author: Meyer, J. Jasen, J. Chief Judge Cooke

text:
    In the Matter of Lazaro Saumell, Respondent, v New York Racing Association, Inc., Appellant, and New York State Racing and Wagering Board, Respondent.
    Argued January 10, 1983;
    decided February 23, 1983

      POINTS OF COUNSEL

      Thomas F. Curnin, Joseph I. Loonan, Devereux Chatillon and Kevin J. Burke for appellant.
    I. New York Racing Association’s decision to exclude petitioner from the racetracks which it owns and operates, based on its reasonable belief that petitioner had attempted to cheat in a race, was consistent with its right and duty to protect the integrity of racing and was not a usurpation of the State’s licensing powers. (Jacobson v New York Racing Assn., 33 NY2d 144; Madden v Queens County Jockey Club, 296 NY 249, 332 US 761; People v Licata, 28 NY2d 113; Martin v Monmouth Park Jockey Club, 145 F Supp 439, 242 F2d 344; Fitzgerald v Mountain Laurel Racing, 607 F2d 589, 446 US 956; Matter of Sanford v Rockefeller, 35 NY2d 547, app dsmd sub nom. Sanford v Carey, 421 US 973; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Colton v Berman, 21 NY2d 322.) II. The hearing offered to petitioner by NYRA comported with all applicable constitutional procedural requirements. (United States v Errico, 635 F2d 152, 453 US 911; Madden v Queens County Jockey Club, 296 NY 249; Smith v Mayor, Aldermen & Commonalty of City of N. Y., 68 NY 552; Cohen v Village of Kensington, 61 Misc 2d 122; People v Licata, 28 NY2d 113; Matter of Vaintraub v New York Racing Assn., 28 AD2d 660; Jacobson v New York Racing Assn., 33 NY2d 144; Matter of Thaler v Murphy, 42 Misc 2d 1; Matter of Nassau Regional Off-Track Betting Corp. v New York State Racing & Wagering Bd., 93 Misc 2d 359.)

      Joseph A. Faraldo and Beth J. Goldmacher for Lazaro Saumell, respondent.
    I. NYRA had no power to exclude Saumell based on his alleged infraction of a Board rule. (Jacobson v New York Racing Assn., 33 NY2d 144; Madden v Queens County Jockey Club, 296 NY 249; People v Licata, 28 NY2d 113; Halpern v Lomenzo, 81 Misc 2d 467; City of Amsterdam v Helsby, 37 NY2d 19; Matter of Fink v Cole, 302 NY 216; Murtha v Monaghan, 4 NY2d 897; 8200 Realty Corp. v Lindsay, 27 NY2d 124; Matter of Capital Dist. Regional Off-Track Betting Corp. v New York State Racing & Wagering Bd., 54 NY2d 154.) II. NYRA, an entity, as already adjudicated, engaged in State action, was bound to act only by those means available to the State. (Burton v Wilmington Parking Auth., 365 US 715; Jacobson v New York Racing Assn., 41 AD2d 87, 33 NY2d 144; Halpern v Lomenzo, 81 Misc 2d 467; Gerard v Barry, 59 AD2d 901, 44 NY2d 729; Fitzgerald v Mountain Laurel

      Racing, 607 F2d 589, 446 US 956; Jackson v Metropolitan Edison Co., 419 US 345; Lemberos v Laurel Racecourse, 489 F Supp 1376; Gilmour v New York State Racing & Wagering Bd., 405 F Supp 458; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Madden v Queens County Jockey Club, 296 NY 249.) III. NYRA’s offer of a postexclusion hearing neither passed constitutional muster nor complied with State law requirements and did not, as measured by any standards, qualify as an offer of a “fair” hearing. (Barry v Barchi, 443 US 55; Matter of Ryan v Hofstra Univ., 67 Misc 2d 651; People v Gottlieb, 19 Misc 2d 724; Memphis Light, Gas & Water Div. v Craft, 436 US 1; Matter of Merritt v Swope, 267 App Div 519; (Goldberg v Kelly, 397 US 254; Fitzgerald v Mountain Laurel Racing, 607 F2d 589, 446 US 956; Catrone v Massachusetts State Racing Comm., 404 F Supp 765; Matter of Aquart v Triborough Bridge & Tunnel Auth., 82 AD2d 755; Morgan v New York Racing Assn., 72 AD2d 740.)

      Robert Abrams, Attorney-General (Robert S. Hammer and Peter H. Schiff of counsel), for New York State Racing and Wagering Board, respondent.
    NYRA may exclude a licensee of the Board from its racetracks if it determines on the basis of a reasonable discretionary business judgment that the licensee’s presence is not in its best interests or the best interests of racing generally. (Jacobson v New York Racing Assn., 33 NY2d 144; Halpern v Lomenzo, 81 Misc 2d 467; Matter of Fink v Cole, 302 NY 216; Gilmour v New York State Racing & Wagering Bd., 405 F Supp 458; Aliano v Westchester Racing Assn., 265 App Div 225; Martin v Monmouth Park Jockey Club, 145 F Supp 439, 242 F2d 344; Barry v Barchi, 443 US 55.)
   OPINION OP THE COURT

Meyer, J.

The common-law right of the New York Racing Association (NYRA) to exclude persons from its premises includes the right when there is reasonable cause to believe a jockey licensed by the New York State Racing and Wagering Board (the Board) guilty of misconduct to deny him access. In doing so, however, NYRA must conform to the requirements of due process. Although a presuspension hearing is not in all cases a due process requirement, due process was violated by the exclusion of petitioner without prior hearing or notice to him concerning the claimed misconduct. The order of the Appellate Division should, therefore, be modified by deleting therefrom so much as struck from Special Term’s order the provision permitting NYRA to bring a subsequent expulsion proceeding and as so modified, should be affirmed.

NYRA, which owns and operates Aqueduct, Belmont Park and Saratoga racetracks, is incorporated under what is now section 202 of the Racing, Pari-Mutuel Wagering and Breeding Law (L 1982, ch 865, eff April 1, 1983) “for the purpose of conducting races and race meetings * * * and serving the best interest of racing generally.” Under that section it has “all the general powers of corporations created under the laws of this state, including the powers and obligations of stock corporations” (id., subd 3). It operates under a 25-year franchise granted by the Board (id., § 208). The Board is a State agency (id., § 101) empowered to license running races and race meetings (id., § 207) and to license participants in and employees at race meetings, including jockeys (id., § 213).

Petitioner is a jockey licensed by the Board. In an article 78 proceeding against both NYRA and the Board, he alleged that NYRA had usurped the power of the Board by summarily revoking his license on July 12,1981, based on an asserted violation of a Board rule (9 NYCRR 4042.1 [e]) that occurred three weeks prior, on June 22, 1981; that NYRA was without authority to do so; and that summary revocation was imposed without a hearing in violation of the State Administrative Procedure Act and his right to due process under the United States Constitution. His petition asked judgment enjoining NYRA from depriving him of rights incident to his license and directing the Board to insure that NYRA not interfere with the Board’s licensing function.

Supreme Court, Queens County, on the petition and affidavits presented granted the petition, annulled NYRA’s July 12,1981 determination and enjoined NYRA and the Board from any action impeding petitioner’s rights under his license, without prejudice, however, to a hearing being held by either respondent. It did so on the ground that the Board had neither made any charge nor held the hearing required by subdivision 3 of section 213 of the Racing, Pari-Mutuel Wagering and Breeding Law and that subdivision 3 of section 401 of the State Administrative Procedure Act and the due process clause of the Federal Constitution required a presuspension hearing, absent a finding that the public welfare required emergency action, before NYRA could deny access.

The Appellate Division modified on the law by deleting the decretal provision permitting NYRA to proceed with a hearing and dismissed the proceeding as to the Board. It recognized NYRA’s duty to help insure the interests of legitimate racing and held that although NYRA’s decision to act quickly in furtherance of those interests did not infringe upon Board authority while the Board itself was considering disciplinary action, the Board having taken no action against petitioner, his continued suspension by NYRA infringed upon the Board’s licensing authority. The matter is before us by leave of the Appellate Division.

Neither court below made express findings of fact and the affidavits of the parties conflict concerning the nature of the hearing offered by NYRA. It would, therefore, be necessary to remand were it not for our conclusion that, considered in the light most favorable to NYRA, the papers do not establish a basis for its exclusion of petitioner from its facilities without a presuspension hearing. Those papers show that op June 22, 1981, petitioner rode horse No. 7 of eight horses competing in the second race. As the horse approached the starting gate, into which the first six horses had already entered, and when it was about 15 feet from the gate, Dr. Gilman, the NYRA examining veterinarian, observed an object hit the left side of the rib cage of the horse and fall to the track. He picked up the object and in placing it in his pocket received a severe electric shock. It was turned over to the NYRA steward and a memorandum of the incident was made that day by Dr. Gilman.

An investigation was undertaken by NYRA, which also notified the Board of the incident. During the investigation, petitioner was twice requested to submit to a lie detector test and declined both requests. During such a test on July 10, 1981 of the trainer of the horse petitioner had ridden on June 22, the trainer, after having been told after denying knowledge of the matter that the detector indicated he was not telling the truth, is alleged to have said that petitioner told him after the race that “I dropped my gator. I think the Doctor picked it up.” On July 12, 1981, NYRA’s president caused to be served on petitioner a letter informing him that “[o]n the basis of all the information presently before us” he was denied access to NYRA tracks until further notice but that NYRA would “provide you and your counsel with an immediate opportunity to be heard before a panel appointed by me.” The basis for the exclusion was stated to be that petitioner was on June 22, 1981 in possession of an illegal electrical device, that possession of such a device was a violation of Board regulations, that petitioner during the investigation “failed to cooperate fully” and that NYRA had a vital interest in “assuring that patrons have confidence that the sport is being honestly conducted.”

