author: Jones, J. Chief Judge Cooke

text:
    The People of the State of New York, Respondent, v Jim Henley, Jr., Appellant. The People of the State of New York, Respondent, v Willie Norman Henley, Appellant.
    Argued May 1, 1981;
    decided June 18, 1981

      POINTS OF COUNSEL

      Joseph B. Mistreet and Rose H. Sconiers for appellants.
    I. Appellant’s right to be free from unreasonable seizures, guaranteed by the Federal and State Constitutions (US Const, 4th Amdt; NY Const, art I, § 12), was violated by the police action which, in turn, vitiated his alleged, subsequent consent to enter and search the apartment at 24 Spiess Street. (Dunaway v New York, 442 US 200; People v Lypka, 36 NY2d 210; People v Howard, 50 NY2d 583; Matter of Kwok T., 43 NY2d 213; People v Jennings, 45 NY2d 998; People v Boodle, 47 NY2d 398.) II. The search cannot be justified as having been conducted pursuant to appellant’s consent. (United States v Como, 340 F2d 891; People v Gonzalez, 39 NY2d 122; People v Gorsline, 47 AD2d 273; People v Benitez, 76 AD2d 196.) III. The guilty pleas, entered by appellant subsequent to the lower court’s erroneous suppression ruling, must be vacated. (People v Grant, 45 NY2d 366.)

      Edward C. Cosgrove, District Attorney (Timothy R. Harvey of counsel), for respondent.
    I. Defendant, Jim Henley, Jr., was properly stopped based upon a reasonable suspicion, and properly arrested based upon probable cause. (People v De Bour, 40 NY2d 210; People v Brady, 16 NY2d 186; People v Hook, 15 NY2d 776; People v Oden, 36 NY2d 382.) II. The trial court’s affirmed determination that defendant Jim Henley, Jr., consented to a search of his apartment is not reviewable by this court. (People v Gonzalez, 39 NY2d 122; People v Tutt, 38 NY2d 1011; People v Concepcion, 38 NY2d 211.) III. Defendant’s pleas should not be vacated. (People v Grant, 45 NY2d 366.)
   OPINION OF THE COURT

Jones, J.

The lack of probable cause to sustain the custodial detention and transportation of one defendant operates to vitiate his ensuing consent to the search of the defendants’ apartment. As to the other defendant, however, that consent is valid. The evidence seized in the apartment should therefore be suppressed as to one defendant but not as to the other.

Based on a radio call that a burglary was in progress at the Mercury Radio and Battery Company received about 4:00 A.M. on December 6, 1976 the police proceeded to the scene. About one block away defendant Jim Henley, Jr., was observed walking from a yard onto the street with nothing in his hands. With gun drawn one of the officers, Officer Szczur, stopped him and asked where he was going. Szczur testified that Henley, Jr., replied that he was going to buy a loaf of bread.

Officer Szczur asked Henley, Jr., to get into the patrol car and drove him to the scene of the burglary. When no officers were found there, Henley, Jr., was asked where he lived and he informed Szczur that he lived at 24 Spiess Street. Henley, Jr., stated that he could verify the fact that he did live there and that he was on an errand for a loaf of bread.

Officer Szczur took Henley, Jr., to 24 Spiess Street. After it appeared that he did not live on the ground floor, Henley, Jr., said that he actually lived upstairs, and they proceeded to the second floor. Other police officers then arrived and Henley, Jr., was placed under arrest. In response to a request from the police, Henley, Jr., consented to their entry into the upstairs apartment. Defendant Willie Norman Henley, Henley, Jr.’s, brother, was among those found to be present in the apartment.

Once in the apartment one of the officers saw a marijuana cigarette on an end table. As he picked up the cigarette he happened to look into a cubbyhole area, the door to which was half open, and saw various boxes which had the stamping or printing of the name of Mercury Radio and Battery Company on them. The police thereupon seized this physical evidence.

Jim Henley, Jr., and Willie Norman Henley were indicted for burglary in the third degree and grand larceny in the third degree. Willie Norman Henley was also charged with criminal possession of a controlled substance in the seventh degree. Under another indictment relative to a separate incident which occurred on November 27,1976, Willie Norman Henley was further charged with possession of burglar’s tools and attempted burglary in the third degree. Following denial of defendant’s motions to suppress the physical evidence seized at 24 Spiess Street, Jim Henley, Jr., pleaded guilty to attempted burglary in the third degree in full satisfaction of .all charges against him, and Willie Norman Henley pleaded guilty to grand larceny in the third degree in full satisfaction of the charges against him arising out of the events of December 6, 1976. Willie Noman Henley also pleaded guilty to criminal trespass in the second degree in full satisfaction of the charges relative to the November 27, 1976 incident. On appeal the Appellate Division in three separate orders affirmed all judgments of conviction of both defendants. We now affirm the convictions of Willie Noman Henley and reverse the conviction of Jim Henley, Jr.

While there was sufficient evidence to find that Officer Szczur was warranted, on the basis of reasonable suspicion, to stop Henley, Jr., and to inquire what he was doing on the street at that time in the morning, no action on the part of Henley, Jr., in the circumstances furnished probable cause to take him into custody and then, after proceeding to the scene of the burglary, to take him on to where he lived at 24 Spiess Street. That Henley, Jr., was observed entering the street from a yard about a block away from the reported burglary in no way provided evidence of his commission of the crime. While his . statement that he was out to buy bread was sufficient to arouse Officer Szczur’s suspicion because the officer knew of no stores in the area which were open at that time of night, it did not provide probable cause to link Henley, Jr., to the burglary at Mercury Radio and Battery Company.

The custodial detention and transportation having violated Henley, Jr.’s, constitutional rights to be free from unreasonable seizure, his subsequent consent to the police to enter the upstairs apartment was fatally tainted. Without effective consent from Henley, Jr., the police entry into the Henley apartment was illegal, and the seizure of the boxes violated the constitutional rights of Henley, Jr., to be free from unreasonable searches and seizures. The evidence seized therefore should have been suppressed as to him.

With respect to defendant Willie Norman Henley the legal situation is otherwise. He has no standing to challenge the illegality of his brother’s custodial detention or transportation. Deprived of that premise, he has no other basis to question the validity of the consent given by Henley, Jr., to the police to enter the Henley apartment. Except for the fact of the illegality of his detention, there is no predicate in the record for us to conclude that Henley, Jr.’s, consent was involuntarily given. In this circumstance, the entry of the police into the Henley apartment was duly authorized as to Willie Norman Henley and the consequent seizure of the physical evidence did not violate any of his constitutional rights.

Accordingly, the two orders affirming the judgments of conviction of defendant Willie Norman Henley should be affirmed, and the order affirming the judgment of conviction of defendant Jim Henley, Jr., should be reversed, his plea vacated, the physical evidence seized at 24 Spiess Street suppressed as to him, and his case remitted to Supreme Court for further proceedings on the indictments against him.

Chief Judge Cooke

(dissenting in part). I concur with the majority that the order affirming the judgment of conviction of Jim Henley, Jr., should be reversed, his plea vacated, the physical evidence seized at 24 Spiess Street suppressed as to him and his case remitted to Supreme Court for further proceedings on the indictment against him. This is because the custodial detention and transportation of Jim Henley, Jr., was illegal and his consent, being the product of that illegality, cannot justify the warrantless entry into and search of the apartment.

I disagree, however, that Willie Norman Henley lacks standing to assert the illegality and that the same consent may be effective as to him. In my view there should also be a reversal of the order affirming the judgment of conviction of Willie Norman Henley for grand larceny in the third degree. I concur with the majority in affirming the order upholding the conviction of Willie Norman Henley upon his plea of guilty of criminal trespass in the second degree. I therefore respectfully dissent in part.

The majority recognizes that Willie Norman Henley has standing to challenge the warrantless entry and search as a violation of his Fourth Amendment rights. And there is no question that the entry was per se unlawful absent some applicable exception to the warrant requirement (see Schneckloth v Bustamonte, 412 US 218, 219). The People justified the entry on the basis of consent given by Henley, Jr. Both defendants challenged the offered justification on the grounds that Henley, Jr., never gave his consent and, if he did, it was the product of his illegal arrest and thus inadequate to support the entry. The majority today holds that, notwithstanding the invasion of Willie Norman Henley’s rights, only Henley, Jr., may assert the latter ground. I cannot agree with such a limitation.

Third-party consent is a recognized exception to the Fourth Amendment warrant requirement (People v Cosme, 48 NY2d 286; United States v Matlock, 415 US 164). This exception requires actual consent of a person having or reasonably appearing to have the requisite degree of access to and control over the premises to be searched (People v Adams, 53 NY2d 1; People v Cosme, 48 NY2d 286, supra). Where either element is lacking, an entry and search violate the Fourth Amendment command.

There is no dispute that Henley, Jr., had the authority to consent to the warrantless search. The only question here is the validity of the consent. The majority holds that the consent was invalid, vitiated by the illegal arrest. That consent, the majority holds, nonetheless may support the warrantless entry and search as to Willie Norman Henley.

This anomalous, result is said to be founded upon principles of standing. Since Fourth Amendment rights are personal and “may not be vicariously asserted” (Alderman v United States, 394 US 165, 174; Rakas v Illinois, 439 US 128, 133-134; People v Hansen, 38 NY2d 17, 22), the majority reasons that Willie Norman Henley may not object to the unconstitutional seizure of his brother. Under the majority’s standing analysis, a party against whom another’s consent is to be used may deny only that the third party had authority or that voluntary consent in fact was given. How the consent was obtained is now immaterial, for only the third party’s rights are implicated by the means employed.

There is no dispute that a defendant may not seek suppression of evidence obtained by the police from a third party in. violation of the third party’s rights. Nor is issue taken here with the proposition that even if the police consciously violate the third party’s rights solely to obtain evidence against another, the defendant does not have standing under the Fourth Amendment to challenge the illegality (United States v Payner, 447 US 727, 731-732) and a court is unjustified in exercising its supervisory power to suppress evidence so obtained (id., at pp 733-737). A challenge is open only to the victim of the illegality. These principles, however, do not justify the majority’s conclusion.

