author: Per Curiam.

text:
    In the Matter of William E. Weber, as Guardian ad Litem for Baby Jane Doe, Appellant, v Stony Brook Hospital et al., Respondents.
    Argued October 26, 1983;
    decided October 28, 1983

      POINTS OF COUNSEL

      William E. Weber, appellant pro se.

    I. This court may act to protect the infant Baby Jane Doe. (Matter of Storar, 52 NY2d 363; Jehovah’s Witnesses v Kings County Hosp., 278 F Supp 488, 390 US 598; Matter of Cicero, 101 Misc 2d 699; Matter of Vasko, 238 App Div 128; Matter of Sampson, 29 NY2d 900.) II. The infant Baby Jane Doe has a reasonable chance to live a useful, fulfilled life. (Matter of Storar, 52 NY2d 363; Matter of Cicero, 101 Misc 2d 699.) III. The infant Baby Jane Doe is in imminent danger of death as a result of the failure to render ordinary medical care and treatment notwithstanding any quality of life considerations. (Whalen v Roe, 429 US 589; Prince v Massachusetts, 321 US 158; Jehovah’s Witnesses v Kings County Hosp., 278 F Supp 488, 390 US 598; Matter of Hofbauer, 47 NY2d 648.) IV. If the court would order similar treatment for a “normal” child, but allow it to be withheld from a child with a handicap, then this would constitute invidious discrimination on the basis of disability. V. The discriminatory denial of treatment to Baby Jane Doe violates the common law, New York and Federal statutes and the Constitution of the United States. (Matter of Storar, 52
      NY2d 363; Matter of Sampson, 65 Misc 2d 658, 37 AD2d 668, 29 NY2d 900; Matter of Cicero, 101 Misc 2d 699; Matter of Vasko, 238 App Div 128; Jehovah’s Witnesses v Kings County Hosp., 278 F Supp 488, 390 US 598; Totro v State of Texas, 625 F2d 557; New York State Assn. for Retarded Children v Carey, 612 F2d 644; Roe v Wade, 410 US 113.)

      Charles M. Newell for respondent parents.
    The decision of the court below reversing the hearing court was based upon substantial and uncontradicted medical testimony and, therefore, the order of the court below should be affirmed. (Santosky v Kramer, 455 US 745; Matter of Leon RR, 48 NY2d 117; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Storar, 52 NY2d 363; Matter of Hofbauer, 47 NY2d 648.)

      Robert Abrams, Attorney-General {David A. Smith, Peter H. Schiff and Lew A. Millenbach of counsel), for respondents.
    Because the parents in this case provided an acceptable course of medical treatment for their infant daughter, the appointment of a guardian ad litem by the Supreme Court was unwarranted; the order of the Appellate Division, which vacated the order of appointment, should consequently be affirmed. (Matter of Sampson, 37 AD2d 668, 29 NY2d 900; Matter of Cicero, 101 Misc 2d 699; Matter of Hofbauer, 47 NY2d 648; American Academy of Pediatrics v Heckler, 561 F Supp 395.)

      John Twohy for the Spina Bifida Association of America, amicus curiae.

    I. Denial of surgery is not “adequate medical care”. II. The conclusions of the court below about the risks of surgery are not supported. (Matter of Storar, 52 NY2d 363.)
   OPINION OF THE COURT

Per Curiam.

This case involves a situation in which the parents of a newborn infant, in consultation with others, had responsibly decided upon a course of medical treatment. An application challenging this choice was made by a person not related or known to the family and its situation and, in the absence of any further investigation pursuant to section 1034 of the Family Court Act, the hearing court abused its discretion as a matter of law by permitting this proceeding to go forward. Although we affirm the Appellate Division’s ultimate dismissal of the petition, we do so for a different reason.

The parents of Baby Jane Doe, who was born on October 11, 1983 with spina bifida and serious complicating disorders, elected after consultation with neurological experts, nurses, their religious counselors and a social worker, elected to adopt a conservative course for her medical treatment. A resident of the State of Vermont, with no disclosed connection with Baby Jane Doe or her family, set in motion the judicial proceeding which has now reached our court. Rather than pursuing the procedures prescribed in the Family Court Act, he applied directly to a Justice of the Supreme Court. At the outset it was recognized by the court that the petitioner himself had no direct interest in or relationship to any party. An attempt was then made to remedy the perceived procedural deficiency by the appointment of a guardian ad litem for the baby. That guardian has pressed an application for a judicial authorization for surgery to override the judgment of the parents. To facilitate a quick disposition of the proceeding, the parties consented to the court’s jurisdiction of their persons. A broadly grounded motion to dismiss the proceeding was made by the Attorney-General on behalf of the hospital, the initially named respondent. This motion should have been granted.

It would serve no useful purpose at this stage to recite the unusual, and sometimes offensive, activities and proceedings of those who have sought at various stages, in the interests of Baby Jane Doe, to displace parental responsibility for and management of her medical care. It is enough now to identify the fundamental legal principles which are determinative.

The Legislature, recognizing the primary responsibility of parents concerning the choice of medical care for their child, has made explicit provision for those instances calling for governmental intervention. Article 10 of the Family Court Act is expressly “designed to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being. It is designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met” (Family Ct Act, § 1011). The article contains detailed provisions for child protective proceedings.

Therefore, contrary to the petitioner’s contention, there is legislation covering this type of proceeding. Section 1032 of the Family Court Act provides that a child neglect proceeding may be originated by a child protective agency or “a person on the court’s direction”. Thus primary responsibility for initiating such proceedings has been assigned by the Legislature to child protective agencies which may file a petition whenever in their view court proceedings are warranted. All other persons and entities may only file a petition if directed to do so by the court. The Legislature has further provided that the court may direct a child protective agency to conduct an investigation and report to the court “in order to determine whether a proceeding under this article should be initiated” (Family Ct Act, § 1034).

The requirement for court approval or authorization for proceedings prompted by those other than child protective agencies indicates the Legislature’s concern that judicial proceedings touching the family relationship should not be casually initiated and imposes upon the courts the obligation to exercise sound discretion before permitting such petitions to be filed. It is evident that the Legislature contemplated that the child protective agencies should play a significant role in making that determination, although that may not always be necessary or appropriate.

In this case the Supreme Court initiated the proceeding at the behest of a person who had no disclosed relationship with the child, her parents, her family, or those treating her illnesses. Indeed it does not appear that the petitioner had any direct or personal knowledge of the facts relating to the child’s condition, the treatment she is presently receiving or the factors which prompted her parents to adopt the course they have. There is also no showing that the petitioner communicated his concerns to the Department of Social Services having primary responsibility with these matters. Neither apparently did the court seek the department’s investigative assistance, advice or expertise before signing an order initiating this proceeding thus requiring the child’s parents, treating physicians, and others involved with her care to appear in court to justify their actions.

There was a failure in this instance to follow the statutory scheme contemplated by the Legislature for the protection of children. To accept the position of the guardian would have far-reaching implications. As the guardian conceded on oral argument, acceptance of the proposition he espouses would be to recognize the right of any person, without recourse to the strictures of the Family Court Act, to institute judicial proceedings which would catapult him into the very heart of a family circle, there to challenge the most private and most precious responsibility vested in the parents for the care and nurture of their children — and at the very least to force the parents to incur the not inconsiderable expenses of extended litigation.

We do not attempt to anticipate or set forth all the circumstances in which a court may be called upon to protect a child’s interests. Nor do we mean to define the extent of the court’s obligation to conduct an independent investigation or to consult with a child protective agency. There may be occasions when it is appropriate for the court to act without making further inquiry of this nature. On this record, however, no such circumstances are evident.

There are overtones to this proceeding which we find distressing. Confronted with the anguish of the birth of a child with severe physical disorders, these parents, in consequence of judicial procedures for which there is no precedent or authority, have been subjected in the last two weeks to litigation through all three levels of our State’s court system. We find no justification for resort to or entertainment of these proceedings.

The order of the Appellate Division dismissing the proceeding should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order affirmed, without costs.


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Diane Collins, Appellant.
    Argued September 15, 1983;
    decided November 3, 1983

      POINTS OF COUNSEL

      Henriette D. Hoffman and William E. Hellerstein for appellant.
    Appellant’s right to due process of law was violated by admission of a witness’s pretrial and in-court identifications of her where the witness, after being told that the police “picked up” a woman, viewed appellant at the station house and immediately thereafter heard taped telephone calls of a woman making an extortionate demand. (People v Adams, 53 NY2d 241; People v Dickerson, 50 NY2d 937; People v Maerling, 46 NY2d 289; People v Collins, 84 AD2d 35; People v Allweiss, 48 NY2d 40; United States v Pheaster, 544 F2d 353; Dickerson v Fogg, 526 F Supp 1299; Palmer v Peyton, 359 F2d 199; Brown v Harris, 666 F2d 782; People v Morales, 37 NY2d 262.)

      Elizabeth Holtzman, District Attorney (Shulamit Rosenblum and Barbara D. Underwood of counsel), for respondent.
    I. A Wade hearing is unnecessary where the witness knew defendant before the crime and merely provides the name of the person whose face or voice was recorded in the act of committing the crime. (United States v Wade, 388 US 218; Gilbert v California, 388 US 263; Stovall v Denno, 388 US 293; People v Adams, 53 NY2d 241; People v Tas, 51 NY2d 915; People v Gissendanner, 48 NY2d 543; Manson v Brathwaite, 432 US 98; Neil v Biggers, 409 US 188.) II. The trial court’s affirmed finding that the procedure in which defendant’s voice was identified from recorded telephone extortion threats was not suggestive is amply supported by the record and, therefore, beyond this court’s review; moreover, that determination was correct. (People v Malloy, 55 NY2d 296; People v Adams, 53 NY2d 241; People v Harris, 48 NY2d 208; People v Gonzalez, 46 NY2d 1011; United States v Pheaster, 544 F2d 353; People v Tas, 51 NY2d 915; People v Gissendanner, 48 NY2d 543.) III. There was overwhelming evidence of defendant’s guilt apart from the out-of-court identification. If there was any error in its admission, it is, therefore, harmless beyond a reasonable doubt. (People v Adams, 53 NY2d 241.)
   OPINION OF THE COURT

Wachtler, J.