Separate investigations were thereafter conducted by the Board and by the Nassau County District Attorney. During those investigations the trainer is alleged to have denied making the statement attributed to him by NYRA’s investigator. On July 22,1981, the Grand Jury declined to indict. The Board has since taken no disciplinary action against petitioner but on this appeal urges that “the order of the Appellate Division should be reversed to the extent it denies racetracks the right to exclude licensees in the exercise of sound business judgment.” NYRA concedes for the purposes of this proceeding that its exclusion of petitioner constitutes “State action.”

We conclude that NYRA retains its common-law right of exclusion and is not governed by the State Administrative Procedure Act, but that in view of its State action concession and the substantial rights of which exclusion deprived petitioner it was a violation of petitioner’s constitutional rights to exclude him from NYRA facilities without a prior hearing. We, therefore, modify the Appellate Division’s order as above indicated.

I

It is not entirely clear from the Appellate Division memorandum whether it predicated its holding upon pre-emption, as its citation of Jacobson v New York Racing Assn. (33 NY2d 144, 150) suggests, or an improper delegation of power, as is suggested by its citation of Matter of Capital Dist. Regional Off-Track Betting Corp. v New York State Racing & Wagering Bd. (54 NY2d 154) and Matter of Fink v Cole (302 NY 216). In our view neither doctrine bars NYRA’s exclusion of petitioner from its premises.

Involved in this case are two separate and distinct rights. Jacobson held only that a racetrack proprietor’s common-law right to exclude undesirable patrons without reason or excuse, so long as not discriminatory, did not extend to persons licensed by the State, as to whom, however, exclusion in “the best interest of racing generally” and in the exercise of “a reasonable discretionary business judgment” was permissible (33 NY2d, at p 150). Matter of Fink held no more than that the Legislature cannot constitutionally delegate to a private corporation its power to license participants and employees at race meetings, and the Capital Dist. holding is no broader (see 54 NY2d, at p 158).

Here there exists no delegation of the licensing power, that function having been given only to the Board (Racing, Pari-Mutuel Wagering and Breeding Law, § 213). Nor is there anything in the latter statute to suggest that the Legislature intended to pre-empt NYRA’s common-law power of exclusion (cf. People v De Jesus, 54 NY2d 465; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347) and the Board, by regulation (9 NYCRR 4022.12), has explicitly recognized that that common-law power continues. That in practical effect NYRA’s power of

exclusion may infringe upon a licensee’s ability to follow at NYRA’s tracks the pursuit for which licensed should not for that reason alone be given pre-emptive effect, for the Board has full authority to protect its licensing power through revocation of NYRA’s franchise (see Racing, PariMutuel Wagering and Breeding Law, § 208, subd 6; § 210).

The licensing power of the Board being independent of and separate from NYRA’s common-law right to exclude a licensed person in the best interests of racing, the fact that the Board has taken no action to revoke petitioner’s license had no bearing upon the right of NYRA to exclude petitioner in the first instance or upon the continued effectiveness of the exclusion previously effected by NYRA.

II

Whether petitioner was excluded in conformance with applicable statutory and constitutional requirements remains for discussion. Subdivision 3 of section 213 of the Racing, Pari-Mutuel Wagering and Breeding Law requires notice and a hearing before revocation of a license but by its terms is limited to a revocation by the Board. Subdivision 3 of section 401 of the State Administrative Procedure Act limits summary suspension to a situation which “imperatively requires emergency action” but can be applied to NYRA only if it is “a public benefit corporation or public authority at least one of whose members is appointed by the governor” (State Administrative Procedure Act, § 102, subd 1). NYRA has directors or trustees and stockholders, not members, and is a private corporation (Racing, PariMutuel Wagering and Breeding Law, § 202, subd 3), not a public benefit corporation (General Construction Law, § 66, subd 4). Nor is NYRA’s concession for the purposes of this proceeding that its determination to exclude petitioner constitutes “State action” any reason for invoking the State Administrative Procedure Act, to the extent that the requirement of subdivision 3 of section 401 exceeds the requirements of due process.

The issue is thus reduced to whether, “State action” being so conceded, petitioner’s exclusion without a prior hearing conforms with the requirements of due process. Determination of that question requires a balancing of three factors: (1) the private interest affected, (2) the possibility of error in the procedure used and the probable value of other or additional procedural safeguards, and (3) the interest protected by the “State action” taken and the burdens that other or additional safeguards would impose (Memphis Light, Gas & Water Div. v Craft, 436 US 1, 17; Mathews v Eldridge, 424 US 319, 334-335). Here NYRA’s interest in assuring confidence in the honesty of its activities would have sustained a prehearing exclusion had such a determination followed promptly after the incident and been followed by the offer of an immediate hearing. Having demonstrated by delaying exclusion for 20 days that the incident created no crisis of confidence, however, NYRA could not then impose upon petitioner the substantial deprivation resulting from exclusion without first affording him a hearing.

The Memphis Light case and Barry v Barchi (443 US 55) provide the framework for that conclusion. Memphis Light established “ ‘some kind of hearing’ prior to the deprivation of a significant property interest” as the rule (436 US, at p 19; see, also, Parratt v Taylor, 451 US 527, 540; Friendly, “Some Kind of Hearing”, 123 U of Pa L Rev 1267), but recognized that under appropriate circumstances an “informal consultation” could suffice (436 US, at p 16, n 17) and that prehearing deprivation would be permissible if the deprivation was not serious and the procedure used sufficiently reliable (436 US, at p 19). It held, however, that the deprivation of utility service for any appreciable time and the possibility of error in utility cutoff decisions were sufficiently great to require a hearing prior to termination. Barry recognized that a horse trainer’s property interest in his license was sufficient to invoke the protection of the due process clause and that the trainer’s interest in avoiding suspension was substantial, but held the State’s interest in preserving the integrity of racing and protecting the public from harm sufficiently great and probable cause to believe that a horse had been drugged through the trainer’s negligence, at least, sufficiently established to authorize prehearing suspension followed by a prompt hearing and disposition of the issue.

Postponement of suspension “pending an adversary hearing to resolve questions of credibility and conflicts in the evidence” was not required in Barry because there existed an affirmance by the State’s expert, based on urinalysis, that the horse in question had been drugged, because the trainer worked under a Board rule which established a rebuttable presumption based on drugging that the trainer was at least negligent, and because the trainer was notified immediately of the alleged drugging, 16 days elapsed between that notice and the denial of access and he was given more than one opportunity to present his side of the story to the State’s investigator and had in fact done so without demonstrating convincingly that he was not negligent (443 US, at p 64).

The interests of petitioner and NYRA in this case are the same as the interests of Barchi and the State in Barry, but the present case stands in stark contrast to Barry with respect to the reliability of the procedure used and the risk of erroneous determination. Here no rebuttable presumption existed, and though it appears that petitioner twice declined the opportunity to take a lie detector test, nothing in the record establishes that he was advised why he was being offered the opportunity, was told why the investigation was being made, or was informed that he was the object of it. So far as the record discloses, petitioner was first advised of the charge not two days after the event, as was Barchi, but 20 days after, when he received NYRA’s exclusion letter. Although Barchi had 14 days after being so advised in which to attempt to clear himself before suspension, petitioner had, so far as appears, no benefit from the 20 days that elapsed and was faced with the Hobson’s choice of an immediate hearing without a full opportunity to prepare or deferring the hearing for a sufficient time to prepare but with consequent loss of income.

In contrast to the chemical evidence of illegal drugging by someone in Barry, stands the much less incriminating facts that while Dr. Gilman saw the device hit the rib cage of the horse he could not say from where it came, nor, other than his statement that the horse made no sudden movement when the object hit its left side, is there anything to suggest that it came from or had ever been in the possession of petitioner rather than that of some third person. True there was a statement from the trainer of the horse detailing an admission by petitioner, but the reliability of the statement in view of the trainer’s possible inculpation in the use of such a device was very much more open to question than was the Barry evidence. Finally, the conduct of which Barchi was accused was negligently allowing the horse to be drugged, whereas petitioner was accused of a crime; one is an intentional and the other a negligent act. Although NYRA was not obligated to resolve questions of credibility before denying petitioner access to its facilities, the evidence as to possession of the battery upon the basis of which NYRA acted was at best equivocal and, in light of the 20-day delay and the importance of access to petitioner’s livelihood, an insufficient basis for exclusion without a hearing. Nor did the accusation of failure to co-operate in the investigation authorize such an exclusion, for the record discloses nothing about the circumstances under which he was requested to co-operate, or, indeed, whether any request other than that he take a lie detector test was made (cf. Gilmour v New York State Racing & Wagering Bd., 405 F Supp 458).

That NYRA improperly denied petitioner’s right of access without a hearing does not, however, foreclose its right to proceed with a hearing as a basis for exclusion if it be so advised. Although we need not, in view of the conclusion reached, consider all of the factual and legal issues relating to the nature of the hearing offered, we deem it not improper in view of the possibility that such a hearing may be held, to note that nothing in the record establishes that President Heffernan, who signed the July 12 letter, would be a member of the hearing panel or have any relation to it other than as the appointment authority, and that there would be no constitutional impropriety in his appointing the panel (Withrow v Larkin, 421 US 35, 56-58; Wolff v McDonnell, 418 US 539, 570-571; Richardson v Perales, 402 US 389, 410; Goldberg v Kelly, 397 US 254, 271).