Contrary to the majority’s determination, an objection to the means by which a third party’s consent has been obtained is not an assertion of third-party rights. The objection is made to challenge an invasion of protected rights personal to the nonconsenting party. The warrantless entry can be justified only if the police have obtained valid consent; if the consent is invalid, the entry is unlawful. That the invalidity has its genesis in illegal conduct against the consenting party should not render the consent any less constitutionally infirm as to the nonconsenting party. The non-consenting party simply cannot be viewed as a legal stranger to the initial police encounter. In a real sense Willie Norman Henley, as the nonconsenting party, is a victim of the initial illegality. His own Fourth Amendment rights have been compromised by its product — Henley, Jr.’s, consent. The antecedent illegality is inextricably intertwined with the entry and is critical to its validity. By the warrantless entry, there has been a common invasion of the rights of both the consenting and nonconsenting parties. There has been asserted against both the same justification for the invasion — consent. When that justification falls, for whatever reason, it must fall for both.

In my view, separating the fact of consent from the means by which it is obtained, as the majority has done, dilutes substantially the value of the consent requirement itself. In a challenge by one whose own rights have been affected by the consent, such a bifurcated analysis is unwarranted and unjustified.

Accordingly, I dissent in part and would reverse the order affirming the judgment of conviction of grand larceny in the third degree against Willie Norman Henley, vacate his plea, suppress the physical evidence and remit the case for further proceedings on the indictment.

In People v Henley (Jim): Order reversed, conviction and plea vacated, physical evidence seized at 24 Spiess Street suppressed as to appellant, and case remitted to Supreme Court, Erie County, for further proceedings on the indictments.

Judges Jasen, Gabrielli, Wachtler and Meyer concur with Judge Jones ; Chief Judge Cooke concurs in a separate opinion in which Judge Fuchsberg concurs.

In People v Henley (Willie): Orders affirmed.

Judges Jasen, Gabrielli, Wachtler and Meyer concur with Judge Jones; Chief Judge Cooke dissents in part and votes to reverse the order affirming the judgment of conviction for grand larceny in the third degree and to affirm the order affirming the judgment of conviction for criminal trespass in the second degree, in a separate opinion in which Judge Fuchsberg concurs.

      . At the suppression hearing a minor discrepancy appeared when Henley, Jr., testified that he had responded that he was going to buy butter. There was no testimony, however, that on the night he was arrested Henley, Jr., had given varying answers to the police questioning.

      . No argument is advanced on this appeal for reversal of the judgment of conviction based on this separate, unrelated plea. Accordingly, the order of the Appellate Division affirming that judgment should be affirmed.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    I. David Parkoff, Appellant, v General Telephone & Electronics Corp. et al., Respondents, et al., Defendants.
    Argued May 5, 1981;
    decided June 18, 1981

      POINTS OF COUNSEL

      Theodore R. Schreier for appellant.
    I. Where a committee of directors after an investigation decide to terminate a shareholder’s derivative suit, the derivative plaintiff is entitled to discovery with respect to the questions of the disinterested independence of the members of the committee and the adequacy of the committee’s investigative procedures and methodologies. (Auerbach v Bennett, 47 NY2d 619; Gall v Exxon Corp., 418 F Supp 508; Byers v Baxter, 69 AD2d 343; Galef v Alexander, 615 F2d 51; Lasker v Burks, 567 F2d 1208; Lewis v Anderson, 615 F2d 778; Abbey v Control Data Corp., 603 F2d 724.) II. This court should reconsider its decision in Auerbach in the light of academic comment and recent decisions. (Maldonado v Flynn, 485 F Supp 274; Maher v Zapata Corp., 490 F Supp 348; Clark v Lomas & Nettleton Fin. Corp., 625 F2d 49.) III. In view of its procedural setting, no question of the res judicata effect of Auerbach is before this court in this case. IV. The Auerbach case and the instant case do not relate to the same cause of action, therefore the Auerbach judgment has no res judicata or collateral estoppel effect. (Lawlor v National Screen Serv., 349 US 322; Bronxville Palmer v State of New York, 18 NY2d 560; Jasper v Rozinski, 228 NY 349; 366 Bomar Co. v Smith, Jackson & Co., 51 AD2d 786.) V. Defendants-respondents are estopped by the law of the case from claiming that the decision in Auerbach bars the within action. (Matter of Weiss v Commissioner of Off. of Drug Abuse Servs., 64 AD2d 768.) VI. The dismissal in Auerbach was the equivalent of a voluntary dismissal. (Papilsky v Berndt, 466 F2d 251, 409 US 1077; Certain-Teed Prods. Corp. v Topping, 171 F2d 241.) VII. Auerbach and his attorney did not provide adequate representation to the class of shareholders and as such the judgment in Auerbach does not bind other shareholders. (Papilsky v Berndt, 466 F2d 251, 409 US 1077; Cramer v General Tel. & Electronics Corp., 582 F2d 259; Auerbach v Bennett,
      64 AD2d 98.) VIII. A judgment based upon a motion for summary judgment has a limited res judicata issue effect and does not bar the instant action nor deprive the shareholders of relevant discovery. (Gramatan Home Investors Cory, v Lopez, 46 NY2d 481; Matter of Reilly v Reid, 45 NY2d 24; Commissioners of State Ins. Fund v Low, 3 NY2d 590; Dye v Lincoln First Bank of Rochester, 38 NY2d 769; McNaughton v Hudson, 50 AD2d 863; B. R. De Witt, Inc. v Hall, 19 NY2d 141.) IX. The Parkoff complaint was not before the Court of Appeals. X. The United States District Court decision in Cramer was overruled and to the extent that it was not, it was incorrect. (Cramer v General Tel. & Electronics Corp., 443 F Supp 516, 582 F2d 259.)

      Peter M. Fishbein, Dean C. Rohrer, Steven J. Glassman, Myron Kirschbaum, James H. Halpin and Peter J. Dranginis, Jr., for General Telephone & Electronics Corporation and others, respondents.
    I. This court’s decision in Auerbach should not be reconsidered. (Lewis v Anderson, 615 F2d 778; Burks v Lasker, 441 US 471; Abbey v Control Data Corp., 603 F2d 724, 444 US 1017; Genzer v Cunningham, 498 F Supp 682; Rosengarten v International Tel & Tel. Corp., 466 F Supp 817; Gall v Exxon Corp., 418 F Supp 508.) II. Summary judgment was properly granted based on this court’s decision in Auerbach upholding the same business judgment determination by the same disinterested and independent directors. (Volkman v Miller, 52 AD2d 146, 41 NY2d 946; Aetna Ins. Co. v Logue, 68 Misc 2d 841; Lamb's Patio Theatre v Universal Film Exchs., 582 F2d 1068; Willmar Poultry Co. v Morton-Norwich Prods., 520 F2d 289; Galef v Alexander, 615 F2d 51; Gall v Exxon Corp., 418 F Supp 508; Greenbaum v American Metal Climax, 27 AD2d 225; J. C. F. Holding Corp., v General Gas & Elec. Corp., 181 Misc 283, 267 App Div 863; Gilbert v Curtiss-Wright Corp., 179 Misc 641.) III. The judgment in Auerbach bars this action under the doctrine of res judicata. (Matter of Reilly v Reid, 45 NY2d 24; Matter of Gowan v Tully, 45 NY2d 32; Israel v Wood Dolson Co., 1 NY2d 116; Schuylkill Fuel Cory, v Nieberg Realty Corp., 250 NY 304; Palmer v Fox, 28 AD2d 968, 22 NY2d 667; Dye v Lincoln First Bank of Rochester, 38 NY2d 769; Eidelberg v Zellermayer, 5 AD2d 658, 6 NY2d 815; Stoner

      v Culligan, Inc., 32 AD2d 170; Schmieder v Hall, 545 F2d 768, 430 US 955; Lawlor v National Screen Serv., 349 US 322.) IV. The judgment in Cramer is an independent bar to the Parkoff action under the doctrine of res judicata. (Cramer v General Tel. & Electronics Corp., 443 F Supp 516, 582 F2d 259, 439 US 1129; McLearn v Cowen & Co., 48 NY2d 696.) V. The judgments in Auerbach and Cramer bar the Parkoff action under the doctrine of collateral estoppel. (Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Blecker v Araskog, 78 AD2d 782; Vavolizza v Krieger, 33 NY2d 351; S. T. Grand, Inc. v City of New York, 32 NY2d 300; Zabriskie v Zoloto, 22 AD2d 620.)

      Peter H. Kaminer, Stephen A. Weiner and Susan S. Egan for John H. Page and another, respondents.
    I. The court below was clearly correct in holding that defendants’ motions to dismiss and for summary judgment should have been granted. (Maldonato v Flynn, 485 F Supp 274; Koral v Savory, Inc., 276 NY 215; United Copper Co. v Amalgamated Copper Co., 244 US 261; Lewis v Anderson, 615 F2d 778; Abbey v Control Data Corp., 603 F2d 724.) II. The present action is barred by the res judicata and collateral estoppel effect of prior decisions. (Ward v Hasbrouck, 169 NY 407; Matter of Farber v U. S. Trucking Corp., 26 NY2d 44; Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482; Telaro v Telaro, 25 NY2d 433; Matter of Reilly v Reid, 45 NY2d 24; Matter of Gowan v Tully, 45 NY2d 32; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304; McLearn v Cowen & Co., 48 NY2d 696; Eidelberg v Zellermayer, 5 AD2d 658, 6 NY2d 815; Dye v Lincoln First Bank of Rochester, 38 NY2d 769.)
   OPINION OF THE COURT

Jones, J.

The rejection on the merits of a stockholders’ derivative action brought by one shareholder on behalf of the corporation against designated directors and officers for corporate waste and breach of fiduciary duty operates as a res judicata bar to a similar action instituted by another shareholder where the first action was not collusive or fraudulent, the second shareholder was not excluded from participation in the first action, and both actions arose out of the same underlying transaction or series of connected transactions.