The defendant has been convicted of attempted grand larceny for demanding money under threat of physical harm in telephone calls recorded by the police. The Appellate Division affirmed the conviction and the defendant appeals. The issue is whether testimony of the victim’s daughter, an acquaintance of the defendant, identifying the defendant as the caller on the recordings, should have been excluded because of allegedly suggestive police conduct at the time of the initial voice identification.

In September, 1976 a man called Mrs. Otti Cohen and demanded that she pay him $3,000. She recognized the voice of the caller as that of Bobby Stephenson, a man who had previously lived with her daughter Ruby. In the initial conversation the caller, apparently inadvertently, acknowledged that he was “Bobby”. In subsequent calls he denied that he was Bobby and threatened harm to the victim’s family if the money was not paid.

Mrs. Cohen notified the police who, with her consent, recorded three calls concerning the money demands. One of the calls was made by the man Mrs. Cohen identified as Bobby Stephenson. Two of the calls were made by a woman the victim was unable to identify.

Mrs. Cohen agreed to pay the money at a place selected during the telephone conversations. Several days after the initial call she arrived at that location in a taxi driven by an undercover police officer and gave the defendant $800 in an envelope. The defendant was then placed under arrest by the police. After her arrest and later at the trial the defendant denied making the calls and denied any knowledge of the scheme claiming that she was simply picking up the money for a friend known as “Jo-Jo”.

That same day the victim’s daughter Ruby was asked to come to the police station to see if she could identify the voices on the recordings. When she arrived she saw the defendant sitting alone at a desk. She was acquainted with the defendant through Stephenson. They had previously socialized on several occasions and had spoken briefly on the telephone. However Ruby did not know that the defendant had been arrested in connection with the scheme. And, although the defendant was then in custody, she was not in handcuffs.

After hearing recordings of the calls Ruby identified the male caller as Bobby Stephenson and the woman as the defendant. She testified to this at the trial over the defendant’s objection.

On appeal to the Appellate Division the defendant contended that the ability of the victim’s daughter to see her at the police station prior to the voice identification was inherently suggestive. Relying on cases condemning suggestive police practices with respect to pretrial visual identifications she contended that the court erred in denying her motion to exclude the testimony concerning the voice identification. The Appellate Division affirmed concluding that under the circumstances, particularly the prior relationship between Ruby Cohen and the defendant, there was no substantial risk of irreparable mistaken identification.

It is now familiar law that the due process clause of the State and Federal Constitutions precludes the police from employing suggestive tactics during a pretrial identification (see, e.g., United States v Wade, 388 US 218; People v Adams, 53 NY2d 241). It is also settled in this State that a violation of the rule may require suppression of testimony concerning the pretrial identification (People v Adams, supra) as well as the witness’s identification of the defendant at trial (compare the Federal rule Manson v Brathwaite, 432 US 98). The prior cases, however, generally dealt with visual identifications and not, as here, with a voice identification. Cases involving allegedly suggestive pretrial voice identifications have been presented to the Supreme Court (see, e.g., Neil v Biggers, 409 US 188, 195) and this court (People v Allweiss, 48 NY2d 40, 49), but neither court has expressly addressed the issue. On principle, however, it would appear that due process should have some application to pretrial voice identifications.

The basic concern with respect to pretrial visual identifications has been to eliminate or minimize the risk of convicting the innocent (United States v Wade, supra; People v Adams, supra, pp 250-251). Experience has shown that the risk is greatest in cases of eyewitness identifications generally, and specifically in those cases where the police have resorted to suggestive visual identifications at the pretrial stage (United States v Wade, supra, p 228). Although voice identifications are less common there is no reason to believe that the risk of mistaken identification is reduced when they have been employed by the police prior to trial. It would seem that the ability of a person to make a reliable identification of another on the basis of his voice is at least as difficult as, and perhaps more difficult than, identifying him on the basis of his appearance.

The District Attorney urges that these concerns are not relevant in cases such as this where the witness and the defendant knew each other prior to the crime. She notes that under similar circumstances we have held inapplicable the statutory requirement that the People give the defendant pretrial notice of a police arranged identification (People v Gissendanner, 48 NY2d 543; People v Tas, 51 NY2d 915). The defendant on the other hand views these cases as relating only to the statutory notice requirement and not to the validity of the identification. This view, however, overlooks the fact that the primary purpose of the notice requirement is to implement the constitutional guarantees by alerting the defendant to the possibility that evidence identifying him as the person who committed the crime may be constitutionally tainted and subject to a motion to suppress (cf. People v Briggs, 38 NY2d 319). Thus the conclusion reached in those cases, that there was no need for the People to serve the pretrial notice, indicates that on the facts presented there was no predicate for suppressing the witness’s identification. Indeed we noted in those cases that there could be no question of “suggestiveness” (People v Gissendanner, supra, p 552), and no “identification” within the meaning of the statute (People v Tas, supra, p 916) in light of the relationship that existed between the defendant and the witness before the crime was committed.

This, of course, is necessarily a question of degree. When a crime has been committed by a family member, former friend or long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person. This is so at least where there has been no impairment of the witness’s ability to observe and recall the criminal events (cf. People v Hughes, 59 NY2d 523). But in cases where the prior relationship is fleeting or distant it would be unrealistic to ignore the possibility that police suggestion may improperly influence the witness in making an identification. Thus they should avoid conveying their beliefs or otherwise suggesting the defendant’s guilt to the potential witness.

The existing identification procedures were designed for cases involving “eyewitnesses” or persons who actually witnessed the crime as a victim or bystander (see, e.g., United States v Wade, supra, pp 228-229) and may be unsuitable in other contexts. In the case now before us, for instance, Ruby Cohen’s identification was sought not because she had witnessed the criminal events but because she knew the defendant. There was no occasion to hold a “lineup” of tapes including persons other than the defendant simulating the crime. The purpose of asking her to make an identification was not to see whether she could select the “real crime” but to determine whether, when confronted with a recording of the crime, she was able to identify the perpetrator as a person with whom she was familiar. The only apparent risk with such a witness was that the police might suggest that the voice on the recording was that of a particular acquaintance.

As noted, however, it has been found below that this witness was well acquainted with the defendant and could identify her voice on the basis of prior conversations in person and on the phone. It was also found that prior to making the identification the witness was not aware of the defendant’s involvement in the crime and that the witness’s seeing the defendant at the station house did not occur under such circumstances as to suggest that the defendant had been arrested for making the calls. Since these findings support the lower courts’ conclusion that there was no impermissible police suggestion or risk of irreparable mistaken identification, there is nothing further for this court to review (see, e.g., People v Dickerson, 50 NY2d 937).

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

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

Order affirmed.


author: Simons, J.

text:
    Michael Spielman et al., as Trustees of Production Workers Union Local 148 Welfare Fund, Respondents, v Manufacturers Hanover Trust Company, Defendant, and Chemical Bank, Appellant.
    Submitted September 22, 1983;
    decided November 3, 1983

      POINTS OF COUNSEL

      Harold Weisblatt, JohnB. Wynne and Robert T. Stephenson for appellant.
    I. The indorsement by plaintiffs-respondents’ agent in the name of the named payee on the check in issue was a valid effective indorsement under section 3-405 of the Uniform Commercial Code. II. The check in issue contains both a special and a restrictive indorsement; Chemical negotiated the check in full compliance with both indorsements. (Underpinning & Foundation Constructors v Chase Manhattan Bank, 46 NY2d 459.) III. The holding of the court below disregards both the statutory and practical framework of rights, liabilities and standard operating procedures banks utilize in the check collection process and places unreasonable and unintended burdens and risks of liability on depositary banks relying on the judicial interpretation of section 3-405 (subd [1], par [c]) of the Uniform Commercial Code as a defense to a forged indorsement claim.

      Thomas J. McNamara for respondents.
    I. The court below correctly held that Chemical Bank improperly collected the check in violation of a restrictive indorsement. (Underpinning & Foundation Constructors v Chase Manhattan Bank, 46 NY2d 459.) II. Chemical Bank may not raise its “special indorsement” argument for the first time on appeal. (Lefkowitz v Lebensfeld, 51 NY2d 442; Unitron Graphics v Mergenthaler Linotype Co., 75 AD2d 783; Anselmo v Bush Universal, 58 AD2d 635; Kolmer-Marcus, Inc. v Winer, 32 AD2d 763, 26 NY2d 795.) III. The indorsement in question was not a “special indorsement”. IV. In opposition to plaintiffs’ motion for summary judgment Chemical Bank was required to lay bare its proof in evidentiary form. (Matter of Bank of New York [Spitzer], 43 AD2d 105, 35 NY2d 512; Goodman v Goodman, 62 AD2d 939.)
   OPINION OF THE COURT

Simons, J.

Plaintiffs are trustees of Production Workers Union Local 148 Welfare Fund (Fund). At the direction of its attorney, Robert T. Weisswasser, the Fund drew a check on defendant Manufacturers Hanover Trust Company payable to Pitney, Hardin & Kipp, a New Jersey law firm which represented another party in a pending lawsuit against the Fund. The check was delivered to Weisswasser to be used as payment in settlement of the pending litigation but neither the New Jersey lawyers nor their clients received any of the proceeds. Instead, Weisswasser forged the indorsement of the payee’s name, deposited the check in his account at defendant-appellant Chemical Bank and then withdrew the proceeds and absconded. He was subsequently found dead from a bullet wound in the head.