Accordingly, the order of the Appellate Division should be modified as above indicated and, as so modified, affirmed.

Jasen, J.

(concurring in part, dissenting in part). I differ with the majority as to the extent of the New York Racing Association’s right to exclude licensees from it premises. In my view, three issues must be evaluated in order to decide this appeal. They are: (1) to what extent has the NYRA’s common-law right to exclude persons from its racetracks been compromised by its State franchise which gives it a virtual monopoly over thoroughbred racing; (2) when it exercises that right, what safeguards are required by due process to protect the petitioner’s property rights in his license; and (3) at what point must this right yield totally to the State’s power to license.

In Jacobson v New York Racing Assn. (33 NY2d 144), we recognized that because of the NYRA’s monopolistic nature, its common-law right to exclude persons did not afford it absolute immunity when, that right was exercised against persons licensed by the State to work at racetracks. “Exclusion from its tracks is tantamount to barring the plaintiff from virtually the only places in the State where he may ply his trade and, in practical effect, may infringe on the State’s power to license horsemen.” (Jacobson v New York Racing Assn., supra, at pp 149-150.) Thus, we held that the plaintiff could seek damages if he could prove that the NYRA wrongfully barred him from its tracks and thereby interfered with his license. The case being before us on the limited basis of a certified question as to the propriety of an action for damages against the NYRA, we did not address what would be required of the NYRA when it believed it had a reasonable basis for excluding a licensee. In order to determine what action the NYRA is required to take and is allowed to take, I believe we must evaluate the various rights and authorities involved.

The unique nature of the NYRA affects the rights it possesses. It is a nonprofit racing association which, pursuant to a franchise granted by the State, conducts horse racing and related betting activities at three of the four thoroughbred racetracks in this State. (L 1926, ch 440, as amd by L 1976, ch 840.) The statute authorizing such franchises requires that they be regulated and controlled by the New York State Racing and Wagering Board. (L 1926, ch 440.) That means that although the NYRA has the form of a not-for-profit corporation, its rights and privileges as a corporate entity are subject to regulation and limitation by that Board in exchange for its monopolistic status. Thus, in Jacobson, we held that its immunity from suit when it excluded a licensed person was not absolute but was limited to those cases where it could show that the exclusion was related to the best interests of racing generally. We concluded, however, that even though the NYRA was not immune from suit, the burden would be on the plaintiff to establish that in barring him from their tracks, the NYRA was not motivated by the best interests of racing or that it had no legitimate business reason for doing so. (Jacobson v New York Racing Assn., supra, at p 150.) In so limiting our holding, we clearly recognized that the NYRA was subject to Board regulation and was limited by policy from acting in any manner which would infringe on a person’s license unless that action could be justified.

The implication of our holding was that any action by the NYRA was subject to further review and regulation by the Board. Anything less would abrogate the Board’s statutory authority over all such franchises. Similarly, to allow the NYRA to take an action against a licensee which amounted, because of the NYRA’s monopoly, to a de facto revocation of that license would also cause the Board’s licensing authority to be abrogated. Since this petition seeks, rather than damages, an injunction to keep the NYRA from interfering with the Board’s licensing power, I believe we must decide at what point the Board’s licensing authority takes priority over the NYRA’s rights to run its racetracks and exclude persons it believes harm its enterprise. In determining that point, it must be recognized that the authority to license jockeys, trainers and owners is vested by the Legislature in the Racing and Wagering Board. (L 1926, ch 440, as amd by L 1952, ch 77.) When that Board determines that they are entitled to a license, it decides that they are qualified to work at the racetracks in this State. The Board also is authorized to suspend a licensee or revoke a license if it determines, after a hearing, that the licensee has violated the rules and regulations concerning appropriate conduct. (L 1926, ch 440, as amd by L 1951, ch 324.) Given this broad authority, it is the Board which should make the final determination on a licensee’s status.

The further implication from this is that only the Board can take action involving a license because that license is a property interest and the licensee is entitled to certain due process rights before that property interest is taken. This accounts for the statutory mandate and Board’s regulations which require notice and a hearing before a license can be revoked. (L 1926, ch 440, as amd by L 1951, ch 324.)

Underlying our holding in Jacobson, then, are three principles: First, that by accepting its monopoly, the NYRA accepted certain limitations on the common-law rights a proprietor of a private enterprise enjoys; secondly, that a license granted by the State Racing and Wagering Board to work at racetracks is a property right protected by requirements of due process; finally, that the ultimate resolution of a person’s fitness to hold a license and to be involved in horse racing in this State lies with the agency charged with overseeing the sport and business of horse racing. The intertwined nature of these rights, therefore, does effect the NYRA’s ability to bar a licensed jockey from its tracks.

In this case, I would hold that the NYRA can exercise its right to exclude in order to protect its property interests in racing, but only to the extent of temporarily barring the petitioner from its racetracks. To do so, it would be required to have a valid reason and employ some due process safeguards. At that point, because anything other than a temporary suspension pending a hearing would impose on a licensee’s property rights in that license and in turn interfere with the State’s licensing power, I would require the NYRA to refer the matter to the Racing and Wagering Board. That agency can then afford the licensee the additional protection of a hearing before an impartial panel before resolving his continuing status. Assuming the complaint brought by the NYRA is proven at the hearing, it will then be the licensing board which will decide the appropriate sanction — suspension for a period of time or revocation of the license. The licensee will not have been deprived of his property rights in that license until he has been afforded complete due process protections. Similarly, the Board would retain its control over licensing, but the NYRA’s interest in maintaining the integrity of racing would be protected because once it had good cause to believe that the licensee was acting in an improper manner, it could exercise its common-law right to exclude. It would thereby protect its proprietary interests and fulfill its obligation to act in the best interest of racing. I recognize that the NYRA could seek an immediate suspension at the time of the incident from the Board steward present at the track. (9 NYCRR 4022.12.) The fact that an alternative remedy is available I do not find dispositive of the issues presented by this case, particularly because some reasons for exclusion may occur or come to light at times other than when races are being run and the steward is present. Moreover, that regulation specifically provides: “Nothing in this section shall be construed to limit any racing association or track licensee’s power to exclude or deny any individual from its grounds or privileges thereon.” (9 NYCRR 4022.12.)

I would agree with the majority, however, that it flows naturally from the NYRA’s unique status and from the imposition of the requirement that good cause must exist for the NYRA to exclude a licensee that the NYRA must act in a manner that comports with due process when it temporarily bars the licensee. Since the Board will afford the licensee a full and fair hearing, I believe the only requirements that should be imposed on the NYRA before it can bar a licensee from its track are that it give the licensee prompt notice of the charges, an opportunity to review the basis of those charges and that it immediately refer those charges to the Board.

Accordingly, I would modify the order of the Appellate Division by granting the petition to the extent that it barred the NYRA from interfering with the State Racing and Wagering Board’s licensing power and by requiring that any further disciplinary hearing be brought before that Board.

Chief Judge Cooke

(dissenting in part). I cannot agree with the majority’s conclusion that under the State’s statutory scheme governing the issuance and revocation of licenses to participants in thoroughbred horse racing meets, a private franchisee retains an independent right to exclude licensees in good standing from its tracks. The Legislature vested exclusive authority over licensing in the New York State Racing and Wagering Board (Board). Inasmuch as the New York Racing Association (NYRA), a private franchisee, excluded petitioner for reasons that directly infringe on the Board’s licensing power, such exclusion was improper.

In creating the Board, the Legislature stated in broad and inclusive terms that the Board “shall have general jurisdiction over all horse racing activities * * * in the state and over the corporations, associations, and persons engaged therein” (Racing and Wagering Board Law, § 201, subd 1, L 1973, ch 346, § 3). Moreover, consistent with this broad power, the Board, “[f]or the purpose of maintaining a proper control over [thoroughbred horse] race meetings,” was expressly granted the exclusive power to license the various participants in these meets (see L 1926, ch 440, § 9-b, subd 1, as added by L 1951, ch 324, as amd by L 1952, ch 77, § 1, L 1953, ch 773, § 2, L 1956, ch 12, § 1, L 1957, ch 539, § 1, L 1958, ch 30, § 1, L 1960, ch 828, § 1, L 1968, ch 548, L 1973, ch 208, § 1, L 1981, ch 103, § 167).

The issuance of such licenses is to be based on the Board’s determination that the “financial responsibility, experience, character and general fitness of the applicant are such that the participation of such person will be consistent with the public interest, convenience or necessity and with the best interests of racing generally” (L 1926, ch 440, § 9-b, subd 2, as added by L 1951, ch 324, as amd by L 1952, ch 77, § 1). As a part of this power, the Board “may refuse to issue or renew a license, or may suspend or revoke a license” based on detailed criteria bearing on an applicant’s or a licensee’s moral fitness. Pursuant to its authority, the Board has promulgated regulations setting forth various restrictions on licensees (see, e.g., 9 NYCRR 4040.1-4040.15), detailing corrupt practices (see 9 NYCRR 4042.1), and empowering the Board’s individual stewards to exclude or suspend persons from track grounds (see 9 NYCRR 4022.12).

