Court of Appeals of the State of New York

Simcuski v. Saeli
44 N.Y.2d 442 (N.Y. 1978) • 406 N.Y.S.2d 259 •
377 N.E.2d 713
Decided May 4, 1978

Argued March 27, 1978 On defendant's present motion to dismiss the

complaint under CPLR 3211 (subd [a], par 5) on
Decided May 4, 1978
447 the ground that the *447 plaintiff's claims are
Appeal from the Appellate Division of the barred by the Statute of Limitations, we accept the
Supreme Court in the Fourth Judicial Department, allegations of the complaint and the admissible
443 GEORGE G. INGLEHART, J. *443 portions of plaintiff's supporting affidavits (CPLR
3211, subd [c]). On October 19, 1970 Dr. Saeli
Irwin Birnbaum and Robert D. Romeo for
performed a surgical excision of a node from
445 appellant. *445 John Ganotis and George F. Mould
plaintiff's neck. Plaintiff alleges that during the
446 for respondent. *446
operation on her neck the surgeon negligently
injured a spinal-accessory nerve in her neck and
444 *444
also injured branches of her cervical plexus.
Following the operation plaintiff told her surgeon
JONES, J. that she was experiencing numbness in the right
We hold that this complaint by a patient against side of her face and neck and that it was difficult
her treating physician sets forth a cause of action and painful for her to raise her right arm. It is
based on intentional fraud as well as a cause of alleged that the physician was aware of the
action in negligence for medical malpractice. We negligent manner in which he had performed the
further conclude that, because of the physician's surgery and aware, too, that as a result of his
alleged subsequent intentional concealment of the negligence plaintiff had suffered a potentially
malpractice and misrepresentation as to its cure, permanent injury. It is further alleged that the
the time within which the action in negligence physician willfully, falsely and fraudulently told
could be brought was not limited to the then plaintiff that her postoperative problems, pain and
applicable three-year statutory period of difficulties were transient and that they would
limitations and that on the present motion to disappear if she would continue a regimen of
dismiss the complaint it cannot be said that the physiotherapy which he had prescribed and which
action was not thereafter commenced within a was then being given by Dr. Lane. Plaintiff
reasonable time after discovery of the malpractice. continued with the physiotherapy prescribed by
Finally we hold that the Statute of Limitations Dr. Saeli until October, 1974. In the meantime she
applicable to the claim for damages based on the had moved to Syracuse, New York, where she
intentional fraud is the six-year statute. We note sought further medical advice. In January, 1974
that different measures of damages will be she was first apprised by the Syracuse physician of
applicable to the two causes of action. the true nature of her injury and that it probably
had been caused at the time of her surgery. This
doctor's diagnosis was substantially confirmed in
October, 1974 by a professor of medicine,

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 Simcuski v. Saeli 44 N.Y.2d 442 (N.Y. 1978)

specializing in neurology, at Upstate Medical 2 Because we think that the complaint as it

Center in Syracuse, who also advised that stands sufficiently pleads these two causes

reanastomosis of the sectioned nerve four years of action and that no further amendment of
the complaint is necessary to include a
after the surgery would not be a physiologically
cause of action for malpractice, we treat as
successful procedure. It is further alleged that Dr.
presently academic the dispostions below
Saeli had intentionally withheld information from
with respect to denial of plaintiff's cross
plaintiff as to the true nature and source of her
motion for leave to serve an amended
injury, in consequence of which she was deprived
complaint. (Cf. CPLR 3025, subd [a].)
of the opportunity for cure of her condition.
The complaint sufficiently sets forth a cause of
The present action against Dr. Saeli was
action for medical malpractice; the critical issue is
commenced in April, 1976.1 Prior to service of an
whether this cause of action was barred by the
answer, Dr. Saeli moved to dismiss the complaint then applicable three-year Statute of Limitations
under CPLR 3211 (subd [a], par 5) on the ground (CPLR 214, subd 6). Normally the statute would
that the cause or causes of action alleged were have precluded institution in April, 1976 of a
448 *448 barred by the Statute of Limitations. Plaintiff
claim for damages for malpractice alleged to have
cross-moved for leave to amend her complaint occurred in October, 1970. This complaint,
specifically to include a cause of action for however, further alleges that defendant
malpractice. Supreme Court denied defendant's intentionally concealed the alleged malpractice
motion to dismiss and granted plaintiff leave to from plaintiff and falsely assured her of effective
amend her complaint as requested. On appeal, the treatment, as a result of which plaintiff did not
Appellate Division reversed, granted defendant's discover the injury to the nerve until October,
motion and dismissed the complaint. Plaintiff 1974. In this circumstance principles of equitable
thereupon appealed as of right to our court. estoppel are applicable to relieve plaintiff from the
1 Dr. Lane, the physiotherapist, had died proscriptions of the statute. As noted by Mr.
prior to the commencement of this action. Justice EARLE C. BASTOW in Erbe v Lincoln
Lincoln First Bank as executor of his estate Rochester Trust Co. ( 13 A.D.2d 211, 213, mot for
was named a codefendant and service was rearg and mot for lv to app den 14 A.D.2d 509,
effected on the executor in May, 1976. The app dsmd 11 N.Y.2d 754): "Fraudulent
codefendant did not participate in the representations may play a dual role. They may be
present motion to dismiss and is not
the basis for an independent action for fraud. They
otherwise directly involved in the present
may also, in equity, be a basis for an equitable
appeal.
estoppel barring the defendants from invoking the
In our view the complaint sufficiently sets forth Statute of Limitations as against a cause of action
two causes of action although not explicitly or for breach of fiduciary relations."
separately denominated — one in negligence for
It is the rule that a defendant may be estopped to
medical malpractice on the part of Dr. Saeli in
449 plead *449 the Statute of Limitations where
connection with the surgical excision of the node
plaintiff was induced by fraud, misrepresentations
on October 19, 1970, the other for an intentional
or deception to refrain from filing a timely action.
tort in knowingly and fraudulently misinforming
(General Stencils v Chiappa, 18 N.Y.2d 125; Erbe
plaintiff as to her physical condition and
v Lincoln Rochester Trust Co., 13 A.D.2d 211,
misrepresenting that physiotherapy would produce
mot for rearg and mot for lv to app den 14 A.D.2d
a cure.2 Our analysis begins with the consideration
509, app dsmd 11 N.Y.2d 754, supra; see Fraud,
of the cause of action in negligence. Misrepresentation, or Deception as Estopping
Reliance on Statute of Limitations, Ann., 43

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 Simcuski v. Saeli 44 N.Y.2d 442 (N.Y. 1978)

ALR3d 429.) The allegations of her complaint which the plaintiff was justifiably lulled into
bring this plaintiff within the shelter of this rule. inactivity had expired prior to the termination of
The elements of reliance by plaintiff on the 450 the statutory *450 period, and that the plaintiff had
alleged misrepresentations as the cause of her thereafter had sufficient time to commence his
failure sooner to institute the action for action prior to the expiration of the period of
malpractice and of justification for such reliance, limitations. (E.g., 509 Sixth Ave. Corp. v New York
both necessarily to be established by her, are City Tr. Auth., 24 A.D.2d 975; see Plaintiff's
sufficiently pleaded within the fair intendment of Diligence as Affecting His Right to Have
the allegations of this complaint. Defendant Estopped From Pleading the Statute of
Limitations, Ann., 44 ALR3d 760, §§ 5, 6, pp
From an examination of prior cases in our court,
768-774; Fraud, Misrepresentation, or Deception
including the records and briefs, it appears that in
as Estopping Reliance on Statute of Limitations,
one case, without written exposition, the court
Ann., 43 ALR3d 429, § 6, pp 453-454.) That is
rejected recognition and application of the
not the present situation. Plaintiff has alleged that
doctrine of equitable estoppel to extend the period
her discovery of the malpractice in this case (the
of limitations in medical malpractice cases —
point at which the conduct here relied on ceased to
Ranalli v Breed ( 277 N.Y. 630). (Cf. Rokita v
be operational) did not occur until October, 1974
Bushwick Hosp. [Germaine], 7 N.Y.2d 710.) Both
(or possibly in January of that year if inference be
of those cases were decided prior to our court's
drawn from the letter of her Syracuse doctor dated
decision in General Stencils v Chiappa ( 18
January 9, 1974 submitted in opposition to the
N.Y.2d 125, supra), however, and the
motion). Whichever the month of discovery in
unarticulated determination in Ranalli must be
1974, the three-year Statute of Limitations had
deemed to have been overruled by that later
already expired in October, 1973.
decision. The doctrine has been applied in other
States in circumstances which are legally Where, as here, the conduct relied on ceases to be
indistinguishable from the present. (Bowman v operational after the expiration of the period of
McPheeters, 77 Cal.App.2d 795; Stafford v Shulz, limitations, two approaches may be discerned in
42 Cal.2d 767; Guy v Schuldt, 236 Ind. 101; the cases. By one, further delay on the part of the
Adams v Ison, 249 S.W.2d 791 [Ky]; cf. Schaffer v plaintiff in commencing his action may be held to
Larzelere, 410 Pa. 402.) The quality of the be subject to the counterdefense of laches to be
relationship between physician and patient, with pleaded and proved by the defendant (see
confidence normally reposed by the patient in the Plaintiff's Diligence as Affecting His Right to
physician and the unquestioning reliance which Have Defendant Estopped From Pleading the
such relationship may be expected to engender in Statute of Limitations, Ann., 44 ALR3d 760, § 4,
the patient, make application of the doctrine p 767). The preferable analysis, however, holds
peculiarly appropriate in such cases. that due diligence on the part of the plaintiff in
bringing his action is an essential element for the
It is as important to determine the effect of the
applicability of the doctrine of equitable estoppel,
doctrine of equitable estoppel as it is to determine
to be demonstrated by the plaintiff when he seeks
that it applies. If the conduct relied on (fraud,
the shelter of the doctrine (see Plaintiff's Diligence
misrepresentation or other deception) has ceased
as Affecting His Right to Have Defendant
to be operational within the otherwise applicable
Estopped From Pleading the Statute of
period of limitations (or perhaps within a
Limitations, Ann., 44 ALR3d 760, § 7, pp 774-
reasonable time prior to the expiration of such
779). Under this approach, which we endorse, the
period), many courts have denied application of
burden is on the plaintiff to establish that the
the doctrine on the ground that the period during

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 Simcuski v. Saeli 44 N.Y.2d 442 (N.Y. 1978)

action was brought within a reasonable time after patient's injury in consequence thereof, coupled
the facts giving rise to the estoppel have ceased to with a subsequent intentional, material
be operational. Whether in any particular instance misrepresentation by him to his patient known by
the plaintiff will have discharged his responsibility him to be false at the time it was made, and on
of due diligence in this regard must necessarily which the patient relied to his damage — in this
depend on all the relevant circumstances. The case, defendant's intentionally concealing from his
length of the legislatively prescribed period of patient the fact of the malpractice and thereafter
limitations is sometimes said to be relevant, and fraudulently misstating that the therapy prescribed
courts have held that in no event will the plaintiff would effect a cure. This is more than another
be found to have exercised the required diligence aspect of the malpractice or even another act of
if his action is deferred beyond the date which alleged negligent malpractice on the part of the
451 would be marked by the *451 reapplication of the treating physician; the complaint alleges an
statutory period, i.e., that the length of the 452 intentional fraud — that *452 Dr. Saeli, knowing it
statutory period itself sets an outside limit on what to be untrue yet expecting his patient to rely on his
will be regarded as due diligence. (See Plaintiff's advice, advised her that physiotherapy would
Diligence as Affecting His Right to Have produce a cure, in consequence of which
Defendant Estopped From Pleading the Statute of fraudulent misrepresentation the patient was
Limitations, Ann., 44 ALR3d 760, § 8, pp 775- deprived of the opportunity for cure of the
776). In the present case such an outside limit was condition initially caused by the doctor's alleged
not exceeded; the action was brought less than malpractice. If these allegations are proved they
three years after discovery in 1974. It is not will establish an intentional tort, separate from and
possible or appropriate, however, on the present subsequent to the malpractice claim. (Calabrese v
motion addressed to the pleading, presenting us as Bickley, 1 A.D.2d 874.) Recovery of damages in
it must with only a skeletal record, to determine such case is governed by the six-year Statute of
whether this plaintiff met her obligation of due Limitations under CPLR 213 (subd 8). The
diligence when she instituted the present action in application of the three-year Statute of Limitations
April, 1976. It suffices for disposition of the is not mandated by the circumstance that the fraud
present appeal to note our conclusion that it cannot alleged arises as a sequel to an alleged
now be determined as a matter of law that the malpractice.4
reasonable time for bringing the present action had
3 No cause of action is set forth in the
expired prior to its institution in April, 1976.
complaint in this case postulated on the
In passing we observe that if it is established that theory that plaintiff was fraudulently

plaintiff is not precluded from prosecuting the prevented from bringing her action for

cause of action in negligence and she proves that alleged malpractice until barred by the
Statute of Limitations and that she is
cause on the merits, the measure of damages
entitled to recover the damages caused her
which she will be entitled to recover will be that
by such fraud (see Fraud and Deceit:
normally associated with medical malpractice
Liability in Damages for Preventing
actions in situations such as the present.
Bringing of Action Before Its Being Barred

We turn then to consideration of the other cause of by Statute of Limitations, Ann., 33 ALR3d

action, noting that it asserts a claim in fraud as an 1077).

intentional tort.3 The essential elements, here 4 We observe that the alleged tortious

alleged or within the reasonable intendment of the conduct in this instance occurred prior to
complaint, are knowledge on the part of the the adoption of CPLR 214-a (L 1975, ch
physician of the fact of his malpractice and of his 109, § 6, eff July 1, 1975). There is thus no

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 Simcuski v. Saeli 44 N.Y.2d 442 (N.Y. 1978)

basis here for any assertion that by the physicians to a greater exposure to liability in
enactment of that statute the Legislature consequence of errors of professional judgment at
intended to prescribe a statutory period of a time when there is legitimate concern both from
limitations with respect to all claims
the standpoint of the profession and the public as
arising out of the physician-patient
to the economic import of recently ballooning
relationship no matter on what legal theory
malpractice recoveries and thus to run counter to
predicated.
or to flout the general policy direction articulated
In reaching this determination, we recognize and by the Legislature, it is appropriate to stress
approve, but distinguish, cases which hold that, certain aspects of the present case and the theories
without more, concealment by a physician or of liability on which we sustain this complaint.
failure to disclose his own malpractice does not
At the outset we observe that the exposure to
give rise to a cause of action in fraud or deceit
liability we here discuss is not based on errors of
separate and different from the customary
professional judgment; it is predicated on proof of
malpractice action, thereby entitling the plaintiff
the commission of an intentional tort, in this
to bring his action within the longer period limited
instance, fraud. As to that cause of action:
for such claims. (E.g., Golia v Health Ins. Plan of
Greater N.Y., 6 A.D.2d 884, affd 7 N.Y.2d 931; First, it must be established that the physician
Ranalli v Breed, 277 N.Y. 630, supra; Conklin v knew (or demonstrably had reason to know) of the
Draper, 229 App. Div. 227, affd 254 N.Y. 620; fact of his malpractice and of the injury suffered
Tulloch v Haselo, 218 App. Div. 313.) Such by his patient in consequence thereof.
nondisclosure or concealment may affect the
Second, it must be established that, knowing it to
damages recoverable, or, conceivably in a proper
be false at the time, the physician thereafter made
case in conjunction with other factors, provide a
material, factual misrepresentation to the patient
foundation for seeking to invoke the doctrine of
with respect to the subject matter of the
equitable estoppel to extend the applicable period
malpractice and the therapy appropriate to its cure,
of limitations. Standing alone such nondisclosure
on which the patient justifiably relied.
or concealment will not, however, serve as the
basis for a distinct cause of action in fraud. Third, all elements of the intentional tort of fraud
must be established by clear and convincing
We observe that, as in the instance of fraud claims
evidence. Recognizing, too, the hazards of
generally, this plaintiff, too, will be required to
proliferating litigation of baseless claims, attention
prove her claim by clear and convincing evidence
is drawn to the requirements of CPLR 3016 (subd
(Rudman v Cowles Communications, 30 N.Y.2d 1,
[b]). While, of course, motions to dismiss under
10; see 24 N.Y. Jur, Fraud and Deceit, § 284, p
CPLR 3211 are properly addressed to the
371). If she succeeds in this respect, the available
allegations set forth in the complaint,5 on motions
measure of her damages will be that applicable in
for summary judgment under CPLR 3212
fraud actions, i.e., damages caused by the fraud, as
evidentiary proof in admissible form must be
453 distinguished *453 in this case from damages
tendered in support of all the elements of the
occasioned by the alleged malpractice.
alleged cause of action.
In 1975 our Legislature determined as a matter of 5 (But cf. Rovello v Orofino Realty Co., 40
policy to limit the extent of liability in medical
N.Y.2d 633 .)
malpractice claims when it adopted a more
stringent Statute of Limitations (CPLR 214-a; L Fourth, if there is not an available, efficacious
1975, ch 109, § 6). Lest the implications of our remedy or cure which the plaintiff is diverted from
present decision be misapprehended as subjecting undertaking in consequence of the intentional,

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 Simcuski v. Saeli 44 N.Y.2d 442 (N.Y. 1978)

fraudulent misrepresentation — as in many COOKE, J. (concurring).

instances of medical malpractice there may not
I concur in the underlying reasoning and result
454 *454 be — there will normally be only minimal
arrived at in the majority opinion but do not find it
damages, if any. It will be necessary to
necessary to subscribe to all of the implications
demonstrate that the condition caused by the
which may affect this or other cases when the
malpractice could have been corrected or
merits may be reached by motion or trial.
alleviated. Thus, in the present case, if it can be
shown that at the time of Dr. Saeli's alleged
FUCHSBERG, J. (concurring).
fraudulent misrepresentations it was already too
late to undertake a reanastomosis of the severed Though I wholeheartedly join in the disposition of
nerve, this plaintiff will have sustained little or no this case and of the questions necessary to its
damages in consequence of the alleged fraud. If determination, I find aspects of the majority
only a partial cure were then possible, damages opinion sufficiently disturbing to compel me to
would be assessable on that basis. Recovery 455 comment. *455
would be greatest, of course, if plaintiff were
diverted from what could otherwise have been a For one, the court's indorsement of cases which
complete cure. are said to have held that mere (p 452)
"concealment by a physician or failure to diclose
Accordingly, it will be seen that the present his own malpractice" does not toll the Statute of
decision is not to be expected to open the Limitations is both peripheral and unnecessary to
proverbial floodgates. On the other hand, in today's decision. Moreover, it suffers from more
human terms it would be unthinkable today not to than the ordinary weakness of dictum. It
hold a professional person liable for knowingly gratuitously renews the blessing, given at an
and intentionally misleading his patient in earlier time and in a different clime, to a
consequence of which, to the physician's proposition whose soundness has, in the
foreknowledge, the patient was deprived of an intervening years, been the object of widespread
opportunity for escape from a medical and increasing criticism, much of which
predicament which the physician by his own characterizes willful nondisclosure as
negligence had initially inflicted on his patient. "constructive fraud" (Morrison v Acton, 68 Ariz.
With respect to the application of the doctrine of 27; Prosser, Torts [4th ed], § 30, pp 144-145;
equitable estoppel to a defense of Statute of Sacks, Statutes of Limitations and Undiscovered
Limitations pleaded in a malpractice action, again Malpractice, 16 Clev Marsh L Rev 65, 72; 2
we are concerned with an intentional, not merely Louisell and Williams, Medical Malpractice, pars
negligent, wrong — the purposeful concealment 13.06-13.09; 32 ATLA LJ 260-265; cf. Flanagan
and misrepresentation of the fact and v Mount Eden Gen. Hosp., 24 N.Y.2d 427,
consequences of the malpractice. It would not be disapproving Conklin v Draper, 229 App. Div.
tolerable to permit a physician by whose fraud, 227, affd 254 N.Y. 620).
misrepresentation or deception his patient has
been induced to delay filing legal proceedings Most especially in this situation — where, as we
until after the time limited by statute to reap the all recognize, a balance must be struck between
benefits of his own misconduct. according a reasonable measure of justice to
patients and giving adequate protection to
For the reasons stated the order of the Appellate physicians subjected to delayed suits — appraisal
Division should be reversed, with costs to abide or reappraisal should await direct confrontation in
the event, and the order of Supreme Court denying a case on point. In such circumstances, simple
defendant's motion to dismiss reinstated. logic and long experience teach that, absent

