author: Acting Chief Judge Simons.

text:
    The People of the State of New York, Respondent, v Herbert Mitchell, Appellant. The People of the State of New York, Respondent, v Miguel Casiano, Also Known as Raymond Casiano, Appellant. The People of the State of New York, Respondent, v Leval Chambers, Appellant.
    Argued November 20,1992;
    decided December 17, 1992

      POINTS OF COUNSEL

      Paul Lewis, New York City, and Philip L. Weinstein for appellant in the first above-entitled action.
    Appellant was denied his due process right to be present during the impaneling of the jury when, among other things, the court, in appellant’s absence, conducted supplemental voir dire of potential jurors regarding their possible bias due to past experiences with crime. (People v Mehmedi, 69 NY2d 759; People v Ciaccio, 47 NY2d 431; People v Mullen, 44 NY2d 1; People v Velasco, 77 NY2d 469; People v Sloan, 79 NY2d 386; People v Boulware, 29 NY2d 135; People v Cain, 76 NY2d 119; People v Bonaparte, 78 NY2d 26; People v Harris, 76 NY2d 810.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Barbara D. Underwood and Robin A. Forshaw of counsel), for respondent in the first above-entitled action.
    Defendant’s absence from side-bar discussions with prospective jurors about their prior experiences with crimes and from a robing room discussion of a prospective juror’s availability on a particular date did not deprive him of his constitutional or statutory right to be present at all material stages of trial. (People v Velasco, 77 NY2d 469; People v Sloan, 79 NY2d 386; People v Dokes, 79 NY2d 656; People v Mullen, 44 NY2d 1; Snyder v Massachusetts, 291 US 97; People v Rodriguez, 76 NY2d 918; People v Ferguson, 67 NY2d 383; People v Turaine, 78 NY2d 871; People v Ganett, 68 AD2d 81, 51 NY2d 991; People v Casiano, 176 AD2d 632, 79 NY2d 854).

      William A. Loeb, New York City, and Philip L. Weinstein for appellant in the second above-entitled action.
    Appellant was denied his right to be present during the impaneling of the jury, when the court, in appellant’s absence, (a) questioned potential jurors in regard to possible bias, and (b) in response to a defense challenge of a prospective juror for cause, conducted voir dire of the juror, including questioning by counsel, concerning the juror’s ability to concentrate on deliberations. (People v Mehmedi, 69 NY2d 759; People v Ciaccio, 47 NY2d 431; People v Mullen, 44 NY2d 1; United States v Alikpo, 944 F2d 206; United States v Gordon, 829 F2d 119; People v Velasco, 77 NY2d 469; People v Ganett, 68 AD2d 81, 51 NY2d 991; People v Cain, 76 NY2d 119; People v Turaine, 78 NY2d 871; People v Brooks, 75 NY2d 898, 76 NY2d 746.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Peter D. Coddington and Raphael Berman of counsel), for respondent in the second above-entitled action.
    I. Appellant’s guilt was established beyond a reasonable doubt by overwhelming evidence. II. Appellant was afforded both the statutory and due process rights to be present at all material stages of his trial. (People v Mehmedi, 69 NY2d 759; People v Velasco, 77 NY2d 469; People v Sloan, 79 NY2d 386; People v Autry, 75 NY2d 836; People v Thomas, 50 NY2d 467; People v Blake, 158 AD2d 979, 75 NY2d 964; People v Dunlap, 161 AD2d 1114; People v Howard, 167 AD2d 922; People v Grant, 178 AD2d 283, 79 NY2d 920; People v Metro, 173 AD2d 282, 78 NY2d 970.)

      Elizabeth J. Miller, New York City, and Philip L. Weinstein for appellant in the third above-entitled action.
    I. Appellant was deprived of his right to be present for the impaneling of his jury when the court, among other things, conducted an examination of a prospective juror, in appellant’s absence, concerning the juror’s ability to render a verdict of guilty. (People v Turaine, 78 NY2d 871; People v Mehmedi, 69 NY2d 759; People v Ciaccio, 47 NY2d 431; People v Dokes, 79 NY2d 656; People v Mullen, 44 NY2d 1; People v Velasco, 77 NY2d 469; People v Sloan, 79 NY2d 386; People v Buford, 69 NY2d 290; People v Cain, 76 NY2d 119; People v Darby, 75 NY2d 449.) II. Appellant was denied his right to equal protection when the court ruled that the prosecutor’s reasons for exercising 8 of his 10 peremptory challenges against African-American persons on the venire were not racially motivated, even though the prosecutor (a) stated that he was challenging venirepersons of racial minorities because defense counsel was challenging white prospective jurors, (b) provided no reason at all for one of these challenges, and (c) provided inadequate or pretextual reasons for his other challenges. (Batson v Kentucky, 476 US 79; People v Jenkins, 75 NY2d 550; People v Kern, 75 NY2d 638; People v Scott, 70 NY2d 420; People v Bolling, 79 NY2d 317; U S. Postal Serv. Bd. of (Governors v Aikens, 460 US 711; Strauder v West Virginia, 100 US 303; People v Hernandez, 75 NY2d 350; People v Havelka, 45 NY2d 636; People v Payton, 51 NY2d 169.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Jonathan Svetkey and Billie Manning of counsel), for respondent in the third above-entitled action.
    I. Appellant’s guilt was established beyond a reasonable doubt by overwhelming evidence. II. Appellant was afforded his statutory and due process rights to be present at all material stages of his trial. (People v Grant, 178 AD2d 283, 79 NY2d 920; People v Howard, 167 AD2d 922, 77 NY2d 961; People v Blake, 158 AD2d 979, 75 NY2d 964; People v Dunlap, 161 AD2d 1114; People v Metro, 173 AD2d 282, 78 NY2d 970; People v Bailey, 146 AD2d 788, 74 NY2d 844; People v Thomas, 50 NY2d 467; People v Williams, 175 AD2d 67, 78 NY2d 1083; People v Ramos, 173 AD2d 748, 78 NY2d 1080; People v Tebsherany, 34 AD2d 1045.) III. Appellant was afforded his rights to due process and equal protection during jury selection. (Batson v Kentucky, 476 US 79; People v Hopkins, 76 NY2d 872; People v Medina, 53 NY2d 951; People v Olivo, 52 NY2d 309; People v Steans, 174 AD2d 582, 78 NY2d 1015; People v Manigo, 165 AD2d 660; People v Duncan, 177 AD2d 187; People v Bonaparte, 78 NY2d 26; People v Rodriguez, 177 AD2d 269; People v Harrison, 57 NY2d 470.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx, for New York State District Attorneys Association, amicus curiae, in the first, second and third above-entitled actions.
    The recent decision in People v Antommarchi (80 NY2d 247) should not apply retroactively. (People v Pepper, 53 NY2d 213; People v Morales, 37 NY2d 262; People v Sloan, 79 NY2d 386; United States v Washington, 705 F2d 489; Gager v White, 53 NY2d 475.)

      Anthony J. Ferraro, New York City, Debora K. Grobman, Jay Shapiro and Barry L. Kluger for Association of the Bar of the City of New York, amicus curiae, in the first, second and third above-entitled actions.
   OPINION OF THE COURT

Acting Chief Judge Simons.

In People v Antommarchi (80 NY2d 247, rearg denied 81 NY2d 759 [decided today]), the trial court questioned 37 of 67 prospective jurors at a sidebar, in defendant’s absence, about their subjective thoughts on a number of issues. We reversed the conviction stating that while a "court may conduct sidebar discussions with prospective jurors in a defendant’s absence if the questions relate to juror qualifications such as physical impairments, family obligations and work commitments * * * [it] may not * * * explore prospective jurors’ backgrounds and their ability to weigh the evidence objectively unless defendant is present” (80 NY2d, at 250, supra).

The appeals now before the Court require us to decide whether that rule should be applied retroactively or prospectively only. The issue is squarely presented because in all three cases the trial court conducted some portion of the examination of prospective jurors during side-bar conferences held in defendant’s absence and explored such matters as whether the prospective juror, or the juror’s friends or relatives, had been a crime victim or involved in a criminal proceeding. We conclude People v Antommarchi should be applied prospectively only and, deciding these appeals under the pr^-Antommarchi rule, we find no violation of defendants’ constitutional or statutory right to be present. We therefore affirm the orders of the Appellate Division in People v Mitchell and People v Casiano. The order in People v Chambers should be reversed, however, because the People impermissibly used race as a basis for excluding prospective jurors (see, Batson v Kentucky, 476 US 79).

I

Prior to Antommarchi, trial courts routinely questioned potential jurors regarding matters going to general bias or hostility in the defendant’s absence and did so without criticism from the appellate courts (see, e.g., People v Parker, 132 AD2d 629, appeal dismissed 71 NY2d 887 [approving of court’s inquiry, in defendant’s absence, as to whether defendant’s condition as an AIDS patient would affect potential jurors]; People v Ganett, 68 AD2d 81, affd 51 NY2d 991 [finding no prejudice where all jurors with responses to court’s questions were told to approach the bench for further discussion in defendant’s absence]; see also, People v Howard, 167 AD2d 922, lv denied 77 NY2d 961 [requiring preservation of right to be present]; People v Blake, 158 AD2d 979, lv denied 75 NY2d 964 [same]).

In Antommarchi, however, we held that the court may not actively solicit answers from a prospective juror which relate to that juror’s bias or hostility in the absence of defendant. Moreover, applying our recent decision in People v Dokes (79 NY2d 656, 662), we permitted defendant to successfully raise the question on appeal notwithstanding his failure to object to exclusion from the side-bar conferences during jury selection. The defendant could have waived his presence, of course (see, People v Webb, 78 NY2d 335, 339-340), but no waiver had been requested because under the existing practice there was no reason to do so.

The holding represented a dramatic shift away from customary and established procedure and it is reasonable to believe, as the People claim and defendants do not deny, that the change in the jury selection process will be substantial and affect most, if not all, appeals presently pending from jury trials. It is appropriate, therefore, to consider whether we may and should apply the rule only prospectively.

