text:
    The People of the State of New York, Respondent, v Frank Anderson, Appellant. The People of the State of New York, Respondent, v Michael Jones, Appellant. The People of the State of New York, Respondent, v Nelson Salsedo, Appellant. The People of the State of New York, Respondent, v Roger Allen, Appellant. The People of the State of New York, Respondent, v Jose Alicea, Appellant.
    Argued October 16, 1985;
    decided December 26, 1985

      POINTS OF COUNSEL

      Lisabeth Harrison, William E. Hellerstein and Philip L. Weinstein for appellant in the first above-entitled action.
    The indictment was properly dismissed under CPL 30.30 where the People made a timely declaration of "readiness” but subsequently sought more time to obtain certain Rosario material without offering any excuse for their failure to obtain the material within the time prescribed by the statute (CPL 30.30). (People v Kendzia, 64 NY2d 331; People v Hamilton, 46 NY2d 932; People v Brothers, 50 NY2d 413; People v Giordano, 56 NY2d 524; People v Ford, 62 NY2d 275; People v Dean, 45 NY2d 651; People v Douglass, 60 NY2d 194; People v Colon, 110 Misc 2d 917, 59 NY2d 921; People v Sturgis, 38 NY2d 625; People v Spruill, 47 NY2d 869.)

      Robert M. Morgenthau, District Attorney (Steven Chananie and Norman Barclay of counsel), for respondent in the first above-entitled action.
    The People’s timely announcement of readiness for trial was affected neither by the failure to obtain the minutes of defendant’s parole revocation hearing prior to trial nor by the pretrial adjournment granted so that the minutes might be produced. (People v Winchell, 64 NY2d 826; People v Robles, 27 NY2d 155, 401 US 945; People v Kendzia, 64 NY2d 331; People v Rosario, 9 NY2d 286; People v Zanotti, 30 NY2d 926; People v Sanders, 31 NY2d 463; People v Ballott, 20 NY2d 600; People v Ward, 121 Misc 2d 1092; Matter of John M., 104 Misc 2d 725.)

      Daniel E. Rosen and William E. Hellerstein for appellant in the second above-entitled action.
    The People may be charged pursuant to CPL 30.30 (4) (a) with unreasonable delays which either precede or follow a declaration of readiness when those delays are within their control, and they may be charged pursuant to CPL 30.30 (3) (b) with delays which occur after they become unready due to unexceptional circumstances (CPL 30.30). (People v Giordano, 56 NY2d 524; People v Brothers, 50 NY2d 413; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498; People v Ford, 62 NY2d 275; Danann Realty Corp. v Harris, 5 NY2d 317; People v Olah, 300 NY 96; People v Moorhead, 61 NY2d 851; People v Hamilton, 46 NY2d 932; People v Osgood, 52 NY2d 37; People v Cole, 90 AD2d 27.)

      Elizabeth Holtzman, District Attorney (Roseann B. MacKechnie and Barbara D. Underwood of counsel), for respondent in the second above-entitled action.
    I. Once the People have made a timely assertion of their readiness for trial, they have satisfied the requirements of CPL 30.30. Delays in the period between readiness and trial can provide no basis for dismissal under the statute. (People v Giordano, 56 NY2d 524; People v Anderson, 105 AD2d 38, 64 NY2d 1130; People v Josefson, 100 AD2d 630; People v Evans, 99 AD2d 535; People v Morrell, 97 AD2d 703; People v Olah, 300 NY 96; People v Kendzia, 64 NY2d 331.) II. If postreadiness delays are relevant on a CPL 30.30 claim, only those delays caused by the People and which affect their readiness for trial are chargeable to them. (People v Hamilton, 46 NY2d 932; People v O’Neal, 99 AD2d 844; People v Alicea, 109 AD2d 1083; People v Runion, 107 AD2d 1080; People v Hawkins, 79 AD2d 743; People v Williams, 72 AD2d 950; United States v Pollak, 364 F Supp 1047, 492 F2d 1237; People v Sanchez, 65 NY2d 436; People v Parker, 57 NY2d 136; People v Brothers, 50 NY2d 413.)

      Ruth S. Sharfman and William E. Hellerstein for appellant in the third above-entitled action.
    The trial court correctly dismissed the indictment against appellant pursuant to CPL 30.30 where months after declaring himself "ready,” the prosecutor was unable to proceed to trial when a courtroom became available, because he had discovered, on the eve of trial, by reading the Grand Jury minutes, that there had been a pretrial identification by a prosecution witness and no notice had been given to the defense. (People v Colon, 110 Misc 2d 917, 112 Misc 2d 790, 59 NY2d 921; People v Osgood, 52 NY2d 37; People v Kendzia, 64 NY2d 331; People v Hamilton,, 46 NY2d 932; People v Giordano, 56 NY2d 932; People v Brothers, 50 NY2d 413; People v Dean, 45 NY2d 651; People v Berkowitz, 50 NY2d 333.)

      Robert M. Morgenthau, District Attorney (Phyllis A. Monroe and Amyjane Rettew of counsel), for respondent in the third above-entitled action.
    The People announced their present readiness for trial, in good faith, well within six months of the arraignment, and that declaration of readiness was not affected, much less retroactively invalidated, by their belated notification of one pretrial identification. (People v Brothers, 50 NY2d 413; People v Kendzia, 64 NY2d 331; People v Moorhead, 61 NY2d 851; People v Giordano, 56 NY2d 524; People v Winchell, 64 NY2d 826; People v Robles, 27 NY2d 155, 401 US 945; People v Douglass, 60 NY2d 194; People v Berkowitz, 50 NY2d 333.)

      Judith Waksberg and William E. Hellerstein for appellant in the fourth above-entitled action.
    The indictment was properly dismissed by the hearing court under CPL 30.30 when, more than six months after the commencement of the case, the prosecutor discovered he was lacking Rosario material and informed the court that, contrary to his earlier assertion, he was not ready for trial (CPL 30.30). (People v Kendzia, 64 NY2d 331; People v Sturgis, 38 NY2d 625; People v Osgood, 52 NY2d 37; People v Brothers, 50 NY2d 413; People v Berkowitz, 50 NY2d 333; People v Hamilton, 46 NY2d 932; People v Colon, 110 Misc 2d 917, 112 Misc 2d 790, 59 NY2d 921; People v Brown, 104 Misc 2d 157; People v Kelly, 62 NY2d 516; People v Douglass, 60 NY2d 190.)

      Robert M. Morgenthau, District Attorney (Donna Krone and Amyjane Rettew of counsel), for respondent in the fourth above-entitled action.
    The People’s good-faith announcement of readiness for trial was not vitiated by their later realization that they had not yet obtained all the Rosario material. Moreover, continuances granted for defense motions, on defense request or consent, or because of defense counsel’s unavailability, were not chargeable to the People. (People v Brothers, 50 NY2d 413; People v Cole, 90 AD2d 27; People v Kendzia, 64 NY2d 331; People v Hamilton, 46 NY2d 932; People v Williams, 72 AD2d 950; People v Giordano, 56 NY2d 524; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498; People v Salsedo, 107 AD2d 579, 64 NY2d 1138; People v Josefson, 100 AD2d 630; People v Piening, 99 AD2d 583; People v Morrell, 97 AD2d 703.)

      John L. Goodell for appellant in the fifth above-entitled action.
    Where defendant demands independent examination of alleged controlled substances, and obtains a court order directing the District Attorney to deliver the substances to defendant’s chemist for examination, and the District Attorney later calls the case ready for trial, having made no effort to arrange the delivery, and because of the District Attorney’s continued delay in requesting delivery of the substances, the case is not ready for trial eight months after prosecution began, the court should have granted defendant’s motion to dismiss for failure to provide a speedy trial under CPL 30.30. (People v Hamilton, 46 NY2d 932; People v Brothers, 50 NY2d 413; People v Berkowitz, 50 NY2d 333; People v Cole, 90 AD2d 27; People v Osgood, 52 NY2d 37; People v Thompson, 111 Misc 2d 521, 120 Misc 2d 444; People v White, 40 NY2d 797; People v Rivera, 72 AD2d 922; People v Zvonik, 40 AD2d 840.)

      John T. Ward, District Attorney, for respondent in the fifth above-entitled action.
    The People’s case was ready for trial within the six-month statutory period. (People v Heller, 122 Misc 2d 991; People v Osgood, 52 NY2d 37; People v Cole, 90 AD2d 27; People v Price, 99 AD2d 878; People v Hamilton, 46 NY2d 932; People v Brothers, 50 NY2d 413; People v Giordano, 56 NY2d 524.)
   OPINION OF THE COURT

Meyer, J.

Although CPL 30.30 (3) (b) recognizes the right of a defendant to move, for dismissal after the People have answered ready, that provision simply preserves for the People such portion of the readiness period established by the section as remained available when readiness was originally declared, in the limited situation where "some exceptional fact or circumstance,” occurring after the initial readiness response, makes it impossible for the People to proceed. The rules governing postreadiness failures on the part of the People differ from those relating to prereadiness default on their part not only in the "exceptional fact or circumstance” requirement but also because on a "postreadiness” motion only delay by the People is to be considered, except as subdivision 4 otherwise requires. Even as to a postreadiness failure, however, the criminal action should not be dismissed if the failure, although it affected defendant’s ability to proceed with trial, had no bearing on the People’s readiness, or if a lesser corrective action, such as preclusion or continuance, would have been available had the People’s postreadiness default occurred during trial. In each case, therefore, the order of the Appellate Division should be affirmed.

I

The speedy trial guarantee established by the 6th Amendment to the Federal Constitution and embodied in CPL 30.20 and Civil Rights Law § 12 is intended to ensure fair and humane treatment of an accused person by protecting him or her against prolonged imprisonment while awaiting trial, providing relief from the anxiety and public suspicion that accompanies a criminal accusation which remains untried, and reducing the possibility that through the loss of witnesses or the dulling of memory the means of proving his or her innocence may be lost (People v Johnson, 38 NY2d 271, 276; People v Imbesi, 38 NY2d 629, 631; People v Prosser, 309 NY 353, 356). It also serves the interests of society in seeing that those accused of crime are swiftly brought to justice (People v Johnson, 38 NY2d, at p 276, supra).