The Board’s members are public officers (see Racing and Wagering Board Law, § 201, subd 2, L 1973, ch 346, § 3) and no member of the Board, or its officers, officials, or employees may have an interest in the “operations of any licensee or franchisee of the board” (Racing and Wagering Board Law, § 201, subd 7). The NYRA, on the other hand, is merely a private, nonprofit franchisee, empowered, subject to the Board’s continuing jurisdiction, to “conduct a race course or race meetings for running races or steeplechases or hunt meetings” (L 1926, ch 440, § 7-a, as added by L 1955, ch 812, § 2). The officers of the NYRA are not public officers; they are not sworn or removable as such. The Legislature permitted the NYRA’s incorporation solely for the purpose of “conducting races and race meetings, improving the racing facilities, increasing the conveniences available to patrons and serving the best interest of racing generally” (L 1926, ch 440, § 1-a, as added by L 1955, ch 812, § 1). Nowhere under the statutory scheme is the Board’s licensing power and concomitant power to revoke or suspend licenses limited or derogated in favor of the NYRA. The majority, nevertheless, finds that the NYRA in effect shares with the Board the power to suspend Board licensees from participating in track meets by virtue of a “common-law right of exclusion” (p 237).

When this court, in Jacobson v New York Racing Assn. (33 NY2d 144), affirmed a common-law right of the NYRA, as a proprietor, to exclude patrons from its premises and to allocate or deny its limited stall space to licensees in accordance with the exercise of reasonable, discretionary business judgment, it also noted that “[exclusion from its tracks is tantamount to barring [an individual] from virtually the only places in the State where he may ply his trade and, in practical effect, may infringe on the State’s power to license horsemen” (id., at pp 149-150). In Jacobson, the NYRA was required to justify its business decision to deny stall space because its action would have the effect of excluding licensees. The court did not countenance the outright exclusion of licensees from participation whenever and for no other reason than that such exclusion would, in the judgment of the NYRA, further the best interests of racing generally and constitute a reasonable, discretionary business judgment.

Whatever may have been the extent of the NYRA’s common-law power to exclude persons from its tracks, it certainly is curtailed by the Legislature’s express delegation of licensing power to the Board, and by the Legislature’s exposition of explicit criteria for evaluating license revocations. In Matter of Fink v Cole (302 NY 216), this court struck down as an improper delegation of legislative power statutes that conferred upon the Jockey Club, a private corporation, the power over issuance and revocation of licenses to jockeys (id., at p 225). The Legislature by enacting these statutes recognized, that for a private body to have the power to effect licensing decisions, an express statutory grant was necessary. In other words, upon assumption by the Legislature of the power to regulate racing generally, private bodies were impotent to intrude into licensing and disciplinary matters.

The majority’s interpretation of the NYRA’s power to exclude gives that private franchisee the functional equivalent of a power to revoke or suspend licenses issued by the Board. Presumably, under this holding, if the NYRA should decide that activities on the part of a licensee permit it to invoke its common-law power to exclude licensees from its track facilities in the best interests of racing, it may do so despite a contrary plenary determination by the Board that no discipline is necessary. So long as the NYRA’s exclusion policy cannot be said to have been motivated by anything other than advancing the best interests of racing and constitutes a reasonable exercise of business judgment, its determination will not be disturbed by the courts regardless of whether conflicting factual or policy findings are made by the Board. It is unrealistic to assume, as the majority does (see pp 238-239), that such an inconsistent result could or would be remedied by the Board through the extraordinary act of revoking the NYRA’s franchise, thereby disrupting all racing at the Belmont, Aqueduct and Saratoga racetracks and causing economic hardship to the many innocent persons associated with those establishments.

The State’s interest in entrusting to a single public body the power to determine the qualifications of potential and present licensees, thereby ensuring responsible and consistent policy, outweighs any harm that might accrue to the NYRA or similarly situated franchisees by denying to them a concurrent power. When an infraction of racing regulations such as has been alleged here is brought to the NYRA’s attention, it need only refer the matter to the Board, which is charged with then taking appropriate action. A Board representative, a steward, is present on racetrack grounds at all times during racing meets (see 9 NYCRR 4022.3) and is expressly empowered to exclude from the facility for up to 60 days any person who acts in a manner that is detrimental to the best interests of racing (see 9 NYCRR 4022.12). Moreover, this regulation requires that the Board’s steward, before taking any action, consult with the NYRA’s steward and afford him or her an opportunity to make recommendations (9 NYCRR 4022.12).

Any disruption or irregularity, therefore, can be swiftly and effectively remedied, pending a Board hearing. Thus, extending to the NYRA any concurrent power to exclude licensees, even on emergency basis, would be unnecessary and superfluous. It is also noteworthy that the NYRA’s action here was not a temporary exclusion to meet an emergency, but was rather an attempt to permanently exclude petitioner from its tracks.

Inasmuch as the NYRA has no disciplinary power to exclude licensees, any further action against petitioner should be taken only by the Board. Therefore, the order of the Appellate Division should be affirmed in all respects.

Judges Jones, Wachtler and Fuchsberg concur with Judge Meyer; Judge Jasen concurs in part and dissents in part and votes to modify in accordance with his opinion in which Judge Simons concurs; Chief Judge Cooke dissents in part and votes to affirm in another opinion.

Order modified, with costs to appellant, in accordance with the opinion herein and, as so modified, affirmed.

      . The regulation which deals with the power of the Board steward to exclude persons from the track or suspend a license for up to 60 days concludes with the statement that: “Nothing in this section shall be construed to limit any racing association or track licensee’s power to exclude or deny any individual from its grounds or privileges thereon.” The suggestion in Chief Judge Cooke’s dissenting in part opinion (n 2) that the Board misconstrues its statutory authority assumes that by doing so the Board has delegated its licensing authority. But the extent to which an agency with licensing power should exercise it is a question of “ judgment, discretion, allocation of resources and priorities [which is! inappropriate for resolution in the judicial arena’ ” (see Jones v Beame, 45 NY2d 402, 407; Matter of Kerness v Berle, 85 AD2d 695, affd 57 NY2d 1042).

      . The Appellate Division’s conclusion that petitioner’s exclusion “is based solely on an alleged infraction of a rule of the board” (86 AD2d, at p 606) is not sustained by the record. The infraction, if there was one, violated not only the Penal Law (88 110.00, 180.50) and the rules of the Board (9 NYCRR 4042.1 [eb but was also contrary to the best interests of racing. NYRA’s July 12 letter referred both to petitioner’s possession of “an illegal electrical device” and to the fact that possession was a Board rule violation, but petitioner’s exclusion was stated to be the result of NYRA’s determination “in the exercise of our independent judgment, that our investment in our operations, as well as public perception of thoroughbred racing generally, could be seriously compromised if you continue to have access to our facilities.”

      . NYRA has “virtual monopoly power over thoroughbred racing in the State of New York” (Jacobson v New York Racing Assn., 33 NY2d 144, 149). Moreover, petitioner’s affidavit indicated that as a result of NYRA’s action he had been deprived of the right to ride at a New Jersey track.

      . Not considered in this evaluation because they came after the suspension are the trainer’s later contradictory statements and the failure of the Grand Jury to indict and the Board to institute a proceeding to discipline petitioner or revoke his license.

      . Specifically, the Board may deny, suspend, or revoke a license “if it shall find that the applicant * * * has been convicted of a crime in any jurisdiction, or is or has been associating or consorting with any person who has or persons who have been convicted of a crime or crimes in any jurisdiction or jurisdictions, or is consorting or associating with or has consorted or associated with bookmakers, touts, or persons of similar pursuits, or has himself engaged in similar pursuits, or is financially irresponsible, or has been guilty of or attempted any fraud or misrepresentation in connection with racing, breeding or otherwise, or has violated or attempted to violate any law with respect to racing in any jurisdiction or any rule, regulation or order of the [Board], or shall have violated any rule of racing which shall have been approved or adopted by the I Board], or has been guilty of or engaged in similar, related or like practices” (L 1926, ch 440, § 9-b, subd 2, as added by L 1951, ch 324, as amd by L 1952, ch 77, § 1).

      . To the extent that the regulation providing that “[ nlothing in this section shall be construed to limit any racing association or track licensee’s power to exclude or deny any individual from its grounds or privileges thereon” (9 NYCRR 4022.12), maybe construed as authorizing the NYRA to directly exclude licensees from its tracks, it constitutes an invalid delegation by the Board of its power to effect licensing decisions. Nowhere in the statutory framework governing the issuance and revocation of licenses is the Board permitted to delegate to a private racing association the power to exclude licensees. The Board’s interpretation of its statutory power as evidenced by this regulation is entitled to no deference (see Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). Moreover, as discussed below, inasmuch as the power to exclude is tantamount to the power to effect licensing decisions, the Board cannot under the State Constitution delegate the power to exclude (see Matter of Fink v Cole, 302 NY 216, 224-225).

      . Similarly, there is no need to fashion a broad emergency power to be invoked by the NYRA to meet those situations when no Board steward is present at the track. The Board has provided that one of its representatives shall be responsible for track activities at all times. Its regulations state that “Idluring the absence or inability to act of an official steward of the [Board] * * * the powers and duties of such steward shall be exercised and performed * * * by a member of the [Board] designated by the [Board 1 for that purpose” (9 NYCRR 4022.5). Thus, in the event that an infraction by a licensee arises or comes to the NYRA’s attention when no Board steward is present or able to act, a member of the Board shall act in his or her stead. Moreover, if no steward is present because no races are being held, it is almost certain that there would be no emergency.


source: Caselaw Access Project

author: Wachtler, J. Jasen, J.

license: Public Domain

text:
    Timothy S. Garrett, Individually and as Limited Administrator of the Estate of Nancy J. Garrett, Deceased, Plaintiff, v Holiday Inns, Inc., et al., Appellants, et al., Defendants, and Town of Greece, Respondent. (Four Main Actions and 20 Third-Party Actions.)
    Argued January 11, 1983;
    decided February 23, 1983

      POINTS OF COUNSEL

      Harold A. Kurland, David M. Lascell and Carolyn G. Nussbaum for Holiday Inns, Inc., appellant.
    I. Holiday is entitled to seek contribution or indemnification to the extent the town’s wrongful conduct caused plaintiffs’ damages. (Garrett v Holiday Inns, 86 AD2d 469; Dole v Dow Chem. Co., 30 NY2d 143; Klinger v Dudley, 41 NY2d 362;
      Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551; Nolechek v Gesuale, 46 NY2d 332; Smith v Sapienza, 52 NY2d 82; Schauer v Joyce, 54 NY2d 1; Gordon v Holt, 65 AD2d 344; Sexstone v City of Rochester, 32 AD2d 737; Garrett v Town of Greece, 78 AD2d 773, 55 NY2d 774.) II. Holiday properly states causes of action based on breach of a special duty and reliance upon the town’s conduct and certificate of occupancy. (Garrett v Town of Greece, 78 AD2d 773, 55 NY2d 774; Gordon v Holt, 65 AD2d 344; Fitzgerald v 667 Hotel Corp., 103 Misc 2d 80; Gannon Personnel Agency v City of New York, 103 Misc 2d 60; Sexstone v City of Rochester, 32 AD2d 737; Weese v Village of Medina, 83 AD2d 989; Tuffley v City of Syracuse, 82 AD2d 110; Doyle v 800, Inc., 72 AD2d 761.)

      Dennis R. McCoy for Anthony Comparato, appellant.
    The order of the court below should be reversed because the third-party complaints of Anthony Comparato against the Town of Greece provide a basis for impleader under CPLR 1007. (Riss v City of New York, 22 NY2d 579; Motyka v City of Amsterdam, 15 NY2d 134; Sanchez v Village of Liberty, 42 NY2d 876; Gordon v Holt, 65 AD2d 344; Sexstone v City of Rochester, 32 AD2d 737; Doyle v 800, Inc., 72 AD2d 761; Fladerer v Needleman, 30 AD2d 371; Dole v Dow Chem. Co., 30 NY2d 143; Nolechek v Gesuale, 46 NY2d 332; Holodook v Spencer, 36 NY2d 35.)

      Robert J. Burke and John M. Bansbach for Leo Spezio and others, appellants.
    I. The Town of Greece owed appellants as property owners a special duty when it issued a certificate of occupancy upon which they relied. (Sanchez v Village of Liberty, 42 NY2d 876; Garrett v Town of Greece, 78 AD2d 773, 55 NY2d 774; Motyka v City of Amsterdam, 15 NY2d 134; Sexstone v City of Rochester, 32 AD2d 737; Gordon v Holt, 65 AD2d 344; Doyle v 800, Inc., 72 AD2d 761; Klein v City of Yonkers, 53 NY2d 1011.) II. Appellants have established a valid cause of action for indemnification from the town based upon the independent duty owed to them. (McDermott v City of New York, 50 NY2d 211; Margolin v New York Life Ins. Co., 32 NY2d 149; McFall v Compagnie Maritime Belge [Lloyd Royal] S. A., 304 NY 314; Kelly v Diesel Constr. Div. of Carl A. Morse, 35 NY2d 1; Rogers v Dorchester Assoc., 32 NY2d 553; Dole v Dow

      Chem. Co., 30 NY2d 143; Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Merriweather v Boland & Cornelius, 6 NY2d 417.) III. Appellants have established a valid cause of action for contribution from the town based upon the independent duty owed them. (Schauer v Joyce, 54 NY2d 1; Smith v Sapienza, 52 NY2d 82; Klinger v Dudley, 41 NY2d 362; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551; Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136; Londino v Health Ins. Plan of Greater N. Y., 93 Misc 2d 18; Zillman v Meadowbrook Hosp. Co., 73 Misc 2d 726, 45 AD2d 267; Nolechek v Gesuale, 46 NY2d 332.)

      Charles A. Hall for respondent.
    I. The third-party plaintiffs are not entitled to recover over against the Town of Greece under the theories of indemnity and contribution. (Garrett v Town of Greece, 78 AD2d 773, 55 NY2d 774; Dole v Dow Chem. Co., 30 NY2d 143; Rogers v Dorchester Assoc., 32 NY2d 553; D’Ambrosio v City of New York, 55 NY2d 454; Schauer v Joyce, 54 NY2d 1; Smith v Sapienza, 52 NY2d 82; Riviello v Waldron, 47 NY2d 297; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co. of N. Y., 45 NY2d 551; Klinger v Dudley, 41 NY2d 362; Zillman v Meadowbrook Hosp. Co., 73 Misc 2d 726, 45 AD 2d 267.) II. The third-party complaints fail to allege facts constituting a breach by the Town of Greece of a special duty owed to any of the third-party plaintiffs. (Charles O. Desch, Inc. v State of New York, 50 AD2d 253, 60 AD2d 678, 45 NY2d 882; Ilson v Incorporated Vil. of Ocean Beach, 79 AD2d 697; Pettorino v Incorporated Vil. of Val. Stream, 63 AD2d 967; 154 East Park Ave. Corp. v City of Long Beach, 49 AD2d 949, 73 AD2d 640, 52 NY2d 991; Band v Town of Colonie, 36 AD2d 785; Pansa v Sitrin, 27 AD2d 636; Rothkamp v Young, 21 AD2d 373, 15 NY2d 831; Reid v City of Niagara Falls, 29 Misc 2d 855; Lockwood v Village of Buchanan, 18 Misc 2d 862.)
   OPINION OF THE COURT

Wachtler, J.

Appellants, as third-party plaintiffs in these actions, seek to hold a municipality proportionately liable to the extent that its negligent conduct contributed to the occurrence of a motel fire, for which appellants may be cast in damages to plaintiff motel guests and their representatives. Two questions are presented for our determination. First, despite the absence of any actionable duty owed by a third party directly to the injured plaintiffs, may the third party be held liable for a proportionate share of the damages, on the basis of a breach of duty to those who must respond directly in damages to plaintiffs? If the absence of a duty to plaintiffs is no bar to such a claim, a second issue is whether appellants have sufficiently alleged a special duty on the part of the municipality, the breach of which will render it liable to appellants for having negligently exposed them to such potential tort liability.

As a result of an extensive fire at the Holiday Inn in the Town of Greece, several actions for wrongful death, personal injuries and property damage were brought by or on behalf of motel guests. Named as defendants were the Holiday Inns, Inc., which operated the motel pursuant to a lease; the corporation which undertook the development and construction of the motel, its principals and its successors; the present and previous owners of the premises; and the Town of Greece. The theory of negligence pleaded against the town was predicated on its failure to require the motel owners to comply with applicable fire and safety laws and its failure to inspect the construction of the motel adequately. Because plaintiffs had, in this regard, alleged no more than a violation of a general duty owed by the town to the public at large, the complaints against the town were held insufficient to state a cause of action and were therefore dismissed (Garrett v Town of Greece, 78 AD2d 773, affd on opn below 55 NY2d 774).

Thereafter, the remaining defendants/third-party plaintiffs sought to implead the Town of Greece, alleging that, to the extent the several plaintiffs’ damages were caused or exacerbated by the town’s wrongful conduct, it is liable to third-party plaintiffs for “contribution or indemnification”. The town’s liability is based on an alleged breach of a special duty owing third-party plaintiffs in that it: (1) permitted alterations in the originally approved building .plans which did not comply with applicable fire and safety laws, codes and regulations; (2) issued a certificate of occupancy representing that the building was safe and in compliance with fire and safety laws, notwithstanding the existing, obvious violations of those laws; and (3) thereafter negligently failed to uncover the violations upon inspection.

The town’s motions to dismiss the third-party complaints for failure to state a cause of action were denied by Special Term. The Appellate Division reversed and granted the motions, holding that the town may not be liable to any extent to third-party plaintiffs in the absence of a duty owed to plaintiffs. Holiday Inn and the present and previous owners of the motel have appealed to this court. There should be a modification of the order of the Appellate Division.

The issue is whether the town, having been held to owe no duty to plaintiff motel guests under the circumstances of this case can nevertheless be held proportionately liable to the owners and lessee/operator of the motel for its breach of an independent duty owing these parties. Generally, apportionment rights among wrongdoers arise when “two or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owed to the injured person” (Smith v Sapienza, 52 NY2d 82, 87; Holodook v Spencer, 36 NY2d 35; Rogers v Dorchester Assoc., 32 NY2d 553). Principles allowing apportionment among tort-feasors reflect the important policy that responsibility for damages to an injured person should be borne by those parties responsible for the injury, in proportion to their respective degrees of fault (Dole v Dow Chem. Co., 30 NY2d 143,152). We have recognized that contribution rules have developed to remedy an injustice to joint tort-feasors, who were permitted no general apportionment rights under prior law (Klinger v Dudley, 41 NY2d 362, 370).

That being the case, contribution rights on behalf of concurrent wrongdoers have been upheld in numerous circumstances in which the injured person has himself had no right of recovery against a particular third party. Thus, in Dole v Dow Chem. Co. (supra), the defendant manufacturer of a chemical alleged to have caused the death of plaintiff’s decedent was permitted to assert a contribution claim against the decedent’s employer, despite the bar imposed by the Workers’ Compensation Law to direct suit by plaintiff against the employer. In Klinger v Dudley (supra), we recognized contribution rights in favor of tortfeasors against third parties as to whom plaintiffs had no direct right of recovery due either to their failure to join the third parties as defendants or to some special defense barring recovery.

