author: ClPARICK, J.

text:
    [677 NE2d 279, 654 NYS2d 708]
    In the Matter of Robert W. Case, Respondent, v Monroe Community College, Appellant.
    Argued January 8, 1997;
    decided February 11, 1997

      POINTS OF COUNSEL

      Nixon, Hargrave, Devans & Doyle, LLP, Rochester {Eugene D. Ulterino and Toni Anne Nickels of counsel), for appellant.

      Sullivan, Benatovich, Oliverio & Trimboli, Buffalo {Richard T. Sullivan of counsel), for respondent.
   OPINION OF THE COURT

ClPARICK, J.

The narrow issue presented on this appeal is whether service of an arbitration award upon the union representing an aggrieved member constitutes service upon that individual member, for purposes of measuring the timeliness of an appeal from the award. We hold that regardless of whether the union elects to pursue an appeal on behalf of its member, the operative date is the date the arbitrator served the union with the award. Therefore, we reverse the order of the Appellate Division and dismiss the petition as untimely.

Petitioner was employed by respondent College as the Director of Athletics pursuant to a series of one-year, nontenure track term appointments. Charges of sexual harassment were lodged by a student against petitioner early in his third term. The College’s attempts to resolve the matter to the satisfaction of both parties proved fruitless. Later that term, petitioner was advised by the College that his appointment would not be renewed for the subsequent academic year.

In accordance with the collective bargaining agreement between the College and the faculty union association of which petitioner was a member, the union initiated a grievance on petitioner’s behalf. The grievance alleged that the College’s nonrenewal of petitioner’s appointment violated the procedural provisions set forth in three articles of the collective bargaining agreement. The College moved to stay the arbitration on the ground that the grievance was not arbitrable.

By award dated September 8, 1993, the arbitrator ruled that because petitioner was a nontenured term employee there was no basis under the terms of the collective bargaining agreement for arbitration of the nonrenewal of his appointment, and denied his grievance. Notwithstanding this conclusion, the arbitrator considered whether the procedural violations alleged by petitioner affected the nonrenewal decision. The arbitrator concluded that the College did not violate any of the procedural provisions as charged by petitioner and that petitioner was properly terminated for insubordination. The arbitrator mailed copies of the award to the union and the College; each acknowledged receipt of the award the following day, September 14, 1993.

By letter dated September 22, 1993, petitioner advised the union of his dissatisfaction with the award and proposed several grounds for vacatur. The union, however, declined to pursue any appeal on petitioner’s behalf. Consequently, by petition dated March 14, 1994, petitioner instituted the underlying action to vacate or modify the award. The College cross-moved to dismiss the petition, arguing that petitioner lacked standing to bring a proceeding on the award because he was not a party to the arbitration and, in any event, that the petition was untimely under CPLR 7511 (a) since it was filed in excess of the 90-day statutory period.

Supreme Court denied the petition to vacate or modify the award and denied the cross motion to dismiss the petition. On appeal by both parties, the Appellate Division granted petitioner’s application to modify the award by striking that portion of the award holding that petitioner was "properly terminated for insubordination,” and, as so modified, affirmed (see, Matter of Case v Monroe Community Coll., 224 AD2d 952). This Court granted the College’s motion for leave to appeal.

CPLR 7511 (a) requires that an application to vacate or modify an arbitration award "be made by a party within ninety days after its delivery to him.” The Appellate Division read this provision to mean that nothing less than personal service upon the aggrieved individual — based on the use of the word "him” in CPLR 7511 (a) — triggers the 90-day appeal period. Therefore, the Appellate Division concluded that petitioner’s application to vacate or modify the award, even though filed approximately six months after the award was served on the union representing petitioner in the arbitration, was timely because the 90-day Statute of Limitations first began to run "when the award was delivered to petitioner (see, Matter of Weeks v State of New York, 198 AD2d 615)” (Matter of Case v Monroe Community Coll., supra, 224 AD2d, at 952). We disagree.

We have previously recognized that "basic procedural dictates” and "fundamental policy considerations” contemplate that "once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed” (Matter of Bianca v Frank, 43 NY2d 168, 173; see also, CPLR 7506 [d]). We explained that it was "the traditional and accepted practice which has been all but universally codified” to recognize the attorney chosen by a party to an action or proceeding, whether administrative or judicial, as the party’s agent in all respects relevant to the proceeding (Matter of Bianca v Frank, supra, at 173 [citations omitted]). We do not agree with the Appellate Division holding that this principle applies only to representation by an attorney, not a union representative unschooled in the law.