Although CPL 30.30, like 30.20, is entitled "speedy trial”, and in large part serves the same purposes, the history of its adoption makes evident that it addresses only the problem of prosecutorial readiness, and is not a speedy trial statute in the constitutional sense (People v Worley, 66 NY2d 523, 527 [decided herewith]; People v Brothers, 50 NY2d 413, 416-417; People ex rel. Franklin v Warden, Brooklyn House of Detention for Men, 31 NY2d 498, 501-502; Bellacosa, Practice Commentary, McKinney’s Cons Laws, Book 7B, CPL 30.30, pp 148-149).

The section is to be interpreted in light of its purposes and legislative history, but also so as to harmonize its various provisions (Sanders v Winship, 57 NY2d 391, 396; People v Mobil Oil Corp., 48 NY2d 192, 199; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 97, 98, 130). So interpreted it is clear that our holding in People v Giordano (56 NY2d 524, 525) "that when the District Attorney had announced his readiness on the record he had satisfied his obligation under CPL 30.30” is read too broadly if taken to mean that no delay on the part of the People occurring after announcement of readiness is to be counted against them in determining whether the readiness requirements of the section have been met. This follows from the fact that in Giordano "the People established on the record their continued readiness for trial during the period [after readiness was announced], and further established that the delay was attributable to court congestion” (People v Giordano, 81 AD2d 1003), for it is well settled that "[t]he language of any opinion must be confined to the facts before the court” (Dougherty v Equitable Life Assur. Socy., 266 NY 71, 88; accord, Danann Realty Corp. v Harris, 5 NY2d 317, 322; People v Olah, 300 NY 96, 101; see, People v Ford, 62 NY2d 275, 281, n). The refusal to read Giordano so broadly follows also from CPL 30.30 (3) (b), for its wording makes clear beyond dispute that, notwithstanding that the People have answered ready for trial within the statutory time limit, a postreadiness motion to dismiss may be made.

But it is a misinterpretation of the subdivision to read good faith into it, as did the courts below in People v Anderson and People v Salsedo, for its reference to "exceptional fact or circumstance” evidences that more than good faith is required. Particularly is this so when that phrase is read together with the concluding clause illustrating the kind of "fact or circumstance” intended by the subdivision — "including, but not limited to, the sudden unavailability of evidence material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.” The necessary implication of the use of "sudden unavailability” and "due diligence” in that provision (see also, subd 4 [g]) is that postreadiness delay is not excused because inadvertent, no matter how pure the intention.

A further implication of subdivision 3 (b) is that with respect to postreadiness delay it is the People’s delay alone that is to be considered, except where that delay directly "results from” action taken by the defendant within the meaning of subdivisions 4 (a), 4 (b), 4 (c) or 4 (e), or is occasioned by exceptional circumstances arising out of defendant’s action within the meaning of subdivision 4 (g), for otherwise the causal relationship required by those subdivisions is not present (People v Colon, 59 NY2d 921; People v Williams, 56 NY2d 824; People v Sturgis, 38 NY2d 625; see, People v Worley, supra).

This is not to say that by answering ready prior to the expiration of the applicable period stated in subdivision 1 or subdivision 2 the People forfeit their right to the time remaining. The statute was intended to limit the People’s time for preparation to the period specified, but they are entitled to the full period allowed, either before or after answering ready. To permit the "tacking” of pre- and postreadiness periods is as much in defendant’s interest as in the People’s, for a contrary rule might otherwise result in the People withholding their declaration of readiness, and the consequent movement of the case to trial, until just prior to the expiration of the applicable period.

But not every postreadiness default by the People not generated by exceptional circumstances or resulting^ from action of the defendant will permit a Trial Judge to dismiss the criminal action. There is no inherent power to dismiss (People v Douglass, 60 NY2d 194) and the purposes motivating enactment of CPL 30.30 do not mandate postreadiness dismissal when a lesser sanction is available. Thus, the failure to make Rosario material available as required by CPL 240.45 may result under CPL 240.70 in discovery, a continuance, a protective or preclusion order or any other appropriate action, and the failure to give defendant notice of intention to pifer evidence of a statement made by him or her prior to trial may, when good cause is shown, result, under CPL 710.30, in permission to give notice during trial and a suppression hearing promptly thereafter. Dismissal for lack of Rosario material would be appropriate only on motion pursuant to CPL 30.20 and only if preclusion or a short continuance would violate the defendant’s constitutional and statutory right to a speedy trial (CPL 30.20) after weighing the factors identified in People v Taranovich (37 NY2d 442, 445). Likewise, when good cause is shown for the failure to give the notice required by CPL 710.30, dismissal would be appropriate only upon a showing on a 30.20 motion that the time required for a suppression hearing, or the disadvantage to defendant in obtaining necessary witnesses consequent upon the late notice, is violative of defendant’s constitutional right to a speedy trial as declared in Taranovich. When no such alternative is provided by the Criminal Procedure Law, however, as, for example, when the People fail for a postreadiness period sufficient when added to the prereadiness elapsed time chargeable to the People to exceed the period specified in CPL 30.30 (1) or 30.30 (2) to produce for trial a defendant in their custody, or, by way of further example, when despite the sudden unavailability of material evidence and due diligence on the part of the People, there is no basis for belief that the evidence will become available within a reasonable period as contemplated by CPL 30.30 (3) (b), dismissal is not only permissible but is required if the purpose of the section is to be carried out.

II

There remains for consideration the application of the foregoing rules to the appeals before us.

A

Frank Anderson was arrested on October 21, 1981 for selling heroin. He was arraigned the next day and indicted on December 3, 1981. After several adjournments due in part to defense motions, the People answered ready for trial on June 7, 1982. Defendant appeared at various calendar calls through September 7, 1982, but on September 10, 1982, absconded and was not arrested on the resulting bench warrant until December 14, 1983. On February 3, 1984, the Assistant District Attorney learned during the course of interviewing a police officer-witness in preparation for trial that the officer had testified against defendant at a parole violation hearing on February 25, 1982. At the February 6, 1984 calendar call, the court was advised of the necessity for obtaining the minutes of that testimony as Rosario material and the matter was adjourned to February 27, 1984. On February 25, 1984, defendant moved to dismiss pursuant to CPL 210.20 (1) (g) and 30.30.

Supreme Court dismissed the indictment notwithstanding the People’s contention that the minutes were equally available to defendant, who was aware of the officer’s testimony at the parole hearing. On the People’s appeal, the Appellate Division reversed, denied the motion and reinstated the indictment, concluding that the People’s CPL 30.30 obligation was satisfied when on June 7, 1982, they answered ready in good faith, and that dismissal would not serve the purposes of the statute in light of defendant’s lack of good faith, he having been a fugitive for 15 months.

We agree with the result reached by the Appellate Division although not with its reasoning. The Appellate Division’s finding (105 AD2d, at p 40) "that on February 6, 1984, the People again announced readiness for trial, though not yet in receipt of defendant’s parole revocation hearing minutes” establishes that the People had sought to obtain the minutes and makes it unnecessary for us to consider their argument before us that they had no obligation to do so because the minutes were equally available to defendant. But defendant does not argue that the June 7, 1982 announcement of readiness was untimely, and the unavailability of the Rosario minutes at the February 6, 1984 calendar call warranted no more than the short adjournment to February 27, 1984, which was granted, or at most an order of preclusion. Supreme Court erred in dismissing the indictment, therefore, and its reinstatement by the Appellate Division was proper not because the People’s original readiness answer was made in good faith or because defendant had been a fugitive for 15 months, but because the short continuance granted was authorized by CPL 240.70.

B

Arrested for a series of rapes on August 22, 1981, Michael Jones was arraigned August 23, 1981 on a criminal complaint so charging. The People answered ready for trial on the record on March 16, 1982, at which point they were chargeable with 55 days of delay. On May 24, 1983, defendant moved to dismiss pursuant to CPL 30.30. Supreme Court after a hearing found the State chargeable with an additional 204 postreadiness days for its failure to serve a supplemental bill of particulars within a reasonable time after it was ordered; failure to serve laboratory reports, the entire period from order to delivery being charged to the People in those cases in which they did not establish when the reports were received; failure to produce the defendant in court; and for the Assistant District Attorney’s vacation, and, therefore, dismissed. On the People’s appeal, the Appellate Division, Second Department, reversed on the law and reinstated the indictment. It held that postreadiness delay could be chargeable to the People and that the 103 days’ delay in producing defendant in court was properly so charged, but that it was improper to charge the People with delay which did not affect their continued readiness for trial. The delay in supplying the supplemental bill and the laboratory reports totaling 79 days was, it concluded, of the latter type. The total of 259 days was thus reduced to 180, which was within the permitted six months, which, in this case, totaled 184 days.

The order of the Appellate Division should be affirmed. Subdivision 4 (e) excludes delay resulting from defendant’s detention in another jurisdiction of which the District Attorney is aware provided he has been diligent in attempting to obtain defendant’s return. A fortiori, therefore, due diligence must be shown if detention in the same jurisdiction is to be excluded. But the Appellate Division’s exclusion as a matter of law of the delays relating to the laboratory reports and the supplemental bill of particulars was proper in light of the alternative remedies for delays of this nature provided for in CPL 240.70.

C

Nelson Salsedo was arrested on February 3, 1983 and charged with possession of a stolen automobile. Arraigned on February 4, 1983 and released for appearance on February 22, 1983, he absconded and was absent until April 20, 1983. On June 14, 1983, the People answered ready. After seven adjournments, the reasons for which are not indicated by the record, the matter came on for trial on November 30, 1983, but when the trial was about to begin, the Assistant District Attorney notified defendant’s attorney that a police officer-witness had made an identification at a showup shortly after arrest. The People offered to proceed immediately with a Wade hearing but, the officer-witness not being available, the hearing was put over to December 14, 1983. On December 9, 1983, by motion returnable on December 14, 1983, defendant moved to dismiss pursuant to CPL 30.30. Supreme Court held the People’s ready answer on June 14, 1983 to have been invalid and the 183 days from that date to December 14, 1983 to be chargeable to the People, and dismissed. The Appellate Division reversed and reinstated the indictment, holding it sufficient that the People had answered ready in good faith, that they were chargeable with only 41 days of prereadiness delay, and that the maximum penalty to be imposed for failure to give proper notice of the pretrial showup was preclusion.