Plaintiff, a stockholder of General Telephone & Electronics Corp. (GTE), instituted this derivative action on behalf of the corporation against individuals who were corporate officers or directors or both during the period when certain alleged waste of corporate assets and breach of fiduciary duty took place. After plaintiff served an interrogatory for document discovery but before service of an answer to the complaint, the corporation and the individual defendants Knowles and Page moved for dismissal or in the alternative for summary judgment on a variety of grounds. Special Term denied the motions with leave, to renew after discovery. The Appellate Division reversed and granted summary judgment to the moving defendants dismissing the complaint on the ground that, in the absence of evidence of fraud or bad faith (of which the court found none), the business judgment rule barred inquiry into the determination by a special litigation committee, appointed by the board to inquire into certain derivative actions, that it would not be in the corporation’s interest for plaintiff’s action to proceed. The Appellate Division also rejected plaintiff’s claim that the adequacy and appropriateness of the committee’s investigative procedures and methodologies (a subject open to judicial review in the application of the business judgment rule in a situation such as that here presented) had been found to be defective in an action by another stockholder (Cramer v General Tel. & Electronics Corp., 582 F2d 259) and impliedly determined that no such infirmity had been demonstrated in this case.

We conclude that plaintiff’s complaint was properly dismissed, but not on the ground that he had failed to make an adequate showing of bad faith or fraud or of infirmity in the investigative procedures of the special litigation committee. Dismissal on the latter ground was premature. The amended complaint was served on March 2, 1977; plaintiff’s interrogatory for documentary disclosure was served on April 22,1977. Then on May 24,1977 defendants, before making any response to the interrogátory, served their notice of motion to dismiss under CPLR 3211 (subd [a], pars 3, 5, 7) or alternatively for summary judgment under CPLR 3212 (subd [b]) thereby forestalling further efforts at disclosure (CPLR 3214, subd [b]). As we indicated in Auerbach v Bennett (47 NY2d 619), the business judgment rule does not foreclose judicial inquiry in cases such as this into the disinterested independence and good faith of the members of the special litigation committee and the adequacy and appropriateness of that committee’s investigative procedures and methodologies. In Auerbach no affidavit had been submitted in opposition to the motion for summary judgment and no application had been made at nisi prius for postponement of the summary judgment motion pending the conduct of disclosure procedures; the application, first made on appeal, was not timely. By significant contrast, in the present case, as indicated, an application for specified documentary discovery was outstanding and unanswered when the motion for summary judgment was made; additionally that motion was explicitly opposed on the ground that disclosure procedures had not been completed. Nor can that opposition be dismissed in this case, as it might in many cases, because the essential facts anticipated to be discovered were not identified with particularity (cf. CPLR 3212, subd [f]). Inasmuch as almost all possible evidentiary data with respect to the areas of permissible inquiry were within the exclusive possession of defendants and, by reason of their nature, could be described with any degree of specificity only by resort to imaginative speculation, it would be unreasonable to hold plaintiff in cases such as this to the customary requirement that he show that facts essential to the defeat of the motion may exist although they cannot be stated. “The business judgment doctrine should not be interpreted to stifle legitimate scrutiny by stockholders of decisions of management which, concededly, require investigation by outside directors and present ostensible situations of conflict of interest. Nor should the report of the outside directors be immune from scrutiny by an interpretation of the doctrine which compels the acceptance of the findings of the report on their face. In particular, summary judgment which ends a derivative action at the threshold, before the plaintiff has been afforded the opportunity of pretrial discovery and examination before trial, should not be the means of foreclosing a nonfrivolous action”. (Auerbach v Bennett, 64 AD2d 98, 107-108, mod 47 NY2d 619.) In the circumstances of this case it was premature to have granted summary judgment to defendants for insufficiency of plaintiff’s evidentiary showing under the principles of Auerbach.

Plaintiff’s claims should nonetheless have been dismissed under the doctrine of res judicata.

Amplification of this conclusion must be preceded by an examination of the facts surrounding this litigation. The relevant events have been set out in detail in our opinion in Auerbach v Bennett (47 NY2d 619, supra), disposing of another action also brought by a disgruntled stockholder of GTE. Summarized briefly they are as follows: In March, 1976 an audit committee, appointed by the corporation’s board of directors to determine whether the corporation had engaged in what was being disclosed as a common practice among similar multinational companies of making questionable payments to foreign officials, reported evidence that such payments had been made in substantial sums by GTE. The committee’s report was filed with the Securities and Exchange Commission and in a proxy statement was disclosed to corporate shareholders, three of whom (Auerbach, Limmer and Cramer) promptly instituted derivative actions against the corporate directors. In April, 1976 the board of directors created a special litigation committee consisting of three directors, who had joined the board subsequent to the challenged payments, to determine on behalf of the corporation what position the corporation should take with respect to the pending and similar shareholder derivative actions. After an investigation of more than six months, in November, 1976 the committee reported to the board that it Had found no breach of duty by the directors named as defendants in the pending actions, that there was no merit to the claims, and that it would not be in the best interests of the corporation for the actions to proceed. The corporation’s general counsel was accordingly directed by the special litigation committee to take the position in the Auerbach, Limmer and Cramer actions that that committee, acting with full authority of the board of directors, had concluded that it was not in the best interests of the corporation or its shareholders for the actions to continue to be prosecuted on GTE’s behalf; with respect to the actions pending in Federal courts counsel was instructed also to assert that the Federal claims were not meritorious and that accordingly jurisdiction over the pendent State-law claims was lacking.

Pursuant to the foregoing instructions, GTE’s attorneys moved for dismissal of the three pending derivative actions. Our court granted such relief in the Auerbach case, concluding that the plaintiff in that action (who had not sought disclosure or asserted that summary judgment should be deferred to permit disclosure procedures) had failed to make a sufficient evidentiary showing to entitle him to a trial either as to the disinterested, independence of the members of the special litigation committee or as to deficiencies in its investigative procedures (Auerbach v Bennett, 47 NY2d 619, supra). The Limmer action was dismissed for failure to state a claim under Federal securities laws and consequent lack of pendent subject matter jurisdiction (Limmer v General Tel. & Electronics, 76 Civ 1494 [SDNY, March 11, 1977]). The Cramer case was dismissed in an opinion which will be discussed subsequently (Cramer v General Tel. & Electronics, 443 F Supp 516); that disposition was thereafter affirmed by the United States Court of Appeals for the Third Circuit (582 F2d 259), and certiorari was denied by the Supreme Court (439 US 1129).

Although we reject defendants’ contention that what was determined in Auerbach to be the failure of the plaintiff in that action to disprove the disinterested independence and good faith of the members of the special litigation committee or the adequacy and appropriateness of its investigative procedures bars this plaintiff from his attempt to make such a showing in the present action, we conclude that the disposition of the Cramer action does have such effect.

Considering first the effect to be accorded the Auerbach action: Because the claim asserted in a stockholder’s derivative action is a claim belonging to and on behalf of the corporation, a judgment rendered in such an action brought on behalf of the corporation by one shareholder will generally be effective to preclude other actions predicated on the same wrong brought by other shareholders (Auerbach v Bennett, 47 NY2d 619, 627-628, supra; Gerith Realty Corp. v Normandie Nat. Securities Corp., 266 NY 525; Brinckerhoff v Bostwick, 99 NY 185, 194). The foregoing rule is qualified by the condition that the judgment being raised as a bar not be the product of collusion or other fraud on the nonparty shareholders and by the futher condition that the shareholder sought to be bound by the outcome in the prior action not-have been frustrated in an attempt to join or to intervene in the action that went to judgment (see 50 CJS, Judgments, p 332; cf. Breswick & Co. v Briggs, 135 F Supp 397). The latter condition derives from the fact that corporate shareholders — who in principle have an equal interest and right in seeing that claims for wrongs done to the corporation are prosecuted — should not be compelled against their will to have the prosecution of the corporate claims depend on the diligence and ability of the first shareholder to institute litigation when their own attempts to participate in the litigation have been rebuffed (see Dresdner v Goldman Sachs Trading Corp., 240 App Div 242) and no other appropriate provision for the protection of their interests has been made. So, in the present case, the fact that plaintiff Parkoff sought, as he did, to intervene in the Auerbach case and that his motion for intervention was opposed and denied, is a sufficient ground for rejecting defendants’ claim that the dismissal of that action precludes the present one.

There is a further reason, too, why Auerbach does not bar the present suit — the underlying misconduct that was the gravamen of the complaint in that action was separate from and did not embrace that on which plaintiff Parkoff relies. Auerbach was concerned with alleged improper payments of corporate funds to public officials in foreign countries ; Parkoff sets out four causes of action alleging misuse of corporate funds and assets in (1) disposition of GTE’s interest in the Philippine Long Distance Telephone Company without receiving full and fair consideration therefor, (2) payment of bribes to domestic State government employees and private domestic customers to obtain sales of GTE’s products or services and concealment of such payments, (3) payment of illegal domestic political contributions, and (4) payment to employees of GTE subsidiaries in foreign countries of what was illegal compensation in those countries. Thus, the underlying activities and events on which the respective causes of action were based in the two actions were distinct and did not constitute parts of a single transaction or a series of connected transactions (Matter of Reilly v Reid, 45 NY2d 24).

While in our view the disposition of the Auerbach litigation is not conclusive as to the Parkoff claims, for reasons which follow we reach a contrary result with respect to the disposition of the derivative action commenced by stockholder Cramer in the United States District Court for the Eastern District of Pennsylvania. The Cramer action was not limited solely to alleged wrongdoing by corporate officers and directors with respect to payments to foreign government officials as was Auerbach; by way of specification of facts concerning the acts complained of, the pleading incorporated by reference the 1976 proxy statement sent to GTE stockholders which in turn had reprinted in full the report of the audit committee appointed by the board following circulation, of reports of questionable activities by multinational corporations. The report itself disclosed that the committee’s review ranged far beyond simply the question whether corporate funds had been wrongfully paid to persons involved in foreign governments and that it also extended to the disposition of the Philippine telephone company interest held by GTE, to the propriety of payments made within the United States including payments made to State government employees for the purpose of securing GTE business and to payments of compensation to employees of GTE subsidiaries located in foreign countries. These latter matters, by Cramer’s effective incorporation of the committee’s report in his complaint, were thereby put in issue in that action. Inasmuch as these matters are also the substance of plaintiff Parkoff’s complaint, and because there has been no showing that he sought intervention and was excluded from participation in that action (as happened in the Auerbach litigation), we look to the disposition of the Cramer action and conclude that plaintiff is thereby barred from prosecuting the action now before us.

District Court Judge A. L. Higginbotham, before whom motions to dismiss or, in the alternative, for summary judgment dismissing the complaint had been made in the Cramer action, was called on to consider both the causes of action pleaded under the Federal securities statutes and the pender t State-law claims for breach of fiduciary duties by the GTE officers and directors named as defendants by shareholder Cramer. Although in a summary sentence in the early part of his opinion Judge Higginbotham stated that because it appeared that there were no viable Federal claims the pendent State claims would not be reached in light of its discretionary jurisdiction over such claims (443 F Supp, at p 520), the court nevertheless proceeded to an extended consideration of the merits of all pleaded claims and, after concluding that the Federal causes of action were insufficient, stated with respect to the pendent State-law claims (at p 525) : “The decision of the state court in Auerbach v. Bennett holds that as a matter of New York state law none of the defendants breached the fiduciary duty owed to GTE. The court also ruled that pursuant to the business judgment rule, GTE’s decision not to maintain any legal action was proper. Auerbach v. Bennett was a valid final judgment involving the same parties and the same cause of action alleged by Cramer. Therefore, the New York judgment bars the instant plaintiff’s pendent state claim under the doctrine of res judicata.” The court continued, stating that if res judicata did not preclude consideration of plaintiff’s State-law claims it would decline to exercise pendent jurisdiction (443 F Supp, at p 525). Although Cramer appealed from the District Court’s decision, the Court of Appeals, affirming that disposition, noted that there was no contention on the appeal that the District Court had erred in dismissing the State-law claims and, accordingly, the correctness of that dismissal was not decided (582 F2d 259, 266, n 8). The Cramer case must accordingly be treated as a disposition on the merits, affirmed on appeal. (See Restatement, Judgments 2d [Tent Draft No. 4], § 68, Comment o; cf. Malloy v Trombley, 50 NY2d 46; see O’Connor v G & R Packing Co., 53 NY2d 278.)

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

Chief Judge Cooke and Judges Jasen, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli taking no part.

Order affirmed.

      . Defendant Knowles died while the appeal was pending; the action was discontinued against him by stipulation.

      . To the assertion that recognition of a generalized demand for disclosure as sufficient to cause postponement of a motion for summary judgment might be thought to authorize and countenance fishing expeditions, it suffices to observe that in this type of case the plaintiff must necessarily be given more latitude to discover than in most and that the appropriate counterbalance lies in the vigilance of the court in its oversight of disclosure devices to issue appropriate protective orders so as to forestall their employment as instruments of corporate harassment without frustrating the legitimate interests of shareholder plaintiffs (CPLR 3103).

      . Auerbach commenced an action in New York Supreme Court, Westchester County; Limmer brought suit in the United States District Court for the Southern District of New York; Cramer proceeded in the United States District Court for the Eastern District of Pennsylvania. The latter two suits pleaded causes of action for Federal securities laws violations as well as causes of action for waste and breach of fiduciary duty asserted as pendent State-law claims.

      . The special litigation committee later considered other shareholders’ actions subsequently brought, including the present litigation, and reached and reported to the board of directors the same conclusions with respect to those actions. (Second Supplemental Report of Special Litigation Committee, April 5, 1977.)

      . Defendants can draw no comfort from the fact that Parkoff took no appeal from the denial of his application for intervention. Had defendants expected to impose res judicata consequences on Parkoff they should either have consented to, or at least refrained from opposing, his application for intervention. They cannot at once be the agents of his exclusion and yet lay claims to the same benefit as if he had been included.

      . The reference was to the dismissal of the complaint by Supreme Court, Westchester County, by order of April 29, 1977, a disposition ultimately confirmed by this court by the decision reported in 47 NY2d 619.

      . Appellant before us makes no claim that the disposition in Cramer was erroneous. Any such claim (on the ground, for instance that Cramer had sought and been denied intervention in Auerbach, or that the underlying transactions alleged in Cramer were different from those litigated in Auerbach, or that the decision in Auerbach relied on by the District Court was not a final judgment), even if made, would be unavailing, for the preclusive effect of a prior valid judgment in subsequent litigation on the same claim is in no way dependent on the correctness of the earlier judgment.


author: Jones, J. Fuchsberg, J.

text:
    Carlos Sinhogar, by His Guardian ad Litem Kenneth Clark, et al., on Their Own Behalf, and on Behalf of All Others Similarly Situated, Appellants-Respondents, v Carol Parry, Individually and as Assistant Administrator of Special Services for Children, et al., Respondents-Appellants.
    Argued April 29, 1981;
    decided June 18, 1981

      POINTS OF COUNSEL

      Marcia Robinson Lowry, George Kannar and Maria H. Sandoval for appellants-respondents.
    I. Because administrative decisions to place New York foster children in distant out-of-State institutions which do not meet New York’s statutory standards of care impinge upon constitutionally protected rights and entitlements, due process requires that those affected by such decisions have a meaningful opportunity to challenge or appeal them. (Zablocki v Redhail,
      434 US 374; Moore v East Cleveland, 431 US 494; Smith v Organization of Foster Families, 431 US 816; Roe v Wade, 410 US 113; Stanley v Illinois, 405 US 645; Pierce v Society of Sisters, 268 US 510; Griswold v Connecticut, 381 US 479; Prince v Massachusetts, 321 US 158; Wisconsin v Yoder, 406 US 205.) II. Plaintiffs have stated a cause of action alleging a violation of their right to appropriate care and treatment. (Matarella v Kelley, 349 F Supp 575; O’Connor v Donaldson, 422 US 563; Gary W. v State of Louisiana, 437 F Supp 1209; Inmates of Boys’ Training School v Affleck, 346 F Supp 1354; Matter of Quinton A., 68 AD2d 394, 49 NY2d 328; Eckerhart v Hensley, 475 F Supp 908; Halderman v Pennhurst State School & Hosp., 612 F2d 84; Rouse v Cameron, 373 F2d 451; O’Connor v Donaldson, 422 US 563; Wyatt v Stickney, 325 F Supp 781.) III. The court below erred in dismissing plaintiffs’ cause of action against defendant Toia in his individual capacity.

      Robert Abrams, Attorney-General (Robert J. Schack and Shirley Adelson Siegel of counsel), for State of New York, respondents-appellants.
    I. Plaintiffs failed to preserve their equal protection claim for review on appeal. Although cloaked in the guise of due process, their equal protection claim has no more merit on this appeal than it did when Special Term rejected it. (Youakim v Miller, 374 F Supp 1204, 425 US 231, 431 F Supp 40, 562 F2d 483, affd sub nom. Miller v Youakim, 440 US 125; Smith v Organization of Foster Families, 431 US 816.) II. Any due process right to foster care as a State-created benefit must include out-of-State placement. New York’s statutory and administrative provisions more than satisfy any arguable due process rights to prior notice and review of such placements. (Parham v J. R., 442 US 584; Smith v Organization of Foster Families, 431 US 816; Matter of Sanjivini K., 40 NY2d 1025; Matter of Carla L., 77 Misc 2d 363; McKeiver v Pennsylvania, 403 US 528). III. The court below properly found that plaintiffs have a statutory right to care, that the right was limited to available programs and to the presence of a bona fide treatment program at the care facility, and that any constitutional right to individualized treatment they arguably had was no broader than their statutory right.
      (Matter of Quinton A., 49 NY2d 328.) IV. Plaintiffs’ right to treatment claim, even if limited to a right to care, is not justiciable or cognizable in actions by individual plaintiffs. (Jones v Beame, 45 NY2d 402; Hoffman v Board of Educ., 49 NY2d 121; Donohue v Copiague Union Free School Dist.. 47 NY2d 440; Matter of Lavetie M., 35 NY2d 136.) V. State defendant Toia was properly held immune from personal liability for discretionary acts.

      Allen G. Schwartz, Corporation Counsel (Marjorie E. Bornes and Ronald E. Sternberg of counsel), for J. Henry Smith, respondent-appellant.
    The provisions of New York law governing foster care placements adequately protect the rights of foster children placed out of State. (Parham v J. R., 442 US 584; Smith v Organization of Foster Families, 431 US 816.)

      Carolyn A. Kubitschek and Norman Siegel for MFY Legal Services, Inc., amicus curiae.

    I. Parents have a right to due process of law to challenge the removal of their children in foster care to out-of-State facilities. (Smith v Organization of Foster Families, 431 US 816; Stanley v Illinois, 405 US 645; May v Anderson, 345 US 528; Moore v East Cleveland, 431 US 494; Armstrong v Manzo, 380 US 545; Meyer v Nebraska, 262 US 390; Caban v Mohammed, 441 US 380; Alsager v District Ct. of Polk County, 545 F2d 1137; People ex rel. Herzog v Morgan, 287 NY 317; People ex rel. Meredith v Meredith, 272 App Div 79, 297 NY 692.) II. Present procedures to review the proposed replacement of a child out of State are constitutionally inadequate. (Mathews v Eldridge, 424 US 319; Goldberg v Kelly, 397 US 254; Armstrong v Manzo, 380 US 545; Almenares v Wyman, 453 F2d 1075; Duchesne v Sugarman, 566 F2d 817; Stanley v Illinois, 405 US 645; Bell v Burson, 402 US 535; Smith v Organization of Foster Families, 431 US 816.)

      Charles Schinitsky, Steven G. Asin, Janet R. Fink and Carol Sherman for Legal Aid Society of City of New York, Juvenile Rights Division, amicus curiae.

    I. Plaintiffs have a constitutional right to individualized treatment. (Welsch v Likins, 373 F Supp 487, 550 F2d 1122; McRedmond v Wilson, 533 F2d 757; Johnson v Solomon, 484 F Supp 278; Martarella v Kelley, 349 F Supp 575, 359 F Supp 478;
      Matter of Lavette M., 35 NY2d 136; Rouse v Cameron, 373 F2d 451; Wyatt v Stickney, 325 F Supp 781, affd sub nom. Wyatt v Aderholt, 503 F2d 1305; Robinson v California, 370 US 660.) II. Presently existing foster care related review procedures are constitutionally inadequate because they do not require separate and independent counsel for the foster child. (Meyer v Nebraska, 262 US 390; Prince v Massachusetts, 321 US 158; Griswold v Connecticut, 381 US 479; Stanley v Illinois, 405 US 645; Smith v Organization of Foster Families, 431 US 816; Duchesne v Sugarman, 566 F2d 817; Matter of Gault, 387 US 1; Goss v Lopez, 419 US 565; Breed v Jones, 421 US 519; Planned Parenthood of Mo. v Danforth, 428 US 52.)
   OPINION OF THE COURT

Jones, J.

The procedures presently available to both children and their parents to obtain judicial review of out-of-State placement of emotionally disturbed and mentally retarded children meet the requirements of both the Federal and our State Constitutions.

This action was brought as a class action for declaratory and injunctive relief and for damages. Plaintiff Carlos Sinhogar (a pseudonym) is described in the complaint as an emotionally disturbed 17-year-old child who had been placed in the custody of the New York City Department of Social Services following an adjudication by Family Court that he had been neglected by his parents, both of whom have since died. It is alleged that on February 15, 1977 Carlos was sent to an institution in Roanoke, Virginia, which provided care to children who are mentally ill or mentally defective, or both. He is represented in this action by Dr. Kenneth Clark, his guardian ad litem.

Plaintiff Jeannette Morgan (also a pseudonym) is similarly described in the complaint as a 17-year-old emotionally disturbed child who was placed in the custody of the New York City Department of Social Services by her aunt in 1974. It is alleged that in May, 1976 Jeannette was sent to a school in Hialeah, Florida, which also provides care for children who are mentally ill or mentally defective, or both. She, too, is represented in this action by Dr. Kenneth Clark, who is likewise her guardian ad litem.

Plaintiff John Evans is described in the complaint as a retarded 16-year-old child living with his parents in Brooklyn, New York. It is alleged that he has been evaluated as in need of placement outside his home which his parents cannot afford and that defendants Smith and Parry have failed and refused to offer him placement within the State although they have offered placement for him outside the State. He is represented in this action by John and Sylvia Evans, his parents and guardians.

Named defendants in the action were: Carol Parry, Assistant Administrator of Special Services for Children, an agency within the New York City Human Resources Administration, the Department of Social Services (the agency alleged to be responsible for supervising and approving care for New York City children in need of care), J. Henry Smith, administrator of the Human Resources Administration of the City of New York and Commissioner of the New York City Department of Social Services, and Philip Toia, Commissioner of the New York State Social Services Department. Each of these defendants was named individually and in his or her official capacity.

Prior to the service of an answer on behalf of any of the named defendants, by order to show cause signed August 18, 1977, plaintiffs moved for partial summary judgment and for class action certification. On December 27, 1977 defendant Toia made a motion to dismiss the complaint for failure to state a cause of action on which relief could be granted and, on February 17, 1978, a motion to substitute Barbara B. Blum as Commissioner of the New York State Department of Social Services and to dismiss the complaint as to him personally.

By decision and order dated January 16, 1979 Supreme Court: (1) granted the motion for substitution; (2) denied the motion to dismiss as to Toia personally; (3) denied the application for class action status; (4) denied plaintiffs motion for partial summary judgment based on assertions that the out-of-State placements violate the provisions of the Social Services Law (§ 398, subd 6, par [g]) and that the placements were not provided for under section 374-a of that law (on the ground that questions of fact existed) ; (5) granted plaintiffs’ motion for partial summary judgment premised on the contention that out-of-State placements pursuant to the Interstate Compact on Placement of Children violated plaintiffs’ rights to due process, to the extent of directing defendants to submit to the court a proposal for a review procedure whereby a parent or guardian could challenge an out-of-State placement; (6) denied defendant Toia’s motion to dismiss the complaint on the ground that plaintiffs had not legally established the existence of a right to treatment; and (7) denied plaintiffs’ motion for summary judgment enjoining all further out-of-State placements and granted defendant Toia’s counter motion to dismiss the allegations in the complaint that out-of-State placements constituted an unlawful delegation by the State officials (98 Misc 2d 28).

On appeals by the city and the State officials defendants, the Appellate Division modified to declare out-of-State placement of foster care children pursuant to the Interstate Compact on Placement of Children (ICPC) constitutional and to grant defendant Toia’s motion to dismiss the complaint against him in his individual capacity, and as so modified, affirmed the order of Supreme Court. We now direct dismissal of the complaint to the extent that it seeks damages against Commissioner Blum and otherwise affirm the disposition at the Appellate Division.

First, we clear away the preludial underbrush. No objection was raised to the substitution of Barbara B. Blum as Commissioner of the New York State Department of Social Services. To the extent that plaintiffs assert a right to recover damages against Commissioner Blum their claim must be dismissed; claims against the State and its officers acting in their official capacity are cognizable only in the Court of Claims. For the reasons stated by Justice Joseph P. Sullivan at the Appellate Division, the complaint against Philip Toia in his individual capacity was properly dismissed (cf., also, 15k East Park Ave. Corp, v City of Long Beach, 52 NY2d 991). Finally in this category, we observe that both courts below have held, and we agree, that whether there has been a denial of the substantive constitutional rights of any of these three children and whether the statutory rights of any of them under sections 374-a and 398 (subd 6, par [g]) of the Social Services Law, have been violated cannot be determined on the present motions to dismiss and for summary judgment. Allegations have been made and questions of fact have been raised requiring disposition of these issues by trial, for which purpose the case will be remitted. Accordingly, it would be premature and inappropriate on the present appeal to address matters which can only be resolved after trial. There remain then for our consideration and disposition two basic contentions advanced by appellants: first, that irrespective of what may prove to have been the factual context in these particular cases, the Constitutions mandate that advance notice and an opportunity to be heard be afforded prior to each out-of-State placement; and, second, that the procedures now available for postplacement judicial review do not meet constitutional due process requirements.

We turn then to the substance of plaintiffs’ contention that present procedures for the out-of-State placement of emotionally disturbed and mentally retarded children deny them their constitutional rights to due process. Their argument is premised on a claim of constitutional rights of two sorts. They assert, first, that any out-of-State placement adversely and impermissibly affects what they characterize as “the fundamental right to an ongoing family relationship of the parents and children involved”, and, second, that such placement similarly affects what they describe as “the child’s separate, constitutionally protected entitlement to certain state-created benefits which, in this case, arise from New York statutes and regulations”. The asserted denial of the first such right is based on the fact that a placement hundreds or perhaps thousands of miles away from the home of parents and siblings will likely place severe strains on familial visitations and other communications. The claim of denial of the second such right is grounded in a lack of assurance that the quality of care in out-of-State facilities, including food, clothing, shelter and medical treatment, will equal that provided in in-State institutions which are under the supervision and control of city and State social service officials. The ultimate gravamen of their complaint is that there are presently no procedures available to plaintiffs or to their families to assure the adequate protection and enforcement of these two underlying “constitutional” rights.

Because there remain for disposition, following the development of factual evidence at trial, the claims advanced that the out-of-State placements of these three children have operated to infringe impermissibly the two substantive entitlements asserted on their behalf, it is unnecessary and would be inappropriate for us now to consider whether these plaintiffs do have either or both of the substantive constitutional rights that they claim or, if so, to delineate the contours of such rights or to address the propriety of the placements or the adequacy of the care and treatment thereby provided. Similarly, we refrain from consideration in the abstract of the legal standard by which the propriety of such placements or the adequacy of such care and treatment is to be judged. We are not sure that any legal template can be designed by the mechanical overlay of which on given factual situations the protection of the legitimate interests of children and parents can readily be measured. We decline plaintiffs’ invitation to make sweeping pronouncements. Accordingly, at this stage of the present litigation we do not express our agreement or disagreement with the standard of measurement adopted either at Supreme Court or in the Appellate Division. That issue is expressly left open for appropriate resolution in the light of the evidence to be introduced at trial.

The core issue before us on this appeal is whether procedures now available to the children and to their parents for review of the out-of-State placements made and the care and treatment received by plaintiffs in consequence thereof meet the mandate of constitutional requirement. We conclude that they do.

The review procedures available are to be measured against the constitutional standards prescribed by the Supreme Court of the United States. The constitutional sufficiency, from the view point of the foster parents, of New York’s statutory system for regulating placement of children in foster care has been determined (Smith v Organization of Foster Families, 431 US 816). In that case the court expressly rejected the contention that, assuming the presence of a “liberty” interest within the protection of the Fourteenth Amendment, considerations of due process mandated a preremoval judicial hearing (id., pp 847-856; cf. Parham v J. R., 442 US 584).

With respect to the present out-of-State placements, they did not constitute the initial interruption of the natural family setting or the transfer of the children from the natural parents to placement in foster care. That had occurred previously and is not the subject of our present review or concern; nothing said in this' opinion relates to the rights of children or their natural parents incident to the removal of the children from the natural family. What we address here are the constitutional rights of children who have already left the natural family setting when there is a subsequent transfer from foster care within the State to foster care in an out-of-State institution.

The Appellate Division detailed New York’s procedural scheme for judicial review of placements out-of-home and of changes in placements, as supplemented by the ICPC’s mandate for individual evaluation of the children and for independent review procedures by both the sending and receiving State, analyzed the statutory provisions, and found them sufficient when examined in the light of the recent Supreme Court decisions as to the due process rights of children (74 AD2d 204, 210-213). No sufficiently useful purpose would be served here by repetition or paraphrase of that careful exposition with which we are in agreement. We content ourselves with addressing the points of assault mounted by plaintiffs in our court, recognizing, as did the Appellate Division, that plaintiffs’ attack is basically premised on their contention that each emotionally disturbed or mentally retarded child placed in foster care is entitled to an individualized treatment program appropriate to his or her own needs and their ultimate focus is on what is asserted to be the impropriety of the placements in these instances and the insufficiency of the attendant care and treatment, measured against what plaintiffs contend are their statutory and constitutional rights — the substantive issues that we reserve in toto for resolution after trial.

With respect to what they assert are the constitutional deficiencies of available procedures for review of out-of-State placements and the care and treatment thereby furnished, plaintiffs advance serveral arguments. First, it is their submission that the natural parents are constitutionally entitled to prior notice of every prospective out-of-State placement and that they frequently do not receive advance notice of administrative decisions to make such placements. There is no such categorical constitutional right, and plaintiffs cite no authority so holding. Neither the Congress nor the Department of Health and Human Services has regarded prior notice or formal review procedures as in the category of fundamental due process rights or mandated provision therefor by all States receiving Federal foster care reimbursement.

Once an out-of-State foster care placement has been made, statutory provision is immediately available pursuant to which a parent or guardian may challenge the removal from an in-State placement and the transfer to an out-of-State placement. As the Appellate Division noted, administrative review may be had at the instance of “ [a]ny person aggrieved by such decision” in a fair hearing (Social Services Law, § 400, subd 2). The fair hearing determination in turn may be subjected to judicial scrutiny in a CPLR article 78 proceeding.

Additionally, and ultimately, a proceeding initially commenced under CPLR article 78 is available to review the determinations of any public official or administrative officer. Plaintiffs concede that “an Article 78 proceeding does provide a forum for the review of a decision to send a child to an out of state institution”. They find this unacceptable, however, inasmuch as it assumes knowledge on the part of the parent of the fact of the out-of-State placement and involves “a procedure so burdensome and costly as to be unavailable to almost all of the children and families whose lives have been affected by defendants’ out-of-state placement practices.” Unquestionably, means could be found to assure the opportunity sought by plaintiffs for timely and inexpensive participation of the natural parents in decisions with respect to out-of-State placements. The issue before us, however, is not whether it would be desirable to give parents advance notice of out-of-State placements, whether more expeditious or streamlined review procedures might be designed or whether as a matter of sound and fair governmental policy a more efficacious review procedure might be desirable or might be determined by the State and local administrative agencies or the Legislature to be preferable. The issue is whether the Constitutions mandate the provision of review procedures which are not now available and which would be beyond impairment or diminution by either administrative or legislative action. We conclude, in agreement with the Appellate Division, that they do not.

For the reasons stated, the order of the Appellate Division should be modified, without costs, to direct dismissal of the complaint to the extent that it seeks damages against Commissioner Blum, and, as so modified, affirmed.

Fuchsberg, J.

(dissenting in part). I would hold that the out-of-State placement of foster children without any prior notice or hearing violates their constitutional rights to family integrity and beneficial nonarbitrary treatment.

In thus meeting the critical due process issue presented in this case head-on, I, of course, do not believe its avoidance can be justified. This the majority seeks to accomplish by a general statement that factual issues need to be resolved. Such an inquiry apparently would focus on the development of facts from which it could be determined whether sections 374-a and 398 (subd 6, par [g]) of the Social Services Law have been violated. However, since it is undisputed that each of the cases here involved an out-of-State placement in connection with which no prior hearing was afforded to either the children or the parents and the statutes facially require no such hearing or notice, whether they were violated is irrelevant to a consideration of the constitutional question. Still to be decided would be whether the statutes, even if strictly adhered to, met the mandates of due process. The detour on which the majority now launches would, therefore, not be dispositive, for it would lead to a dead end at whose terminus no decisive constitutional ground is to be found (cf. Matter of Peters v New York City Housing Auth., 307 NY 519, 528 [Fuld, J.]) ,

In any event, the constitutional issues should not be foreclosed since these have been “fairly presented to us, and public interests require that [they] should be determined” (People ex rel. Unger v Kennedy, 207 NY 533, 541). It hardly needs reiteration here that New York State, the site of the Nation’s greatest confluence of social problems of the kind we meet in this case, has traditionally shown a deep concern for the fair legal treatment of their subjects. The public interest is apparent.

Turning then to due process, initially I observe that it is now well established that the proper analytical approach to an issue that falls within that basic constitutional concept is to look first at the nature of the interest at stake to see if it is within the protection of liberty and property (US Const, 14th Amdt; NY Const, art I, § 6; Board of Regents v Roth, 408 US 564, 570-571). Only after it is found that some procedural due process must be afforded are the “protections * * * the particular situation demands” to be ascertained (Morrissey v Brewer, 408 US 471, 481; see Mathews v Eldridge, 424 US 319, 335).

Relevant to the context in which we must apply this analytical course is the nature of foster care in New York. It has been defined authoritatively as “ ‘[a] child welfare service which provides substitute family care for a planned period for a child when his own family cannot care for him for a temporary or extended period, and when adoption is neither desirable nor possible’ ” (Smith v Organization of Foster Families [hereafter Smith v OFFER], 431 US 816, 823, citing Child Welfare League of America, Standards for Foster Family Care Service 5 [1959]). Under the New York statutory scheme, children may enter into foster care by voluntary commitment (Social Services Law, § 384-a) or by court order in neglect or abuse proceedings (Family Ct Act, generally art 10; see, especially, §§ 1052, 1055). Two of the children here, Jeannette Morgan and John Evans, entered voluntarily.

The consequences of voluntary placement do not include the formal termination of the parent-child relationship. While the law transfers “care and custody” to the agency (Social Services Law, § 384-a), the natural parent (or guardian) does not surrender legal guardianship. Indeed, the written instrument by which voluntary placement is arranged must, by statute, fix parental visitation privileges, which may not be changed subsequently except by written mutual consent or by court order (Social Services Law, § 384-a, subd 2, pa,r [b]). Moreover, so highly regarded is the continuance of the relationship that, if the right to visit is neglected, termination of parental rights may ensue (see Social Services Law, § 384-a, subd 2, par [c], cl [iv]; § 384-b, subds 4, 5, 7; Domestic Relations Law, § 111; Family Ct Act, § 611). The practical policy behind such provisions is to maintain and to “strengthen” the ties between the child and his or her parents (see Social Services Law, 384-b, subd 7, par [a]). The nature of the continuing parental role may also be seen in that the parent, absent termination, retains the right to have the child returned (Social Services Law, § 384-a, subd 2).

This background in mind, I address the issue of whether there are “liberty” interests which require that the children be accorded procedural protection before being sent out of State for institutional care. Since only the children are plaintiffs in this case, the rights which must be protected are their own, not their parents. As indicated, I would find that in this case there are two: family integrity and beneficial nonarbitrary treatment, a right which in turn is allied to concepts of personal autonomy. Family integrity provides a protectible interest for the two children, Jeannette Morgan and John Evans, who have families. Beneficial nonarbitrary treatment provides a protectible interest not only for these two, but also for Carlos Sinhogar, who has no parents.

At least on the Federal level, this half century has witnessed a progression of decisional law establishing a fundamental right to family integrity. Since its evolution as a due process liberty interest began with the rights to be accorded parents vis-a-vis their children, our discussion also starts from that point. In the seminal case of Meyer v Nebraska, the court held unconstitutional a State law prohibiting the teaching of a foreign language to a child who had not yet successfully completed the eighth grade because it deprived parents of their Fourteenth Amendment liberty to “establish a home and bring up children” (262 US 390, 399). (See, also, Pierce v Society of Sisters, 268 US 510, 534-535; Prince v Massachusetts, 321 US 158, 166.)

To the same effect, more recently the court, in Wisconsin v Yoder (406 US 205), went so far as to uphold the right of Amish parents to refuse to send their children to school beyond the eighth grade on the ground that the parental exercise of freedom of religion was superior even to the State’s interest, as parens patriae, in promoting education.

An offshoot of these adjudications, whose common nexus is the parental interest in how their children are raised, are others which focus on the right of a parent to custody. In these, the family unit is of paramount concern. So, in May v Anderson (345 US 528) and Armstrong v Manzo (380 US 545), the court established that before parents’ rights to the care, custody, and companionship of children, “ [r] ights far more precious * * * than property rights”, could be cut off, a court must have in personam jurisdiction over the parent (May v Anderson, supra, p 533). In Armstrong, the court was short and pointed: “[A]s to the basic requirement of notice itself there can be no doubt, where, as here, the result of the judicial proceeding was permanently to deprive a legitimate parent of all that parenthood implies” (Armstrong v Manzo, supra, p 550).

Although May and Armstrong were written in terms of the rights of a parent to his or her children, their broader implications became evident in Stanley v Illinois (405 US 645) and Moore v East Cleveland (431 US 494), where the court implicitly recognized that the interest at stake is a relational one, that is one which takes in the relationship between parent and child and belongs to both.

In Stanley, at issue was an Illinois law which provided that, upon the death of the mother, the children of unwed fathers become wards of the State. As relevant here, the court concluded that due process required individualized hearings to determine whether particular fathers were unfit before they could be separated from the children. In so deciding, the court noted that it had “frequently emphasized the importance of the family” (Stanley v Illinois, supra, p 651) and stated that the “integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 399” (id.). The citation to Meyer for the family integrity proposition, of course, is not a precise application of that case. It is, however, representative of the manner in which the court had begun to meld its cases dealing with family and to express the protection accorded to that relationship rather than in terms of the parents alone.

In Moore, the court dealt with the fundamental right of family members to live together. It struck down a Cleveland ordinance which defined “family” in such a way that appellant’s “extended family” (a mother, son and two grandsons, who were cousins) could not legally occupy a single dwelling unit. While recognizing that in some circumstances a State may intrude on choices concerning family living arrangements, the court held this ordinance could not survive constitutional scrutiny.

It is of note that, in addition to the Supreme Court finding a right to “family integrity” in the Fourteenth Amendment’s right to “liberty”, the court has also begun to rely on the fundamental right to privacy, which too is rooted, at least in part, in the Fourteenth Amendment, as the basis for justifying numerous decisions relating to the family (e.g., Griswold v Connecticut, 381 US 479 [permitting the distribution of information on contraception]; Loving v Virginia, 388 US 1 [upholding a racially mixed couple’s fundamental right to marry] ; Zablocki v Redhail, 434 US 374 [overturning a requirement of a court order to permit the marriage of one under a duty to support minor children not in that parent’s custody]).

Interestingly, the right to privacy has, in a sense, been given retroactive effect. Specially, even though this right had not yet been officially identified by the Supreme Court when the Meyer, Pierce, and Prince cases were decided, the rights they vindicated have since been included within the toll of interests so protected (see Carey v Population Servs. Int., 431 US 678, 684-685).

Thus, the United States Supreme Court has repeatedly pronounced that natural families have a fundamental right to be together. Since a child is an integral member of the family, these decisions necessarily protect his or her family-related rights. Surely, included is a right to be in the care and custody of the family (Prince), to have the parents’ companionship (May), and to at least be given notice before being deprived “of all that [family] implies” (Armstrong ).

The decision to send a child hundreds or thousands of miles from parents and siblings necessarily affects in a profound way these fundamental rights of a child to an ongoing family relationship. Out-of-State placements inevitably and severely burden the attempts of the families involved to maintain their relationships. Visiting is more difficult; phone calls are more expensive; contact is more sporadic; emotional ties become more strained. Both physically and psychologically, the family is stretched to its limits and beyond.

Smith v OFFER (431 US 816, supra) and Parham v J. R. (442 US 584), two recent Supreme Court cases cited in the majority’s opinion, are not to the contrary.'

In Smith, the plaintiffs were individual foster parents and an organization of foster parents. The substance of the complaint was that the New York statutory procedures governing the removal of foster children from foster homes violated the due process and equal protection clauses of the Fourteenth Amendment. The plaintiffs’ claim was that, once a child had lived in a foster home for a year or more, the psychological ties between the child and the foster parents create a true “psychological family”, which has a “liberty interest” in its survival. Although the court refused to “dismiss the foster family as a mere collection of unrelated individuals”, it found only “the most limited constitutional ‘liberty’ in the foster family” (Smith v OFFER, supra, p 844-845, 846 [emphasis added].) Moreover, it did not forget that this “liberty” could be in “tension” with the constitutional protection accorded the natural family, a “liberty interest that derives from blood relationship, state-law sanction, and basic human right” (Smith v OFFER, supra, p 846). The “tension” would come from the fact that the natural parents, under New York law, retain the absolute right to the return of the child in the absence of a court order. To read this case, which, while severely limiting the rights of foster parents, is a veritable ode to natural families, as suggesting that there is no “liberty” interest for these children is to misapprehend its import.

In Parham, one issue was what process was constitutionally due a minor child whose parents seek State administered institutional mental health care for the child. For the purposes of that decision, the court assumed “that a child has a protectible interest, not only in being free of unnecessary bodily restraints but also in not being labeled erroneously by some persons because of an improper decision by the state hospital superintendent” (Parham v J. R., supra, p 601). Such an assumption simply is not in conflict with a holding that a child has a liberty interest in family integrity.

Now, all this leaves little room, if any, to doubt that the Federal Constitution, as interpreted by the United States Supreme Court, manifestly supports a holding that children have a constitutional right to family integrity. However, even if that Constitution did not extend so.far, the public policy of this State, expressed in implementing statutory and decisional law, but, most emphatically, in our State Constitution’s repeated concern for the sociallv deprived (e.g., NY Const, art XVII, §§ 1, 3, 4; art XVIII, § 1; see Matter of Levy, 38 NY2d 653, 658-659) , makes it almost inconceivable that the due process provision of the New York Constitution (art I, § 6) not afford the children the higher protections that would then be necessary. In such circumstances, States are free to provide greater rights for their citizens through their own Constitutions (Cooper v Morin, 49 NY2d 69, 79; Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-161; People v Isaacson, 44 NY2d 511, 519-520; People v Hobson, 39 NY2d 479, 483-484; People v Arthur, 22 NY2d 325, 328-329; see, generally, Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va L Rev 873, 891-907).

In so concluding, we are not swayed, as is the majority, by the statistically averaged protection provided by our sister States, whose own Constitutions no doubt were responsive to the peculiar social, demographic and political climates in which each was produced. Certainly, our guide need not be the least common denominator. And, that our standards are not newly elevated today appears from our unanimous declaration that “[n]o court can, for any but the gravest reasons, transfer a child from its natural parent to any other person * * * since the right of a parent, under natural law, to establish a home and bring up children is a fundamental one and beyond the reach of any court” (People ex rel. Portnoy v Strasser, 303 NY 539, 542 [Desmond, J.] ; see Matter of Jewish Child Care Assn. of N. Y. [Sanders], 5 NY2d 222, 229; Matter of Spence-Chapin Adoption Serv. v Polk (29 NY2d 196, 203; cf. Weiss v Weiss 52 NY2d 170, 174-175).

All this said, it still becomes necessary to treat with the Carlos Sinhogar case separately. He has no family, and so, no constitutional interest in maintaining family integrity as such. Nonetheless, along with the other children, he shares a right to be protected against the power of the State in this context. For children have a right to personal autonomy — a privacy right having its roots in the First, Fourth and Fifth Amendments, the penumbra of the Bill of Rights, the Ninth Amendment and in the concept of liberty guaranteed by the Fourteenth Amendment (see Planned Parenthood of Mo. v Danforth, 428 US 52, 60 [parental consent requirement to a minor’s legal abortion struck down]; Roe v Wade, 410 US 113, 152).

That right, however, necessarily is circumscribed by the State’s assumption of the care and custody of the children. But the State’s custodial obligation does not give it unlimited sway over the children’s destinies. The State’s responsibility in these circumstances is to act in their best interests and not arbitrarily. A child, whether a parentless ward of the State, as is Carlos, or one whose custody has been transferred to the State, therefore, may expect beneficial and nonarbitrary treatment at its hands. A due process right, under our Federal and State Constitutions, exists to protect those expectations. The right encompasses the children’s interests in being free from bodily restraint and from being shipped across the country with no more protection against arbitrary treatment than if they were apples or oranges.

As we have now determined that all of the children have a constitutional liberty interest at stake, I proceed to the final step of our analysis — the evaluation of available procedural safeguards and determination of whether they vindicate the rights of the children. At this juncture, however, fair heed should be given to the fact that a family’s integrity is to some extent compromised by the voluntary placement of a child into foster care. The State becomes an additional party to the relationship — a party which is sought out to aid the family. In this setting, it cannot be persuasively argued that the child should be accorded the full panoply of procedural protections. In fact, plaintiffs do not contend that the decision to place a child who has already been removed from his or her home to an out-of-State facility is of equal constitutional significance with an initial decision to remove the child (i.e., a nonvoluntary placement into foster care) or a decision to terminate forever the parent-child relationship. Rather, the plaintiffs assert that even a qualified relationship with their parents is entitled to some constitutional protections.

But the New York statutory scheme provides none. As to the miscellaneous New York statutes to which the majority alludes, in main solely by reference to the Appellate Division’s disposition, on analysis, taking them one by one, they turn out to furnish no protection to the children.

Section 400 of the Social Services Law, providing neither notice nor a hearing prior to the out-of-State placement, is a postremoval remedy in the form of an administrative fair hearing (see People ex rel. Ninesling v Nassau County Dept, of Social Servs., 46 NY2d 382, 386). While it may be an effective appellate vehicle for foster parents who unsuccessfully contested, in a preremoval conference, a new placement of their foster child (cf. Smith v OFFER, 431 US 816, 830, 853, supra), it cannot be used to thwart or even to discuss the merits of an impending out-of-State placement. Article 78 review of a section 400 hearing could, therefore, be of no benefit to the children.

Despite the majority’s protestations to the contrary, a proceeding initially commenced under article 78 is also inadequate. The “arbitrary and capricious” standard (CPLR 7803), although proper to review an administrative fair hearing, is inapposite in an instance in which a decision concerning a child’s fundamental rights is being examined de novo after the decision has been implemented.

Section 392 of the Social Services Law, requiring periodic review of a child’s placement in foster care, is ineffective in that the scheduling of its hearing bears no relationship to the decision to send a child out of State, and the limited statutory dispositional alternatives do not permit a review of the judgment to send a child out of State.

With regard to section 384-a of the Social Services Law, which sets out the terms of a parent’s voluntary placement of a child into foster care, its only possible relevance is that a parent could invoke its terms to have the child returned to the parent’s custody. As it provides, however, no review of the decision to place a child out of State, if the parent cannot resume custody of the child, it is of absolutely no use.

Section 358-a of the Social Services Law, primarily intended as a funding device to trigger the flow of Federal dollars (see NY Legis Ann, 1973, p 201), is also unsatisfactory since the issue at a hearing under it is the voluntariness of a parent’s transfer of custody, not whether a placement by the State is in the child’s best interests.

Finally, while various provisions of the Family Court Act (§§ 249, 741, 742, 1041, 1042, 1112) may satisfy due process with regard to how the State initially intervenes in the parent-child relationship and how the State deprives a juvenile of his or her liberty in the first instance, they have nothing to do with the availability of a regular review procedure to challenge a decision to send a child to an out-of-State institution.

Now, as to the New York edition of the Interstate Compact on the. Placement of Children (Social Services Law, § 374-a), that is also valueless as a form of procedural protection. Under that statute, the sending agency must provide the appropriate public authorities in the receiving State with the child’s name, date and place of birth, the names and addresses of the child’s parent or guardian, the name and address of the agency or institution to which the sending agency proposes to place the child and a statement of the reasons for the proposed action. While the authorities in the receiving State may request additional information, their only obligation is to notify the sending State that the “proposed placement does not appear to be contrary to the interests of the child” (Social Services Law, § 374-a, art III [emphasis added]). This is all that is required. There is no notice to the child nor to the parents that the process is taking place, and there is no opportunity for the placement decision to be questioned.

It follows that, contrary to the Appellate Division’s determination that the scant language and requirements of the compact constitute an independent individual review of each child’s placement and, therefore, comport with the requirements of Parham, its procedures do not meet even the minimal standards.

Specifically, in Parham, in order to decide what process was required to meet the child’s “assumed” constitutional interest, the court relied heavily on the presumption that parents are more mature and better able to make difficult decisions. Of even greater importance, however, was the fact that “historically it has been recognized that natural bonds of affection lead parents to act in the best interests of their children” (442 US 584, 602). Despite this deference to parental decisions, the court concluded that the risk of error was sufficiently great that there must be a “neutral factfinder” (id., p 606). A staff physician, who independently freely evaluated the child’s mental and emotional condition and the need for treatment, was found to suffice.

Although the court did not explicitly detail the components of the evaluation, the type it envisioned can be seen in the procedures it sanctioned. There was a private examination and interview of each child, a review of the child’s relevant medical records and an interview with the parents. Then, “the admissions team [made] a diagnosis and [determined] whether the child [would] likely benefit from institutionalized care” (Parham v J. R., supra, pp 614-615 [emphasis added]). If the condition was not met, then admission would be refused. A formal or quasi-formal hearing was not considered necessary and, indeed, was thought to pose a danger of a “significant intrusion into the parent-child relationship” as it would pit the parents and child against each other and “be at odds with the presumption that parents act in the best interests of their child” (id., at p 610). While this evaluation process is not all that might be desired, it is significantly greater than that required under the compact.

Moreover, it is to be observed that Parham, at best, applies only to Carlos, not to the children who have parents. In this connection, it should be remembered that the constitutional “liberty” sought to be protected in the two cases is not the same. The difference in the type of interest to be protected affects the manner of protection. In Parham, the parent and the child were in adversary positions with the child seeking to contest the parental decision of confinement in a mental institution, the State thus being allied with the parents. In the court’s “mind”, only minimal process was needed because of the presumption that parents act in the best interests of their child. On the other hand, the interests of the parents and their children here are not in conflict. Their interest is a common one: the maintenance of the family as an integral unit. Consequently, according children procedural protections, before their being placed out of State, would offend no principle set out in Parham. Instead, it would be to recognize a basic liberty and to safeguard it.

For all these reasons, I would not only modify the order of the Appellate Division as has the majority, but, additionally, I would modify it so as to require the defendants to grant a hearing to each of the plaintiffs on appropriate notice in accordance with this opinion.

Judges Jasen, Gabrielli and Wachtler concur with Judge Jones ; Judge Fuchsberg dissents in part and votes to modify in a separate opinion in which Chief Judge Cooke and Judge Meyer concur.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.

      . We are told that the foster care placements described in the complaint are no longer in effect and that there have been several other changes in the status of the individual plaintiffs. Such factual developments, while they will be relevant on trial, do not affect the legal issues on which our disposition of the present appeal is based.

      . Plaintiffs’ contention that the out-of-State placements violated the constitutional equal protection clauses was adverted to but was not resolved.

      . No appeal was taken from the denial of class action status. Accordingly, only the claims of the three individual plaintiffs are in issue.

      . Plaintiffs’ appeal to our court taken as of right, except insofar as it was taken from that portion of the order of the Appellate Division that granted defendant Toia’s motion to dismiss the complaint against him in his individual capacity, was dismissed on the ground that the remainder of the Appellate Division order was nonfinal (50 NY2d 1022, mot to vacate dismissal den 51 NY2d 797). Plaintiffs thereupon made application to the Appellate Division for permission to appeal from the nonfinal portion of the order of that court and permission was granted. At the same time that court also granted permission to defendant Toia to cross-appeal and later granted defendants Parry and Smith similar permission.

      . We perceive no sufficient reason to erect a different or more demanding set of standards under our State Constitution.

      . As was observed at the Appellate Division, in the event of a judicially ordered out-of-State placement the parents would receive notice (74 AD2d 204, 210-211).

      . Comparison with practice in other States may be considered as indicating whether a particular practice is so widely followed as to suggest that it is to be ranked as fundamental (McKeiver v Pennsylvania, 403 US 528, 548). The Children’s Defense Fund conducted a survey of all 50 States for the period March to July, 1976 (Children Without Homes, Children’s Defense Fund, Washington, D.C., 1978). It found that six States had a rudimentary administrative procedure applying, in effect, more stringent review procedures (other than the ICPC) to out-of-State placements. One other State was reported to be considering administrative action (op. cit., pp 68-70). The remaining 43 States apparently made no administrative provision for prior notice or review. Not one State was reported to give parents or children greater statutory rights to notice of a placement out of State than of one within the State or to authorize challenges in the one case but not in the other except to the extent provided in the Interstate Compacts on Placement of Children, on Mental Health or on Juveniles — all of which are law in New York (Social Services Law, § 374-a; Mental Hygiene Law, § 67.07; L 1955, ch 155, §§ 1-6 [this compact has not yet been fully implemented; inasmuch as New York is not party to any supplementary agreement for transfer of juvenile delinquents for institutional care in another State, the Compact on Juveniles is only used for transfer (without a prior hearing) of adjudicated delinquents on probation]).

      . Congress imposed its recent grant of “procedural safeguards * * * [for] parental rights pertaining to the removal of the child from the home of his parents [and] to a change in the child's placement” only if the State applies for additional (i.e., above 1979 level) foster care reimbursement under title IV-B or title IV-E of the Social Security Act (Pub L 96-272, § 101, subd [a], par [1], enacting tit IV-E; US Code, tit 42, § 675, subd [5], par [C]). That law makes no distinction, however, between placement within and without the State. Proposed implementing regulations would require States applying for additional reimbursement to “develop a Statewide procedure for approving out-of-State placements or placements beyond a specified distance from the child’s home” (45 CFR 1357.30 [d] [2] [i] ; 45 Fed Reg 86815 [Dec. 31, 1980]) to give prior written notice to the parents and oral notice to the child (except in an emergency) of any plans to remove a child from the home or to change a placement (45 CFR 1357.30 [d] [6] [i] [A]-[B], [ii] [A]-[C], [E] ; 45 Fed Reg 86816) and to insure that the plans are discussed with the parent and any objections reviewed (45 CFR 1357.30 [d] [6] [ii] [D] ; 45 Fed Reg 86816). These regulations, too, would apply only if the State chose to apply for title IV-E or additional title IV-B funds. As of the date’ of the submission of the Attorney-General’s brief, New York had not determined whether to apply for funds under Public Law 96-272.

      . Although the majority opinion phrases the issue in terms of “emotionally disturbed and mentally retarded children”, it is the rights of foster children placed in out-of-State institutions which are at stake.

      . The out-of-State placement in Vermont of the third named plaintiff, John Evans, a retarded 16 year old, who appears in this action by his parents, had not been effected at the time the action was initiated. Subsequent to the commencement of this proceeding, however, his parents accepted a placement for him in southern New Jersey, pursuant to a stipulation with defendants which expressly reserved John Evans’ claims in this action.

      . Each of these sections authorizes the State’s public welfare officials to place children in foster care in out-of-State institutions. Section 374-a of the Social Services Law is New York’s enactment of the Interstate Compact on the Placement of Children.

      . It is not surprising, therefore, that, notwithstanding the majority’s unreadiness to do so now, both courts below passed directly on the constitutional issue. Special Term reached what it terms “the inescapable conclusion that there is a legally recognizable interest” in the family, but held that the New York procedures did not protect it (Sinhogar v Parry, 98 Misc 2d 28, 38). It thereupon granted partial summary judgment to the plaintiffs on this due process issue and ordered the defendants to prepare a proposed review procedure. The Appellate Division also recognized “the substantive and procedural protection to which the integrity of family life is entitled” (Sinhogar v Parry, 74 AD2d 204, 210). It disagreed, however, with Special Term on the adequacy of the safeguards New York provides. In short, though they differed as to whether the protections were sufficient, both courts, as we do now, met the issue.

      . I shall not here analyze plaintiffs’ contention that they are entitled to certain State-created benefits since that equal protection claim is not properly before us, Special Term having failed to resolve it and no appeal being taken on this ground.

      . For an informative discussion of foster care in New York, see Note, The Fundamental Right to Family Integrity and Its Role in New York Foster Care Adjudication (44 Brooklyn L Rev 63, 75-87).

      . Yoder, however, has been criticized by commentators for concentrating on the rights of parents, rather than of parents and children both (see, e.g., Richards, The Individual, the Family and the Constitution: A Jurisprudential Perspective, 55 NYU L Rev 1, 42-43).

      . Family integrity was also protected, according to the court, by the equal protection clause and the Ninth Amendment (Stanley v Illinois, 405 US 645, 651).

      . Parham also raised the problem of bodily restraint with respect to a “ward” of the State. How that affects the plaintiff Carlos Sinhogar because he is parentless is discussed separately at pages 444-445 of this opinion.

      . The compact does not prohibit an enacting State from adopting supplemental legislation granting procedural protections to its children before deciding to send them out of the State. But our Legislature has adopted none.

      . The Supreme Court’s failure to adequately safeguard the children’s interests has been roundly criticized (see Richards, The Individual, the Family, and the Constitution: A Jurisprudential Perspective, 55 NYU L Rev 1, 57-61; Supreme Court, 1978 Term, 93 Harv L Rev 62, 89-99; Mabbutt, Juveniles, Mental Hospital Commitment and Civil Rights: Case of Parham v J. B., 19 Journal of Family L 27; Comment, Postadmission Due Process for Mentally Ill and Mentally Retarded Children after Parham v J. B., and Secretary of Public Welfare v Institutionalized Juveniles, 29 Catholic Univ L Rev 129).