Plaintiffs sought to recover the loss in this action against defendant drawee, Manufacturers Hanover Trust Company, which had forwarded moneys to satisfy the check from the Fund’s account to defendant-appellant, Chemical Bank, and against defendant-appellant, the depositary bank. The action against Manufacturers was dismissed. Inasmuch as the forged indorsement of the drawer’s agent was effective to negotiate the check, the drawee did not act wrongfully in honoring it (see Uniform Commercial Code, § 3-405, subd [1], par [c]). Insofar as the indorsement may have been irregular or the directions of the restrictive indorsement were not followed, the drawee was not liable to plaintiffs because only the depositary bank was charged with the responsibility of checking the restrictive indorsement and complying with the directions it contained (Uniform Commercial Code, § 3-419, subd [4]). Special Term granted plaintiff summary judgment against the depositary, Chemical Bank, however, and the Appellate Division affirmed its order. We granted leave to appeal and we now reverse.

In holding the depositary liable, both Special Term and the Appellate Division relied upon our decision in Underpinning & Foundation Constructors v Chase Manhattan Bank (46 NY2d 459). In Underpinning we acknowledged the general rule that the drawer of a check paid by a depositary over a forged indorsement normally has no cause of action against the depositary for the obvious reason that either the forgery is effective to transfer the instrument, as it is here, or if it is not, the depositary has received nothing of the drawer for which the drawer may recover. In both instances, the drawer’s action is against the drawee who has honored the check and debited the drawer’s account. In those circumstances in which the statute provides that the forgery is effective to transfer the check, it does so on the premise that because the drawer has dealt with the forger, the drawer can best avoid the loss. Accordingly, the drawer may not recover from the drawee (see, generally, Uniform Commercial Code, § 3-405). In most cases, however, the forgery is not effective to transfer the instrument and the drawee is liable because it is in a position to detect the forgery before payment. Thus, in such cases it is the drawee, as between two innocent parties, who is accountable for the loss (see Merrill Lynch, Pierce, Fenner & Smith v Chemical Bank, 57 NY2d 439, 444-445). As to the depositary, we held in Underpinning that notwithstanding the general rule, the drawer may recover from it in those “comparatively rare instances” when the depositary has acted wrongfully and yet the drawee has acted properly in honoring the check because the forgery is effective (at p 466). The wrong in Underpinning was the payment by the depositary in disregard of the restrictive indorsement. That is plaintiffs’ claim here. They contend that Chemical Bank is similarly liable because it accepted the check and paid funds over to the credit of Weisswasser contrary to the terms of a restrictive indorsement on the. check.

The writing on the back of the Fund’s check appeared as follows:

“Pay to Special Account #012-043478 &/ Pitney, Hardin & Kipp For Deposit Only Special Account 012-043478”

Special account No. 012-043478 at Chemical Bank was the business account of attorney Weisswasser. The Appellate Division ruled that absent a clear indication to the contrary, the words “for deposit only” meant for deposit to the account of the payee — not the account of the person presenting the check. Inasmuch as the bank had no account for Pitney, Hardin & Kipp, it was on notice of the forgery and should have questioned the indorsements. Instead, it deposited the proceeds to the special account. Thus, the court held it was liable to the drawer for doing so contrary to the directions of the restrictive indorsement (Uniform Commercial Code, § 3-206, subd [3]).

In Underpinning, the checks were restrictively indorsed “for deposit only”, followed by the stamped name of the payee. The payees had no account in the depositary bank, however, and we found a violation of the restrictive indorsements because the depositary did not, indeed it could not, deposit the proceeds in the accounts named as it had been directed to do. Instead, in clear violation of the indorsements, the depositary either credited the checks to the account of the forger or paid cash to him. Thus, it failed in its obligation to deposit the checks to the account of the payee as the indorsement required. To contrast, this check was deposited to the credit of the depositary’s customer, the owner of the special account. The bank contends that its actions in doing so were proper because there were two indorsements on the check, a special indorsement by Pitney, Hardin & Kipp, effective to transfer the check to Weisswasser, identified by the number of his special account, and a restrictive indorsement effective to transfer the check for deposit to the credit of Weisswasser, again identified by the number of his special account. Though no signature appeared under the second indorsement, characterized by the bank as the restrictive indorsement, when it received the check, it contends that it was authorized to accept the check with the restriction and supply the missing signature (see Uniform Commercial Code, § 4-205, subd [1]).

If the names had been used in place of the special account number, the correctness of the bank’s conduct would be clear. Thus, the critical issue is whether the indorsements were effective even though the customer was identified by his account number rather than his name. If the account number was sufficient to identify the transferee and as a signature, the depositary honored the directions given it and it is not liable to plaintiffs. -

Indorsement is the method by which the holder of an instrument transfers it to another. In the broadest sense, an indorsement is a writing on the back of the instrument. The signing evidences the contract the indorser enters into with the other parties on the instrument. A special indorsement “specifies the person to whom or to whose order” the instrument is to be paid and requires a further indorsement by the party named before it can be transferred (Uniform Commercial Code, § 3-204, subd [1]). A restrictive indorsement requires the taker to apply the proceeds of the instrument in a manner consistent with the indorser’s directions, in this case to credit the proceeds by depositing them to the account identified on the back of the check (see Uniform Commercial Code, § 3-205). The two types of indorsements may validly appear on the same instrument, as they did in this case, and a single indorsement may be both special and restrictive, as is the direction contained in the first three lines appearing on the back of this check.

However the writings on the back of this check are interpreted, the depositary followed the instructions given and it is not liable for plaintiff’s loss.

If it is contended that the writing must be considered as two indorsements and that the special indorsement was not proper because the statute requires transfer to a “person”, as indeed it does, then the answer is that there is no requirement that the person be identified by name nor any prohibition against identification by bank account number, title or similar means. That, the account number was used rather than the name of the owner of the account does not alter the designation when the account is in existence and identifiable as belonging to a specific person. Furthermore, there is no specific requirement of the form of the signature necessary for a valid indorsement. Once the indorsee was identified by number, the indorsement could be executed consistent with it (see Brown v Butchers & Drovers’ Bank, 6 Hill 443 [where the indorsement was made with numbers 1-2-8]). The code provides only that an indorsement must be “written by or on behalf of the holder and on the instrument” or allonge (Uniform Commercial Code, § 3-202, subd [2]) and that where “an instrument is made payable to a person under a misspelled name or one other than his own he may indorse in that name or his own or both” (Uniform Commercial Code, § 203). That conclusion finds support in the rule that a person may use any name or mark as a means of identification, a common legal principle adopted in the code in the provision that a signature is made by use of any name, including any trade or assumed names upon an instrument or by a word or mark in lieu of written signatures (Uniform Commercial Code, § 3-401, subd [2]).

If it is contended that the first three lines constituted both a special and a restrictive indorsement and the remainder surplusage, the depositary followed the indorser’s directions when it deposited the proceeds of the check to account No. 012-043478, the account of its customer. Thus, its examination of the check disclosed either a negotiation of the check to its customer by special indorsement and then a direction to deposit the proceeds to his account or a single indorsement, both special and restrictive to similarly deposit the proceeds. It is the direction to deposit to the account of the customer and the bank’s action in honoring that direction which distinguishes the case from the facts in Underpinning and establishes that the bank’s action accorded with reasonable business practice for there are many instances in which a family member or a business may indorse for deposit funds to the credit of another and a depositary is not on notice of chicanery because of it nor is it liable if it faithfully follows such a direction.

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiff’s motion for summary judgment denied, defendant-appellant’s cross motion for summary judgment granted, and the complaint dismissed.

Judges Jasen, Jones, Wachtler, Meyer and Kaye concur with Judge Simons; Chief Judge Cooke concurs in result in the following memorandum: “I concur. Insofar as the majority opinion infers that the first three lines of the indorsement might not be treated in some instances as a restrictive indorsement, I cannot agree.”

Order reversed, etc.

      . Uniform Commercial Code (8 3-206, subd [3]) provides: “Except for an intermediary bank, any transferee under an indorsement which is conditional or includes the words ‘for collection’, ‘for deposit’, ‘pay any bank’, or like terms (subparagraphs (a) and (c) of Section 3-205) must pay or apply any value given by him for or on the security of the instrument consistently with the indorsement”.

      . The code defines a “person” as an “individual or an organization”. An organization “includes a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity” (see Uniform Commercial Code, § 1-201, subds [28], [30]). The definition is inclusive, not exclusive, and as the Official Comment states, “organization” includes every kind of entity other than an individual. The definition is broader than others found in the statutes (see General Construction Law, § 37).


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

text:
    In the Matter of Donald A. Alessi and John P. Bartolomei, Attorneys, Appellants. Committee on Professional Standards, Third Judicial Department, Respondent.
    Argued September 14, 1983;
    decided November 3, 1983

      POINTS OF COUNSEL

      Steven R. Shapiro, Jeremiah Gutman, Robin Arzt and Richard G. Collins for appellants.
    I. The Supreme Court’s opinion in Matter of R.M.J. commands reversal of this court’s decision dismissing appellants’ appeal and upholding New York’s ban on third-party mailings by attorneys. (Bates v State Bar of Ariz., 433 US 350; Matter of Primus, 436 US 412; Ohralick v Ohio State Bar Assn., 436 US 447; Matter of Koffler, 51 NY2d 140, cert den sub nom. Joint Bar Assn. Grievance Committee v Koffler, 450 US 1026; Matter of Greene, 54 NY2d 118, cert den sub nom. Greene v Grievance Committee, 455 US 1035; Linmark Assoc. v Willingboro, 431 US 85; Police Dept. of Chicago v Mosley, 408 US 92; Consolidated Edison v Public Serv. Comm., 447 US 530; Cox v New Hampshire, 312 US 569; Cohen v California, 403 US 15.) II. This court erred in upholding a finding of misconduct against appellants based on a statute that provides no notice of what conduct it proscribes. (Champlin Refining Co. v Commission, 286 US 210; Grayned v City of Rockford, 408 US 104; Connally v General Constr. Co., 269 US 385; Baggett v Bullitt, 377 US 360; Smith v Goguen, 415 US 566; Hynes v Mayor of Oradell, 425 US 610.)