The Appellate Division’s order should be affirmed, although we disagree with its reliance upon the People’s good faith in answering ready on June 14, 1983. It was the People’s obligation under CPL 710.30 (2) to show good cause for a delayed notice, but the trial court having set the matter down for a Wade hearing, it was defendant’s burden under CPL 210.45 (7) to establish his right to a dismissal of the indictment by reason of the delay. There being nothing in the record to establish the reason for the seven adjournments between June 14, 1983 and November 30, 1983, and the Appellate Division having found that the People were chargeable with but 41 days of prereadiness delay, defendant has not sustained that burden. The 14-day delay between November 30, 1983 and December 14, 1983 is the most that could be charged to the People in addition to the 41 days of prereadiness time. And, in any event, as defendant’s motion to dismiss or preclude recognized, and as the Appellate Division noted, preclusion of any identification testimony from the officer-witness was an available corrective action short of dismissal.

D

Roger Allen was arraigned on February 19, 1983 on a felony complaint charging him with robbery in the first degree. Although on June 3, 1983 the case was set for trial on June 16, 1983, engagement of both counsel and vacation of defendant’s counsel resulted in it going over until September 16, 1983, at which point it was sent to a trial part as a backup case. On September 26, 1983, the People advised the court that minutes of a parole violation hearing and of a prior aborted Grand Jury proceeding had not been transcribed and that defendant was entitled to a further Wade hearing because the complainant had not identified defendant until after defense counsel had departed. The People consented to a Wade hearing, but the matter was adjourned because defendant’s counsel stated his intention to make a CPL 30.30 motion. When that motion came on, Supreme Court, reasoning that defense counsel’s engagements had nothing to do with the prosecution’s failure to obtain the minutes, dismissed the charges. On the People’s appeal, the Appellate Division, First Department, reversed. It noted that CPL 240.45 (1) (a) does not require delivery of Rosario material until after the jury has been sworn and before the prosecutor’s opening statement, and held it error to charge the People with delay not solely attributable to their unreadiness. Excluding 78 days that defendant’s attorney had not been available, it concluded that the People were ready within six months as required.

We agree with the Appellate Division’s result though not entirely with its reasoning. The case was set down for trial within four months after arraignment, which left the People an additional two months before the expiration of the six months allowed. That Rosario material had not yet been obtained and an additional Wade hearing was necessary did not require that the People be charged with the time intervening between June 16, 1983 and September 26, 1983. The Rosario material was not due until after the jury had been sworn (CPL 240.45 [1]), the People consented to an immediate Wade hearing, and the Trial Judge was authorized by CPL 240.70 and 710.30 to grant a continuance for either or both purposes. There remained two months of the People’s readiness period within which the materials could have been sought and the hearing held, so the 30.30 motion was premature. Moreover, even were that no so, preclusion rather than dismissal under CPL 30.30 would have been the proper corrective.

E

Indicted on three counts of criminal possession of a controlled substance on June 29, 1983, Jose Alicea was arrested June 30 and arraigned July 5, 1983. At the November 7, 1983 calendar call, the People answered ready but on January 6, 1984 were ordered to transfer the drugs allegedly purchased from defendant to a testing laboratory designated by defendant. On March 5, 1984, defendant moved to dismiss pursuant to CPL 30.30 as a result of the People’s failure to deliver the drugs as required. The People’s answering affirmation stated that the drugs were in the possession of the Drug Enforcement Administration and had been delivered to the designated laboratory during the last week of February or the first week of March. County Court denied the motion, holding People v Cole (90 AD2d 27) dispositive. Defendant was convicted and thereafter moved to set aside the verdict on a number of grounds, including violation of his rights under CPL 30.30’s readiness rule. The motion was denied and on defendant’s appeal from the judgment of conviction the Appellate Division, Fourth Department, affirmed. On the trial readiness point it held the delay in no way inconsistent with the prosecution’s continued readiness and the delay not chargeable to the People.

The order of the Appellate Division should be affirmed. The People answered ready four months and eight days after the indictment but delivery of the drugs for analysis by defendant’s expert was the People’s obligation and they are chargeable with that delay even though the drugs were in possession of the Drug Enforcement Administration, just as they were chargeable in People v Jones with the delay in transporting defendant to the courthouse for trial even though he was in custody of the Department of Correction. We, therefore, disagree with the Appellate Division’s conclusion that the delay was not chargeable to the People. That is not determinative, however, for the failure to produce the drugs, although it may have affected defendant’s ability to proceed with trial, had no bearing on the People’s readiness. Essentially what was involved was the People’s failure to comply in timely fashion with the demand to produce, for which CPL 240.70 (1) provides alternative remedies. Only if it had been shown, on a motion pursuant to CPL 30.20 and after Taranovich analysis, that defendant’s speedy trial, as distinct from trial readiness, rights had been violated would dismissal have been proper.

For the foregoing reasons, in each case the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Jasen, Simons, Kaye and Titone concur; Judge Alexander taking no part.

In each case: Order affirmed.

      . See the memorandum of the Crime Control Counsel, which went to the Legislature with the bill that became the Laws of 1972 (ch 184), enacting CPL 30.30. It stated the purpose of the bill to be "[t]o promote prompt trials for defendants in criminal cases”, but also noted that "[t]he public, defendants and the victims of crimes all have a strong interest in the prompt trial of criminal cases. The knowledge that punishment for the guilty will be swift and sure acts as an effective deterrent to crime. Conversely, protracted delays breed contempt for the law and convince criminals that they can 'beat the system’ ” (McKinney’s Session Laws of NY, at 3259).

      . The subdivision provides that: "A motion made pursuant to subdivisions one or two upon expiration of the specified period may be denied where the people are not ready for trial if the people were ready for trial prior to the expiration of the specified period and their present unreadiness is due to some exceptional fact or circumstance, including, but not limited to, the sudden unavailability of evidence material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.”

      . Those factors are: "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.” No one factor is decisive, however, and all must be evaluated against the purposes of CPL 30.20 and the constitutional provision.

      . We have not overlooked the statement in the People’s answering affidavit on the 30.30 motion that on "September 26, 1983, the People withdrew their statement of readiness because of the unavailability of certain material”. The characterization as a withdrawal is not borne out by the September 26, 1983 minutes, however, which show only that the People acknowledged their obligation to turn over the missing materials. The record does not indicate that those materials could not have been obtained in the time remaining available to the People.


source: Caselaw Access Project

author: Simons, J. Kaye, J.

license: Public Domain

text:
    Robert McMinn et al., Respondents, v Town of Oyster Bay et al., Appellants.
    Submitted October 10, 1985;
    decided December 26, 1985

      POINTS OF COUNSEL

      Robert W. Schmidt, Town Attorney (George J. Farrell, Jr., William D. Wall and Eugene S. R. Pagano of counsel), for appellants.
    I. The court below failed to apply the presumption of constitutionality. (Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61; Wiggins v Town of Somers, 4 NY2d 215, 1045; Marcus Assoc. v Town of Huntington, 45 NY2d 501; Montgomery v Daniels, 38 NY2d 41; Town of N. Hempstead v Exxon Corp., 53 NY2d 747; Bellanca v New York State Liq. Auth., 50 NY2d 524, 452 US 714, 54 NY2d 228, 456 US 1006; Schneider v State, 308 US 147; People v Taub, 37 NY2d 530; Maresca v Cuomo, 64 NY2d 242; People v Whidden, 51 NY2d 457, 454 US 803.) II. Single-family zoning is a reasonable legislative choice. (Matter of Bauch v City of New York, 21 NY2d 599, 393 US 834; Montgomery v Daniels, 38 NY2d 41; Village of Belle Terre v Boraas, 416 US 1; Moore v East Cleveland, 431 US 494; Cooper v Morin, 49 NY2d 69, cert denied sub nom. Lombard v Cooper, 446 US 984; Palo Alto Tenants’ Union v Morgan, 321 F Supp 908, 487 F2d 883, 417 US 910; Group House v Board of Zoning & Appeals, 45 NY2d 266; City of White Plains v Ferraioli, 34 NY2d 300; Bovsun v Sanperi, 61 NY2d 219; Board of Educ. v Nyquist, 57 NY2d 27, 459 US 1139.) III. Plaintiffs failed to prove exclusionary zoning. (Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338; Berenson v Town of New Castle, 38 NY2d 102.) IV. The exemption for the aged is reasonably related to the public purpose of providing adequate housing for the aged. (Vance v Bradley, 440 US 93; Maldini v Ambro, 36 NY2d 481; People v Liberta, 64 NY2d 152; People ex rel.

      Alpha Portland Cement Co. v Knapp, 230 NY 48.) V. The ordinance does not conflict with the Human Rights Law. (Hudson View Props. v Weiss, 59 NY2d 733; Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506; Matter of Eckart, 39 NY2d 493.)

      Winifred Pasternack and Gerald P. Halpern for respondents.
    I. The Oyster Bay ordinance is invalid on its face. (State Div. of Human Rights v Board of Educ., 46 AD2d 483; People v Wilkerson, 73 Misc 2d 895; Seacoast Prods. v City of Glen Cove, 50 AD2d 579; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Hudson View Props. v Weiss, 59 NY2d 733; Crane Neck Assn. v New York City/Long Is. County Servs. Group, 61 NY2d 154; Graham v Richardson, 403 US 365; Shapiro v Thompson, 394 US 618; Riley v County of Monroe, 43 NY2d 144.) II. The ordinance is arbitrary and unreasonable and does not accomplish a legitimate public purpose. (United States Dept. of Agric. v Moreno, 413 US 528; City of White Plains v Ferraioli, 34 NY2d 300; Maldini v Ambro, 36 NY2d 481; Udell v Haas, 21 NY2d 463; Dunn v Blumstein, 405 US 330; Shapiro v Thompson, 394 US 618; Carey v Population Servs. Intl., 431 US 678; Califano v Goldfarb, 430 US 199; Berenson v Town of New Castle, 38 NY2d 102; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338.)

      George F. Carpinello for Council of Albany Neighborhood Associations, Inc., amicus curiae.

    Living provisions which limit the number of unrelated persons who may reside in a household unit are a legitimate means of limiting population density and maintaining the stability of neighborhoods. (Group House v Board of Zoning & Appeals, 45 NY2d 266; City of White Plains v Ferraioli, 34 NY2d 300; Village of Belle Terre v Boraas, 416 US 1; Moore v East Cleveland, 431 US 494.)
   OPINION OF THE COURT

Simons, J.