II

There presently exist two competing theories of law on retroactivity. One is presented in Griffith v Kentucky (479 US 314), where the Supreme Court held that a new constitutional rule is to be applied retroactively to all cases pending on direct review. The competing theory was applied most recently by this Court in People v Pepper (53 NY2d 213, cert denied 454 US 967) where we held that the Court is to determine the retroactive effect of a new rule by evaluating three factors: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect on the administration of justice of retroactive application (see, People v Pepper, supra, at 220).

It is defendants’ position that the Griffith rule is binding on this Court. If no Federal constitutional principles are involved, however, the question of retroactivity is one of State law. The Supreme Court has no concern with the uniformity of our law and if only a local question is presented, the "state courts generally have the authority to determine the retroactivity of their own decisions” (see, American Trucking Assns. v Smith, 496 US 167, 177). If the Antommarchi decision rests solely on State law, we may follow our own well-established rules regarding the prospective application of new rules, as set forth in People v Pepper (supra).

A

It is manifest that Antommarchi was decided as a question of State law. The basis for the decision is found in New York’s Criminal Procedure Law, which provides that a defendant "must be personally present during the trial of an indictment” (CPL 260.20). Under our decisions, this statutory right has been extended to the impaneling of the jury (see, People v Antommarchi, 80 NY2d 247, supra; People v Sloan, 79 NY2d 386, 391; People v Velasco, 77 NY2d 469, 472; see also, People v Mullen, 44 NY2d 1, 4). Although the statute has underlying due process concerns, its protective scope is broader than the constitutional rights it encompasses (see, People v Morales, 80 NY2d 450, 456 [decided today]; People v Mullen, supra, at 4-5).

The Federal constitutional right to be present is rooted in the Confrontation Clause of the Sixth Amendment or, where the defendant is not actually confronting witnesses or evidence, in the Due Process Clause of the Fifth or Fourteenth Amendment (see, United States v Gagnon, 470 US 522, 526). The right is not absolute and must be evaluated in light of the specific factual circumstances surrounding a particular defendant’s case. As the Supreme Court has held, "the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only” (Snyder v Massachusetts, 291 US 97, 107-108). In proceedings where guilt or innocence is not being determined and the facts in the pending prosecution are not pertinent, the exclusion of a defendant from a particular proceeding normally will have no "relation, reasonably substantial, to the ful[l]ness of his opportunity to defend against the charge” (see, Snyder v Massachusetts, supra, at 105-106; United States v Gagnon, 470 US, at 527, supra; People v Morales, 80 NY2d 450, supra).

The analysis in People v Antommarchi proceeded in a general rather than fact-specific manner. It involved none of the balancing process employed in constitutional determinations, but rather was based on a violation of CPL 260.20. We did not evaluate the facts in light of the entire record nor did we make a determination that defendant’s ability to defend against the charges had been substantially impaired (see, United States v Gagnon, supra, at 526-527). The Court determined only that a statutory violation had occurred (cf., People v Sloan, 79 NY2d 386, supra [where questioning dealt with witnesses and events involved in the very case to be tried, and defendant’s presence could have had a substantial effect on his ability to defend]). Although presence at side-bar conferences would enable defendant to glean information from jurors’ responses and demeanor essential to the exercise of peremptory challenges, exclusion from those proceedings, which are not constitutionally required, would not substantially affect the ability to defend against the charge. Thus, the defendant’s presence is not essential to a fair trial (see, United States v Washington, 705 F2d 489, 498, n 5). Therefore, in the usual scenario, limited exclusion from side-bar discussions with prospective jurors concerning general bias or hostility will not violate a defendant’s constitutional right to be present, though, as in Antommarchi, it does violate a defendant’s statutory right to be present.

Finally, we held in Antommarchi that the violation of defendant’s right to be present required reversal despite his failure to object — a result not required under Federal law (see, United States v Gagnon, 470 US 522, 528-529, supra).

We conclude therefore that the Antommarchi rule is not compelled by Federal law and thus we are free to apply State rules on retroactivity.

B

New York’s rule on retroactivity was set forth in People v Pepper (53 NY2d 213, supra; see also, People v Morales, 37 NY2d 262, 268-269, and retroactivity cases cited therein). Pepper stated the Supreme Court rule as it existed prior to Griffith v Kentucky (supra) (see, Stovall v Denno, 388 US 293, 297; Linkletter v Walker, 381 US 618, 636). It holds that when the Court is confronted with the question of whether to grant retroactive effect to a new rule or to apply the rule prospectively, it is to evaluate three factors: (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect on the administration of justice of retroactive application (see, People v Pepper, supra, at 220; see also, People v Morales, 37 NY2d 262, 269, supra).

The Griffith analysis is supported by compelling arguments. We conclude, however, that we should apply Pepper, essentially relying on the reasoning found in recent decisions which adhere to firmly established State rules (see generally, People v P. J. Video, 68 NY2d 296, 303, cert denied 479 US 1091; People v Johnson, 66 NY2d 398, 406-407; see also, Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57, 73 [Simons, J., concurring]). Moreover, doing so permits this Court to expand the protection accorded defendants when we might otherwise hesitate to do so because retroactive application threatens to " ’wreak more havoc in society than society’s interest in stability will tolerate’ ” (see, Gager v White, 53 NY2d 475, 483, cert denied sub nom. Guertin Co. v Cachat, 454 US 1086 [quoting from Fairchild, Limitation of New Judge-Made Law to Prospective Effect Only: ’Prospective Overruling” or "Sunbursting”, 51 Marq L Rev 254]; Fallon and Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv L Rev 1731,1807).

C

Considering the three factors set forth in Pepper, we conclude that the Antommarchi rule should be applied only prospectively.

First, the purpose of the rule is not to cure any constitutional infirmity inherent in the former practices, but rather to permit a defendant a more active role in the examination and selection of potential jurors. Moreover, it relates to the fact-finding process only indirectly and therefore retroactivity is not mandated (see, People v Pepper, supra, at 221; People v Morales, 37 NY2d 262, 269, supra). Second, the courts have substantially relied on the prior practice. In the absence of a formal protest, they have customarily examined prospective jurors in defendants’ absence to expedite jury selection, to avoid juror embarrassment and to encourage juror candor.

Finally, the voir dire process is involved in every jury trial and most if not all of the judgments of conviction in the cases currently on appeal will present an Antommarchi question. The reversal, or even the reconsideration, of these appeals on Antommarchi grounds would create a substantial burden on the administration of justice and delay the disposition of countless pending cases. In many of these matters no record was made because the parties did not perceive the necessity for one. Thus, hearings would presumably be required to reconstruct a record of conversations and questions which, at the time, none of the participants objected to or deemed of particular significance. Conceivably, new trials could be required in all of the substantial number of cases in which no record of the voir dire was made. Accordingly, we find substantial reasons to hold that the Antommarchi rule applies only to those cases in which jury selection occurred after October 27, 1992, the date People v Antommarchi was decided.

D

Before Antommarchi, the accepted practice in the absence of an objection was to exclude defendants from bench conferences with prospective jurors, especially when questions were directed to the prior victimization of a juror or of a juror’s friends or family. The only limitation which had been imposed on this practice was that the questioning could not concern the very same witnesses and events which were to be involved in the case to be tried (see, People v Sloan, 79 NY2d 386, supra).

The side-bar questioning in the cases before us involved such matters as whether the prospective jurors had been crime victims, had been involved in criminal matters, or had doubts about their ability to remain impartial given the general nature of the case. Prior to Antommarchi, no rule provided that such questions, if asked and answered outside of defendants’ presence without objection, deprived defendants of their right to be present "during the trial of an indictment” (CPL 260.20) or called for automatic reversal. Consequently, we find no violation of defendants’ statutory rights as those rights were understood prior to October 27, 1992. Moreover, inasmuch as the questioning involved matters of general bias or hostility, we find no violation of defendants’ constitutional right to be present and the convictions of defendant Mitchell and defendant Casiano should be affirmed.

III

The order of the Appellate Division in People v Chambers should be reversed. During the jury selection process, defendant argued that the prosecution was impermissibly excluding members of the venire on the basis of race, in violation of Batson v Kentucky (476 US 79, supra). In defense of his exclusion of African-American and Latino jurors, the prosecutor stated to defense counsel that it was "Because I know you’ll knock the whites off.” Later, in response to another Batson challenge by defense counsel, the prosecutor explained that: "I have stated on the record, and I made it quite clear that defense counsel was * * * using his peremptory challenges to knock off people who were white and middle class.” Not only do these statements not provide a racially "neutral explanation” for the prosecutor’s challenges of prospective jurors (see, Batson v Kentucky, supra, at 98), they betray a clear racial motive for the prosecutor’s exercise of peremptory challenges. Because the exclusion of even a single juror on racial grounds is constitutionally forbidden (see, People v Bolling, 79 NY2d 317, 321), defendant has sustained his Batson claim and a new trial is ordered.

Accordingly, the orders of the Appellate Division in People v Casiano and People v Mitchell should be affirmed. The order of the Appellate Division in People v Chambers should be reversed and a new trial ordered.

Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

In People v Mitchell and People v Casiano: Order affirmed.

In People v Chambers: Order reversed and a new trial ordered.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Susan R. Syquia, Respondent, v Board of Education of the Harpursville Central School District, Appellant, et al., Respondents.
    Argued November 17,1992;
    decided December 21, 1992

      POINTS OF COUNSEL

      Ball, McDonough & Johnson, P. C., Binghamton (Kevin F. McDonough of counsel), for appellant.
    I. The payment of a per diem fee to one of the three members of an Education Law § 3020-a panel, alone, without a showing of actual bias and affect on the outcome was not sufficient to void the panel determination. (Withrow v Larkin, 421 US 35; Matter of Warder v Board of Regents, 53 NY2d 186, 454 US 1125; Matter of Hughes v Suffolk County Dept, of Civ. Serv., 74 NY2d 833, 942; Matter of Reisner v Board of Regents, 142 AD2d 22; Matter of DeBonis v Corbisiero, 155 AD2d 299; Matter of Wolf v Ambach, 95 AD2d 877; Matter of Young v Board of Educ., 100 AD2d 515; Matter of City of Beacon v Surles, 161 AD2d 945; Matter of 1616 Second Ave. Rest, v New York State Liq.