      George B. Burke for respondent.
    I. The States have retained the power to regulate advertising by attorneys where a compelling State interest is involved. (Matter of R. M. J., 455 US 191; Ohralick v Ohio State Bar Assn., 436 US 447; Matter of Koffler, 51 NY2d 140; Matter of Greene, 54 NY2d 118; Central Hudson Gas & Elec. v Public Serv. Comm., 447 US 557; Matter of Primus, 436 US 412; N. A. A. C. P. v Button, 371 US 415; Mine Workers v Illinois Bar Assn., 389 US 217.)
   OPINION OF THE COURT

Meyer, J.

The United States Supreme Court having vacated our prior order in this matter and remanded for further consideration in light of its decision in Matter ofR. M. J. (455 US 191), we conclude that there is no constitutional infirmity in the application of section 479 of the Judiciary Law and provisions of the Code of Professional Responsibility to respondents’ conduct in approving the mailing by the legal clinic in which respondents are partners to some 1,000 realtors in the Albany area of a letter quoting fees for listed real estate transactions. The order of the Appellate Division finding, respondents guilty of misconduct in so doing but imposing no sanction is, therefore, affirmed.

I

The committee’s petition to the Appellate Division alleged that respondents were admitted to practice in New York, were partners in the legal clinic of Cawley and Schmidt, and were guilty of professional misconduct in that they approved for mailing on the letterhead of the clinic a letter, the body of which is set forth in appendix A of this opinion and the intent of which was to solicit engagement to render legal services in connection with real estate closings, which letter was mailed in August and September of 1979 to approximately 1,000 realtors in the Albany geographical area.

Respondents’ motion to dismiss the petition was denied ' on the basis of our holding in Matter of Greene (54 NY2d 118) that to the extent that section 479 of the Judiciary Law and DR 2-103 (A) of the Code of Professional Responsibility proscribe advertising of attorneys’ services by direct mail addressed to real estate brokers, those provisions are a constitutionally valid regulation of commercial speech. After the Supreme Court’s denial of certiorari in Greene (455 US 1035), respondents served their answer denying misconduct or that the intent of the letter was to solicit real estate closings, but otherwise admitting the allegations of the petition. The answer pleaded as complete defenses that respondents’ conduct was constitutionally protected free speech, that section 479 of the Judiciary Law on its face forbids all lawyer advertising and thus proscribes constitutionally protected speech, that section 479 on its face violates due process because not all lawyer advertising can be proscribed and the section fails to give sufficient notice of what lawyer advertising is in fact proscribed, and that section 479 as applied to respondents violates due process in that the section was not interpreted to apply to respondents’ conduct until after their letter was sent. It pleaded, further, in mitigation, their assumption based on advice of counsel that their mailing was a permissible form of lawyer advertising.

Respondents then moved to refer the issues raised by the pleadings for a hearing. The Appellate Division denied that motion and found respondents guilty of misconduct but, noting that the letters were sent prior to the Appellate Division decision in Greene and in apparent good faith reliance on Bates v State Bar of Ariz. (433 US 350), determined that no sanction should be imposed (88 AD2d 1089). Respondents’ appeal to our court was dismissed (58 NY2d 689) for want of a substantial constitutional question, but, as already noted, the Supreme Court thereafter granted respondents’ petition for certiorari, vacated our order and remanded for further consideration (460 US_, 103 S Ct 1763).

Respondents now characterize our construction of the governing statute and disciplinary rule in Matter of Greene as a ban on all third-party mailings by attorneys and argue that what is regulated is the content rather than the manner of speech, which under i?. M. J. is permissible only “where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive” (455 US, at p 202). They suggest, further, that because Greene was decided after their letter was mailed, their due process right to specificity in the statute controlling their advertising activity has been violated. In our view the first argument misconstrues both our Greene decision and the scope of the Supreme Court’s holding in Matter of R. M. J., and the second overlooks Supreme Court First Amendment cases decided prior to respondents’ mailing as well as governing due process law.

II

Phrased as it is in terms of deception, the first argument all but ignores the crux of the holding in Greene which was that there is “a substantial governmental interest in preventing conflicts of interest in attorney-client relationships which the statute directly protects and for which there is no adequately protective less restrictive alternative.” (54 NY2d, at p 127.) That holding was supported by citations to Matter of Primus (436 US 412), Ohralick v Ohio State Bar Assn. (436 US 447), N. A. A. C. P. v Button (371 US 415) and Mine Workers v Illinois Bar Assn. (389 US 217), all of which establish the substantiality and propriety of the interest. It was, moreover, pointed out that although the potential for conflict had played a part in sustaining a limitation on speech only in Ohralick, the other cases had turned on the broader protection afforded associational activity or, as in Primus, “political expression and association,” in the context of which “a State must regulate with significantly greater precision” (436 US, at p 438). Here, of course, neither political expression nor associational activity is involved.

That the R. M. J. opinion speaks in terms of deception and makes no mention of conflict of interest is not surprising, conflict of interest being totally unrelated to the advertising under consideration in that case. To read R.M.J. as restricting to deception the activity that may be controlled is, however, to attribute to the court the unlikely intent to overrule Primus, N. A. A. C. P. and Mine Workers sub silentio and to ignore entirely the citation in the R. M. J. opinion of Ohralick (455 US, at p 202).

Nor can it properly be said that the regulation is of all third-party mailings. The Greene opinion expressly limited its “ruling to third-party mailings to brokers” (54 NY2d, at p 126). Although it also noted that the regulation was of “all third-party mailings, not just mailings to brokers” (id.), that statement must be read in its context, which limits it to third-party mailings involving a conflict of interest. Thus, the regulation was held to be of manner rather than content because of the “detriment to society in the potential conflict of interest that may be generated when those in need of legal services are approached indirectly through a broker” (id.; emphasis supplied), and the associational activity cases were distinguished on the basis of “the absence of monetary stakes for the union or other community group” (id., at p 128), without which there would be no significant danger of conflict or overreaching (Woll v Attorney Gen., 409 Mich 500, 550, on remand 116 Mich App 791; see Matter of Primus, 436 US, supra, at pp 429-431).

Unlike the statute involved in Bolger v Youngs Drug Prods. Corp. (463 US_, 103 S Ct 2875), which prohibited the mailing of unsolicited advertisements for contraceptives, the regulatory provisions here in issue, as limited by our holdings in Matter of Koffler (51 NY2d 140) and Matter of Greene (supra), impose no general ban upon all mailings by attorneys to others than potential clients. What is proscribed is mailing to that limited number of third persons who themselves may have dealings with potential clients of the attorney from which a conflict of interest may result. Wholly unrelated to the content of the letter, the proscription is not against the attorney making known to potential clients the availability of his services or even against his doing so through third parties, but against his doing so in a particular manner: through a third party whose interests may be more closely intertwined with those of the attorney than with those of the client. But the proscription would not foreclose a solicitation such as those involved in the N. A. A. C. P., Mine Workers and Primus cases, all supra (see, also, Ann., 5 ALR4th 866, 877), because such a solicitation presents no potential for conflict of interest. For like reason the fact that a title company remains free to solicit referral business from real estate brokers is simply irrelevant.

Nor do we read R.M.J. as invalidating the proscription as thus defined, as the dissents suggest, because it concerns a potential rather than an actual conflict or specific detriment to a particular client. The Supreme Court held in Ohralick (supra), that where a lawyer’s exercise of judgment on behalf of his client may be clouded by his own pecuniary self-interest and the transaction is not visible or open to public scrutiny, or otherwise subject to effective oversight, the State may constitutionally impose a prophylactic measure whose objective is the prevention of harm before it occurs (436 US, at pp 461, 464-467; see, also, Matter of Primus, 436 US, at p 434). Far from repudiating that concept, the court in Matter of R. M. J. noted that in Ohralick “the Court held that the possibility of ‘fraud, undue influence, intimidation, overreaching, and other forms of “vexatious conduct” ’ was so likely in the context of in-person solicitation, that such solicitation could be prohibited” (455 US, at p 202 [emphasis supplied]). We have spelled out in Matter of Greene (54 NY2d, at p 129), and need not now repeat, how the prohibition of third-party mailings by attorneys to recipients whose client-referrals may involve the recipient and the attorney in a conflict detrimental to the interests of the client relates to the governmental interest, and why it is not more extensive than necessary to serve that interest. We add only, in light of respondents’ suggestion that even a client-referral based on social contact may involve a conflict of interest, that it is not unreasonable for the State to conclude that broker-referrals will more often than not result in conflict but that social-referrals are not inherently conducive of conflict (Ohralick v Ohio State Bar Assn., 436 US, at p 466; Schaumburg v Citizens For Better Environment, 444 US 620, 637-638, n 11).

Ill

Although respondents have a right to fair notice of the acts for which they can be punished, they had notice from section 479 of the Judiciary Law and DR 2-103 (A) of the Code of Professional Responsibility that all solicitation of legal business was proscribed and, as we noted in Matter of Greene (54 NY2d, at p 124), those provisions remain in effect except as they infringe upon constitutionally protected free speech. True, respondents did not have the benefit of either Matter of Koffler (51 NY2d 140, supra) or Matter of Greene (54 NY2d 118, supra) before their letter was sent, but they were then chargeable with-knowledge from Ohralick and Primus, both decided by the Supreme Court on May 30, 1978, and its earlier decisions in N.A.A.C.P. and Mine Workers, that the constitutional invalidity of section 479 did not necessarily extend to solicitation involving personal contact and the potential for conflict of interest.