Plaintiffs are the owners and tenants of a four-bedroom house in Massapequa in the Town of Oyster Bay, Long Island, which is in violation of the Town zoning ordinance. They commenced this action against defendants, the Town of Oyster Bay, the Town Council and its supervisor and building inspector, for a declaration that that portion of the ordinance restricting "single-family” housing to any number of persons related by blood, marriage or adoption or to two persons not so related but both of whom are 62 years of age or older violates the due process and equal protection clauses of the State Constitution (NY Const, art I, §§ 6, 11) and Human Rights Law § 296 (Executive Law § 296). Plaintiffs also sought an injunction against further enforcement of the ordinance. Following a trial, Supreme Court concluded that the age requirement for defining two unrelated individuals as a family violated the State constitutional guarantee of equal protection of the laws and that the ordinance also violated Executive Law § 296 (5) to the extent it prohibited occupancy of a single-family house by two individuals on the ground of marital status but that the ordinance was in all other respects valid (111 Misc 2d 1046). The combined effect of these rulings was to find the ordinance constitutional insofar as it restricted occupancy of a single-family home to any number of persons related by blood, marriage or adoption or two unrelated persons. On cross appeals, the Appellate Division modified the judgment and declared that the challenged portion of the ordinance was facially unconstitutional under the due process clause of our State Constitution insofar as it prohibits occupancy of one-family homes by persons unrelated by blood, marriage or adoption and that it was constitutional insofar as it limits occupancy of one-family homes to a single housekeeping unit (105 AD2d 46).

Although several issues are raised on defendants’ appeal to this court, one is dispositive: whether defendants’ zoning ordinance may so restrict occupancy in single-family houses. Because we conclude that the definition of family contained in this ordinance on its face infringes upon the due process protections embodied in our State Constitution, we affirm.

The Town of Oyster Bay zoning ordinance establishes a number of use districts, including a "D Residence” district, in which single-family houses are permitted as of right but rooming and boarding houses are allowed only if approved by the Town Board after a public hearing. The ordinance also contains the following definition of "family”:

"(a) Any number of persons, related by blood, marriage, or legal adoption, living and cooking on the premises together as a single, nonprofit housekeeping unit; or
"(b) Any two (2) persons not related by blood, marriage, or legal adoption, living and cooking on the premises together as a single, nonprofit housekeeping unit, both of whom are sixty-two (62) years of age or over, and residing on the premises.”

Plaintiffs Robert and Joan McMinn purchased their house in 1973. It is in a D Residence district. On June 1, 1976, they leased the house to four unrelated young men between the ages of 22 and 25 who had grown up in the area and wanted to remain near their families but not reside with them. Shortly after the tenants moved in, a criminal information was filed against the McMinns in District Court, Nassau County, charging them with violating the zoning ordinance because the house was occupied by more than one family. The McMinns and the tenants then commenced this action seeking declaratory and injunctive relief and the criminal proceedings have been adjourned pending its disposition. In their complaint, plaintiffs assert only State constitutional and statutory claims and expressly reserve the right to litigate all Federal claims in a Federal forum pursuant to England v Medical Examiners (375 US 411). They contend that the restrictive definition of "family” contained in the ordinance is facially invalid under Executive Law § 296 and the due process and equal protection clauses of the State Constitution (NY Const, art I, §§ 6, 11) or, in the alternative, that it violated these statutory and constitutional provisions as applied to them.

Zoning ordinances, like other legislative enactments, are presumed constitutional and the burden is on the party challenging the ordinance to prove its unconstitutionality beyond a reasonable doubt (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 500; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 344; Marcus Assoc. v Town of Huntington, 45 NY2d 501, 505). Plaintiffs have satisfied that burden.

In order for a zoning ordinance to be a valid exercise of the police power it must survive a two-part test: (1) it must have been enacted in furtherance of a legitimate governmental purpose, and (2) there must be a "reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end” (French Investing Co. v City of New York, 39 NY2d 587, 596; Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221, 222-225; see, Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 500, supra; see also, Montgomery v Daniels, 38 NY2d 41, 54). If the ordinance fails either part of this test, it is unreasonable and constitutes a deprivation of property without due process of law under our State Constitution (French Investing Co. v City of New York, supra, at p 595).

Indisputably, this ordinance was enacted to further several legitimate governmental purposes, including preservation of the character of traditional single-family neighborhoods, reduction of parking and traffic problems, control of population density and prevention of noise and disturbance. The dispute centers on whether the means the local legislature has chosen, the challenged ordinance and more specifically the definition of "family” contained in it, are reasonably related to the achievement of these legitimate purposes.

Manifestly, restricting occupancy of single-family housing based generally on the biological or legal relationships between its inhabitants bears no reasonable relationship to the goals of reducing parking and traffic problems, controlling population density and preventing noise and disturbance (see, Moore v East Cleveland, 431 US 494, 499-500; id., at p 520, n 16 [Stevens, J., concurring]; City of Santa Barbara v Adamson, 27 Cal 3d 123, 610 P2d 436, 441; State v Baker, 81 NJ 99, 405 A2d 368, 373). Their achievement depends not upon the biological or legal relations between the occupants of a house but generally upon the size of the dwelling and the lot and the number of its occupants. Thus, the definition of family employed here is both fatally overinclusive in prohibiting, for example, a young unmarried couple from occupying a four-bedroom house who do not threaten the purposes of the ordinance and underinclusive in failing to prohibit occupancy of a two-bedroom home by 10 or 12 persons who are related in only the most distant manner and who might well be expected to present serious overcrowding and traffic problems.

Nor is the ordinance’s restrictive definition of family saved by the desire to preserve the character of the traditional single-family neighborhood in Oyster Bay. That is a legitimate governmental objective (see, Group House v Board of Zoning & Appeals, 45 NY2d 266, 271; City of White Plains v Ferraioli, 34 NY2d 300, 305; see also, Village of Belle Terre v Boraas, 416 US 1, 9; and see generally, Validity of Ordinance Restricting Number of Unrelated Persons Who Can Live Together in Residential Zone, Ann., 12 ALR4th 238), but a municipality may not seek to achieve it by enacting a zoning ordinance that "limit[s] the definition of family to exclude a household which in every but a biological sense is a single family” (City of White Plains v Ferraioli, supra, at p 306). Zoning is "intended to control types of housing and living and not the genetic or intimate internal family relations of human beings” (City of White Plains v Ferraioli, supra, at p 305) and if a household is "the functional and factual equivalent of a natural family” (Group House v Board of Zoning & Appeals, supra, at p 272), the ordinance may not exclude it from a single-family neighborhood and still serve a valid purpose. This ordinance, by limiting occupancy of single-family homes to persons related by blood, marriage or adoption or to only two unrelated persons of a certain age, excludes many households who pose no threat to the goal of preserving the character of the traditional single-family neighborhood, such as the households involved in White Plains and Group House, and thus fails the rational relationship test.

Plaintiffs rely principally on the claimed invalidity of paragraph (a) of the definition of family. Zoning ordinances may define the term family alternatively to include various circumstances and relationships, as the present ordinance does, but only so long as the ordinance, when read in its entirety, does not exclude any households that due process requires be included. Thus, paragraph (a) of the provision, which defines family as "[a]ny number of persons, related by blood, marriage, or legal adoption”, is not per se unconstitutional provided the ordinance contains an alternative definition of family as any number of unrelated persons living together who meet the indicia we set forth for the functional equivalent of a traditional family in Group House v Board of Zoning & Appeals (supra, at pp 272-273) and City of White Plains v Ferraioli (supra, at pp 305-306). Because the only alternative definition contained in this ordinance — "[a]ny two (2) persons not related by blood, marriage, or legal adoption * * * both of whom are sixty-two (62) years of age or over” — is more restrictive, both as to the number of unrelated persons and their ages, than is constitutionally permissible, however, the entire definition of family contained in the ordinance violates our State constitutional guarantee that no person shall be deprived of property without due process of law.

Defendants contend that the scope of protection accorded under the due process clause of our State Constitution is coextensive with the protection provided by the due process clause of the 14th Amendment and that the challenged portion of the ordinance would survive Federal due process scrutiny under Village of Belle Terre v Boraas (416 US 1, supra). Because the ordinance challenged in this case contains age limitations making it more restrictive than the Belle Terre ordinance and because the Supreme Court did not state in either Belle Terre or Moore v East Cleveland (431 US 494, supra) what definition of family is minimally necessary to survive Federal due process scrutiny, those decisions are not determinative of whether the ordinance before us would withstand Federal constitutional analysis. We have no need to consider the issue, however, for it is clear that the definition of family contained in this ordinance is incompatible with our prior decisions in White Plains and Group House. Although those cases did not involve an explicit adjudication of the homeowner’s constitutional rights, they also cannot reasonably be interpreted as relying upon the public policy favoring establishment of group homes found in the Social Services Law (Social Services Law § 374-c). Quite the contrary, in each case the court expressly disavowed any reliance on the homeowner’s assertion that enforcement of the restrictive definitions of family contained in the challenged ordinance would contravene the State’s Social Services Law and the public policy embodied in it (see, Group House v Board of Zoning & Appeals, 45 NY2d 266, 271, supra; City of White Plains v Ferraioli, 34 NY2d 300, 306, supra; cf. Crane Neck Assn. v New York City/Long Is. County Servs. Group, 61 NY2d 154). Thus, the reasoning employed in White Plains and Group House is equally applicable to the constitutional issue raised on this appeal and provides ample support for the conclusion reached today.

Accordingly, in view of our holding that the definition of family in article I, § 1 of the Building Zone Ordinance of the Town of Oyster Bay is facially unconstitutional under the due process clause of the New York State Constitution (art I, § 6), the order of the Appellate Division should be affirmed, with costs.

Kaye, J.

(concurring). The dissent at the Appellate Division poses a question which to my mind should not be left unanswered: "Upon this record should not the legislative judgment of the Town Board be sustained?” (105 AD2d 46, 60.) The issue of facial invalidity of the Oyster Bay ordinance is, after all, reached only after a plenary trial establishing that the six plaintiffs now prevailing in this action are not aggrieved by what this court identifies as the unconstitutional feature of the statute — an overrestrictive definition of family which fails to provide for households functionally equivalent to a family. As the trial established, in the present case plaintiffs’ living arrangements have "the look of a rooming house operation, rather than a functional family”. (105 AD2d, at p 64.) The ordinance thus could be constitutionally applied to them, but not to other persons — not before us — who maintain a family-like living arrangement. Although I join in the majority’s opinion, I write separately in an effort to explain why I join in reaching the issue of facial invalidity as to plaintiffs who suffer no in-fact injury from the unconstitutional feature of the statute.

