context of this tort (see Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 22-23 [2008]; Freihofer v Hearst Corp., 65 NY2d 135, 143-144 [1985]). Hence, there is no need to address whether the newsworthiness privilege is applicable.

Accordingly, the Appellate Division order should be modified, without costs, by denying the motion of defendants New York and Presbyterian Hospital and Sebastian Schubl to dismiss the fourth cause of action for breach of physician-patient confidentiality and, as so modified, affirmed.

Judges Pigott, Rivera., Abdus-Sauaam, Fahey and Garcia concur; Chief Judge DiFiore taking no part.

Order modified, without costs, by denying the motion of defendants New York and Presbyterian Hospital and Sebastian Schubl, M.D. to dismiss the fourth cause of action and, as so modified, affirmed.

      . The plaintiffs consist of decedent’s widow, individually and as executor of decedent’s estate, as well as other family members.

      . We note that, after viewing the broadcast, one of decedent’s sons (who is a physician) submitted an affidavit commenting on, among other things, what he perceived as highly inappropriate conduct on Schubl’s part, namely, focusing on the camera and giving an interview in the emergency room, instead of concentrating on providing lifesaving medical services to decedent. However, plaintiffs have never relied — and do not now rely — on such conduct to supply a basis for their claim for intentional infliction of emotional distress. We, therefore, have no occasion at this time to express an opinion as to whether allegations of that nature would be sufficient to state a cause of action.

      . Unlike plaintiffs’ fourth cause of action, the fifth cause of action cannot rely on additional evidence that might be revealed in discovery. To state a cause of action for intentional infliction of emotional distress, plaintiffs must already be aware of the offending conduct and have suffered emotional distress as a result thereof. Thus, dismissal of this claim is appropriate at this stage of the litigation.