      Auth., 75 NY2d 158.) II. The payment of a per diem fee to one member of a three-person section 3020-a panel by the party selecting that member did not deny respondent’s rights to constitutional due process. (Turney v Ohio, 273 US 510; Hortonville Dist. v Hortonville Educ. Assn., 426 US 482; Matter of Young v Board of Educ., 100 AD2d 515; Matter of Prue v Hunt, 78 NY2d 364; Cleveland Bd. of Educ. v Loudermill, 470 US 532.) III. The question of payment of a per diem fee to a member of the panel selected by a party is of first impression in New York. The statute and legislative history do not appear to exclude additional payment and there are no regulations of the Commissioner on the matter. IV. The determination of the Court below, to the extent it upholds the remedy of dismissing the entire panel, including two members against whom there are no allegations of bias, prejudice or unfairness and directs new testimony to be taken appears to be contrary to the decision of this Court in Conley v Ambach. (Matter of Conley v Ambach, 93 AD2d 902, 61 NY2d 685; Matter of Dunningham v Ambach, 107 AD2d 961, 65 NY2d 602; Matter of Fitzpatrick v Board of Educ., 96 AD2d 557; Commonwealth Corp. v Casualty Co., 393 US 145.) V. Where an Education Law § 3020-a hearing panel unanimously found that a teacher did not use assigned textbooks for more than 20% of the school year, the court should have determined that termination of the teacher was appropriate. (Matter of Pell v Board of Educ., 34 NY2d 222.)

      Ivor R. Moskowitz, Albany, Bernard F. Ashe and Rocco A. Solimando for Susan R. Syquia, respondent.
    I. Mrs. Susan Syquia as a tenured teacher in the State of New York is entitled to a due process hearing prior to termination of employment. The actions of Richard McLean, the Board’s panel member selection, and the Board of Education were arbitrary, capricious, unlawful and violated Mrs. Syquia’s right to a due process hearing. (Perry v Sindermann, 408 US 593; Withrow v Larkin, 421 US 35; Gibson v Berryhill, 411 US 564; Matter of Conley v Ambach, 93 AD2d 902; Commonwealth Corp. v Casualty Co., 393 US 145; Matter of Goldfinger v Lisker, 68 NY2d 225; Matter of Romeo v Union Free School Dist., 64 AD2d 664; Matter of Washington County Cease v Persico, 99 AD2d 321, 64 NY2d 923.) II. Actual bias, as stated in respondent-appellant’s brief, is not the standard to be applied here. (Matter of Conley v Ambach, 93 AD2d 902; Kinsella v Board of Educ., 378 F Supp 54; Matter of Romeo v

      Union Free School Dist., 64 AD2d 664; Matter of Howard v Wyman, 28 NY2d 434.) III. The remedy imposed by the Court below should be affirmed, with the exception of a new hearing on the charge of incompetency. (Matter of Conley v Ambach, 61 NY2d 685.)
   OPINION OF THE COURT

Acting Chief Judge Simons.

Petitioner Susan Syquia, a tenured teacher with the Harpursville Central School District, instituted this CPLR article 78 proceeding seeking to annul her dismissal for insubordination. She contends that dismissal cannot stand because respondent Board of Education violated Education Law § 3020-a by paying compensation beyond that authorized by statute to a member of the hearing panel that considered her case. Supreme Court granted her petition to annul, restored her to her tenured position and ordered a new hearing, and the Appellate Division affirmed its order. There should be an affirmance.

In 1985, respondent Board of Education initiated disciplinary charges against petitioner, a teacher with more than 25 years of experience in the district. The charges alleged both incompetency and insubordination. She invoked her right to a hearing on the charges under Education Law § 3020-a. Consistent with the procedure spelled out in the statute, petitioner chose respondent Henry Stafford as a hearing panel member, the Board of Education chose respondent Richard McLean, and the two designees in turn chose William Babiskin to serve as panel chairperson. Between 1985 and 1988, the panel conducted 48 days of hearings. At the conclusion of the proceedings, the panel unanimously found petitioner not guilty of incompetence but, by a 2 to 1 vote, determined that she was guilty of insubordination and recommended her termination. Respondent Stafford dissented, finding petitioner guilty of only a minor charge of insubordination and recommending a lesser penalty than termination. The Board of Education implemented the majority’s recommendations and dismissed petitioner.

Three days after the hearing panel issued its determinations, petitioner learned that the Board of Education, in a contravention of Education Law § 3020-a (3) (b), had agreed to pay panel member McLean an additional $100 per day to serve on the panel. The statute expressly sets compensation at $50 per diem for the two nonpresiding members of the panel, a sum which is paid from a fund administered by the Commissioner of Education, not by either party. In addition, Education Law § 3020-a (3) (c) bars from service on the panel anyone who is employed "in the territory under the jurisdiction of the [Board of Education]”. Petitioner maintains that McLean was so employed because he received the extra compensation.

Petitioner claims the compensation scheme violated her right to have an impartial decision-maker under the Due Process Clause of the Federal Constitution. She contends further that, because of the statutory noncompliance, the Board’s decision to terminate her on the basis of the hearing panel’s report was a determination made in violation of lawful procedure for which relief may be granted under CPLR article 78 (see, CPLR 7803). Respondent Board contends that petitioner has failed to make out a due process claim because there has been no showing of actual prejudice. It argues as well that her article 78 cause of action is unavailing because the hearing panel’s determinations were supported by substantial evidence.

The Appellate Division concluded that respondent’s actions violated petitioner’s right to due process of law. Under established principles of judicial restraint, however, courts should not address constitutional issues when a decision can be reached on other grounds (Matter of Beach v Shanley, 62 NY2d 241, 254; Matter of Peters v New York City Hons. Auth., 307 NY 519). This is such a case. We find it unnecessary to reach the constitutional question because the Board of Education’s material departure from mandatory provisions of section 3020-a (3) (b) and (c) constituted error entitling petitioner to relief in the article 78 proceeding.

Not all deviations from statutory procedures will justify vacatur of an administrative determination. A rule that rendered every administrative decision void unless it was determined in strict literal compliance with statutory procedure would not only be impractical but would also fail to recognize the degree to which broader public concerns, not merely the interests of the parties, are affected by administrative proceedings (see, Brock v Pierce County, 476 US 253, 260). When an administrative body fails to comply with procedural provisions that are merely directory, relief will be granted only if petitioners show that substantial prejudice resulted from the noncompliance (Matter of Sarkisian Bros, v State Div. of Human Rights, 48 NY2d 816; see also, Matter of Geary v Commissioner of Motor Vehicles, 59 NY2d 950, 952; Matter of Erdos v New York State Dept, of Educ., 105 AD2d 504). For example, courts have held in various contexts that deadlines imposed by statute will be read as directory rather than mandatory (see, e.g., Matter of Heller v Chu, 111 AD2d 1007, appeal dismissed 66 NY2d 696; Matter of Geary v Commissioner of Motor Vehicles, 92 AD2d 38, affd 59 NY2d 950).

A different analysis comes into play, however, when a statutory provision is mandatory. In determining whether a provision is mandatory or directory, a court must examine both the language of the statute and the legislative intent underlying it (Jiggetts v Grinker, 75 NY2d 411). Here, Education Law § 3020-a provides a detailed scheme for protecting the interests of the tenured employee facing discipline. As amended in 1977, the statute was designed to provide, according to a legislative memorandum, "uniform, impartial hearing procedures for the handling of disciplinary matters for teachers who have acquired tenure” (see, 1977 NY Legis Ann, at 94). Consistent with the Legislature’s goal of effecting procedural uniformity, the language of the provisions relevant here speaks in terms implying duty, not discretion: "Hearing panel members * * * shall be compensated at the rate of fifty dollars for each day” (subd [3] [b] [emphasis added]); "[a]ll such hearings shall be held before a hearing panel composed of three members not resident, nor employed, in the territory under the jurisdiction of the employing board” (subd [3] [c] [emphasis added]).

To be compared with this mandatory language is that found elsewhere within the statute, where the Legislature chose to authorize discretion, e.g., "Such rules [promulgated by the Commissioner to govern hearings] shall not require compliance with technical rules of evidence” (subd [3] [c]); "Each such hearing shall be * * * public or private at the discretion of the employee” (subd [3] [c]). We conclude, therefore, that the provisions on compensation and employment were intended to be strictly enforced.

Significant here, too, is the nature of the procedural safeguards written into the law. Several, such as the prohibition against using district residents as panel members, are prophylactic, concerned not merely with preventing the possibility of bias but also with preventing the appearance of bias (see, Matter of Conley v Ambach, 61 NY2d 685; see also, Matter of Board, of Educ. [Conley], 21 Ed Dept Rep 255, 256 [Commissioner’s ruling that panel members must disclose "all facts known to them which might * * * create even the appearance of partiality or bias”]). Where statutory provisions manifest a clear concern for the appearance of fairness as well as its substance, a court should be reluctant to find that the very procedures designed to create the appearance are only directory. Education Law § 3020-o’s dictates concerning compensation fall squarely within that rationale. By prescribing equal compensation between the employee’s designated panel member and the Board’s designated member and by authorizing a system in which compensation would not be paid by either party, but rather from the Commissioner’s fund, the Legislature intended to eliminate even the appearance of financial influence. That legislative intent can be given effect only if the provisions are mandatory.

Accordingly, the panel’s determination must be vacated and a new hearing ordered. Even if the Board’s intentions were innocent, even if no actual prejudice resulted, the Board did not have the discretion to pay the extra compensation and its doing so interfered materially with a fundamental purpose of the enactment.

Respondent Board contends alternatively that if the Court finds the extra compensation contravened the statutory requirements, it should nonetheless affirm the panel’s determinations if they are supported by substantial evidence in the record. Such an approach is not appropriate in these circumstances. Where the procedural noncompliance by an administrative body rises to the level of an abuse of discretion or authority, as it does here, the noncompliance alone is sufficient to warrant granting a new hearing (see, Matter of Clayton v Clement, 33 NY2d 386; Matter of Soucy v Board of Educ., 41 AD2d 984, appeal dismissed 33 NY2d 653; see, Matter of Heller v Chu, 111 AD2d 1007, 1008-1009, supra). The Board’s improper payment, in effect, rendered one member of the panel ineligible to serve. We cannot know what influence his presence had on the selection of a chairperson, the creation of the record or the determinations the panel made based on that record. To employ a substantial evidence test here would be to give validity to a record clouded by the unlawful act of the Board and to leave petitioner with an inadequate remedy.