Ordinarily, of course, "a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court” (Broadrick v Oklahoma, 413 US 601, 610). For this reason, even where a litigant may suffer in-fact injury as the result of the application of a statute we have generally refused to consider the question whether a statute is unconstitutional on its face where it is constitutional as applied to the party challenging it (see, Matter of Daniel C., 99 AD2d 35, 42, 72 [dissent], affd 63 NY2d 927). "One who challenges the constitutionality of a statute is required to establish that the enactment as applied to him violates a constitutional norm” (People v Parker, 41 NY2d 21, 24).

There are, however, several exceptions to this general rule (see, People v Parker, 41 NY2d 21, 24-25, supra), at least one of which to my mind may be applied here. "[A] party may challenge the validity of a statute on its face by asserting the rights of others if individual applications cannot be meaningfully separated from one another.” (Tribe, American Constitutional Law § 3-26, at 106.) Here, the unconstitutional feature of the statute cannot be eliminated without rewriting the statute (see, Aptheker v Secretary of State, 378 US 500, 515; cf. Matter of Daniel C., 99 AD2d, at p 43, supra). Moreover, although we have not hesitated to sever an invalid portion of a statute and preserve the remainder where " 'the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded’ ” (Matter of Westinghouse Elec. Corp. v Tully, 63 NY2d 191, 196, quoting People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48, 60), here we cannot say what would be the legislature’s wish. The surrounding communities, in their analogous regulations, have taken different approaches to serve the same general objective as the ordinance under consideration.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur with Judge Simons; Judge Kaye concurs in a concurring opinion in which Judges Jasen and Titone also concur.

Order affirmed, with costs.

       During the trial it was disclosed that the McMinns had entered into a contract for sale of the house, that plaintiff tenants had vacated it and that the contract vendee, her daughter and an unrelated adult male were now residing there. Defendants contended below that this change in circumstances deprived plaintiffs of standing to challenge the ordinance’s validity and rendered the issues moot. Before this court, defendants have withdrawn the contention of mootness and abandoned the challenge to standing. However, in response to the concern expressed in the concurring opinion, we note that this is a declaratory judgment action in which the parties are entitled to a resolution of the legal dispute to guide their future conduct (New York Public Interest Research Group v Carey, 42 NY2d 527). Since the complaint alleges that the criminal prosecution against the McMinns for renting to four unrelated males is still pending, that McMinns own several properties in the township, the rental of which would be restricted by the ordinance which the town fully intends to enforce, and that the four tenants simply moved to another one-family house in Oyster Bay in continued violation of the ordinance, these plaintiffs clearly have standing to challenge the legal limitations imposed on their properties and their ability to rent such properties in the future.


author: Per Curiam.

text:
    Lorraine Sontag, Appellant, v Mark Sontag, Respondent.
    Submitted December 9, 1985;
    decided January 16, 1986
    POINTS OF COUNSEL

      Robert M. Calica for appellant.
    No enforceable stipulation was reached because of plaintiffs refusal to consent, because of its incompleteness of terms, and because it was conditioned upon the parties’ entry into a formal, comprehensive written agreement. (Matter of Frutiger, 29 NY2d 143; Hallock v State of New York, 64 NY2d 224; Teitelbaum Holdings v Gold, 48 NY2d 51; Kleinberg v Ambassador Assoc., 103 AD2d 347, 64 NY2d 733; Matter of Dolgin Eldert Corp., 31 NY2d 1; Medallion Chem. Corp. v Chemical Resources, 58 AD2d 808; Scheck v Francis, 26 NY2d 466; Matter of Municipal Consultants & Publishers v Town of Ramapo, 47 NY2d 144.)

      Steven W. Wolfe for respondent.
    I. The stipulation is binding and enforceable since it complies with CPLR 2104. (Owens v Lombardi, 41 AD2d 438; Bernstein v Salvatore, 62 AD2d 945;
      Hub Press v Sun-Ray Light. Co., 100 Misc 2d 1055; Fuchs v Fuchs, 65 AD2d 595; Golden Arrow Films v Standard Club, 38 AD2d 813; Tenwood Assoc. v United States Fire Ins. Co., 104 Misc 2d 467; Neiman v Springer, 89 AD2d 922; Matter of Dolgin Eldert Corp., 31 NY2d 1; Scheck v Francis, 26 NY2d 466; APS Food Sys. v Ward Foods, 70 AD2d 483.) II. Appellant has not advanced a satisfactory reason for vacating the stipulation. (Term Indus. v Essbee Estates, 88 AD2d 823; Barzack Realty Co. v Legatti & Son, 114 Misc 2d 245; Allard v Allard, 27 AD2d 776; Kolodziej v Kolodziej, 54 AD2d 228; Matter of Narsu v Polsinelli, 74 AD2d 952; Veith v ABC Paving Co., 58 AD2d 257; Harrington v Harrington, 103 AD2d 356; Raphael v Booth Mem. Hosp., 67 AD2d 702.)
   OPINION OF THE COURT

Per Curiam.

In this matrimonial action, plaintiff seeks leave to appeal from an order of the Appellate Division which unanimously affirmed an order of Supreme Court, Nassau County, which after granting defendant husband’s motion to enforce a stipulation entered into by the parties and incorporating the terms of the stipulation into the order, ordered that "all remaining issues in this litigation are hereby severed for the purposes of trial.”

An order which completely disposes of the claims of one party but leaves pending issues as to another party is final as to the former but not the latter (Cohen and Karger, Powers of the New York Court of Appeals § 20 [rev ed]). An order which finally adjudicates a cause of action which is unrelated to, and independent of, another cause of action in a complaint or counterclaim is final as to the former but not the latter. However, an order such as that in the present case which decides some issues of relief but leaves pending between the same parties other such issues would, in effect, divide a single cause of action and is, therefore, nonfinal (Le Mistral v Columbia Broadcasting Sys., 61 AD2d 491, appeal dismissed 46 NY2d 940; Cohen and Karger, op. cit. § 21, at 92).

The motion for leave to appeal should, therefore, be dismissed for nonfinality.

Judge Hancock, Jr., taking no part.

Motion for leave to appeal dismissed, without costs.


author: Meyer, J.

text:
    Dan Fe Bland, Respondent, v Two Trees Management Co. et al., Appellants. 330 West End Apartment Corporation, Appellant, v Thomas E. Kelly, Respondent.
    Argued November 18, 1985;
    decided December 19, 1985

      POINTS OF COUNSEL

      Kenneth G. Schwarz and Barry M. Schreibman for appellants in the first above-entitled action.
    I. The cooperative corporation has the power to impose the transfer fee as a restriction on the alienation of plaintiffs shares. (Matter of State Tax Commn. v Shor, 43 NY2d 151; Weisner v 791 Park Ave. Corp., 7 AD2d 75; Brennan v Breezy Point Coop., 63 NY2d 1022; Allen v Biltmore Tissue Corp., 2 NY2d 534; Penthouse Props. v 1158 Fifth Ave., 256 App Div 685; Mayerson v 3701 Tenants Corp., 123 Misc 2d 235; Jamil v Southridge Coop., 93 Misc 2d 383, 102 Misc 2d 404; Everett v Supreme Council, 236 NY 62; Kent v Quicksilver Min. Co., 78 NY 159; Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211.) II. The distinctions which the transfer fee makes among shareholders are lawful because they further a legitimate corporate purpose. (Schwartz v Marien, 37 NY2d 487; Alpert v 28 Williams St. Corp., 63 NY2d 557; Goldstone v Constable, 84 AD2d 519; Mayerson v 3701 Tenants Corp., 123 Misc 2d 235; Penthouse Props. v 1158 Fifth Ave., 256 App Div 685; Ebner v 91st St. Tenants Corp., 126 Misc 2d 108.) III. Business Corporation Law § 501 (c) is not applicable to this dispute. (Schwartz v Marien, 37 NY2d 487; Chrysler Corp. v Fedders Corp., 63 AD2d 567; Matter of State Tax Commn. v Shor, 43 NY2d 151.) IV. Because the board had a legal right to impose the transfer fee there cannot have been duress. (Gerstein v 532 Broad Hollow Rd. Co., 75 AD2d 292; Ciofalo v Vic Tanney Gyms, 10 NY2d 294; Steward v World-Wide Autos. Corp., 20 Misc 2d 188;
      Manno v Mutual Benefit Health & Acc. Assn., 18 Misc 2d 80; Bachorik v Allied Control Co., 34 AD2d 940.)

      Leonard R. Berson for respondent in the first above-entitled action.
    I. The November 1 act of the board of directors was illegal: it was contrary to the certificate of incorporation in that it negated an act of the shareholders; it violated Business Corporation Law § 501 (c); and it contravened the proprietary lease. (Thompson v Wyandach Club, 70 Misc 299; Mullins v 510 E. 86th St. Owners, 126 Misc 2d 758; Schwartz v Marien, 37 NY2d 487; Hammer v Werner, 239 App Div 38; Garrison Apts. v Sabourin, 113 Misc 2d 674; Matter of State Tax Commn. v Shor, 43 NY2d 151; Brennan v Breezy Point Coop., 63 NY2d 1022; Berglund v 411 E. 57th Corp., 127 Misc 2d 58; McIntyre v Royal Summit Owners, 126 Misc 2d 930; Mayerson v 3701 Tenants Corp., 123 Misc 2d 235.) II. Even if the November 1 resolution of the board of directors was legally adopted, its retroactive application against plaintiff was an unreasonable and arbitrary infringement of his rights and was unjust as a matter of law. (Jamil v Southridge Coop., 102 Misc 2d 404, 77 AD2d 822; Kent v Quicksilver Min. Co., 78 NY 159; Matthews v Associated Press, 136 NY 333; Vernon Manor Coop. Apts. v Salatino, 15 Misc 2d 491; Carney v New York Life Ins. Co., 162 NY 453.) III. Plaintiff’s transfer to Altschiller was approved by Alwyn prior to the November 1 resolution of the board. (Ripley v Storer, 1 Misc 2d 281, 286 App Div 844, 309 NY 506.) IV. Plaintiff paid the transfer fee and gave his release under economic duress; the court below properly rescinded the release and granted restitution. (Austin Instrument v Loral Corp., 29 NY2d 124; Friar v Vanguard Holding Corp., 78 AD2d 83; Spancrete Northeast v K. W. Constr. Corp., 57 AD2d 784; Adrico Realty Corp. v City of New York, 250 NY 29; Peyser v Mayor of City of N. Y., 70 NY 497.)