In the light of that knowledge and the long-standing absolute legislative proscription, respondents’ fair notice rights were not violated (People v Epton, 19 NY2d 496, 506, remittitur amd 19 NY2d 1017, app dsmd and cert den 390 US 29, reh den 390 US 976, second reh den 398 US 944; Dombrowski v Pfister, 380 US 479, 491, n 7; see Rose v Locke, 423 US 48; Wall v Attorney Gen., 409 Mich, at p 544). Application of Greene's construction to conduct occurring prior to that construction involves no violation of respondents’ due process right when, as is here the case, it is clear that respondents’ conduct has been judged not by the legislative standard alone but by that standard as constitutionally limited (see Shuttlesworth v City of Birmingham, 382 US 87, 92).

For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke

(dissenting). I respectfully dissent. A per se prohibition of direct-mail lawyer advertising to real estate brokers cannot be sustained under the First Amendment free speech clause, particularly in view of the Supreme Court’s instruction in this case to reconsider the rule embraced in Matter of Greene (54 NY2d 118) in light of its decision in Matter of R. M. J. (455 US 191).

The majority reasons that direct-mail advertisement of legal services to real estate brokers, regardless of how it is framed, necessarily involves a request by the attorney to the broker to solicit the latter’s prospect to employ the advertising attorney’s services (see Matter of Greene, supra, at p 126). This, in turn, gives rise to an attorney’s potential conflict of interest between the client and the referring broker. This conflict is said to manifest itself and cause injury to the client through “[t]he possibility that the lawyer’s view of marketability of title may be colored by his knowledge that the referring broker normally will receive no commission unless title closes, the improbability that the attorney will negotiate to the lowest possible level the commission to be paid to the broker who is an important source of business for him (or suggest to the client that he do so), [and] the probability that the lawyer will not examine with the same independence that he otherwise would the puffery that the broker has indulged in to bring about the sale” (id., at p 129). In the majority’s view, the appropriate means to obviate these potential harms is an absolute ban on direct-mail lawyer advertising to real estate brokers.

This restriction on the attorney’s constitutional right to advertise (see Matter of R. M. J., 455 US 191, supra; Bates v State Bar of Ariz., 433 US 350; Matter of Kojffler, 51 NY2d 140) is characterized as a reasonable time, place, and manner restriction, rather than a content-based restriction (at pp 234-235; Matter of Greene, 54 NY2d, at pp 126-127) because “[w]holly unrelated to the content of the letter, the proscription is not against the attorney making known to potential clients the availability of his services or even against his doing so through third parties, but against his doing so in a particular manner: through a third party whose interests may be more closely intertwined with those of the attorney than with those of the client.” (At pp 234-235.) As a mere restriction on the manner of speech, the majority argues that the regulation may be sustained under the First Amendment because an attorney has effective alternative means of advertising and the regulation is rationally related to the advancement of the State’s interest in protecting clients against retaining attorneys with a conflict of interest (at pp 235-236; Matter of Greene, supra, at pp 126-127).

The majority’s analysis errs in fundamental respects.

It is true that the State may place restrictions on the time, place, and manner of protected speech so long as such a restriction is reasonable (see Consolidated Edison v Public Serv. Comm., 447 US 530, 536). To be considered a time, place, or manner restriction, however, a restriction “must be ‘applicable to all speech irrespective of content’ ” (id., quoting Erznoznik v City of Jacksonville, 422 US 205, 209). Thus, the government may regulate how, when, or where a message is delivered, but only without reference to the message’s substance (see Grayned v City of Rockford, 408 US 104, 115; Cox v Louisiana, 379 US 536, 554). For example, the State may restrict large street demonstrations to times other than rush hour as a reasonable time and place regulation stemming from its interest in public safety and order (see Cox v Louisiana, supra). Similarly, the State, as a reasonable restriction on the manner of speech, may require that the use of “overamplified loudspeakers” be modulated to protect its interest in public peace (see Grayned v City of Rockford, 408 US 104, 116, supra; Kovacs v Cooper, 336 US 77, 87). Such regulations, to be enforceable, must be, as mentioned, neutral in terms of the content of speech, and “must be narrowly tailored to further the State’s legitimate interest” (Grayned v City of Rockford, supra, at pp 116-117).

Time, place, or manner regulations are evaluated under a less rigorous standard than content-based restrictions (see Linmark Assoc. v Willingboro, 431 US 85, 93). If the former is reasonable, and rationally related to a legitimate State interest, it will be upheld so long as there exist effective alternate means of communication (see Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748, 771). For a content-based restriction to be sustained, at least with respect to protected, .nonmisleading commercial speech, the State must assert a substantial State interest and the restriction may extend only in proportion to the degree the interest is served (see Matter of R. M. J., supra; Central Hudson Gas & Elec. v Public Serv. Comm., 447 US 557, 566). Moreover, the State must show that there are no less-restrictive means of regulation (Central Hudson Gas & Elec. v Public Serv. Comm., supra, at p 566).

When the State seeks to restrict the time, place, or manner of speech with reference to a particular type of message such a regulation has been held to be an attempt to control content (see Consolidated Edison v Public Serv. Comm., 447 US, supra, at p 537; Erznoznik v City of Jacksonville, 422 US, supra, at p 209; Police Dept. of Chicago v Mosley, 408 US 92, 95). For example, regulations have been struck down as content-based restrictions when they prohibited placing “For Sale” signs on residential property but not signs with other messages (see Linmark Assoc. v Willingboro, 431 US 85, 93-94, supra), prohibited exhibiting movies that are visible from a public street only when the movie contains nudity (Erznoznik v City of Jacksonville, supra), and prohibited inserting messages in utility bills only when the insert addresses a controversial public issue (Consolidated Edison v Public Serv. Comm., supra).

In analyzing the present case, certain basic factors are noted. The subject regulation is plainly content-based. Although, indeed, it regulates a manner of speech, the regulation is not, as the majority contends, “[wjholly unrelated” to the speech’s content. The restriction is invoked solely by reason of the message’s nature — attorney advertising. “That the proscription applies only to one mode of communication * * * does not transform this into a ‘time, place, or manner’ case” (Linmark Assoc. v Willingboro, supra, at p 94).

Moreover, there is no claim here that the advertisement was false or misleading. The message itself was not unlawful. The court is concerned here only with whether a lawyer’s protected right to advertise may be restricted by an absolute ban on direct-mail advertising to real estate brokers.

For the regulation to be consistent with First Amendment protections, “the State must assert a substantial interest and the interference with speech must be in proportion to the interest served. Restrictions must be narrowly drawn, and the State lawfully may regulate only to the extent regulation furthers the State’s substantial interest” (Matter of R. M. J., 455 US 191, 203, supra [citation and n omitted]). It may be assumed that the State’s interest in protecting individuals from retaining attorneys with conflicts of interest is substantial. The issue, therefore, narrows to whether the regulation may be said to reasonably advance this interest and, if so, whether the degree to which the interest is advanced justifies the interference with petitioner’s First Amendment right to advertise.

The State has not established that the problem asserted actually exists or that it has attempted to control the problem through less restrictive means that have failed (cf. Matter of R. M. J., supra, at p 206). This concept that the regulation of lawyer advertising must be related to a State interest and should proceed on a least restrictive path is the import of the Supreme Court’s decision in Matter of R. M. J. (supra). It is true, as the majority points out, that much of that case involved questions of whether the ethical rules of the Supreme Court of Missouri that regulate lawyer advertising were a proper means of protecting against potentially deceptive advertising. But many of the rules prohibited absolutely the inclusion of certain information in advertising (see Matter of R. M. J., supra, at pp 193-195). And, in each instance, the rigid formulation of the State rules were found not sufficiently related to the interests of the State to be upheld (id., at pp 205-206). Of particular relevance to this appeal was the court’s review of a rule that permitted the mailing of professional announcement cards only to “lawyers, clients, former clients, personal friends, and relatives” (id., at p 196). The court would not sustain the rule because no interest or established problem was proffered to justify the limitation, and even assuming any interest existed, there was no indication that that problem could not be attended in a less restrictive means.

The blunt conclusion that all direct-mail lawyer advertisements to brokers necessarily pose a grave potential threat that, in the event that a referral results from the advertisement, the lawyer will not act in the best interests of the client is unsubstantiated. Similarly, the assertion that the complete prohibition of direct-mailings to brokers will mitigate conflicts of interest not otherwise deterred is unreálistic. These points are self-evident and have been made before (see Matter of Greene, 54 NY2d 118, 133-135, supra [Fuchsberg, J., dissenting]). It need only be reiterated here that the rule announced in Matter of Greene (supra) and reaffirmed in this appeal does not advance any substantial State interest.

In any event, the rule as drawn interferes with free speech disproportionately to the interest it purportedly furthers. In the present case, the ban on direct-mail advertisements to brokers is complete. It is imposed irrespective of whether the intent of the advertisement, as indicated by its text, is to seek the referral of clients or is merely to give notice of the availability of the lawyer’s services (at p 232, n 1; Matter of Greene, 54 NY2d 118, 126, supra). In the majority’s view, the lawyer’s request for referral is a “necessary implication” of any advertisement sent to a broker, whether it be a mere notice of the opening of a law office (see Matter of R. M. J., 455 US, at p 206) or a neutral statement of the services provided by a law office or lawyer. To the extent that the rule does not differentiate between (1) advertisements that relate solely to disseminating neutral information and (2) advertisements that intimate that the broker should intercede as an intermediary and actively solicit on behalf of the lawyer, it constitutes an unjustified imposition on a lawyer’s right to advertise (see Matter of R. M. J., supra; Matter of Primus, 436 US 412, supra; Bates v State Bar of Ariz., 433 US 350, supra). Moreover, any asserted interest in mitigating potential conflicts of interest in the attorney-client relationship would be as adequately served by the less restrictive means of, for example, reviewing mailings to brokers to ensure they do not include such intimations (see Matter of R. M. J., supra; Central Hudson Gas & Elec. v Public Serv. Comm., 447 US 557, 566, supra).