Of course, the holdings in such cases do not resolve the precise question raised on the present appeal, for those cases involved circumstances in which the third party had no liability to the injured person, in contrast to the absence of a duty owed him. Nevertheless, these cases demonstrate that proportionate liability rights among joint tort-feasors are analytically distinct from the rights and obligations of the parties to the injured person and that the nexus of duty between wrongdoers may exist independently of the respective duties owing a plaintiff.

The issue of whether an obligation of proportionate liability can exist on the part of one who owes no duty to the plaintiff has been dealt with by this court in the context of parental responsibility for the actions of an infant child. It is well established, under New York law, that a child has no cause of action against his parent for the latter’s failure to supervise the child adequately (Holodook v Spencer, supra). Because the parent owes no duty to the child in this regard, a tort-feasor who has caused injury to a child may not seek contribution from the parent (id., at p 51). Where a parent has entrusted a child with a dangerous instrumentality, however, and has thereby created an unreasonable risk of harm to another, the parent may be cast in damages to the injured third party, even though the child has no comparable cause of action against the parent. This well-recognized duty on the part of a parent to third parties led to this court’s holding in Nolechek v Gesuale (46 NY2d 332) quite apart from the general principle that to be held proportionately liable a wrongdoer must owe a duty directly to the injured person.

Nolechek involved an action brought by a father, both individually and as administrator of his son’s estate, against a landowner and others for the wrongful death of his son resulting from a motorcycle accident. The complaint alleged that the landowner had negligently permitted a dangerous condition to exist on his property which caused the accident. The landowner interposed a counterclaim against the father, seeking to impose proportionate liability on the father for his wrongful conduct in providing his vision-impaired son with a motorcycle. This court permitted the counterclaim to stand, holding that a tort-feasor cast in damages for injuries to a child may seek proportionate recovery, there termed “contribution”, from the parent where the child’s injury and the tort-feasor’s liability resulted, in part, from negligently entrusting the child with a dangerous instrumentality. Analyzing the question of the duty owed by the father to the landowner as distinct from the duty (or lack thereof) owed by the father to the son, this court concluded that the absence of an actionable duty running from father to son did not prevent the landowner from asserting a claim against the father, based upon an independent duty owed the landowner. The father’s duty to protect the landowner from unreasonable risks of harm was deemed to encompass an obligation to prevent foreseeable exposure to potential tort liability for injury to the child.

Nolechek’s recognition of the proportionate liability claim notwithstanding the absence of a duty owed directly to the injured person is, we believe, entirely consistent with the policy underlying principles of apportionment and comparative negligence. If an independent obligation can be found on the part of a concurrent wrongdoer to prevent foreseeable harm, he should be held responsible for the portion of the damage attributable to his negligence, despite the fact that the duty violated was not one owing directly to the injured person. Thus if the town owed a duty to appellants to protect them from foreseeable risks of harm, the breach of which has combined with appellants’ own negligence to render them answerable in damages to the injured motel guests, the town should be required to bear responsibility for the injury its negligence has caused appellants, in proportion to its own degree of fault.

We turn, then, to the instant case and the question whether the town owed any duty to appellants — the owners and the lessee/operator of the motel — to use reasonable care in issuing a certificate of occupancy and approving alterations in construction to ensure that the premises were not in blatant violation of fire and safety laws. When a claim is made that a municipality has negligently exercised a governmental function, liability turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public (Florence v Goldberg, 44 NY2d 189; Sanchez v Village of Liberty, 42 NY2d 876, app dsmd on other grounds 44 NY2d 817). Such a duty is found when a special relationship exists between the municipality and an individual or class of persons, warranting the imposition of a duty to use reasonable care for those persons’ benefit (see Sanchez v Village of Liberty, supra). This principle operates to impose liability where the municipality has violated a duty commanded by a statute enacted for the special benefit of particular persons (see Motyka v City of Amsterdam, 15 NY2d 134); where the municipality has voluntarily assumed a duty, the proper exercise of which was justifiably relied upon by persons benefited thereby (Florence v Goldberg, supra; cf. Schuster v City of New York, 5 NY2d 75); or where it assumes positive direction and control under circumstances in which a known, blatant and dangerous safety violation exists (Smullen v City of New York, 28 NY2d 66).

The several third-party complaints before us allege that the town, although having knowledge that blatant fire and safety code violations were involved, nevertheless approved changes in the building plans and thereafter issued a certificate of occupancy representing the premises to be safe and free of violations. Although the mere failure to uncover fire and safety violations during inspection clearly would not constitute a sufficient predicate for imposing liability on the town (e.g., Smullen v City of New York, supra, at p 70), much more in the way of a special relationship between the town and appellants is alleged here. If, as is alleged in the complaints, known, blatant, and dangerous violations existed on these premises, but the town affirmatively certified the premises as safe, upon which representation appellants justifiably relied in their dealings with the premises, then a proper basis for imposing liability on the town may well have been demonstrated (see Gordon v Holt, 65 AD2d 344, mot for lv to app den 47 NY2d 710; Doyle v 800, Inc., 72 AD2d 761; Sexstone v City of Rochester, 32 AD2d 737). While such liability would plainly encompass direct injury to appellants, it may also properly include the economic damages they may suffer as a result of judgment against them in favor of the motel guests. Thus, the town may be held proportionately liable for such damages if it is found that such exposure to potential tort liability was a foreseeable harm resulting from the town’s alleged breach of duty (see Nolechek v Gesuale, supra, at p 340).

Finally, we note in this connection that the town may not escape liability by asserting that the issuance of a certificate of occupancy involves a purely discretionary function. Although it has been held that the grant or denial of a building permit involves a discretionary governmental function, the exercise of which may not form the basis for liability in tort (e.g., Rothkamp v Young, 21 AD2d 373, affd on opn below 15 NY2d 831), a different situation is presented here. The town had a duty, in the face of the alleged blatant and dangerous code violations, to refuse to issue a certificate of occupancy. No exercise of judgment or weighing of competing factors was necessary. Accordingly, under the circumstances of this case, the obligation imposed on the town cannot be viewed as discretionary.

Although we hold that the town may be held proportionately liable to appellants if their allegations are proven, we conclude that appellants have stated no basis for implied indemnification by the town, and to that extent, the town’s motions to dismiss were properly granted by the Appellate Division. There is no view of the third-party complaints supporting a theory that appellants, if held liable to plaintiffs, are being cast in damages solely for the negligence of the town or on the basis of vicarious or imputed liability (see, e.g., D’Ambrosio v City of New York, 55 NY2d 454; Rogers v Dorchester Assoc., 32 NY2d 553, supra; Margolin v New York Life Ins. Co., 32 NY2d 149). Appellants have at most stated a basis for proportionate liability on the part of the town, and the claims for indemnification were therefore properly dismissed.

Accordingly, the order of the Appellate Division should be modified, with costs to appellants, to the extent of denying the motions of third-party defendant Town of Greece to dismiss appellants’ third-party complaints as to the claims for proportionate liability set forth therein, and as so modified, the order should be affirmed, and the case should be remitted to Supreme Court, Monroe County, for the fixation of the time within which answers of the town to the third-party complaints may be served and for further proceedings on the pleadings.

Jasen, J.

(dissenting in part). While I agree with so much of the majority’s opinion as holds that despite the absence of any actionable duty owed by a third party directly to the injured plaintiff, the third party may be held liable for a proportionate share of the damages on the basis of a breach of duty to those who must respond directly in damages to the plaintiff, I do not believe that the third party in this case, the Town of Greece, can be charged with violating a special duty to the motel owners and operator in order to be held liable for a proportionate share of the damages.

As the majority recognizes, a municipality will be held liable for violating a duty commanded by a statute only where the statute was enacted for the benefit of a particular person or class of persons. (Motyka v City of Amsterdam, 15 NY2d 134.) No liability exists where the municipality has breached a general duty owed to the public. (Sanchez v Village of Liberty, 42 NY2d 876, app dsmd on other grounds 44 NY2d 817; O’Connor v City of New York, 58 NY2d 184.) The “special duty” rule has been applied in cases indistinguishable from the case before us.

In Motyka v City of Amsterdam (15 NY2d 134, supra), plaintiffs brought a cause of action against the city after a fire broke out in an apartment building, killing and injuring several people. The. complaint alleged that the city failed to enforce certain provisions of the Multiple Residence Law by refusing to take proper action to see that a defective oil heater, which was known to have caused a previous fire, was repaired or removed. This court held that the complaint was properly dismissed because the city owed only a general duty to the public as opposed to a special duty to the plaintiffs.

Similarly, in Sanchez v Village of Liberty (42 NY2d 876, app dsmd on other grounds 44 NY2d 817, supra), a fire resulted in the deaths of several people. Plaintiffs brought suit against the village and others alleging that the village and its building inspector knew the building was a firetrap lacking proper fire escapes and other means of ingress and egress in violation of certain statutes and ordinances. Once again, we held that only a general duty had been breached because there was no special relationship between the village and this particular class of individuals. We have most recently reaffirmed our commitment to the special duty rule in O’Connor v City of New York (58 NY2d 184, supra.)

The majority attempts to distinguish the afore-mentioned cases on the ground that the Town of Greece “not only negligently failed properly to inspect the premises but also that it affirmatively issued a false certificate of occupancy, actively misrepresenting that there were no violations of applicable fire and safety laws.” (At p 263, n 5.) What the majority overlooks is that in Sanchez v Village of Liberty (supra), it was alleged that the plaintiffs, recipients of public assistance, were moved into a building which the defendants knew was a firetrap. It is difficult to imagine a more affirmative act of misrepresentation to a particular class of individuals that premises were safe for their occupancy. Moreover, in O’Connor v City of New York (supra), the city inspector observed the obviously faulty gas pipe installation work, but nevertheless issued a “blue card” which stated: “This is to certify that the Gas Pipes of the premises known as No. 7-11 Ann Street in the Borough of Manhattan conform to the rules and regulations of the Department in effect at this date.” Thus, it is beyond dispute that the City of New York, as did the Town of Greece, “actively misrepresented] that there were no violations of applicable [rules and regulations]”. No credible distinction can be drawn between these cases.

Since I believe this case is indistinguishable from our past decisions, stare decisis commands dismissal of plaintiff’s complaint. Indeed, at an earlier stage of the instant litigation, it was held that “[p]laintiff has alleged no more than a violation by the town of a general duty owed to the public at large”. (Garrett v Town of Greece, 78 AD2d 773, 774, affd on opn below 55 NY2d 774.) I cannot accept the distinction drawn by the majority between motel owners and motel guests, allowing only the motel owner to recover for damages caused as a result of the same catastrophic event. As we said in O’Connor v City of New York (58 NY2d 184, 192, supra) “[t]he arguments for extending municipal liability * * * have been raised before and rejected. It is true that some individuals will suffer substantial hardship as a result of their inability to recover for their injuries from a municipality that negligently fails to enforce its own regulations. The deleterious impact that such a judicial extension of liability would have on local governments, the vital functions that they serve, and ultimately on taxpayers, however, demands continued adherence to the existing rule. All the more is this so when there has been reliance for decades on this doctrine for purposes of municipal fiscal planning. If liability to individuals is to be imposed on municipalities for failure to enforce statutes or regulations intended for the general welfare, that imposition should come from the Legislature.”

Accordingly, I would affirm the order of the Appellate Division and, as we did in the companion case, Garrett v Town of Greece (55 NY2d 774, supra), dismiss the third-party complaint.

Judges Jones, Fuchsberg and Meyer concur with Judge Wachtler; Chief Judge Cooke dissents in part and votes to affirm for the reasons stated in the opinion by Justice Richard D. Simons at the Appellate Division (86 AD2d 469); Judge Jasen dissents in part and votes to affirm in a separate opinion; Judge Simons taking no part.

Order modified, with costs to appellants, and the case remitted to Supreme Court, Monroe County, for further proceedings in accordance with the opinion herein and, as so modified, order affirmed.

      . The town made motions in 11 of the actions against it. As to the remaining 10 actions, brought by defendants/third-party plaintiffs Comparato and Corona Court, Inc., against the town, counsel stipulated to be bound by the determination on the motions made in the first 11 actions.

      . Although the builders of the motel are also named as defendants and have served third-party complaints against the town, no issue concerning them is presented on this appeal. The construction company itself has taken no appeal. Appellant Spezio, although a principal of the original corporation which built the motel, alleges that he had nothing to do with the design or construction phase of the development. Appellant Comparato, although majority stockholder of that corporation, has framed the issue on his appeal solely in terms of the town’s duty to him as an owner of the premises.

      . Although based upon principles of indemnification, two early cases also demonstrate the propriety of examining separately the duty owed a plaintiff by a wrongdoer and an independent duty owed by a third party to respond in indemnification. In Schubert v Schubert Wagon Co. (249 NY 253), the common-law rule barring suit between spouses was held not to preclude an action by a wife against her husband’s employer on a theory of respondeat superior, even though the employer could seek indemnity from the husband whose negligence caused the wife’s injuries. The court recognized that an independent duty of the husband to give faithful service to his employer formed the basis for any indemnification claim. Similarly, in Westchester Light. Co. v Westchester County Small Estates Corp. (278 NY 175), a utility company which had been held liable for the death of a workman was permitted to seek indemnity from decedent’s employer, because the employer’s liability was grounded upon an independent duty owed by it to the utility.

      . Interesting in this connection is the language of subdivision 5 of section 302 of the Multiple Residence Law, which provides that every person who in good faith purchases a multiple dwelling on which a certificate of occupancy has been issued is entitled to rely on the certificate: “Whenever any person has so relied upon such a certificate, no claim that such dwelling had not, prior to the issuance of such certificate, conformed in all respects to the provisions of this chapter shall be made against such person * * * with respect to such multiple dwelling”. Thus, the statute pursuant to which a certificate of occupancy is issued itself appears to contemplate a special relationship between the municipality and a person relying on its certificate.

      . The dissenting writing overlooks the critical distinction we draw between the general duty owed by a municipality to members of the public at large (violation of which, we agree, under present law, creates no liability on the part of the municipality) and a special duty owed by the municipality to a particular category of persons, here the owners and lessee/operator of the premises, for violation of which we hold that the municipality may be liable. Additionally, the cases on which the dissenting opinion relies involve claims only of the failure to perform a duty on the part of the municipality, whereas in the present case it is alleged that the municipality not only negligently failed properly to inspect the premises but also that it affirmatively issued a false certificate of occupancy, actively misrepresenting that there were no violations of applicable fire and safety laws.

      . (See Multiple Residence Law, § 302, and n 4, supra.)


author:
      Per Curiam.
     Fuchsberg, J.

text:
    Glenn A. Donnelly, Individually and Doing Business as D.I.R.T. of New York, Appellant, v Justin P. Pepicelli, Respondent.
    Decided March 23, 1983

      APPEARANCES OF COUNSEL

      Andrew S. Fusco for appellants.

      Ronald S. Carr for respondent.
   OPINION OF THE COURT

Per Curiam.

A failure timely to serve a complaint as a result of a disagreement between the opposing attorneys with respect to discovery is not law office failure. That being so and there being a sufficient indication of merit and no indication of prejudice to defendant in the motion papers, it was not an abuse of discretion as a matter of law for Special Term to condition dismissal of the action upon plaintiff’s service of a complaint within 20 days. The case is, therefore, remitted to the Appellate Division, Fourth Department, for its reconsideration of the matter and exercise of discretion.

The action was commenced by the service of a verified summons with notice. The notice spelled out the nature of the action as one for slander, libel, trade disparagement, fraud and other specified torts arising out of publication of false statements concerning plaintiff and unauthorized use of plaintiff’s trade name, specified the amounts claimed as compensatory and punitive damages, and stated plaintiff’s intention to depose defendant forthwith for the purpose of framing a complaint. In response, defendant’s attorneys served a notice of appearance and demand for a complaint, together with a letter stating their intention to oppose a deposition of defendant for the purpose of serving a complaint.

Twenty-seven days later, on December 1, 1981, no complaint having been served, defendant moved to dismiss the action pursuant to CPLR 3012 (subd [b]). At bottom of the failure to serve the complaint within the required 20 days appears to have been a dispute between the attorneys concerning whether a deposition for the purpose of framing a complaint after commencement of the action by service of summons could be obtained by simple notice or required a court order (see CPLR 3102, subds [b], [c]). Plaintiff countered on December 8,1981 with a notice to take deposition and when defendant’s attorney responded that defendant would not be produced without a court order, served a cross motion for such an order. Plaintiff’s cross motion was denied by Special Term, which also denied defendant’s motion to dismiss conditioned upon service of a complaint within 20 days of its order. A complaint was served within the required time. On defendant’s appeal from the Special Term order, however, the Appellate Division, one Justice dissenting, equating the claimed necessity for discovery with law office failure, reversed and dismissed.

In view of the requirement of CPLR 3016 (subd [a]) that in an action for libel or slander “the particular words complained of shall be set forth in the complaint,” the attempt to obtain discovery cannot be classified as law office failure. Defendant was fully aware from the verified summons of the nature of the action except for the words complained of and has demonstrated no prejudice from the short delay produced by the impasse between the opposing attorneys.

It, therefore, cannot be said, as a matter of law, that Special Term abused its discretion in determining that plaintiff had established a meritorious claim. Because the Appellate Division erred in so concluding, we remit to it so that it may reconsider the matter and exercise its discretion (see Miskiewicz v Hartley Rest. Corp., 58 NY2d 963).

Fuchsberg, J.

(concurring). I agree with both the result and rationale in this case. In addition, I welcome this decision as a limitation on, hopefully even a step backwards from, the drastic line of cases which, following in the wake of Barasch v Micucci (49 NY2d 594), in my view unwarrantedly curtailed the discretion of the Appellate Divisions at the practice level (Eaton v Equitable Life Assur. Soc. of U. S., 56 NY2d 900, 903 [my dissent]).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Fuchsberg concurs in a concurring memorandum; Judge Simons taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the opinion herein.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Daniel L. Bailey, Appellant.
    Argued February 17, 1983;
    decided March 24, 1983

      POINTS OF COUNSEL

      Samuel J. Castellino, Public Defender (Joseph J. Balok of counsel), for appellant.
    I. The lower court erred by allowing the prosecutor, in violation of CPL 60.35, to impeach one of the witnesses that he had called to the stand. (People v Fitzpatrick, 40 NY2d 44; People v Knatz, 76 AD2d 889; People v Jordan, 59 AD2d 746; People v Robinson, 71 AD2d 779; People v Crimmins, 36 NY2d 230; Chapman v California, 386 US 18; Fahy v Connecticut, 375 US 85.) II. The lower court erred by failing to charge the jury pursuant to CPL 60.35 (subd 2) that evidence concerning a prior contradictory statement does not constitute evidence-in-chief. (People v Williamson, 51 AD2d 843; People v Parker, 76 AD2d 984.) III. The lower court erred by refusing to either grant defendant’s motion for a mistrial after the statement made by the prosecutor, or give a curative instruction. (People v Vann, 54 AD2d 356; People v Galloway, 54 NY2d 396; United States v Clark, 613 F2d 391.) IV. The lower court erred by allowing the prosecutor to admit hearsay evidence pursuant to CPLR 4518 (subd [c]) without any foundational testimony.