      Martin E. Karlinsky and Robert P. Stein for appellant in the second above-entitled action.
    I. The board of directors was empowered under its bylaws, by statute, and by the business judgment rule to enact the transfer fee. (Auerbach v Bennett, 47 NY2d 619; Fells v Katz, 256 NY 67; Garrison Apts. v Sabourin, 113 Misc 2d 674; Goldstone v Constable, 84 AD2d 519; Jamil v Southridge Coop., 93 Misc 2d 383, 102 Misc 2d 404, 77 AD2d 822, 450 US 919, 1050; Berglund v 411 E. 57th Corp., 122 Misc 2d 702, 127 Misc 2d 58; Mayerson v 3701 Tenants Corp., 123 Misc 2d 235.) II. The transfer fee was not violative of the proprietary lease and did not require shareholder consent. (Nau v Vulcan Rail & Constr. Co., 286 NY 188; Evans Prods. Co. v Decker, 52 AD2d 991; Nassau Ch., Civ. Serv. Employees Assn. v County of Nassau, 77 AD2d 563, 54 NY2d 925; Matter of John P. v Whalen, 54 NY2d 89; Murphy v 253 Garth Tenants Corp., 579 F Supp 1150; Matter of State Tax Commn. v Shor, 43 NY2d 151.) III. Compelling policy reasons mandate upholding appellant’s transfer fee.

      David S. J. Neufeld for respondent in the second above-entitled action.
    I. The imposition of a flip tax without the consent of the shareholders is violative of the proprietary lease. (Matter of State Tax Commn. v Shor, 43 NY2d 151; McIntyre v Royal Summit Owners, 126 Misc 2d 930.) II. The resolution adopted by the board of directors imposing the flip tax is violative of the bylaws of appellant corporation. (Corhill Corp. v S. D. Plants, 9 NY2d 595; General Motors Acceptance Corp. v Berg & Duffy, 118 Misc 2d 525; Berglund v 411 E. 57th Corp., 127 Misc 2d 58; Matter of John P. v Whalen, 54 NY2d 89; Jamil v Southridge Coop., 93 Misc 2d 383, 102 Misc 2d 404, 77 AD2d 822, 450 US 919, 1050; Mayerson v 3701 Tenants Corp., 123 Misc 2d 235.) III. A review of the applicable provisions of the offering plan, proprietary lease agreement, and bylaws of appellant corporation reveal that the imposition of a flip tax is improper. (Brennan v Breezy Point Coop., 63 NY2d 1022.)

      Richard Siegler for Plaza 400 Owners Corp., amicus curiae in the second above-entitled action.
    The enactment of the transfer fee by appellant’s board of directors was within the powers and authority conferred upon appellant and others similarly situated. (Weisner v 791 Park Ave. Corp., 6 NY2d 426.)
   OPINION OF THE COURT

Meyer, J.

A fee on the transfer of shares in a cooperative apartment corporation (commonly called a "flip tax”) may not be imposed by the corporation’s board of directors, when the bylaws of the corporation authorize the board to impose on such a transfer and assignment only "a reasonable fee to cover actual expenses and attorneys’ fees of the Corporation, a service fee of the Corporation and such other conditions as it may determine”. Nor may a flip tax which is not in proportion to the shares held by the assignor be imposed' under either the "cash requirements” or "assignment” provisions of the proprietary lease, or, in view of the mandate of Business Corporation Law § 501 (c) that each share of stock be equal to every other share of the same class, by amendment of the bylaws. In Fe Bland v Two Trees Mgt. Co., the order of the Appellate Division should, therefore, be affirmed, with costs, and in 330 W. End Apt. Corp. v Kelly, the order of the Appellate Division should be modified by declaring the resolution imposing a transfer fee invalid, and as so modified, affirmed with costs.

I

A

Plaintiff, Dan Fe Bland, was a resident in the Alwyn Court apartment house when in 1980 it became a cooperative. He purchased 195 shares in 911 Alwyn Owners Corp., the corporation formed pursuant to Business Corporation Law § 402 to carry out the conversion to cooperative ownership and acquired the proprietary lease of a penthouse apartment to which those shares entitled him, paying the insider’s price of $112,125. By resolution of the shareholders adopted at the May 26, 1981 annual meeting and confirmed by a resolution of the board of directors passed on October 6, 1981, the bylaws were amended to provide (art VI, § 4) that "Before a sale of shares * * * takes effect as against the Apartment Corporation, the Assignor shall pay to the Apartment Corporation, in addition to any other fee provided for by the By-Laws and or the Proprietary Lease, a fee equal to $2,500”. An affidavit of the managing agent states that the primary purpose of the $2,500 fee was to raise funds for restoring and maintaining the facade of the building, a registered national landmark.

On October 5, 1983 plaintiff contracted to assign his shares and lease to an outside purchaser for $550,000. The contract required that he pay the corporation’s transfer fee and fixed the date for closing as November 14, 1983. On November 1, 1983 the board of directors, citing as its authorization for so doing article V, section 5 of the bylaws, amended the October 6, 1981 resolution to condition its approval of any assignment upon the payment of a transfer fee in amounts varying from $50 to $200 per share depending upon whether the assignor was an original purchaser from the sponsor or an outsider and whether he had been an owner for five years or more. Notified of the adoption of the resolution and that he would be required at the closing to pay the corporation the sum of $39,000 prior to transfer of his shares, plaintiff protested the requirement. His proposed assignment was approved but at the closing he was required to pay the $39,000 by certified check and to execute a general release in favor of the corporation, the sponsor and the managing agent. That he did under protest and promptly thereafter demanded and was refused return of the $39,000.

Plaintiff then commenced the instant action against the 911 Alwyn Owners Corp., its managing agent and its directors individually. His complaint asserted causes of action for (1) refund of the fee as unauthorized and paid under duress, (2) refund of the fee because it could not be applied to a contract entered into before its adoption, (3) rescission of the general release, and (4) damages in tort against defendants Walentas and Bergin. Defendants moved to dismiss the complaint for failure to state a cause of action and on the basis of a defense founded on documentary evidence (CPLR 3211 [a] [1], [7]) and, in the discretion of the court, for summary judgment pursuant to CPLR 3211 (c). Plaintiff cross-moved pursuant to CPLR 3212 for summary judgment on the first and third causes of action or, alternatively, on the second and third causes of action. Special Term found it unnecessary to consider the retroactivity question. It held the November 1,1983 resolution in violation of the proportionality requirements of the certificate of incorporation and Business Corporation Law § 501 (c) and of the cash requirements provision of the proprietary lease and unauthorized by the proprietary lease (125 Mise 2d 111). It therefore granted plaintiff judgment on the first and third causes of action, dismissed the second cause of action as moot and so much of the fourth cause of action as sought punitive damages, and severed and continued the fourth cause of action. On appeal to the Appellate Division that court affirmed, without opinion, certifying to us the question whether Special Term’s order granting judgment on the first cause of action, as affirmed by it, was properly made.

B

330 West End Apartment Corporation was organized under the Business Corporation Law in 1980 for the purpose of converting to cooperatively owned apartments a former hotel. Defendant Kelly purchased apartment 7B in the building, receiving at the March 1981 closing of the building conversion 2,700 shares of stock and a proprietary lease, for which he paid $270,000. At its August 10, 1982 meeting the board of directors determined that it was empowered by article V, section 5 of the bylaws, to impose a flip tax on the sale of shares in the corporation and voted to impose a fee on all such shares in the amount of 2% of the selling price before deduction of closing costs and commissions.

By notice dated October 1, 1982 the shareholders were informed of the imposition of the fee. Defendant Kelly promptly protested by letter the authority of the board to impose the fee. In July 1983 he transferred his shares and assigned his lease for $315,000 and as a condition of the corporation’s consent to the assignment and transfer was required to pay the 2% flip tax on that sum ($6,300) in addition to a transfer fee of $250 and tax stamps of $135. His attorney having thereafter demanded repayment of the $6,300 as unauthorized, the corporation began the present action seeking judgment declaring the flip tax valid, or in the alternative that defendant had waived his right to challenge it. Kelly counterclaimed for refund of the $6,300 fee and for conversion. Plaintiff moved for summary judgment and Kelly cross-moved for like relief.

Special Term found that the board acted in good faith, that imposition of the fee was reasonably necessary in its business judgment and within the authority of the board under article V, section 5 of the bylaws, but held it to be in violation of the proprietary lease, paragraph 16 (a) (iv) of which required an assignor to pay legal and other expenses but was silent as to a flip tax and paragraph 6 of which required consent of lessees holding at least 75% of the corporation’s shares to a modification of the lease. It, therefore, denied plaintiff’s motion for summary judgment and dismissed defendant’s second counterclaim for failure to allege facts establishing conversion, but granted defendant’s cross motion for judgment on his first counterclaim for return of the $6,300 fee plus interest. The Appellate Division affirmed, without opinion, but granted plaintiff leave to appeal, certifying to us the question whether its order was properly made.

C

We conclude that although under proper circumstances a flip tax which conforms to the requirements of Business Corporation Law § 501 (c) and of the proprietary lease may be adopted, in the present case (1) neither the bylaws nor the proprietary lease of either corporation authorizes the imposition by the board of directors of a flip tax and the specific references in them to fees on the transfer of shares make inapplicable the business judgment rule advanced by each corporation in justification of the charge imposed; (2) neither corporation’s resolution can be justified by the cash requirements provisions of its proprietary lease; and (3) although the 911 Alwyn Owners Corp. board of directors was authorized by its certificate of incorporation to amend its bylaws, the resolution adopted November 1, 1983, whether deemed to have amended an existing bylaw or to have enacted a new bylaw, was invalid because in violation of Business Corporation Law § 501 (c). We, therefore, affirm in Fe Bland and in 330 W. End Apt. Corp., modify, the action being one for declaratory judgment, to declare the resolution invalid (see, Lanza v Wagner, 11 NY2d 317, 334) and, as so modified, affirm.