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

Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, with costs.


author: Smith, J.

text:
    In the Matter of Federal Insurance Company, Respondent, v Jay S. Watnick et al., Appellants. (Proceeding No. 1.) In the Matter of Federal Insurance Company, Appellant, v Jay S. Watnick et al., Respondents. (Proceeding No. 2.)
    Argued October 21,1992;
    decided December 17, 1992

      POINTS OF COUNSEL

      Shayne, Dachs, Stanisci, Corker & Sauer, Mineola (Norman H. Dachs and Jonathan A. Dachs of counsel), for appellants in proceeding No. 1 and for respondents in proceeding No. 2.
    I. The Court below properly held that under the facts and circumstances of this case, the Watnicks were not precluded from proceeding to arbitration of their underinsured motorists claims notwithstanding the fact that they did not actually receive full payment of the tortfeasor’s liability limits. (Lawrence Constr. Corp. v State of New York, 293 NY 634; Nichols v Nichols, 306 NY 490; Breed v Insurance Co. of N. Am., 46 NY2d 351; State of New York v Home Indem. Co., 66 NY2d 669; Guardian Life Ins. Co. v Schaefer, 70 NY2d 888; Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44; Little v Blue Cross of W. N. Y, 72 AD2d 200; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049; Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576; F.H.R. Auto Sales v Scutti, 144 AD2d 956.) II. The Court below erroneously held that the tortfeasor’s vehicle was not "uninsured” within the meaning of the statute and the subject policy. (Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049; State-Wide Ins. Co. v Curry, 43 NY2d 298.) III. The Court below properly held that Federal, which is presumed to have had knowledge of the statute and its restrictive terms, should not be permitted to collect premiums for uninsured and underinsured motorist coverage and then claim that such coverage could never be provided where, as here, the accident takes place in Quebec. (Drapak v Aetna Cas. & Sur. Co., 137 Misc 2d 156; Matter of Hanover Ins. Co. [Saint Louis], 119 AD2d 529; Matter of United Community Ins. Co. v Mucatel, 127 Misc 2d 1045, 119 AD2d 1017, 69 NY2d 777.)

      Bertram Herman, P. C., East Norwich, for respondent in proceeding No. 1 and for appellant in proceeding No. 2.
    I. It having been determined that the offending vehicle was not an uninsured motor vehicle, underinsured protection is not available to the Watnicks individually, until they each exhaust by payment the insurance for pain and suffering afforded pursuant to the Quebec Automobile Insurance Act, which is in the sum of $20,000 each assuming, but without conceding, that they could legally recover more than $20,000 each. (Reichel v Government Empls. Ins. Co., 66 NY2d 1000; Huth v Nationwide Ins. Co., 148 Misc 2d 1003; Knobloch v Royal Globe Ins. Co., 38 NY2d 471; Matter of Consolidated Mut. Ins. Co. v

      Keepnews, 51 AD2d 1016, 41 NY2d 982; State Farm Mut. Auto. Ins. Co. v Westlake, 74 Misc 2d 604, 43 AD2d 314, 35 NY2d 587; Dole v Dow Chem Co., 30 NY2d 143; Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951; Colon v Aetna Cas. & Sur. Co., 48 NY2d 570.) II. In view of the fact that the most that could be recovered under the law of the place where the accident occurred is $20,000, this claim could never become an underinsured claim. (Matter of Napolitano [MVAIC], 21 NY2d 281; Rose v Travelers Ins. Co., 96 AD2d 551; Mount St. Mary’s Hosp. v Catherwood, 26 NY2d 493; Matter of Valente v Prudential Prop. & Cas. Ins. Co., 77 NY2d 894.) III. Federal is not the tortfeasor, but rather a person who has contracted with the Watnicks to pay to them reparations for the legal liability of the tortfeasor. Federal’s liability can be no greater than the legal liability of the underlying tortfeasor to the Watnicks. (Kilberg v Northeast Airlines, 9 NY2d 34; Babcock v Jackson, 12 NY2d 473; Montgomery v Daniels, 38 NY2d 41.) IV. The Court below was in error in authorizing the Watnicks to pursue underinsured arbitration under the circumstances of the case at bar. (Thomas v Hanmer, 109 AD2d 80; Matter of Firemen’s Fund Ins. Co. v Freda, 156 AD2d 364; Drapak v Aetna Cas. & Sur. Co., 137 Misc 2d 156; Matter of Hanover Ins. Co. [Saint Louis], 119 AD2d 529; Maurizzio v Lumbermens Mut. Cos. Co., 73 NY2d 951.)
   OPINION OF THE COURT

Smith, J.

This appeal arises from a car accident that occurred in the Province of Quebec, Canada. On September 6, 1988, Jay and Marianna Watnick, residents of New York State, were driving through St. Agathe, Quebec, when their automobile was struck by a vehicle operated by Jay Anderson, a resident of Quebec. Jay and Marianna Watnick were severely injured.

When the accident occurred, the Watnicks were insured under a motor vehicle liability policy issued by Federal Insurance Company, a New York State insurance carrier. The policy contained an uninsured motorist endorsement and an optional supplementary uninsured motorist endorsement (denominated "Underinsured Motorists Coverage”) in the single limit of $300,000 (see, Insurance Law § 3420 [¶] [1], [2]; Vehicle and Traffic Law § 311 [4] [a]). The purpose of the uninsured motorist endorsement was to " 'provid[e] coverage to insured persons who suffer automobile accident injuries at the hands of financially irresponsible motorists’ ” (see, Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 640). The underinsured motorist endorsement provided protection to a covered person for bodily injury sustained in an automobile accident where the applicable bodily injury liability bond or policy provided coverage that was less than the limit of the subject policy. Under the policy in this case and the applicable section of the Insurance Law, Federal was obligated to pay underinsured motorist coverage only after the limits of liability under any applicable bodily injury liability bonds or policies had been exhausted by payment of judgments or settlements (see, Insurance Law § 3420 [¶] [2]). Although the underinsured motorist endorsement in the insurance policy allowed a setoff for any amount paid or payable under workers’ compensation, the endorsement allowed Federal to reduce the limit of bodily injury liability only by sums paid by or on behalf of persons or organizations who might be legally responsible. The endorsement did not permit Federal to reduce the limit of bodily injury insurance coverage by the maximum amount payable, as opposed to paid, under applicable bodily injury liability insurance policies. The policy allowed either party to make a written demand for arbitration if the parties did not agree (1) whether the covered person was legally entitled to recover damages, or (2) as to the amount of damages.

Anderson’s vehicle was insured for "bodily injury” liability under the Quebec Automobile Insurance Act (QAIA), a mandatory system of insurance reparations administered by the provincial government of Quebec. That program affords insurance coverage to all "owners” of road vehicles who use a public highway within the Province of Quebec (see, QAIA §§ 1.1, 17). Through applications made to its automobile insurance board, the Regie, the QAIA compensates nonresident claimants "to the extent that [they are] not responsible for the accident” (see, QAIA § 8) to a maximum of $20,000 (see, QAIA § 44). Claimants aggrieved by a determination by an officer of the Régie regarding compensation for bodily injury may appeal to the Appeals Section of the Régie and then to the Commission des Affaires Sociales (see, QAIA § 56). The record indicates that in addition to bodily injury coverage under the QAIA, the Anderson vehicle was insured by Commerce Insurance Company, an insurance company not licensed to do business in New York.

Jay and Marianna Watnick sought compensation from the Régie for their injuries. The Régie awarded Jay Watnick $82.12 for suffering and loss of enjoyment of life and denied Marianna Watnick’s claim, finding her 100% at fault for the accident. The Watnicks did not appeal from the Régie’s determinations.

Prior to receiving the determination from the Régie regarding Jay Watnick’s claim, the Watnicks filed claims with Federal under the uninsured and underinsured motorist endorsements of the motor vehicle liability policy. Federal denied coverage and commenced this proceeding, seeking to stay arbitration of both claims. Federal contended that the offending vehicle was neither uninsured or underinsured, as defined by the statutory and decisional laws of New York. The Watnicks argued that the offending vehicle was uninsured because the QAIA was not a "bodily injury liability bond or policy” within the meaning of New York’s Insurance Law.

In separate orders, Supreme Court, Nassau County, concluded that the offending vehicle was neither uninsured nor underinsured, and granted Federal’s applications to stay arbitration of both claims. The Appellate Division affirmed as to the uninsured claim but reversed as to the underinsured claim, denied Federal’s application to permanently stay arbitration of the underinsured motorist claim, and directed the parties to proceed to arbitration on that claim (see, 176 AD2d 38). The Court also allowed Federal to set off "the maximum amount [that Jay Watnick may receive] pending the Regie’s determination,” to satisfy the statutory requirement of exhaustion by payment and "expedite the arbitration” (see, id., at 43). The Appellate Division held that since the limit of the QAIA bodily injury liability coverage was less than that provided under the Watnicks’ underinsured motorist endorsement, the offending vehicle was underinsured (see, id., at 42).

The issues presented on appeal are whether the Watnicks may recover damages under the uninsured and underinsured motorist endorsements in their vehicle liability insurance policy with Federal.

Federal does not challenge the conclusion by the prior courts that the Anderson vehicle was not uninsured. However, the Watnicks maintain that those courts erred in concluding that the offending vehicle was not "uninsured” within the meaning of the Insurance Law and the subject policy. The Watnicks argue that the legislative purpose of providing maximum and expeditious protection to the innocent victims of financially irresponsible motorist coverage in New York mandates liberal construction of the statute and the policy, and the conclusion that the offending vehicle was either uninsured or underinsured.

We agree with the conclusion reached by the prior courts that the Anderson vehicle was not uninsured, and the Watnicks cannot recover under the uninsured motorist endorsement in their vehicle liability policy with Federal. Insurance Law § 3420 (f) (1) requires that every motor vehicle insurance policy contain an uninsured motorist endorsement under which the insurer agrees to pay an insured any damages caused by an owner or operator of an uninsured motor vehicle. An "uninsured motor vehicle” is one as to which no proof of financial security exists, as defined by subdivision (3) of section 311 of the Vehicle and Traffic Law (see, Insurance Law § 5202 [c], [d]). Section 311 (3) of the Vehicle and Traffic Law defines the term "proof of financial security” to mean proof of ability to respond in damages for liability arising out of the ownership, maintenance or use of a motor vehicle as evidenced by an owner’s policy of liability insurance. An "owner’s policy of liability insurance” provides insurance against loss from the liability imposed by law for damages because of bodily injury to or death of any person arising out of the ownership, maintenance, use, or operation of a specific motor vehicle or motor vehicles within the State of New York, or elsewhere in the United States in North America or the Dominion of Canada (see, Vehicle and Traffic Law § 311 [4]).

Here, the QAIA provides bodily injury insurance coverage to all owners of road vehicles using a public highway in the Province of Quebec. Therefore, the Appellate Division correctly concluded that the QAIA is tantamount to an owner’s policy of liability insurance. Under the QAIA, Anderson can respond in damages, up to $20,000, for any bodily injury he may cause to others in an automobile accident on a Quebec highway. Thus, the QAIA provides Anderson with proof of financial security. In addition, the record indicates that Anderson’s vehicle was insured by Commerce Insurance Company. As such, the prior courts correctly held that Anderson’s vehicle was not uninsured and granted Federal’s application to stay arbitration of the Watnick’s uninsured motorist claim.

However, we disagree with the conclusion reached by the Appellate Division that the Watnicks should arbitrate their underinsurance claim with Federal.

Federal contends that since the prior courts concluded that the offending vehicle was not "uninsured,” the Watnicks are not entitled to underinsured protection until they each have "exhausted by payment” the insurance for pain and suffering afforded under the QAIA. Relying on Matter of Valente v Prudential Prop. & Cas. Ins. Co. (77 NY2d 894), the Watnicks argue that a $20,000 "setoff” would make Federal whole and eliminate the need for the "exhaustion] by payment” requirement in the subject policy. Furthermore, the Watnicks contend, breach of the contractual duty to exhaust by payment gives rise only to a claim for damages, not vitiation of the insurance policy.

The underinsured motorist endorsement in the Watnicks’ motor vehicle insurance policy with Federal, provides:

"We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements” (emphasis added).

Insurance Law § 3420 (f) (2), which requires insurers to provide, at the option of the insured, supplementary uninsured (underinsured) motorist insurance for bodily injury liability up to the limits of the insured’s own bodily injury liability policy, provides:

"As a condition precedent to the obligation of the insurer to pay under the supplementary uninsured motorists insurance coverage, the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident shall be exhausted by payment of judgments or settlements” (emphasis added).

The clear language of the policy and statute requires the Watnicks to "exhaust * * * by payment” the limits of all applicable bodily injury insurance policies before Federal is required to pay pursuant to the underinsurance endorsement. Thus, the statutory scheme requires primary insurers to pay every last dollar, and requires plaintiffs to accept no less, prior to the initiation of an underinsurance claim.

The Regie awarded Jay Watnick $82.12, out of a possible $20,000, for the injuries he sustained in the automobile accident. The Régie denied Marianna Watnick’s claim, finding her 100% at fault for the accident. Neither Jay Watnick nor Marianna Watnick has "exhausted by payment” the limits of all applicable bodily insurance policies as required by the statute and the subject policy.

Matter of Valente v Prudential Prop. & Cas. Ins. Co. (77 NY2d 894, supra) provides no assistance to the Watnicks. In that case, the petitioner sustained serious bodily injuries when he was struck by an uninsured motor vehicle while on the job. The petitioner, an insured person, sought to recover for his bodily injuries pursuant to the supplementary uninsured motorist endorsement in the insurance policy issued by the insurer to the petitioner’s father. The policy provided supplementary uninsured motorist coverage in the amount of $100,000 and stated that the amount payable thereunder would be reduced by any amount paid or payable under workers’ compensation. The insurer contended that the amount payable under the supplementary uninsured motorist endorsement must be reduced by any workers’ compensation award. In allowing the insurer to reduce the petitioner’s recovery for pain and suffering by the amount payable under workers’ compensation, this Court held:

"The contract between the parties contains a standard clause which expressly provides for [the] ’offset,’ and the contract has been approved by the Commissioner of Insurance * * * Under these circumstances there is no basis for holding the contractual offset unenforceable with respect to the supplemental coverage * * *
"In the absence of * * * a statutory restriction, the court is bound to enforce the contract as written” (id., at 895-896).

Here, too, the underinsured motorist endorsement allowed Federal to reduce the limit of bodily injury coverage by all sums paid or payable under workers’ compensation. However, the endorsement allowed Federal to reduce the limit of bodily injury coverage only by all sums paid by or on behalf of persons or organizations who may be legally responsible. The endorsement did not permit Federal to reduce the limit of bodily injury coverage by the amount payable under any applicable bodily injury insurance policy. Any agreement regarding a setoff of applicable injury insurance could have been included in the policy endorsement, as it was with workers’ compensation. None existing, the Appellate Division has rewritten the endorsement by allowing Federal to "set off” the maximum amount recoverable by Jay Watnick under the QAIA pending a determination by the Régie. The Watnicks did not "exhaust * * * by payment” the limits of the QAIA policy before seeking compensation from Federal, as required by the policy and the Insurance Law. Thus, they are not permitted to arbitrate their underinsured endorsement claim.

Accordingly, the order of the Appellate Division should be modified, with costs to petitioner, by reversing so much thereof as denied Federal’s application to permanently stay arbitration of the Watnick’s underinsured motorist claim and granting that application and, as so modified, affirmed.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order modified, with costs to petitioner, by reversing so much of the Appellate Division order as pertains to proceeding No. 2 and reinstating the order of Supreme Court, Nassau County, in proceeding No. 2 and, as so modified, affirmed.

       There is a reference to cumulative payments to Jay Watnick of $4,321.86 (see, record, at 224). These payments apparently include sums in addition to those for suffering and loss of enjoyment of life.


text:
    The People of the State of New York, Respondent, v Melody Martinez, Appellant.
    Argued November 17,1992;
    decided December 21, 1992
    POINTS OF COUNSEL

      Paul, Weiss, Rifkind, Wharton & Garrison, New York City

      (Robert S. Smith and Elisa F. Fazio of counsel), for appellant. The issuance of a search warrant based on anonymous affidavits, absent safeguards not present here, violated the Fourth Amendment to the United States Constitution and article I, § 12 of the New York Constitution. (King v United States, 282 F2d 398; United States ex rel. Pugh v Pate, 401 F2d 6; United States ex rel. Maxey v Morris, 440 F Supp 56, 591 F2d 386; United States v McKay, 2 F2d 257; People v Taylor, 73 NY2d 683; People v Callahan, 85 Misc 2d 1083; People v Sullivan, 56 NY2d 378; People v O’Donnell, 146 AD2d 923; People v Hanlon, 36 NY2d 549; People v Mullins, 137 AD2d 227.)

      Robert M. Carney, District Attorney of Schenectady County, Schenectady (Alfred D. Chapleau of counsel), for respondent.
    The issuance of a search warrant based on a confidential informant’s "John Doe” affidavits did not violate either the State or Federal Constitutions where, as here, the information in the warrant application considered in the light of everyday experience and accorded reasonable inferences was reliable and amounted to probable cause. (People v Hanlon, 36 NY2d 549; Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Rogers, 15 NY2d 422; People v Schnitzler, 18 NY2d 457; People v Edwards, 69 NY2d 814; People v Burks, 134 AD2d 604; People v Bigelow, 66 NY2d 417; People v Comforto, 62 NY2d 725; People v Wheatman, 29 NY2d 337.)
   OPINION OF THE COURT

Smith, J.

The issue here is whether an affidavit signed by a person only as "Confidential Informant” and without any determination as to that person’s reliability can establish the requisite probable cause for a search warrant. We conclude that it cannot.

Defendant was found guilty, after a jury trial in County Court, Schenectady County, of criminal possession of a controlled substance in the first degree in violation of Penal Law § 220.21 (1) and sentenced to 15 years to life in prison. This appeal grows out of the search of defendant’s apartment preceding her arrest.

The facts as found by the suppression court and the Appellate Division are as follows. On September 21, 1987, Schenectady Police Department Investigator Edward Galligan was notified by a confidential informant that she could purchase drugs from the defendant at 23 Brandywine Avenue in Schenectady. That location had allegedly previously been under investigation for drug activity. The informant agreed to go to the location to purchase drugs. Subsequently, the informant returned with seven grams of cocaine that the defendant had allegedly given to her. At the time she went to the location, the informant was not accompanied by the police and she had no money. Thus, the informant’s acquisition was not found to have been a “controlled buy.”

The application for the search warrant was supported by an affidavit by Investigator Galligan and two affidavits signed by "Confidential Informant.” Investigator Galligan’s affidavit described his meeting with an informant regarding cocaine and her alleged subsequent purchase of cocaine from defendant. However, the investigator’s affidavit failed to specify any situations in which information previously provided by the informant had either resulted in a conviction or been independently verified. One of the affidavits signed by “Confidential Informant” repeated the information in Investigator Galligan’s affidavit, the second described the drug activity at defendant’s home and indicated a time when the drugs would be there.

Prior to issuing the warrant, the Judge did not have the informant appear and did not question her. Upon execution of the warrant a quantity of a white powdery substance, later established as cocaine, was seized from defendant’s home.

In denying defendant’s motion to suppress the seized drugs, the court found (1) that the informant did exist because she appeared in that court and acknowledged the sworn statements, (2) that the Aguilar-Spinelli test was satisfied because the informant was a direct participant in the transaction and her statements were sworn and against her penal interest, and (3) that a recorded telephone conversation between the informant and defendant corroborated the informant’s statements and, together with the sworn statements, provided reasonable cause to issue the search warrant.

The Appellate Division agreed with the conclusion of the suppression court, reasoning (1) that the police were aware of the identity and address of the informant and were capable of producing her to the issuing court, (2) that the facts alleged in the sworn statements provided sufficient probable cause, and (3) that the informant acknowledged the statements.

We conclude that the probable cause necessary for the issuance of a search warrant is lacking where the application for the warrant is supported by the affidavit of a confidential informant who has not been questioned by the issuing court and whose reliability has not been established.

First, issuance of the warrant here violated article I, § 12 of the New York State Constitution (see, People v Griminger, 71 NY2d 635). In Griminger, we held that, as a matter of State constitutional law, an application for a search warrant based upon information supplied by an undisclosed informant must show both the reliability of the informant and the basis of the informant’s knowledge (71 NY2d 635, 639, supra). Neither the affidavit signed by Investigator Galligan nor anything else submitted to the Judge who issued the warrant established the reliability of the informant. No basis for concluding that the informant was reliable can be found where the police officer’s affidavit articulates no verified history of success with this informant and the informant’s affidavits are signed merely "Confidential Informant.”

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Second, it was not sufficient for the police to conclude that the informant was reliable. It is the issuing Judge, not the police or applicant for the search warrant, who must be satisfied that there is a reasonable basis for the issuance of the warrant (see, People v Potwora, 48 NY2d 91). That Judge must also make the inquiry into the facts on which the application is based (id, at 95).

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress granted, and the indictment dismissed.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      . Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410.

      . The portion of article I, § 12 of the State Constitution that is pertinent to this case is identical to the Fourth Amendment of the Federal Constitution, and it reads:


author: Bellacosa, J. Hancock, Jr., J.

text:
    Rachel Anglin, Respondent, v Harold Anglin, Appellant.
    Argued November 17,1992;
    decided December 21, 1992

      POINTS OF COUNSEL

      Zubres, D’Agostino, Hoblock & Greisler, P. C., Albany (David M. Siegal of counsel), for appellant.
    The commencement of an action for a separation is the commencement of a matrimonial action within the meaning of Domestic Relations Law § 236 (B) (1) (c). (Lennon v Lennon, 124 AD2d 788; Butti v Butti, 151 AD2d 633.)

      Bohl, Clayton, Komar & Della Rocca, P. G, Albany (George H. Barber of counsel), for respondent.
    Pursuant to Domestic Relations Law § 236 (B) (2), the evaluation date of property subject to equitable distribution is the date the matrimonial action stated in subdivision (5) is commenced and subdivision (5) does not include a separation action. (Lennon v Lennon, 124 AD2d 788; Jolis v Jolis, 98 AD2d 692; Petre v Petre, 122 AD2d 559.)
   OPINION OF THE COURT

Bellacosa, J.

The appellant former husband presents a single statutory interpretation question for this Court to settle — whether a separation action ends the period for the accrual of marital property as prescribed by Domestic Relations Law § 236 (B) (1) (c). The Appellate Division, agreeing with Supreme Court, held that the start of the separation action did not effect that end. We, too, conclude that a separation action does not, ipso facto, terminate the marital economic partnership and, therefore, does not preclude the subsequent accrual of marital property.

FACTS

The parties to this action were married in 1954 and have three children. In 1982, the wife brought a separation action against her husband, which was contested and did not go to trial until January 1988. In 1983, the wife was granted exclusive use and possession of the marital residence, temporary maintenance, and temporary child support. At times, after the separation action was commenced, the parties continued to live in the marital residence together and filed joint tax returns. Two years after the separation action was commenced, they also travelled to Tennessee together. Following trial of the separation action, at which the amount and duration of maintenance were the only contested issues, the wife was granted maintenance and a judgment of separation was entered on October 20,1988.

In 1989, the wife commenced an action for divorce, pursuant to Domestic Relations Law § 170 (5). The husband sought an order declaring that assets acquired after the commencement of the 1982 separation action were not marital property. The wife cross-moved to set the much later date of the commencement of the divorce action as the cutoff, after which property acquired would not be considered marital property.

Supreme Court, Albany County, noting the divided views of the various Appellate Divisions on this narrow but critically important point of law, fixed the commencement date of the divorce action as the marital asset accrual cutoff date. The Appellate Division, Third Department, agreeing with Supreme Court and the views of the First and Fourth Departments on this issue, affirmed by a vote of 3 to 2. The Appellate Division then granted permission to the husband to appeal to this Court on a certified question.

DISCUSSION

The Domestic Relations Law and its equitable distribution regime are complex, interlocking statutory frameworks. As this Court recently observed in Matter of Aaron J. (80 NY2d 402, 407), we are obliged in interpreting such statutes to "harmonize the various provisions * * * and to construe them in a way that renders them internally compatible”. In a subdivision captioned "Definitions”, Domestic Relations Law § 236 (B) (1) (c) states that "[t]he term 'marital property’ shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action” (emphasis added). Nowhere in the subdivision captioned "Definitions” is the term "matrimonial action” defined.

Appellant urges a plain meaning approach to the understanding and application of Domestic Relations Law § 236 (B) (1) (c). He maintains that by the "clear definitional language”, a matrimonial action must include a separation action and he points to the reasoning of the Second Department in Lennon v Lennon (124 AD2d 788), which stands alone against the contrary views of the other three Appellate Division Depart-merits. The Second Department relied on a discrete subdivision of the same statute, Domestic Relations Law § 236 (B) (2), captioned "Matrimonial actions”, which lists 11 types of matrimonial actions, and used that enumeration as an aid to defining "matrimonial action” for purposes of the marital property definition provision, Domestic Relations Law § 236 (B) (1) (c). Because an action for separation is included in the Domestic Relations Law § 236 (B) (2) list, appellant, the Lennon Court and the dissent base their further analysis on the predicate that the mere delineation in section 236 (B) (1) (c) is self-defining and self-executing.

Their plain meaning approach, however, fails to give sufficient consideration to the fact that also included in the Domestic Relations Law § 236 (B) (2) list of "[m]atrimonial actions” are actions that could not possibly serve as the cutoff point for the accrual of marital property. For example, the list includes actions "for a declaration of the * * * nullity of a foreign judgment of divorce [and] for a declaration of the validity * * * of a marriage” (Domestic Relations Law § 236 [B] [2]). The objective of these actions, as Justice Levine convincingly observed in his majority opinion below, is "a judicial declaration of the continued existence of the marital relationship” (Anglin v Anglin, 173 AD2d 133, 135 [emphasis in original]). If one of these actions, by the so-called plain meaning "matrimonial actions” litany, were held to demarcate the end of the marital property accrual period, an inexplicable contradiction would be plainly evident.

Thus, "matrimonial action” for the purpose of defining the termination point for the further accrual of marital property cannot be governed by an overly inclusive and generalized list but must instead acquire its meaning in relation to the overall legislative intent of the Domestic Relations Law and within the particular application of the equitable distribution regime. We should not accept or view Domestic Relations Law § 236 (B) (2) as a definitional list for all purposes.

We are aided in the view we adopt by the express terms of section 236 (B) (1) (c), which draws a parallel between a "separation agreement” and "the commencement of a matrimonial action” (emphasis added). Either category serves to demarcate the closing date of the marital property accrual period. The appellant former husband would construe the categories so that either a separation agreement or the commencement of a separation action "objectively signifies the end of the marital partnership” and "clearly signals the end of the economic partnership of the marriage”. That conclusion may not be so facilely accepted. The economic partnership should be considered dissolved when a matrimonial action is commenced which seeks "divorce, or the dissolution, annulment or declaration of the nullity of a marriage”, i.e., an action in which equitable distribution is available (see, Domestic Relations Law § 236 [B] [5]). That provides internal consistency and compatibility and objective verification, as opposed to uneven, ephemeral, personal interpretations as to when economic marital partnerships end. This Court has said that the "winding up of the parties’ economic affairs and a severance of their economic ties by an equitable distribution of the marital assets” — a winding up consistent with the termination of a partnership — is to be carried out "upon dissolution of the marriage” (O’Brien v O’Brien, 66 NY2d 576, 585 [emphasis added]). All separation actions do not actually or realistically constitute the functional or cognizable equivalent of the dissolution of a marital economic partnership or of a marriage itself. Indeed, a separation decree, using somewhat Victorian terms, serves only to "separate] the parties from bed and board, forever, or for a limited time” (Domestic Relations Law § 200 [emphasis added]). Moreover, while a separation judgment may be used as a predicate for divorce (see, Domestic Relations Law § 170 [5]), the law requires another definitive act by a party — a discrete action at law — to legally effectuate the divorce objective and terminate a marriage.

It is pertinent that the Legislature has expressly allowed a separation agreement to fix the cutoff date for accrual and control the distribution of the economic fruits of the marital economic partnership. In effect, the Legislature has allowed parties to "contract out of th[e] system of marital property and maintenance” (see, Member of Assembly Mem, 1980 NY Legis Ann, at 130). Because a separation agreement constitutes a voluntary bilateral mechanism allowing parties to opt out of the statutory equitable distribution regime, the statute places the agreement on a par of materiality and legal effect with the commencement of a qualifying matrimonial action that would legally terminate the marital economic partnership. As Justice Levine aptly noted, "because the spouses have the power to provide for the entire disposition of marital assets in a separation agreement, and commonly do so, it was appropriate and consistent to designate the execution of a separation agreement as an alternative terminating event in defining marital property for equitable distribution purposes in Domestic Relations Law § 236 (B) (1) (c)” (Anglin v Anglin, 173 AD2d 133,136, supra [emphasis added]).

Appellant offers counterarguments that the courts should carefully differentiate between the distribution of marital property under section 236 (B) (5) and the demarcation of its accrual specified in section 236 (B) (1) (c) (see also, Florescue, The Cutoff to Accrual, NYU, Aug. 10, 1992, at 3, col 1). We acknowledge the distinction, but emphasize, too, that this variation does not alone resolve the precise question before us, which is whether the Legislature has chosen a separation action as the cutoff for the accrual of marital property, as prescribed in Domestic Relations Law § 236 (B) (1) (c). Judicial policy preferences are irrelevant and not controlling in answering that question. In the interpretative context, courts are obliged to "harmonize the various provisions” of the statute (Matter of Aaron J., 80 NY2d 402, 407, supra) and, thus, must read the entire law and accord respect to the interlocking and interrelated features of all its parts. Although subdivision (5) of section 236 (B) purports only to govern the equitable distribution of marital property, it nevertheless also provides valuable guidance in the search for what the integrated statute was intended to mean and informs the judicial ascertainment of a solution that gives all parts of the statute consistent and effective meaning (see, Matter of Aaron J., supra; Matter of Society of N. Y. Hosp. v Del Vecchio, 70 NY2d 634, 636; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 97, 98). The specific equitable distribution words and provisions of the Legislature must be accorded appropriate weight in this context and, in our view, they should enjoy precedence over a generalized enumeration provision. By this method and assessment, a real harmonization and effectuation of the purpose intended by the Legislature is accomplished.