Accordingly, the order of the Appellate Division should be reversed and the petition dismissed.

Kaye, J.

(dissenting). Advertising by attorneys may be regulated only where the advertising in question is inherently deceptive, or where there is a finding that a particular method of advertising has in fact been deceptive or subject to abuse. (Matter of R. M. J., 455 US 191, 202-203.) Here, there is no contention that respondents’ advertising is inherently deceptive or misleading. The clear direction oíR. M. J. is that, in such situations, prohibition of advertising can be sustained only when the record establishes that the method of advertising is in fact misleading or subject to abuse (455 US, at p 207).

There is no finding that respondents’ method of advertising is in fact misleading or subject to abuse. On this point, the majority states only that the predicate for the prohibition of respondents’ advertising was spelled out in Matter of Greene (54 NY2d 118). But there is no finding in Greene that this method of advertising is in fact misleading or subject to abuse. The decision in Greene to prohibit such advertising was based on the possibility that the lawyer’s view of marketability of title may be colored, the improbability that the attorney will negotiate the lowest possible broker’s commission, and the probability that the lawyer will not examine the broker’s puffery with the independence he otherwise would (54 NY2d, at p 129). It is clear from R.M.J. that prohibition of attorney advertising cannot be founded on such hypothesis.

Since the ban imposed on respondents’ advertising lacks any factual predicate, there is no need to reach the questions of whether it should be characterized as one of form or content, or whether some less restrictive alternative would address the imagined potential for conflict.

Judges Jasen, Jones, Wachtler and Simons concur with Judge Meyer; Chief Judge Cooke and Judge Kaye dissent and vote to reverse in separate dissenting opinions.

Following remand by the United States Supreme Court and reinstatement of the appeal herein by this court, order affirmed, with costs.

APPENDIX A

Dear Realtor:

We recognize that the costs attendant to the sale or purchase of a home are a real concern to your clients that may indeed influence whether a transaction will even take place. The Legal Clinics of Cawley and Schmidt will handle all aspects (buy or sell) of residential real estate transfers at the following affordable attorney’s fees:

1. Where purchase price is $30,000.00 or more $ 295.00

2. Where purchase price is $20,000.00 or more, but under $ 30,000.00 215.00

3. Where purchase price is under $20,000.00 175.00

These fees are of course exclusive of Seller’s disbursements, such as the cost of the search continuation, survey redate, N. Y. S. Transfer Tax Stamps, Recording/filing fees and Broker’s Commissions, and, Purchaser’s expenses, such as Recording/filing fees, Mortgage Tax and Bank attorney’s fees.

Contact us for more information during our convenient office hours;

Monday/Wednesday/Friday 9 AM — 5 PM

Tuesday/Thursday 9 AM — 9 PM

Saturday 9 AM — Noon

Very truly yours,

      . Other than denial of the legal conclusion that they were guilty of misconduct, respondents denied only the allegation of specification 2 that “The intent of said letter was to solicit real estate closings through the realtors of prospective purchasers and sellers of real property”. The intent of the letter is, however, a matter of interpretation of its words in light of the circumstances of its transmission. For the reasons stated in Matter of Greene (54 NY2d 118, 126), we agree that the necessary implication of transmittal of the letter to real estate brokers was to have clients of the brokers referred to respondents for legal work. We agree with the Appellate Division, therefore, that no hearing was required.

      . Additional references in Primus to conflict of interest, as well as misrepresentation, as properly subject to governmental control, will be found at pages 426, 432 and 437.

      . See Schaumburg v Citizens For Better Environment (444 US 620, 637-638, n 11) pointing out that charitable solicitation because not so inherently conducive to fraud and overreaching as is attorney solicitation could not be prohibited. For like reason the fact, noted in footnote 2 of Chief Judge Cooke’s dissent, that there is no proscription against an attorney representing a client referred by a broker, does not invalidate the regulation under consideration. The potential for conflict is substantially greater when it is the lawyer who seeks client referrals from the broker than when the broker, unsolicited, refers a client to an attorney.

      . To the extent that the argument raises equal protection clause objections, as respondents’ citation of Carey v Brown (447 US 455) and Police Dept. of Chicago v Mosley (408 US 92) suggests, the issue is not properly before us, respondents’ answer having raised only free speech and due process defenses.

      . Content-based restrictions on noncommercial speech will be sustained “only in the most extraordinary circumstances” (Bolger v Youngs Drug Prods. Corp., 463 US.— , — , 103 S Ct 2875, 2879 [n omitted]).

      . It is noteworthy that, as a general matter, attorneys need not decline to represent a client who has been referred by a broker (see, generally, DR 2-105, DR 2-109, DR 5-101) nor are they proscribed from placing nonmisleading advertisements in publications whose primary readership may be real estate brokers (see, generally, DR 2-100 — 2-101).


author: Jasen, J.

text:
    Jay M. Motler, Appellant, v Susan Motler, Respondent.
    Decided November 22, 1983

      APPEARANCES OF COUNSEL

      Larry Jay Kushner, P. C., for appellant.

      Perry Satz, P. C., for respondent.
   OPINION OF THE COURT

Jasen, J.

On this appeal we are asked to decide whether it was error to grant defendant wife’s motion to discontinue a counterclaim interposed in an action for divorce after the effective date of part B of section 236 of the Domestic Relations Law, the “Equitable Distribution Law”, when plaintiff husband commenced the action prior to that date.

On July 17,1980, two days before the effective date (July 19, 1980) of the Equitable Distribution Law, plaintiff husband commenced an action for divorce. On August 7,1980, after the effective date of the new law, defendant answered the complaint in which she asserted a counterclaim for divorce. Defendant then moved for leave to discontinue her counterclaim for the conceded purpose of commencing a separate action and obtaining the benefits of the Equitable Distribution Law. Supreme Court granted defendant’s motion to discontinue. The Appellate Division unanimously affirmed, reasoning that discontinuance would serve only to permit correction of a tactical error of form, not substance, because defendant could have commenced an independent action after July 19,1980, rather than interposing a counterclaim in the pending action. We agree.

A spouse should not be barred from access to the benefits of the Equitable Distribution Law by being denied procedural remedies to which he or she is unconditionally entitled under the CPLR. (Battaglia v Battaglia, 59 NY2d 778, revg on dissent below 90 AD2d 930.) Specifically, CPLR 3019 provides that all counterclaims are “permissive” and a party may assert his or her claim against the plaintiff as a counterclaim or may bring a separate suit. (Siegel, Practice Commentary, McKinney’s Cons Laws of NY, Book 7B, CPLR C3019:2, p 216.) Thus, defendant could have commenced an independent action for divorce after July 19, 1980, rather than interposing a counterclaim in the pending action. Defendant’s failure to commence a separate action for divorce at the time the answer and counterclaim were interposed, after the new statute became effective, constituted a tactical error of form, not substance, and should not bar her from access to the benefits of the Equitable Distribution Law.

Nor do our holdings in Valladares v Valladares (55 NY2d 388), Tucker v Tucker (55 NY2d 378), Zuckerman v Zuckerman (56 NY2d 636) and Pollack v Pollack (56 NY2d 968) require a different result. In Valladares, the defendant wife served her answer prior to the effective date of the statute and then moved after the new statute became effective to amend her answer to assert a counterclaim for divorce and demand equitable distribution. Defendant was allowed to amend the answer to add her counterclaim for divorce, but the demand for equitable distribution was denied. The issue of whether a party, as in this case, may institute an independent action after the effective date of the Equitable Distribution Law and invoke the new law, when a marital action has already been commenced by the opposing party prior to the effective date of the new law, was expressly left open. {Id., at p 393, n 3.)

In Tucker, Pollack and Zuckerman, the moving party commenced the action for divorce prior to the effective date of the statute and then, after the effective date, sought an order of discontinuance. We held that in view of the express legislative intent not to make the new law applicable to actions pending before July 19, 1980, there was no justification for the exercise of judicial discretion, and that such motions must be denied.

Here, however, defendant did not initiate the original action, nor did she respond to the complaint before the new law took effect. Indeed, plaintiff commenced this action just two days before the new law took effect and the Appellate Division cogently viewed this as “an obvious effort [by plaintiff] to preclude defendant from the benefits of equitable distribution.” (92 AD2d, at p 964.) Under these circumstances, and in the absence of a showing that substantial rights have accrued or the plaintiff’s rights would be prejudiced thereby (Siegel, New York Practice, § 297, p 353), it cannot be said that the courts below abused their discretion in granting leave to discontinue defendant’s counterclaim asserted after July 19,1980, for the conceded purpose of commencing a separate action for divorce and obtaining the benefits of the expanded property provisions of the Equitable Distribution Law.

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

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. Question certified answered in the affirmative.


author: Kaye, J.

text:
    Helen T. Cunningham, Individually and as Administratrix of the Estate of Edward T. Cunningham, Deceased, Appellant, v State of New York, Respondent. (And 19 Other Actions.)
    Argued October 17, 1983;
    decided November 22, 1983

      POINTS OF COUNSEL

      Eugene C. Tenney for appellants.
    I. The case of O’Connor v Midiria (55 NY2d 538) is not controlling on these appeals by the living claimants. II. Summary judgment should be denied in the cases of Cunningham, Hardie, Monteleone and Knickerbocker and a continuance granted pursuant to CPLR 4402. (Werner v State of New York, 53 NY2d 346.)

      Robert Abrams, Attorney-General {Peter J. Dooley and Peter H. Schiff of counsel), for respondent.
    I. Once the Workers’ Compensation Board has exercised jurisdiction over a claim, the courts are precluded from entertaining an action at law against the employer arising out of the same incident. (O’Connor v Midiria, 55 NY2d 538; O’Rourke v Long, 41 NY2d 219; Matter of Doca v Federal Stevedoring Co., 308 NY 44; Friedl v Hennard, 66 AD2d 1024; Velasquez v Pine Grove Resort Ranch, 61 AD2d 1102, 44 NY2d 949; Matter of Pierce v Kellert, 34 AD2d 612; Durso v Modern Biscuit Corp., 11 AD2d 1036; Doca v Federal Stevedoring Co., 280 App Div 940, 305 NY 648; Moakler v Blanco, 47 AD2d 614.) II. As to the surviving hostages, all of the claims in any event are untimely. (Trayer v State of New York, 90 AD2d 263; Kilbourne v State of New York, 111 Misc 2d 161; Dependable Trucking Co. v New York State Thruway Auth., 41 AD2d 985; Green v State of New York, 28 AD2d 747; Buckles v State of New York, 221 NY 418.)
   OPINION OF THE COURT

Kaye, J.

The issue presented in each of these 20 appeals is whether claimants are foreclosed by the finality and exclusive remedy provisions of the Workers’ Compensation Law from maintaining actions against an employer for intentional assault. For the reasons stated below, we conclude that the actions should all be dismissed because either (1) the claimant applied for and received workers’ compensation benefits for the injury in question, or (2) there is a decision of the Workers’ Compensation Board that the claimant’s injury was accidental, employment-related, and compensable.

These appeals relate to the uprising at the Attica Correctional Facility in September, 1971. In Cunningham and two other actions, claimants seek damages for wrongful death, claiming that the injuries to decedents, who were guards, were intentionally inflicted by persons under the control of the State. In Prave and 16 similar claims, employees who had been taken hostage assert damage claims for intentional assault inflicted by persons under the State’s control. In each of these actions the State has moved for summary judgment asserting that claimants’ actions are precluded by the Workers’ Compensation Law. The Court of Claims denied the motions and the Appellate Division reversed, dismissing the suits. We now affirm.

The initial question to be resolved whenever a defense of workers’ compensation is presented is whether the claimant has a right to bring a plenary action. “If the right to sue the employer has been stripped away by [workers’] compensation coverage, it is an arrogation of jurisdiction to consider a tort complaint on its merits.” (O’Rourke v Long, 41 NY2d 219, 221.) Section 11 of the Workers’ Compensation Law provides that the liability of an employer under that law shall be exclusive and in place of any other liability to the employee or his dependents for the injury or death of the employee. Under subdivision 6 of section 29 of the Workers’ Compensation Law, the right to compensation is the exclusive remedy to an employee or his dependents against the employer when such employee is injured or killed by the negligence or wrong of another in the same employ. A decision or award of the Workers’ Compensation Board is, pursuant to section 23 of the Workers’ Compensation Law, final and conclusive upon the parties and the State Insurance Fund as to all questions within its jurisdiction, unless modified or reversed on appeal. These provisions operate to preclude claimants’ actions.

I

In the wrongful death actions, the record reveals that the claimants have applied for and received workers’ compensation benefits. By applying for and accepting such benefits, these claimants have forfeited their rights to maintain wrongful death actions against respondent for intentional torts. (Werner v State of New York, 53 NY2d 346, 348-349; Mylroie v GAF Corp., 55 NY2d 893, 894.) Claimants allege that their actions should not be dismissed because théy were misled by the State into applying for and accepting the benefits. That issue however, is one that must be addressed to the Workers’ Compensation Board, not the courts. (Werner v State of New York, 53 NY2d 346, 352, n 2, supra.) The Legislature has placed the responsibility for such factual determinations in the Workers’ Compensation Board, and claimants may not circumvént this procedure and choose the courts as the forum for resolution of such questions. (O’Rourke v Long, 41 NY2d 219, 228, supra.)

II

In the cases brought by the former hostages, the record shows that the State continued to pay the claimants their salaries during their absence from work due to injury and sought reimbursement for those payments from the State Insurance Fund. As to each claim, the Workers’ Compensation Board made a determination that the injuries were accidental, related to employment, and compensable, and issued an award. In addition to providing salary reimbursement, the fund also paid certain medical expenses.

These claimants contend that they should not be barred from bringing suit against the State because it was the State, and not they, who filed the claims for compensation with the board, and because they have never received any “direct” benefits from the fund, as the State was obligated to pay their salaries under a collective bargaining agreement. But the board has the discretion to process a claim, whether filed by an employee or an employer, even if the claimant objects and a civil action is pending. (O’Rourke v Long, 41 NY2d 219, 227-228, supra.) A determination by the Workers’ Compensation Board that a claimant’s injuries are accidental is binding on the claimant even if he did not apply for or accept the benefits awarded, and precludes an action against the employer for intentional tort. (O’Connor v Midiria, 55 NY2d 538, 539.)

Ill

Claimants here are not without remedy. They may petition the Workers’ Compensation Board for reconsideration of its determinations. If the board were to reverse, claimants would not be precluded, within six months thereafter, from commencing actions against the State for intentional assault. (CPLR 205, subd [c]; Hotaling v General Elec. Co., 12 NY2d 310, 314.) What claimants may not do is undermine the conclusiveness of the board’s determinations or the exclusiveness of the compensation remedy by collateral attack. (O’Connor v Midiria, 55 NY2d 538, 541, supra.)

The Appellate Division properly granted the State’s motions for summary judgment and dismissed the actions herein. While claimants have requested that we instead grant a continuance under CPLR 4402 until they can petition the Workers’ Compensation Board, there is no basis on the record for such relief.

Accordingly, the orders of the Appellate Division should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Simons concur; Judge Meyer taking no part.

Orders affirmed, without costs.

      . Section 8 of the Court of Claims Act, in waiving sovereign immunity, nonetheless provides that the exclusivity of the compensation remedy against the State is not impaired. (Maloney v State of New York, 3 NY2d 356, 361.)

      . Because of continued adjournments at the request of one of the claimants (Hardie), the board has yet to make a determination or award on that claim. However, Hardie has applied for and accepted benefits paid by the State Insurance Fund and is for that reason precluded from maintaining the action herein even in the absence of such a determination. (Werner v State of New York, 53 NY2d 346, 353-354.)

      . In Hardie, where no determination has yet been made, the claimant may present this argument to the board in the first instance.


author: Jones, J.

text:
    Betty J. Sochor, Respondent, v International Business Machines Corp., Appellant.
    Argued October 27, 1983;
    decided November 29, 1983

      POINTS OF COUNSEL

      M. William Munno, Sheri Van Greenby Fanaroff, Dan F. Laney, III, and Thomas R. Behan, for appellant.
    I. IBM does not possess any property in which Sochor has an interest within the meaning of CPLR 5225 (subd [b]) because Sochor has not contributed to the Plan, benefits have not been credited to him, and benefits are not now due and may never be owed to him under the Plan. (Kunzeck v Kunzeck, 102 Misc 2d 607; Fordyce v Fordyce, 80 Misc 2d 909.) II. Petitioner may not exercise Sochor’s right to elect early retirement benefits because that right is personal and nontransferable and its exercise by petitioner will irrevocably and adversely affect any benefits Sochor may receive. (Alexandre v Chase Manhattan Bank, 61 AD2d 537; Caravaggio v Retirement Bd., 36 NY2d 348; Leavitt v Leavitt, 54 AD2d 707; Pepitone v Pepitone, 108 Misc 2d 12.) III. The Federal Employee Retirement Income Security Act bars a judgment creditor from reaching pension benefits that are not in pay status and payment of such benefits may result in disqualification of the Plan. (General Motors Corp. v Buha, 623 F2d 455; Helmsley-Spear, Inc. v Winter, 74 AD2d 195, 52 NY2d 984; Cody v Riecker, 594 F2d 314; American Tel. & Tel. Co. v Merry, 592 F2d 118; Cartledge v Miller, 457 F Supp 1146; Cogollos v Cogollos, 93 Misc 2d 406; Matter of Wanamaker v Wanamaker, 93 Misc 2d 784; Monsanto Co. v Ford, 534 F Supp 51.) IV. The decision of the court below will invite needless litigation against pension plans and impose substantial and unwarranted expenses on them to the detriment of their participants. (Pepitone v Pepitone, 108 Misc 2d 12; Caravaggio v Retirement Bd., 36 NY2d 348; Crowley v New York State Employees’ Retirement System, 58 Misc 2d 788; Matter of Galanthay v New York State Teachers’ Retirement System, 50 NY2d 984; Mitzner v Jarcho, 44 NY2d 39.)

      Paul J. Goldstein and Stephen E. Ehlers for respondent.
    I. Sochor’s interest in IBM’s pension plan is a debt within CPLR 5201 (subd [a]) against which petitioner may enforce her judgment for alimony. (Shambach v General Elec. Co., 6 AD2d 327; Perri v Perri, 115 Misc 2d 478; Reed v Reed, 93 AD2d 105; Hebron v Hebron, 116 Misc 2d 803; McCarty v McCarty, 453 US 210; Majauskas v Majauskas, 110 Misc 2d 323; Slaff v Slaff, 9 AD2d 80; De Felice v De Felice, 75 AD2d 802; Matter of Chusid, 60 Misc 2d 462, 35 AD2d 655; American Tel. & Tel. Co. v Merry, 592 F2d 118.) II. Sochor’s interest in IBM’s pension plan is “property” within CPLR 5201 (subd [b]) against which petitioner may enforce her judgment for alimony. (Perri v Perri, 115 Misc 478; Majauskas v Majauskas, 110 Misc 2d 323; American Tel. & Tel. Co. v Merry, 592 F2d 118; Cartledge v Miller, 457 F Supp 1146; Cody v Riecker, 594 F2d 314; Cogollos v Cogollos, 93 Misc 2d 406; Crowley v New York State Employees’ Retirement System, 58 Misc 2d 788.) III. A former wife may elect, in her former husband’s stead, to receive his early retirement income to satisfy a judgment against him for alimony arrears. (Slaff v Slaff, 9 AD2d 80; Pepitone v Pepitone, 108 Misc 2d 12; Plymouth Rock Fuel Corp. v Bank of N. Y., 102 Misc 2d 235; Sheehan v Sheehan, 90 Misc 2d 673; Lerner v Williamsburg Sav. Bank, 87 Misc 2d 685; Wetmore v Wetmore, 149 NY 520; Matter of Sand v Beach, 270 NY 281; Matter of Knauth, 12 NY2d 259; Matter of Chusid, 60 Misc 2d 462, 35 AD2d 655; Reed v Reed, 93 AD2d 105.)
   OPINION OF THE COURT

Jones, J.

A judgment creditor-wife is not entitled in a proceeding under CPLR 5225 (subd [b]) to which her judgment debtor-former husband is not a party to reach his inchoate rights under a noncontributory retirement plan established by the husband’s employer where the husband’s entitlement to payments thereunder is dependent on his making an election among alternative benefits and then applying for payment thereof.

Betty Jean Sochor obtained a default judgment against her former husband, Joseph Sochor, for support arrears in the amount of $15,858.48. She seeks in this special proceeding against International Business Machines Corp. pursuant to CPLR 5225 (subd [b]) (in which her former husband has not been joined) to enforce collection of that judgment.

IBM has established a Retirement Plan (Plan) for the benefit of the corporation’s current and former employees. The Plan, supported only by contributions of the employer, is administered by trustees designated in the Plan.

Joseph Sochor, whose date of birth was November 17, 1923, was employed by IBM from June 15,1942 to November 30, 1971, when he voluntarily left its employ. Under the terms of the Plan, Sochor will be eligible to receive benefits if he livés to age 65 and makes the required application for benefits to IBM’s payroll benefits department. In the alternative, as a former employee who has completed 15 years of continuous service and has reached age 55, he is now eligible to receive reduced monthly benefits if he so elects and makes the required application. Such an early election additionally will require a choice among more than a dozen separate payment options, which choice will irrevocably affect the amount of benefits available to the recipient. The amount of the benefits may also vary depending on whether he is single or married on the date payment of benefits commences. No part of the assets held by the trustees under the Plan is designated or apportioned for the benefit of any current or former employee unless and until benefits become payable to him. The Plan also provides that benefits are not “subject to alienation, sale, transfer, assignment, pledge, attachment, garnishment, lien, levy or like encumbrance”, or subject to the “debts or liabilities of any person entitled to benefits under the Plan”.

It is undisputed that Joseph Sochor has made no election of benefits under the Plan, has filed no application for benefits, and has not reached age 65.

At the threshold we observe that the only entity made a party to this proceeding by the wife is IBM, the corporate employer. Inasmuch as all the assets of the Plan are held by its trustees (who comprise a separate legal entity) rather than by the corporation, there is serious question whether in the event of a determination on the merits favorable to her in this proceeding, the wife could enforce such determination against the corporation (CPLR 5201, subd [c], par 2). It is not necessary to resolve this issue, however, inasmuch as we conclude that the wife must fail on the merits.

The gravamen of her claim is that, within the contemplation of CPLR 5225 (subd [b]), the corporation is “in possession or custody of money or other personal property in which the judgment debtor has an interest”* ** which is reachable by virtue of the provision of CPLR 5201 (subd [b]). The resolution of this claim turns on the nature of the husband’s interests under the Retirement Plan, which must be determined by reference to the terms of the Plan itself. Legal analysis in this instance is not advanced by resort to the “vesting” terminology of pension plan law.

No provision is made for the allocation of any portion of the assets of the Plan to or for the account of any employee. The rights of the employees are only to receive payments from the assets of the Plan generally in specified amounts on meeting the requirements set forth in the Plan. These requirements may be classified under two headings, eligibility and right to receive payments. The husband here has met the eligibility requirements, that is, he completed more than 15 years of continuous service before he left IBM’s employ in 1971 and he has now reached age 55. Accordingly, he is eligible to elect to take early retirement reduced benefits and then to make application for payment thereof. His right to receive payment of benefits under the Plan, however, depends both on his making an election to receive early retirement reduced benefits (and, if so, to choose among the several optional modes of payment of such benefits) and on his filing an application therefor as specified by the terms of the Plan. If he makes no such election and application before he reaches age 65 in November, 1988, he will become eligible at that time for normal retirement benefits, but again he will be entitled to receive such benefits only if he makes application therefor in the manner specified in the Plan. If the husband were to step up in person now, without election and application, he would be entitled to no payment from the trustees of the Plan. Indeed, it appears that if the husband dies without having made application for benefits, neither he nor his estate will receive any benefits. Accordingly, under the provisions of the IBM Retirement Plan Joseph Sochor has no proprietary interest which can be reached by his former wife under CPLR 5225 (subd [b]) unless and until he makes an election and application to receive retirement benefits.

In this proceeding, to which the husband is not a party, the courts have no authority to compel him to make an election or to file an application for early retirement benefits, or, in the alternative, to make such election or to file such application on his behalf. The Plan provides expressly for the exercise of election rights by a “former employee” or a “participant” only. The rights granted to a former employee are personal to him and may neither be exercised nor forfeited in any proceeding to which the affected employee is not a party. Even if the making of the application required by the terms of the Plan were to be characterized as ministerial, the election between benefits at age 65 and reduced benefits at age 55 (together with the choice among multiple options in the latter case) involves decisions of substance beyond the power of the court to make in this proceeding.

The cases on which the Appellate Division relied do not support the conclusion reached by it. For example, in Alt v Long Is. R. R. Co., (81 Misc 2d 99, affd 54 AD2d 724) the court, in declaring the rights of employees under a substituted pension plan, merely held that “[i]t is not until retirement age is reached that an inchoate right ripens into a pension right” (81 Misc 2d, p 102). The California cases cited determined the rights of spouses to share in retirement benefits in accordance with the principles of law applicable in a community property State and then as they became payable. They are not authority for according the wife the right, in a noncommunity property State, to exercise her husband’s prerogative to elect and choose benefits and to make application for their payment.

In Kunzeck v Kunzeck (102 Misc 2d 607) in a proceeding to which the husband was a party it was held that, although in consequence of his 10 years of employment and his having reached age 60 the employee husband was entitled to elect early retirement, no rights to payment of benefits under a noncontributory plan accrued to either husband or wife until he elected early retirement, reached age 65 (normal retirement), or died.

For the reasons stated, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

Chief Judge Cooke and Judges Jasen, Meyer, Simons and Kaye concur; Judge Wachtler taking no part.

Order reversed, with costs, and order of Supreme Court, Dutchess County, reinstated.

      . We have no occasion to consider what remedies, if any, the wife might have if her former husband were a party to this proceeding.

      . The underlying default judgment was based on substituted service on the husband fashioned under CPLR 308 (subd 5) because he had kept his whereabouts hidden from the wife and she could not with due diligence ascertain the location of his residence. It does not appear from the record whether Joseph Sochor is still alive, or, if so, whether he has remarried. Notice of the present special proceeding was given the husband by certified mail, return receipt requested addressed to his daughter, Mrs. Sharon Ifill, pursuant to the directions in an order to show cause (cf. CPLR 5225, subd [b]).

      . CPLR 5225 (subd [b]) provides: “Property not in the possession of judgment debtor. Upon a special proceeding commenced by the judgment creditor, against a person in possession or custody of money or other personal property in which the judgment debtor has an interest, or against a person who is a transferee of money or other personal property from the judgment debtor, where it is shown that the judgment debtor is entitled to the possession of such property or that the judgment creditor’s rights to the property are superior to those of the transferee, the court shall require such person to pay the money, or so much of it as is sufficient to satisfy the judgment to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as is of sufficient value to satisfy the judgment, to a designated sheriff. Costs of the proceeding shall not be awarded against a person who did not dispute the judgment debtor’s interest or right to possession. Notice of the proceeding shall also be served upon the judgment debtor in the same manner as a summons or by registered or certified mail, return receipt requested. The court may permit the judgment debtor to intervene in the proceeding. The court may permit any adverse claimant to intervene in the proceeding and may determine his rights in accordance with section 5239.”

      . No claim is advanced under the transferee provision of subdivision (b), nor could it be inasmuch as IBM’s Retirement Plan is a noncontributory plan to which the husband never made a contribution.

      . CPLR 5201 (subd [b]) provides in pertinent part: “Property against which a money judgment may be enforced. A money judgment may be enforced against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested, unless it is exempt from application to the satisfaction of the judgment.”

      . The detailed specifications set forth in the Plan as to the necessity for and the manner of making formal application for retirement benefits create significant procedural protections for the trustees of the Plan, i.e., to eliminate, so far as practicable, factual issues as to whether an effective election has been made to receive early retirement benefits (and thus to forego the greater normal retirement benefits) — and if so which choice has been made among available optional modes of payment — or, in the case of normal retirement benefits, as to the entitlement of the employee to benefits and the manner of their payment. Explicit provisions with respect to the determination and the payment of retirement benefits may be of great practical significance to the administrators of the Plan.

      . For similar reasons there is no merit to the contention now advanced by the wife, but not raised by her at Special Term, that the husband’s interest is reachable as a “debt” under CPLR 5227 and 5201 (subd [a]).

      . The trustees of the Plan could be legitimately concerned as to their potential liability should the husband subsequently appear and make application for full retirement benefits after reaching age 65.

      . In view of the ground on which we reverse the order of the Appellate Division we have no occasion to address the contentions of the parties with respect to the application of the provisions of the Federal Employee Retirement Income Security Act of 1974 (US Code, tit 29, § 1001 et seq.).