      James T. Hayden, Acting District Attorney (James G. Levins III of counsel), for respondent.
    I. The court properly denied the motion for a mistrial. (People v Galloway, 54 NY2d 396.) II. The prosecutor properly questioned Shirley Smith as to prior statements made to the police. (People v Darmetko, 56 AD2d 678; People v Fitzpatrick, 40 NY2d 44;
      People v Fuller, 50 NY2d 628.) III. Failure of the court to charge the jury as to CPL 60.35 (subd 2) had not been preserved for review and, in any event, was harmless. (People v Patterson, 39 NY2d 288; People v Robinson, 36 NY2d 224; People v Williamson, 51 AD2d 843.) IV. The program schedule of WPIX was properly admitted. (Mayor, Aldermen & Commonalty of City of N. Y. v Second Ave. R. R. Co., 102 NY 572; Johnson v Lutz, 253 NY 124; People v Nisonoff 293 NY 597; People v Klepper, 25 NY2d 46; Dutton v Evans, 400 US 74.)
   OPINION OF THE COURT

Fuchsberg, J.

In the main, this appeal calls upon us to consider whether it was reversible error for a prosecutor, in the presence of the jury, to express a personal conviction that a witness was testifying falsely.

The charges against the defendant, Daniel L. Bailey, stemmed from a residential burglary allegedly committed by him and an unknown accomplice. Bailey, who claims he was misidentified, took the stand in support of his defense of alibi. Nevertheless, the jury found him guilty and the Appellate Division has since upheld the judgment entered on the verdict. On the present appeal, now here by leave of a Judge of this court, we conclude the judgment cannot stand. Our reasons follow.

But first we set forth the implicated prosecutorial comments, obviously related to the overriding issue of identification:

Assistant District Attorney:

“Q. You told me yesterday? “A. Yes, in your office, that he had dirty blonde hair and an afro.

“Q. I submit to you, ma’am, your [sic] telling a bald face lie right now.”

Defendant’s attorney:

“I request that statement be stricken.”

Assistant District Attorney:

“I’ll sit in the stand and testify to that, Mr. Balok.

No further questions.”

The Witness:

“Excuse me. He asked me if the guy had reddish hair too, and I said dirty blonde.”

Defendant’s attorney:

“I have no further questions.”

The Court:

“Witness excused.”

Assistant District Attorney:

“I apologize to the Court.”

Since the trial court never acted on the motion to strike, which of course served as an objection, its inaction not only constituted a denial of the motion (see Brenan v Moore McCormack Lines, 3 AD2d 1006), but, if anything, lent standing to the undisturbed remarks (People v Ashwal, 39 NY2d 105, 111). Moreover, defendant having moved unsuccessfully for a mistrial on this ground when the People rested, well before the case went to the jury, the matter was preserved for review (People v Cobos, 57 NY2d 798).

Also, since the People heavily rely on a plea of harmless error, some survey of the proof is in order. To this end, we focus primarily on the three witnesses on whom the People built their direct case. The story of the first of these, Taylor, was unilluminating. Found in possession of two of the stolen articles, he would only say that he must have purchased them under the influence of drugs. On this account, he denied any recollection of the identity of the seller.

The second, Hall, a twice-convicted burglar, claimed that he had encountered the defendant and a companion, the loot in their arms, in the yard back of the burglarized premises. However when, later that day, he spoke to the police, Hall described the person he eventually would say was the defendant as 6 feet 1 inch tall as against Bailey’s much, much shorter height, and, the very next day, was unable to identify Bailey’s picture in three tries at a police photographic array. Moreover, it was not until five days later, and only after Bailey had addressed him insultingly in a bar, that he telephoned the police to say he had located the perpetrator. After this he picked out the same picture which originally evaded him.

The third, Smith, was to become the target of the prosecutorial statements with which we are concerned. Taylor’s consort at the time avails of the crime were uncovered, Smith apparently was present when these were brought into their home. Unchallenged in the record is that, at this point in her life, she always was “one way or the other * * * intoxicated or high or under some influence” and overwrought by ensuing proceedings to take her young daughter from her. It was to this background that she attributed a spotty memory. For instance, she averred that, although, as she saw him in court, the defendant’s appearance did not accord with her recollection, particularly in that his hair was not “afro” curly, she believed, though not without much “doubt”, that he was the one who had delivered the contraband. On the other hand, she described that occasion as one in which her usual state of “confusion” was exacerbated by a problem with a “kid” who then was acutely ill with “some drugs or something put in him”. Then, when the prosecutor, understandably pressing her for a better identification, ended his direct by asking point blank whether she was “sure” that Bailey indeed was the individual who came to her house, her answer was “I can’t — I wouldn’t swear on it he was the exact same person”. It was at a somewhat later stage, when the Assistant District Attorney had decided to recall Smith as a witness, that defense counsel, on recross, elicited the answer which precipitated the prosecutorial outburst.

To complete this synopsis, we add that Bailey, his mother and his father testified that, on the day of the burglary, a Sunday, Bailey spent his time intermittently eating, napping and viewing the television broadcast of a baseball game. When the prosecutor asked Bailey to assume that the broadcast had ended at 4:56 p.m. while Hall had fixed the time of the crime at about an hour later, Bailey suggested that his recollection, then seven months after the event, may have included subsequent news highlights of the game. The program log of the broadcast company, later allowed in evidence under the business record exception to the hearsay rule, indicated that the coverage of the game per se had terminated at 4:56 p.m.; no proof as to the news highlights was offered.

Against this background, we start our analysis by repeating our recent observation that “[i]t is not enough for [a District Attorney] to be intent on the prosecution of his case. Granted that his paramount obligation is to the public, he must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, his mission is not so much to convict as it is to achieve a just result” (People v Zimmer, 51 NY2d 390, 393, and authorities cited thereat).

Concern for adherence to this concept is not only principled but pragmatic. Else, the weight of the prestige of the office and its image of disinterestedness may impose upon a defendant’s right to an impartial trial (see, generally, Note, The Nature and Consequences of Forensic Misconduct in the Prosecution of a Criminal Case, 54 Col L Rev 946). So it is that a prosecutor may not, either in the course of closing argument or even in a less argumentative trial context, “express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence” (ABA Project on Standards for Criminal Justice, Prosecution and Defense Function, Standard 3-5.8 [b]; see Ann., 50 ALR2d 766).

Though it would, therefore, have been perfectly permissible for the prosecutor here to have concentrated, in argument, on proved facts and circumstances and the inferences to be drawn therefrom in order to support or undermine the credibility of any witness, it was utterly impermissible for him to present himself, as he here in effect did, as an unsworn witness to Smith’s truthfulness (United States v Clark, 613 F2d 391).

Relying largely on People v Galloway (54 NY2d 396), the People, however, argue that, in the totality of the trial, it cannot be said that the defendant’s right to a fair trial was compromised. We do not agree.

For one thing, while, in Galloway, we upheld a conviction despite prosecutorial impropriety, that decision is not to be taken as a legal refuge for prosecutorial misconduct. Instead, each case must stand on its own feet. It suffices for present purposes then to note that, among other things, in Galloway, unlike the present case, the criticizable conduct was provoked in large part by the defense counsel, the Trial Judge took prompt and forceful corrective action, objectionable matters largely went unpreserved by the defense and, whatever he may have implied, the prosecutor there did not directly impugn any witness by interposing personal knowledge or offer to so testify.

But, above all, because “the quantum and nature of the proof, excising the error”, is not overwhelming, there simply is no occasion to apply the harmless error doctrine (People v Crimmins, 36 NY2d 230, 241). The three witnesses-in-chief for the People were, to put it mildly, far less than compelling. Taylor’s part, as we know, was of little moment. And, by the time the prosecutor had resorted to the remarks with which he concluded Smith’s examination, her value to the People’s case had dwindled to a point where he thought it best, in summation, to acknowledge that it was “worthless”. Left was what the prosecutor further conceded was no more than a “one-to-one” confrontation between the twice-convicted, belatedly identifying Hall and Bailey’s alibi defense, the latter seemingly weakened by the television log but strengthened by disinterested proof that Bailey’s hair was never curly. Hence, it cannot be assumed that, absent the prosecutor’s volunteered “testimony”, Smith’s greater credibility would not have been enough to advance the defense to “a level of convincement” or, to put it another way, that it would not have carried the day (id., at p 241).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the County Court of the County of Chemung for a new trial.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

Order reversed, etc.

       Because the prosecutorial misconduct requires a reversal, we have no occasion to consider or pass upon the defendant’s other assignments of error.
      One is the contention that the television log, though kept pursuant to Federal regulations, was not the kind of record embraced within CPLR 4518 (subd [c]), 2306 and 2307 and so should not have been admitted on a certification of authentication rather than on live foundational testimony.
      The second point raises the question as to whether it was error to permit the People to use a prior contradictory statement to impeach its witness Smith on the theory that it had not been forewarned of her intention to testify as she did concerning defendant’s-hair (CPL 60.35, subd 3; see People v Fitzpatrick, 40 NY2d 44; People v Fuller, 50 NY2d 628, 638, n 5). In view of the disclosures at the first trial, the problem in any event is now academic.