II

The relationship between the shareholder/lessees of a cooperative corporation and the corporation is determined by the certificate of incorporation, the corporation’s bylaws and the proprietary lease under which a particular apartment is occupied, subject, of course to applicable statutory and decisional law. Inseparably joined, neither the corporate nor the leasehold attributes of the relationship can be viewed in isolation from one another (Matter of State Tax Commn. v Shor, 43 NY2d 151, 157). Even as to such normally corporate matters as the authority of the board of directors, therefore, it is not just the bylaws that are determinative; the relevant provisions of the related documents must be read together (Brennan v Breezy Point Coop., 63 NY2d 1022, 1025; 4B Powell, Real Property ¶ 633.4).

The bylaws of each corporation contain a provision (art V, § 5) entitled "Fees on Assignment” reading, so far as here pertinent, as follows: "The Board of Directors shall have authority before an assignment or sublet of a proprietary lease or reallocation of shares takes effect as against the Corporation, as lessor, to fix a reasonable fee to cover actual expenses and attorneys’ fees of the Corporation, a service fee of the Corporation and such other conditions as it may determine, in connection with such proposed assignment.” The corporations argue that the right to fix "other conditions” empowers the board to impose a transfer fee or flip tax. So to construe the phrase "such other conditions” is, however, to read it out of the context in which it appears, contrary to the usual rule of construction (People v Mobil Oil Corp., 48 NY2d 192, 199; see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 97, 240). The bylaw is entitled "Fees on Assignment” and specifies three different types of fees (to cover expenses, attorneys’ fees, and services of the corporation) authorized to be imposed upon an assignor. Were it intended to include within the authority granted other fees of an unspecified kind, rather than conditions other than fees, the provision should have referred to "such other fees or conditions as” the board may determine.

The provisions of the proprietary leases of the two corporations confirm that conclusion. So far as here pertinent the assignment provisions of the two leases (par 16 of each lease) are identically worded. Subdivision (a) proscribes assignment or transfer of the lease until specified conditions are met, including "(iv) All sums due from the Lessee shall have been paid to the Lessor, together with a sum to be fixed by the Directors to cover reasonable legal and other expenses of the Lessor and its managing agent in connection with such assignment and transfer of shares;” and subdivision (c) provides that "There shall be no limitation, except as above specifically provided, on the right of Directors or lessees to grant or withhold consent, for any reason or for no reason, to an assignment.” (Emphasis supplied.) The sums which the directors may fix in connection with an assignment or transfer having been "above specifically provided” constitute an express limitation under the clear wording of subdivision (c) on the right of the directors to withhold consent to an assignment.

The business judgment doctrine on which the corporations also rely stands them in no better stead. "That doctrine bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes” (Auerbach v Bennett, 47 NY2d 619, 629). Although it may protect directors against individual liability to the corporation in a stockholders’ derivative action, it constitutes no grant of general or inherent power in the directors to enforce against a shareholder an edict of the directors beyond their authority to make under either the bylaws of the corporation or, in the case of a cooperative apartment corporation, the contract between the corporation and its shareholder/lessees embodied in the proprietary lease.

Ill

Both corporations rely as well upon the cash requirements provisions of the proprietary lease as authority for imposition of the flip tax. Paragraphs 1 (a) and 1 (c) of both leases are identically worded. Under subdivision (a) rent, sometimes called maintenance, equals that proportion of the corporation’s cash requirements for the year, which the number of shares allocated to a particular apartment bear to the total number of issued shares, and maintenance is payable in equal monthly installments unless the directors at the time they determine cash requirements otherwise direct. As defined by subdivision (c) " '[c]ash requirements’ whenever used” means the amount necessary for operation and improvement of the property, contingency reserves and the payment of liabilities and expenses after giving consideration to income expected and cash on hand. But the subdivision specifically provides that "No determination of cash requirements shall have any retroactive effect on the amount of the rent payable by the lessee for any period prior to the date of such determination”. Paragraph 6 of the 330 West End Apartment Corporation lease also provides that "Each proprietary lease shall be in the form of this lease, unless a variation of any lease is authorized by lessees owning at least two-third of the Lessor’s shares then issued and executed by the Lessor and lessee affected. The form and provisions of all the proprietary leases then in effect and thereafter to be executed may be changed by the approval of lessees owning at least 75% of the Lessor’s shares then issued, and such changes shall be binding on all lessees even if they did not vote for such changes, except that the proportionate share of rent or cash requirements payable by any lessee may not be increased * * * without his express consent.”

The cash requirement provisions are of no avail to 330 West End Apartment Corporation for, although its flip tax is proportional to the profit earned by the assigning shareholder/ lessee, it is not proportional to the number of shares held by that shareholder in relation to the total number of issued shares, as required by paragraph 1 (a) and was not approved by 75% of the shareholders as required by paragraph 6.

Nor are they helpful to 911 Alwyn Owners Corp., for its November 1, 1983 resolution violates both the proportionality requirement of paragraph 1 (a) and the retroactivity proscription of paragraph 1 (c).

IV

So far we have considered only provisions of the bylaws, proprietary leases and decisional law. There remains for consideration the argument advanced in the 911 Alwyn Owners Corp. case that Business Corporation Law § 501 (c) invalidates the flip tax imposed in that case which, as already noted, differed depending upon whether the assignor was a purchaser from the sponsor or an outsider and whether he had been an owner for five years or more.

911 Alwyn Owners Corp. points to its certificate of incorporation which in article Eleventh authorized amendment of the bylaws either by vote of the holders of two thirds of the outstanding shares, provided notice of the amendment or its substance is included in the notice of the meeting or all shareholders are present in person or by proxy, or at any meeting of the board of directors, provided notice of the amendment or its substance is included in the notice of the meeting or all of the directors are present, except that the directors may not repeal a bylaw amendment adopted by the shareholders as above provided.

Plaintiff Fe Bland and the corporation are at loggerheads concerning whether the May 26, 1981 shareholders’ resolution providing for a $2,500 transfer fee was adopted in accordance with article Eleventh and, therefore, not within the province of the directors to change. The directors on the other hand take the position that they had authority to adopt the November 1, 1983 resolution, either as an amendment of their earlier October 6, 1981 resolution or as an original matter. We do not find it necessary to determine the issue, for the corporation has not sought to offset the $2,500 fee against the $39,000 reimbursement claimed by plaintiff, and we agree with the courts below that even if the November 1, 1983 resolution was within the power of the directors under the certificate of incorporation to adopt, it is nonetheless invalid because in violation of Business Corporation Law § 501 (c).

There can be no question concerning the applicability of the Business Corporation Law, for 911 Alwyn Owners Corp. was formed under that law, and Cooperative Corporations Law § 5 (1) makes the Business Corporation Law applicable to all corporations covered by its provisions. Business Corporation Law § 501 (a) authorizes the issuance of stock in classes, and subdivision (c) provides that "[s]ubject to the designations, relative rights, preferences and limitations applicable to separate series, each share shall be equal to every other share of the same class”. The corporation’s certificate authorizes issuance of 10,000 shares "which are to be of the same class, and only one class”.

In a lengthy exegesis of the legislative history and antecedents of Business Corporation Law § 501 (c) the corporation argues that as applied to a corporation with but one class of stock, it is intended to protect only against unequal distribution of corporate assets, not to proscribe a distinction between shareholders the purpose of which is to add to corporate assets. It also points to the requirement of Internal Revenue Code (26 USC) § 216 (b) (1) (A) that to receive favorable tax treatment a cooperative must have only one class of stock and to the reference in the Shor case to economic realities (43 NY2d, at p 157) as the predicate for its conclusion that Business Corporation Law § 501 (c) applies only to a corporation which has discretion to create more than one class of stock.

What the first argument ignores is that the history and antecedents upon which it is based concern the Business Corporation Law or its predecessor, the Stock Corporation Law. The primary purpose of incorporation of such a corporation is, of course, protection of shareholders from having to add to corporate assets beyond the original subscription price (Business Corporation Law § 628), except with respect to wage claims, as to which the Legislature specifically provided for inequality of shareholders, only the 10 largest shareholders being subject to such liability (Business Corporation Law § 630). To follow the argument to its logical conclusion would mean that any business corporation that had a legitimate reason for maintaining a reserve fund could refuse to transfer shares on its books unless the assigning shareholder paid a portion of his or her profit on the stock to the corporation, and that shareholders of the same class could be subjected to unequal requirements. Nor would it help were we to disregard the corporation’s formation under the Business Corporation Law and refer instead to the Cooperative Corporations Law, for section 47 of that law, although it imposes joint and several liability for wage claims on members of a cooperative corporation, provides that otherwise they "shall not be personally liable for its debts, unless otherwise provided in its certificate of incorporation”. No such provision is contained in the incorporation certificate of 911 Alwyn Owners Corp.

Additional evidence that the Legislature did not intend section 501 (c) to permit an unequal assessment against a shareholder/lessee assigning his or her shares is to be found in Banking Law § 632. That section permits the Superintendent of Banks to make an assessment against the shareholders of a banking corporation but requires that such an assessment be of "the equal and pro rata share * * * for each share of stock”. That section indicates a legislative policy of equality as to both assessments and distributions and Business Corporation Law § 628 and Cooperative Corporations Law § 47 make clear that when the Legislature intends to depart from the principle of equality of assessment against shareholders it knows how to do so. Having provided in Business Corporation Law § 501 (c) that each share of a corporation such as 911 Alwyn Owners Corp. "shall be equal to every other share of the same class” and in Cooperative Corporations Law § 5 made the Business Corporation Law applicable to cooperative corporations, excepting from that direction only one clause, irrelevant to the issues before us, of Business Corporation Law § 501 (a), the Legislature clearly did not contemplate that the distribution/assessment distinction on which the corporation relies would authorize departure from section 501 (c)’s requirement of equality among shares of the same class.

The discretion contention can be disposed of more summarily, for it would result in the absurdity that shareholders of the same class could be treated differently if there was but one class of stock but not if there was more than one class. What the subdivision requires is that shares of the same class be equal in all respects to every other share of the class, save only those classes which because they can be issued in separate series may differentiate as to rights and preferences between the separate series. But the Business Corporation Law provides for the issuance in series only of preferred stock (§ 502). Thus equality is required between shares of the same class whether there be one or more classes (see, Henn and Alexander, Corporations § 124, at 286; § 160, at 404 [3d ed]); inequality is permitted only as to preferred stock that has been issued in separate series providing for different designations, relative rights, preferences or limitations.

For the foregoing reasons in Fe Bland Two Trees Mgt. Co., the order of the Appellate Division should be affirmed, with costs, and in 330 W. End Apt. Corp. v Kelly, the order of the Appellate Division should be modified by declaring the resolution imposing a flip tax invalid, and, as so modified, affirmed, with costs to defendant. The certified questions are not answered, the order in each case being final and the questions, therefore, unnecessary.