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 Simcuski v. Saeli 44 N.Y.2d 442 (N.Y. 1978)

immediacy of a need to decide, the rush to present after that bill was enacted, after extensive hearings
judgment, however well-intentioned, the officially designated "McGill Commission",
impermissibly enhances the ever-present risk that, on which the medical profession was prominently
by the time the question does arise directly, further represented, reported to the Legislature (and the
study and later events will have turned the Governor) that, because "any further reductions of
premature pronouncement of yesterday into a the statute of limitations in medical malpractice
jurisprudential obstacle of tomorrow (Cooke v actions would restrict patients' rights without any
New Riv. Co., 38 Ch Div 56, 70-71 [1888] correlative improvement in premium rates and
[BOWEN, L.J.]; cf. Smith v Hedges, 223 N.Y. insurance availability, the Panel makes no formal
176, 184 [CARDOZO, J., dissenting]). recommendations for changes in the statute of
limitations" (Report of the Special Advisory Panel
I also refuse to join in what I regard as the equally
on Medical Malpractice of the State of New York,
unnecessary and, so far as the record reveals,
p 37 [1976]). Thereafter efforts at constriction
unfounded factual and qualitative assumptions
have consistently failed to win legislative favor
implicit in phrases such as opening the (p 454)
(see, e.g., Sen Intro No. S-9, Assem Intro No. A-
"floodgates" (p 453) "ballooning malpractice
3290 [1977 Session]; Sen Intro No. S-3672,
recoveries" and "legitimate concern both from the
Assem Intro No. A-5127 [1977 Session]; Sen
standpoint of the profession and the public as to
Intro No. S-7858 [1976 Session]; Sen Intro No. S-
the economic import" of malpractice recoveries.
4786-A [1976 Session]; Sen Intro No. S-8700
Such expressions, which omit the concerns of
[1976 Session]; Sen Intro No. S-8751 [1976
those injured by medical negligence, are, I
Session]; Sen Intro No. S-8752 [1976 Session];
respectfully suggest, best avoided. All the more is
Sen Intro No. S-8753 [1976 Session]; Sen Intro
that so in a situation where, as has been widely
No. S-8754 [1976 Session]; Sen Intro No. S-8755
reported and openly admitted, large sums have
[1976 Session]; Sen Intro No. S-8756 [1976
been expended by interested parties to influence
Session]; Assem Intro No. A-8779 [1976 Session];
public opinion (see Aitken, Medical Malpractice:
Assem Intro No. A-11344 [1976 Session]).
456 *456 The Alleged "Crisis" in Perspective, 1976 Ins
LJ 90; Charbouneau, Medical Malpractice Crisis: When thus rejected, such efforts — whether fueled
Fact or Fiction?, 3 Orange County BJ 139). by legislative lobbying, or entrancing
editorializing, or just plain propagandizing —
Indeed, the factors alluded to by the comments I
form no foundation for public policy. Moreover, as
find objectionable are probably more suitable for
to the overemphasis on "spectres of assertedly
exploration and consideration in a legislative
prohibitive cost", fanciful or real, we ought here to
rather than a judicial forum (see, for example, U.S.
apply our own recently stated injunction that,
Department of Health, Education and Welfare,
while "[a] court cannot responsibly be wholly
Report of the Secretary's Commission on Medical
457 indifferent to the economic impact likely to *457
Malpractice, No. [OS] 73-88 [1973]; see, also,
attend its decisions * * *, neither can the prospect
Elliot L. Sagall, M.D., Medical Malpractice: Are
of financial impact dictate the judicial outcome"
the Doctors Right?, Trial, Vol 10, No. 4, p 59;
(Brooklyn Union Gas Co. v New York State
Miller, Malpractice and You, 1975 Ins LJ 722).
Human Rights Appeal Bd., 41 N.Y.2d 84, 90). A
In that context, the passage of the single bill to fortiori, in this case, where essentially we focus on
which the majority refers (L 1975, ch 109) hardly a liability, not a damage, question, the quantum of
supports the so-called legislative (p 453) "general the latter in any event would be subject, as in all
policy direction" on which it rationalizes the cases, to judicial safeguards against excessiveness
restrictive nature of its writing. In 1976, the year

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 Simcuski v. Saeli 44 N.Y.2d 442 (N.Y. 1978)

— or inadequacy (CPLR 5522; see O'Connor v separate memorandum; Judge FUCHSBERG

Papertsian, 309 N.Y. 465; 7 Weinstein-Korn- concurs in result in a separate opinion.
Miller, NY Civ Prac, pars 5522.03, 5522.04).
458 Order reversed, etc. *458
Accordingly, I merely join in the result.

Chief Judge BREITEL and Judges JASEN,

GABRIELLI, and WACHTLER concur with
Judge JONES; Judge COOKE concurs in a