Notably, the Legislature has given the courts significant flexibility in fashioning the appropriate remedy of equitable distribution of marital property. The commencement of a separation action may be considered as a factor by courts, among other relevant factors, as they attempt to calibrate the ultimate equitable distribution of marital economic partnership property acquired after the start of such an action by either spouse (see, Anglin v Anglin, 173 AD2d 133, 137, supra). The Legislature has wisely refrained from excluding, arbitrarily and per se, assets acquired subsequent to the commencement of a separation action from the potential pool of accruing marital property. We have correspondingly noted that the Legislature deliberately defined marital property "broadly”, and we have upheld that "broad construction” (see, Price v Price, 69 NY2d 8, 15; Majauskas v Majauskas, 61 NY2d 481, 489). The rigid formula advocated by the appellant and espoused by the dissent in this purely statutory interpretation case, would incongruously retreat from the flexibility properly reposed in the courts in this sensitive and difficult area. The net result in this case would also be demonstrably unfair.

We have considered all the other arguments presented and conclude they are without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.

Hancock, Jr., J.

(dissenting). However it may be characterized, the majority holds that under Domestic Relations Law § 236 (B) (1) (c) neither a separation action nor a separation judgment dissolves the marital economic partnership so as to terminate the accrual of marital assets for equitable distribution (see, majority opn, at 556-557). Thus, even though the marriage relationship has deteriorated to the point where one party has sued for and even obtained "a judgment separating the parties from bed and board, forever, or for a limited time” (Domestic Relations Law § 200), the individual assets of the husband and wife continue to be lumped together for eventual distribution as marital property when the marriage is finally dissolved. The majority’s holding that the "economic partnership” survives the discord of a separation action is incompatible with the well-defined concept of the "economic partnership” relationship as the centerpiece of the Equitable Distribution Law (see, Price v Price, 69 NY2d 8, 14; O’Brien v O’Brien, 66 NY2d 576, 585; Majauskas v Majauskas, 61 NY2d 481, 489).

"Economic partnership” is not some abstract state which is deemed to exist by virtue of the marriage contract. On the contrary, "economic partnership” is a specific conception of the marriage relationship which the Legislature has adopted as a fair and realistic basis for the division of property when the marriage terminates. It is a practical concept reflecting the trust, the interdependence and the voluntary sharing of the obligations of supporting, maintaining and nurturing the family which exist when the parties function together as an economic unit. The idea reflects what married people living together actually do and how they function when operating as an economic unit, not some theoretical notion of how married but separated people might function if they were not separated. Because the majority opinion is predicated on a novel theory of ’’economic partnership” which is contrary to established precedent, antithetical to the essential basis of equitable distribution and inconsistent with the plain language and practical sense of the statute, I dissent.

I.

In O’Brien v O’Brien (supra, at 584-585), we explained that in enacting part (B) of Domestic Relations Law §236 the Legislature replaced the traditional common-law title theory of property with an entirely new theory — equitable distribution. Citing the Governor’s Memorandum of Approval, we emphasized that ”[e]quitable distribution was based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker” (id., at 585 [emphasis added]). In O’Brien, the husband’s professional medical license was held to be marital property because the wife helped support him financially and emotionally while he studied for the license (id., at 585-586). The economic partnership idea as the basis of equitable distribution was further refined in Price v Price (69 NY2d 8, supra), where we noted that the concept ’’reflects an awareness that the economic success of the partnership depends ’not only upon the respective financial contributions of the partners, but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home’ ” (id., at 14 [quoting Brennan v Brennan, 103 AD2d 48, 52]). In Price we held that where a separately owned company had appreciated during the marriage ’’due in part” to the contributions of the nontitled spouse in homemaking and attending business conventions with her husband, the appreciation constituted marital property (id., at 17; see also, Majauskas v Majauskas, supra, at 488-490 [vested pension rights held to be marital property on economic partnership theory]).

The majority finds a sufficient ground for the economic partnership and the continued accrual of marital property in the legal existence of the marriage irrespective of the actual relationship of the parties. In this holding, the majority ignores the teachings of Price, O’Brien and Majauskas and creates a troubling precedent which cuts against the very purpose of equitable distribution — i.e., a fair distribution of only that property which the parties accumulated during the marriage as a result of their joint, cooperative endeavors. Thus, under today’s decision, a married couple (such as the parties here) may live separate and apart for years after commencement of a separation action and the grant of a decree; their affection for each other and the mutual trust and respect necessary for the sharing of marital obligations may have long since vanished; yet, the economic partnership will be deemed to have continued and their individual assets will be pooled for eventual distribution as marital property.

The sole aim of replacing the rigid and sometimes unjust common-law property doctrines used in the division of marital property with a new system of equitable distribution was greater fairness to the parties on dissolution of the marriage. Clearly, that aim is achieved by the lumping together for distribution what is accumulated while the parties actually function as and contribute to an economic unit. For then it is appropriate and fair that individual property interests should give way and that in making the equitable distribution, the Court should recognize "the value of 'non-remunerated services’ such as homemaking” and "consider any 'contributions and services as a spouse, parent * * * and homemaker’ ” (Price v Price, supra, at 14-15 [quoting Domestic Relations Law § 236 (B) (5) (d) (6)]). It is difficult at best to understand, nor does the majority explain, how the aim of fairness is furthered —or any legitimate purpose, for that matter — by ignoring the realities of the marital relationship and ordering the continued merging of the marital assets after the parties have legally separated and after any basis for an actual economic partnership has ceased to exist (see, Florescue, The Cutoff to Accrual, NYU, Aug. 10, 1992, at 3, cols 1, 2 [“The statutory goal (of the Equitable Distribution Law) is to distribute 'equitably’ the fruits of the marital partnership, Once that partnership has ceased to exist, its fruits should too”]).

II.

That the mixing of the parties’ individual assets as marital property should cease when a separation action is started or a decree obtained is dictated by the plain wording as well as the sense of the statute. Under the Equitable Distribution Law, “marital property” is defined as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action” (Domestic Relations Law § 236 [B] [1] [c] [emphasis added]). Domestic Relations Law § 236 (B) (2), entitled “Matrimonial actions”, states that "[e]xcept as provided in [Domestic Relations Law § 236 (B) (5)], the provisions of this part shall be applicable to actions for * * * a separation” (emphasis added). The logic of the statutory scheme is clear: to constitute marital property for equitable distribution upon final dissolution of the marriage, the property of the individual partners must be acquired during the marriage and before steps are taken which signify the breakup of the marital partnership.

It is, of course, a basic rule of construction that “statutory language is generally given its natural and most obvious meaning” (Price v Price, supra, at 15 [citing McKinney’s Cons Laws of NY, Book 1, Statutes § 94]). Yet, the majority rejects the directive of the statute from its plain wording: that marital property should not continue to accrue after "the commencement of a matrimonial action” (§236 [B] [1] [c] [emphasis added]) and that by the terms of the statute an action “for a separation” is a matrimonial action (§ 236 [B] [2]).

It is also a basic rule that an interpretation of a statute should be rejected if it produces a result which is unreasonable or unfair (see, Ferres v City of New Rochelle, 68 NY2d 446, 454; McKinney’s Cons Law of NY, Book 1, Statutes §§ 141, 143, 146). Here, the result of the majority’s construction is both unreasonable and unfair — a party’s individual property will be included in the mix of assets as marital property even after the marriage is a “dead marriage”, after the parties have ceased to function as an economic unit and after the actual marital partnership no longer exists.

Moreover, the majority construction produces an anomaly. Section 236 (B) (1) (c) provides that both the execution of a separation agreement and the commencement of a matrimonial action have the effect of cutting off the accrual of marital property. Yet, under the majority decision, neither the commencement of a separation action nor even the filing of a separation decree stops the accruing of marital property— although a separation, if pursuant to an agreement, concededly has that effect (see, Milbrandt v Green Refractories Co., 79 NY2d 26, 36 [a construction which produces an anomaly should be avoided]). Here, for example, the parties lived apart, after commencement of the separation action, under a temporary order and, later, under the separation decree which contained provisions for maintenance and exclusive possession of the house. Under the majority decision, until the divorce action was commenced whatever additional assets that the parties acquired after separation are treated as marital property. If the parties had separated pursuant to an agreement containing the same terms as in the temporary order and separation decree, their individual assets would not be treated as marital property. In both the actual as well as the assumed case, the fact of separation dispels any possibility of the ongoing cooperation and sharing of the mutual obligations on which the economic partnership is based. No reason is suggested for these conflicting results. To be sure, a separation agreement implies that the separation was voluntary, even amicable, while a separation action bespeaks an involuntary separation, one that may be fraught with bitter marital strife. If anything, such involuntary separation seems even more antagonistic to the concept of the economic partnership than a separation under an agreement.

The majority offers no reason as to how its decision furthers the underlying purpose of the Equitable Distribution Law— i.e., distributing property resulting from the economic partnership. Rather, it stresses the point made by the Appellate Division (173 AD2d 133, 135) that actions to declare the nullity of a foreign divorce and for the validity of a marriage —both assertedly presupposing the "continued existence” of the marriage — are included as "matrimonial actions” in section 236 (B) (2). Thus, it is argued, little significance should be attached to the inclusion of separation actions in that same section. No authority is cited for the majority’s proposition that an action to nullify a foreign divorce or to declare a marriage valid is necessarily one brought for " 'the continued existence of the marital relationship’ ” (majority opn, at 556 [quoting Anglin v Anglin, 173 AD2d 133, 135, supra]). Certainly, the fact that the parties have had to resort to litigation over some disputed issue suggests that whatever marriage might continue will be less than amicable. But, in any event, the argument overlooks the critical point: that it is the existence of the economic partnership, not of the marriage as a legal entity, on which the accrual of marital property and the very concept of equitable distribution are based.

Judges Kaye, Titone and Smith concur with Judge Bellacosa; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion in which Acting Chief Judge Simons concurs.

Order affirmed, etc.

      . Governor’s Mem of Approval, 1980 McKinney’s Session Laws of NY, at 1863; see also, Assembly Mem, 1980 NY Legis Ann, at 129-130.

        , A large body of law has developed around the concept "economic partnership” as the basis for marital property (see, e.g., Finocchio v Finocchio, 162 AD2d 1044; Fish v Fish, 161 AD2d 979; Dzembo v Dzembo, 160 AD2d 1144; Smith v Smith, 154 AD2d 365; Anderson v Anderson, 153 AD2d 823; Mahlab v Mahlab, 143 AD2d 116; Behrens v Behrens, 143 AD2d 617; Rider v Rider, 141 AD2d 1004; Josan v Josan, 134 AD2d 486; Clerk v Clerk, 132 AD2d 456; see also, Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C236B:4-C236B:8, at 191-223).


text:
    Hertz Corporation, Plaintiff, v City of New York et al., Defendants.
    Argued November 19,1992;
    decided December 22, 1992

      POINTS OF COUNSEL

      Cravath, Swaine & Moore, New York City (Paul C. Saunders and John M. Hillebreeht of counsel), for plaintiff.
    I. Where the State enacts a comprehensive regulatory scheme evincing an intent to occupy the regulated field, it preempts any municipal legislation in the same field. (Albany Area Bldrs. Assn, v Town of Guilderland, 74 NY2d 372; Matter of Ames v Smoot, 98 AD2d 216; Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; Ba Mar v County of Rockland, 164 AD2d 605; Matter of Kress & Co. v Department of Health, 283 NY 55; People v Kelsey, 112 Misc 2d 927.) II. The Hertz Law is preempted because existing State regulation is both comprehensive and detailed, evincing a legislative intent to preempt municipal laws dealing with car rental practices. (Matter of Ames v Smoot, 98 AD2d 216; Consolidated Edison Co. v City of New Rochelle, 140 AD2d 125; Incorporated Vil. of Nyack v Daytop Vil., 173 AD2d 778, 78 NY2d 500; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; People ex rel. Makin v Wilkins, 22 AD2d 497; Shiles v News Syndicate Co., 27 NY2d 9; People v Town of Clarkstown, 160 AD2d 17.)

      O. Peter Sherwood, Corporation Counsel of New York City, New York City (Alan G. Krams, Leonard Koerner, Lawrence S.

      Kahn, Lorna Goodman and Fay Leoussis of counsel), for defendants. State legislation affecting the rental car industry does not create the kind of comprehensive and detailed regulatory scheme that evinces an implied intent to preclude the possibility of all further local regulation of that industry. (Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500; Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; Council for Owner Occupied Hous. v Koch, 119 Misc 2d 241, 61 NY2d 942; People v New York Trap Rock Corp., 57 NY2d 371; New York State Club Assn, v City of New York, 69 NY2d 211, 487 US 1; Martindale v Griffin, 233 App Div 510, 259 NY 530; People v Judiz, 38 NY2d 529; Albany Area Bldrs. Assn, v Town of Guilderland, 74 NY2d 372.)

      Robert Abrams, Attorney-General, New York City (Jerry Boone and Harvey M. Berman of counsel), for the State of New York, amicus curiae.

    The State of New York has not preempted local governments, such as the City of New York, from enacting legislation which protects consumers from car rental business practices. (Kamhi v Town of Yorktown, 74 NY2d 423; New York State Club Assn, v City of New York, 69 NY2d 211; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; New York Dept, of Social Servs. v Dublino, 413 US 405; Hillsborough County v Automated Med. Labs., 471 US 707; Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500.)
   OPINION OF THE COURT

Smith, J.

Pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), the United States Court of Appeals for the Second Circuit has certified to this Court the following question:

“whether New York State legislation addressing car rental practices sets forth a sufficiently comprehensive scheme of regulations to preempt further legislation in the field by the municipalities of the state.” (967 F2d 54, 57.)

The question certified is answered in the negative for the reasons that follow.

The Hertz Corporation (Hertz), a Delaware corporation authorized to do business in the State of New York, is engaged in the business of renting vehicles to customers in New York and throughout the country. On January 2, 1992, Hertz announced that it would increase the daily rental rates it charges in the New York City area by $56 for residents of the Bronx, $34 for residents of Brooklyn, $3 for residents of Manhattan and $15 for residents of Queens to offset excess liability losses attributable to renters from those boroughs. In response, the New York City Council adopted a local law (the Hertz Law) which would amend chapter 4 of title 20 of the Administrative Code of the City of New York to provide that ”[n]o rental vehicle company shall refuse to rent a motor vehicle to any person otherwise qualified based on that person’s residence, nor impose fees or charges based on that person’s residence.” The City also filed a complaint in Supreme Court, New York County, alleging that the rate increases violated (1) State and local law because of their disparate impact on minorities, and (2) section 396-z (10) of the General Business Law. That action is pending.

On March 27, 1992, Hertz commenced this action in the United States District Court for the Southern District of New York seeking injunctive relief, pursuant to Federal Rules of Civil Procedure rule 65, restraining and enjoining the City of New York from enforcing the Hertz Law and, in addition, a judgment declaring the Hertz Law invalid and unenforceable upon the ground that it violates the preemption doctrine of the New York State Constitution (NY Const, art IX, § 2 [c]), the Federal Constitution and the Sherman Antitrust Act. Hertz argued that New York State law regulating the rental vehicle industry preempts the City’s local law. In response, the City cited State law that it claims supports the compatibility of the Hertz Law and State legislation.

The Federal District Court dismissed Hertz’s complaint, stating that the City should not be enjoined from enforcing the Hertz Law. However, the Court barred the City from taking any action to effectuate the law pending the outcome of any appeal by Hertz. On appeal, the United States Court of Appeals for the Second Circuit certified the question to this Court and this Court accepted the certified question (80 NY2d 854).

Hertz contends that the City’s law is inconsistent with and preempted by existing State regulation, especially sections 396-z, 391-g, 391-i and 398-b of the General Business Law, because those State statutes establish a comprehensive and detailed regulatory scheme evincing a legislative intent to preempt municipal laws dealing with rental vehicle company practices. The City argues that the State scheme makes no specific reference to residence-based pricing legislation and does not create the kind of comprehensive and detailed regulatory scheme that evinces an implied intent to preclude the possibility of all further regulation of that industry.

It is well settled that "[a] local law may be ruled invalid as inconsistent with State law not only where an express conflict exists between the State and local laws, but also where the State has clearly evinced a desire to preempt an entire field thereby precluding any further local regulation” (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96-97; see also, New York State Club Assn, v City of New York, 69 NY2d 211, 217, affd 487 US 1; People v New York Trap Rock Corp., 57 NY2d 371, 378; People v De Jesus, 54 NY2d 465, 468-470).

Here, there is no express conflict between the State and local law. Moreover, no preemptive intent in the field of rental vehicle company practices is evident from the Legislature’s declarations in sections 396-z, 391-g, 391-i and 398-b of the General Business Law. Section 396-z was amended in 1988 to deal with specific abuses in the rental vehicle industry. That section, among other things, prohibits a rental vehicle company from imposing charges on a renter, except the rental rate, taxes and mileage charges, if any, as a condition of renting the vehicle. Section 391-g prohibits the agencies from discriminating against renters on the basis of age. Section 391-i forbids discrimination on the basis of credit card ownership and section 398-b prohibits discrimination on the basis of race, color, ethnic origin or sex. None of these statutes addresses the question of whether the rental vehicle companies can refuse to rent cars to an individual or impose fees or charges based on that individual’s residence. Nor is the statutory scheme enacted by the Legislature so broad in scope or so detailed as to require a conclusion that all local law in the area of rental vehicle company practices is preempted. These statutes merely proscribe discriminatory practices against renters or the imposition of additional rental fees, such as fuel and airport surcharges or fees for transportation to the location where the rental vehicle will be delivered. Thus, it cannot be said that the statutory scheme enacted by the Legislature is so broad in scope or so detailed as to preclude all local regulation in the field.

Similarly, the State regulations imposed on all motor vehicles registered in the State, including vehicles owned by rental companies, do not evince an intent by the State to occupy the entire field of rental car company practices. The Vehicle and Traffic Law requires all owners of vehicles, including owners of rental vehicles, to comply with the licensing, registration, safety, inspection, and insurance mandates of the Commissioner of Motor Vehicles (see, e.g., Vehicle and Traffic Law §§301, 383, 390, 1229-c; see also, Insurance Law § 2131). In addition, the State imposes a special tax on passenger car rentals (Tax Law § 1160). However, these statutes also do not address the question of whether rental vehicle companies can charge rental fees based on area of residency within the State and do not establish that the Legislature "enacted a comprehensive and detailed regulatory scheme in the field” (see, Albany Area Bldrs. Assn, v Town of Guilderland, 74 NY2d 372, 377).

The State legislation in the field applies generally to all vehicles registered in the State and refers occasionally to vehicles owned by rental car companies. In addition, although the State statutes prohibit discrimination against renters on the basis of race, color, ethnic origin, sex, age, and credit card ownership, and bars the imposition of charges, except for rental rates, taxes and mileage, the statutes do not regulate the amounts that these companies can charge to residents of the various areas within the State. Thus, it cannot be said that, by enacting these statutes, the Legislature intended to regulate the entire field of rental vehicle company practices and preempt local legislation on that subject matter.

Accordingly, the question certified should be answered in the negative.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and records submitted, certified question answered in the negative.

       This local law (Intro No. 71-A) was passed by the City Council on March 12, 1992 and approved by the Mayor on March 27, 1992, but prior to recordation by the New York City Clerk, the Second Circuit Court of Appeals enjoined the law’s enforcement (see, 967 F2d 54, 57, supra). Had the Hertz Law proceeded along the normal course it would have become Local Law No. 21, a designation adopted by the Federal courts. However, due to the injunction, unrelated legislation was ultimately enacted as Local Law No. 21 of 1992. For purposes of this decision, the pertinent local law will be referred to as the Hertz Law.