Chief Judge Wachtler and Judges Jasen, Simons and Titone concur; Judges Kaye and Alexander taking no part.

In Fe Bland v Two Trees Mgt. Co.: Order affirmed, with costs. Question certified not answered as unnecessary.

In 330 W. End Apt. Corp. v Kelly: Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to defendant. Question certified not answered as unnecessary.

      . Fe Bland argues that the fee increase was retaliatory and in any event could not be imposed upon a sale made prior to its adoption. In view of the conclusions hereafter reached, we do not pass upon either contention.

      . The resolution did not purport to amend either the bylaws or the proprietary lease. The record does not in any event establish what authority the directors had with respect to amendment of the bylaws.

      . In the bylaws of 911 Alwyn Owners Corp. the sentence concludes: "including, without limitation, a credit or title search of the apartment or parties”. That clause is not included in the 330 West End Apartment Corporation bylaw.

      . The 911 Alwyn Owners record does not include the full proprietary lease. Our conclusion in that case is, therefore, reached without reference to the quoted sentences.

      . Paragraph (b) of that subdivision makes the final clause of Business Corporation Law § 501 (a) inapplicable to cooperative corporations but has no effect on the applicability of Business Corporation Law § 501 (c).

      . Liability of shareholders of banks and trust companies was provided for by Banking Law §§ 113-a and 113-b, repealed by Laws of 1984 (ch 360, § 40). Shareholders of credit unions and safe deposit companies may still be liable to such an assessment, however (Banking Law §§ 322, 322-a, 461).


author: Kaye, J.

text:
    Chimart Associates, Respondent, v David L. Paul, Appellant.
    Decided January 16, 1986

      APPEARANCES OF COUNSEL

      Robert S. Smith and Dorothy E. Roberts for appellant.

      Robert J. Schechter for respondent.
   OPINION OF THE COURT

Kaye, J.

Where a written agreement between sophisticated, counseled businessmen is unambiguous on its face, one party cannot defeat summary judgment by a conclusory assertion that, owing to mutual mistake or fraud, the writing did not express his own understanding of the oral agreement reached during negotiations.

The facts are largely uncontested. Defendant, David L. Paul, a businessman and financier, was president of AmMart, one of two general partnerships that collectively owned 666 Associates, an Illinois limited partnership whose sole business was the ownership and operation of a building in Chicago. In 1980 AmMart proposed making major improvements to the building, requiring additional capital. Because the other general partner did not wish to participate, Paul and AmMart set out to find new partners and restructure 666 Associates.

To this end, Paul and AmMart located new limited partners who would purchase interests in 666 Associates for $170,000 per percentage point. One of these new limited partners was plaintiff, Chimart Associates. According to Paul’s affidavit, he negotiated with Chimart and its attorneys between July 1980 and November 20, 1980, when the deal closed and Chimart purchased a 22% interest for a total of $3,740,000. At the closing, the parties executed a number of documents, including a 27-page amended and restated limited partnership agreement. Central to this suit, however, is a two-page letter agreement, also dated November 20, 1980 and executed at the closing, from Paul to Chimart, in care of its attorneys, containing the following paragraph: "In order to induce you [Chimart] to purchase the Interest, and subject to your assignment to me [Paul] of your right to receive certain cash distributions from the Partnership, as described below, I agree to pay you, on November 23, 1982, the amount, if any, by which (A) $1,320,000 exceeds (B) the sum of the cash distributions to you from the Partnership on account of the Interest through November 20, 1982 (such amount being the 'Guarantee Payment’). If a Guarantee Payment is not paid on or before November 23, 1982, I also agree to pay interest on such Guarantee Payment from November 23, 1980 to the date such payment is actually made, at a rate per annum equal to the prime rate charged from timé to time by Chemical Bank for 90-day unsecured loans to commercial borrowers of the highest credit rating plus one percent.” The letter agreement was drafted by Chimart’s attorneys.

As of November 23, 1982, Chimart had received no cash distributions from 666 Associates, and Paul refused to make the "Guarantee Payment” under the letter agreement. In June 1983, Chimart sued Paul to collect $1,320,000 plus interest and, after Paul answered, in August 1983 moved for summary judgment on the ground that the language in the letter was unambiguous.

Paul opposed the motion. Arguing that the language of the agreement was ambiguous and that paroi evidence was therefore admissible, Paul submitted an affidavit in which he swore that he had not read the letter agreement before he signed it, but that he believed, based upon conversations with Chimart during the negotiations, that he had an obligation only to pay interest on any unpaid amount until 666 Associates made the distribution. In addition, Paul cross-moved to amend his answer to assert an additional affirmative defense of fraud and/ or mutual mistake, and a counterclaim to reform the letter agreement on that ground.

Special Term denied Chimart’s motion for summary judgment and granted Paul’s cross motion because "it is apparent that the parties are in fundamental disagreement concerning the meaning and interpretations of their letter agreement. * * * This dispute must be resolved at trial.” Chimart appealed from so much of the order as denied its motion for summary judgment, and a unanimous Appellate Division reversed and granted the motion on the ground that the provision was unambiguous. We now affirm.

As we said in Teitelbaum Holdings v Gold (48 NY2d 51, 56), "[interpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument.” Indeed, Paul does not dispute that we should determine if there is any ambiguity by the contractual language alone, without reference to extrinsic evidence. The initial question, then, is whether the agreement on its face is reasonably susceptible of more than one interpretation.

It is not. Paul argues that ambiguity appears on the face of the agreement in that the second sentence suggests that he need only pay interest on any sums not paid by 666 Associates, but the provision does not reasonably admit of such an interpretation. The language plainly imposes an undertaking both to make the "Guarantee Payment” and to pay interest on a late payment. Moreover, Paul’s interpretation would render superfluous the first sentence of the paragraph in which he unconditionally agreed to make the "Guarantee Payment”, and would allow him the option of always simply paying interest.

Nor does Paul’s claim of mutual mistake or fraud warrant a trial on his counterclaim for reformation.

In the proper circumstances, mutual mistake or fraud may furnish the basis for reforming a written agreement. Indeed, the concepts are closely related. In a case of mutual mistake, the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement (see, Harris v Uhlendorf, 24 NY2d 463; Hart v Blabey, 287 NY 257). In a case of fraud, the parties have reached agreement and, unknown to one party but known to the other (who has misled the first), the subsequent writing does not properly express that agreement (see, Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 86; Welles v Yates, 44 NY 525).

Because the thrust of a reformation claim is that a writing does not set forth the actual agreement of the parties, generally neither the paroi evidence rule nor the Statute of Frauds applies to bar proof, in the form of paroi or extrinsic evidence, of the claimed agreement (see, Brandwein v Provident Mut. Life Ins. Co., 3 NY2d 491, 496; but see, Friedman & Co. v Newman, 255 NY 340). However, this obviously recreates the very danger against which the paroi evidence rule and Statute of Frauds were supposed to protect — the danger that a party, having agreed to a written contract that turns out to be disadvantageous, will falsely claim the existence of a different, oral contract (see, Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219). To this end — "for freedom to contract would not long survive courts’ ready remaking of contracts that parties have agreed upon” (id.) — reformation has been limited both substantively and procedurally. Substantively, for example, reformation based upon mistake is not available where the parties purposely contract based upon uncertain or contingent events (Sears v Grand Lodge, 163 NY 374, 378).

Procedurally, there is a "heavy presumption that a deliberately prepared and executed written instrument manifest[s] the true intention of the parties” (Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219, supra), and a correspondingly high order of evidence is required to overcome that presumption. (Id., at pp 219-220; see also, 3 Corbin, Contracts § 615, at 745-746.) The proponent of reformation must "show in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties” (Backer Mgt. Corp. v Acme Quilting Co., at p 219, supra).

For the same reasons, we have required a party resisting pretrial dismissal of a reformation claim to tender a "high level” of proof in evidentiary form (Sagan v Sagan, 53 NY2d 635, 637). "Only thus can the benefits of the written form be preserved” (3 Corbin, Contracts § 607, at 659-660). Thus, in Backer (46 NY2d 211, supra), summary judgment was granted dismissing a reformation claim because "[a]s a matter of law, no showing free of contradiction or equivocation [came] through from the affidavits submitted” in opposition to the motion (46 NY2d, at p 220). It was uncontroverted that the negotiations had been conducted by sophisticated, counseled businessmen, and the undisputed evidence showed that the unambiguous language reflected precisely what the moving party intended. Various statements allegedly made during negotiations were, as a matter of law, too indefinite to form the basis for a claim of misrepresentation.

Backer dictates an affirmance here. First, the contract at issue is part of a multimillion dollar transaction involving sophisticated, counseled parties dealing at arm’s length (cf. Citibank v Plapinger, 66 NY2d 90, 95). Second, the language of the agreement was plain and unambiguous, and by Paul’s own admission he failed to read the agreement. Crucially, there is no unequivocal evidence of mutual mistake or fraud.

As to mutual mistake, Paul sets forth no basis for his contention that both parties reached an agreement other than that contained in the writing. His affidavit contains no specific claim that both parties agreed that Paul could pay only interest and in fact strongly suggests that the mistake was not mutual. The affidavit of Chimart’s attorney, by contrast, squarely addresses the point: "Whether or not defendant signed the Agreement under such a mistaken impression, I can state categorically that Chimart did not labor under the same mistaken impression. As noted above, I played a key role in helping Chimart to negotiate the Agreement. I therefore have direct knowledge of the facts to which I am testifying. Without doubt, the Agreement’s words reflected exactly what I intended them to reflect. Otherwise, Chimart would not have signed the Agreement. There could have been no mistake on the part of Chimart, because the words of the Agreement are plain and unambiguous.” Under such circumstances, Paul was required — and failed — to come forward with something more than his own conclusory assertion that mistake existed.

Paul’s alternative claim of fraud fails for much the same reason. In Backer (supra), the party seeking reformation set forth a particular misrepresentation supposedly made by the other party’s agent, yet the representation was not sufficiently definite to support a claim of reliance. Paul’s allegation of fraud — "Chimart fraudulently misrepresented to me at the closing the Agreement’s contents and effect” — is, a fortiori, too uncertain and conclusory to defeat summary judgment in favor of Chimart.

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

Chief Judge Wachtler and Judges Meyer, Simons, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs.