dissenting.
I respectfully dissent from the majority opinion insofar as it certifies questions to the New York Court of Appeals.
The majority opinion poses several portentous questions to the New York Court of Appeals: whether New York law provides the donee of a directed organ donation with rights that can be vindicated in a lawsuit; whether such a donee may recovery nominal or punitive damages; whether New York law immunizes either negligent or grossly negligent misconduct by the administrators of organ donation programs. I am curious to know the answer to these questions, but the answers are not really helpful to the resolution of this appeal, given the facts presented.
In a nutshell, Mrs. Lucia signed a consent for the removal of both kidneys from her husband’s body, and designated Colav-ito as donee of “KIDNEY” (singular); one kidney was rushed from New York to Co-lavito in Florida, but it had a defect and could not be implanted; the second kidney stayed in New York and had already been routed to another person who. needed it; the only medical evidence is that neither kidney was compatible with Colavito’s tissues; other kidneys offered to Colavito have likewise been incompatible; the widow has testified in deposition that she intended and thought that both kidneys would go to Colavito.
The district court adopted a somewhat broad holding that a directed donee may not bring a tort action or a private right of action under the New York anatomical gift statute for the misdirection of an organ needed by the donee. But in my view, this appeal can be resolved fairly easily on narrow and uncontroversial grounds that *234would implicate no important, influential or unsettled issue of public policy.
We need only decide whether Colavito— whose medical condition puts him in need of one kidney — had an entitlement to both of them. As the majority opinion observes, no one needs more than one kidney. A plain reading of the New York anatomical gift statute confirms that no donee in need of a kidney can have an entitlement to get two of them at the same time, and that no one can assert any claim at all if the process is conducted without negligence and in good faith. A reading of the consent form confirms that Colavito had no basis for claiming both kidneys.
A
The statute specifies who may execute an anatomical gift, who may become the recipient of an anatomical gift, and how such gifts are to be executed. As the majority opinion states, the only quasi-proprietary interest in a human organ is set out and bounded by statute. The statute allows directed donations, but limits the donations on the basis of what is needed:
The following persons may become do-nees of gifts or bodies or parts thereof for the purposes stated: ...
(4) any specified donee, for ... transplantation needed by him.
§ 4302(4) (emphasis added). Thus New York does not allow an organ to be donated to anyone who wants it — to sell it or hoard it; or to pass it along to someone else who needs it; or to allow for a contingent or future need, as (for example) as a backup or spare in case one kidney is damaged or lost in transport, or is defective, or is rejected. Otherwise, hospitals, donor networks and persons in need would be drawn into macabre transactions and litigations. I would therefore affirm (without certifying any question) on the ground that as a matter of law Colavito could have no entitlement to receive two kidneys at the same time. (Colavito does not dwell on what would have happened to the second kidney if the first sufficed; but given the two-day shelf-life on ice, and the shipment to Florida, it is clear enough that it would have been thrown away.)
B
The consent form signed by Mrs. Lucia indicates: (1) that the gift of both kidneys was made to the New York Organ Donor Network; that the Donor Network was authorized to use the gift “in accordance with medical and ethical standards”; (3) that she directed “KIDNEY” — singular— to Colavito; and (4) that if the directed donee could not use the gift — “for medical or logistical reasons”- — the Donor Network could allocate the organs as if no direction had been made. Colavito says that the singular “KIDNEY” is an error; but he is thus seeking to ignore the text authorizing the gift and instead decide his entitlement on the basis of what Mrs. Lucia said later in a deposition about her (untenable) understanding of the form that she signed. Colavito points out that widow was grief-stricken, and contends that the Donor Network took advantage of her. But this proves too much: It may be expected that every next-of-kin who signs such a consent is vulnerable; yet a rule that treats such a consent as a suspect contract of adhesion would of course frustrate the whole project of medical transplants.
Mrs. Lucia now says that her thought and intent was for both kidneys to go to Colavito, and that she would not have consented to the removal of the second kidney to save the life of anyone else. The New York anatomical gift statute respects the interests of the next-of-kin (as well as the interests of those in medical need); but it also protects the administrators of organ *235donation programs so that they can make urgent life-saving decisions that will be lawful so long as they act without negligence and in good faith. See Art. 43, § 4306(3). That provision is ineffective if courts second-guess these decisions, at least in the absence of an allegation that the donor network acted negligently or in bad faith to divert elsewhere an organ that was needed by the named donee. The decisive facts here are that the Donor Network sent Colavito the single kidney that he needed, and sent the other to another person who needed it to live. The one sent to Colavito turned out to be defective (or incompatible, or whatever); but that problem is not attacked as negligence, and does not impugn the good faith of administrators who were trying to maximize the life-giving benefits of the donated organs — these things do not come with warranties express or implied.
I would therefore affirm (without certifying any question) on the additional ground that (even if the statute affords a right of action to donees) Colavito suffered from no violation of the New York anatomical gift statute because there is no sustainable allegation of bad faith or negligence, because he received the only thing for which he could be a donee under the statute (a single kidney), and because there is no misdirection as a matter of law where the disposition of the donated organs accords with the arrangements set out in the organ donor form.
C
The certification of questions is therefore unnecessary because oddball facts of this appeal (among other things, the kidneys at issue were incompatible with Co-lavito’s system) present no large questions, are controlled by the plain wording of the statute and the consent form, and do not justify the time and expense of certification. At the same time, I concede that there are delays and expenses whenever a question is certified; and of course the Court of Appeals is free to answer the certified questions or not, and any answers given will be instructive (and doubtless useful in other cases). Moreover, this case would be decided if the Court of Appeals ruled that donees have no right of action under the statute (though that question probably should await a case that poses it, such as one in which an organ is negligently mislaid or corruptly diverted).
So why do I bother to dissent from the certification of questions?
The trouble with certification in this case is that the manifest intent of the statute is to protect the organ donation systems from coils of unnecessary litigation. Lawyers love to issue rulings on medical ethics (though they do not solicit advice on legal ethics from doctors), and are naturally drawn to large questions. But this Court owes a prompt decision on an easy appeal, particularly in this area, where litigation and the threat of it may choke an organ donation system that works well, and cause it to become (successively) inhibited, intimidated, over-law-yered, paralyzed and beggared.