In Matter of Beckman v Greentree Sec. (87 NY2d 566), we upheld the confirmation of an arbitration award against a former employee of respondent Greentree, a brokerage firm, where respondent received notice of the arbitration but may not have forwarded a copy of such notice to the appellant, its former employee, as required by the NASD arbitration rules governing the parties’ relationship. We determined that appellant, as an employee of Greentree, agreed to be bound by the NASD arbitration rules as a condition of his employment and thereby "consented to Greentree’s agency for service of notice of any arbitration claim asserted against him which was filed with NASD before his association with Greentree ended” (id., at 571).

In Greentree, we reiterated that due process simply requires that the means selected for providing notice are reasonably calculated to apprise affected parties of the pendency of the action and afford them an opportunity to present objections — due process does not require actual receipt of the notice or that the notice procedure eliminate all risk of nonreceipt (see, id., at 570). We held in Greentree that there is no constitutional or other legal impediment to the designation of an agent for receipt of notice in an arbitration proceeding (see, id., at 571). Accordingly, we rejected appellant Greentree’s application to vacate the award and dismiss the petition on the ground that he never received actual notice of the arbitration proceeding and that the notice procedures employed by the NASD deprived him of due process (see, id., at 570-572). Indeed, as in Greentree, there is no dispute at bar that the arbitrator in fact served the award in accordance with the pertinent notice rules — here, the American Arbitration Association’s rules— and, that the grievant’s representative at the arbitration received the award.

Applying Bianca and Greentree to this case leads us to the conclusion that once a grievant is represented by a designated agent, attorney or not, such entity or individual becomes the agent for service of awards, orders or documents relevant to the proceeding and once service is effected in accordance with the prescribed rules, the aggrieved individual is deemed to have been served with the award or order.

Moreover, in the event the agent declines to pursue further proceedings, such as an appeal, the individual grievant is not foreclosed from pursuing such relief in his or her individual capacity (see, Matter of Diaz v Pilgrim State Psychiatric Ctr., 62 NY2d 693, 695). In Diaz, we held that the petitioner had standing to seek vacatur of the arbitral award, even though he was not individually named as a party in the caption of the arbitration proceeding and was initially represented by a union attorney (see, id.). We ruled that where the provisions of the collective bargaining agreement specifically provide that an aggrieved employee is entitled to "representation at each step of the disciplinary procedure by the union or any attorney selected by an employee or to represent himself or herself,” nothing bars the aggrieved employee’s self-representation subsequent to the designated representative’s declination to proceed further (see, id., at 695). Thus, there is no question that but for the untimeliness of the instant petitioner’s application, he would have been entitled to proceed with a challenge to the arbitral award in his individual capacity.

Taken together, these precedents yield the rule we now apply to the instant case: When an individual elects to be represented by his or her union, regardless of whether the union assigns an attorney or a layperson as the representative, that individual has designated the union as his or her agent for service during the pendency of the entire grievance proceeding. Hence, the grievant would be bound by all limitations periods applicable to the union.

At bar, the result is that petitioner is deemed to have been served with the arbitral award on September 14, 1993, the same date the union — chosen by petitioner as his representative — received the award. Therefore, because the petition was not filed within 90 days after service of such award upon the union — petitioner’s duly appointed agent — the petition must be dismissed as untimely.

Accordingly, the order of the Appellate Division should be reversed, with costs, and respondent College’s motion to dismiss the petition granted.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine and Wesley concur; Judge Titone taking no part.

Order reversed, etc.

      . Petitioner alleged that the College transgressed the requirements of (1) article 5, by failing to provide him with 12 months notice of nonrenewal; (2) article 6, by withholding unfavorable documents from his employee file; and (3) article 54, by failing to evaluate his work performance biannually or providing a final evaluation, and by neglecting to obtain input from the Athletic Department faculty before deciding not to renew his term appointment.

      . We note that this result does not foreclose any plenary remedies that may be available to petitioner arising from the union’s representation (see generally, Matter of Obot [New York State Dept. of Correctional Servs.], 89 NY2d 883; Hines v Anchor Motor Frgt., 424 US 554; Vaca v Sipes, 386 US 171).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [677 NE2d 722, 654 NYS2d 998]
    The People of the State of New York, Respondent, v Alex Ramirez, Appellant.
    Argued November 20, 1996;
    decided December 20, 1996

      POINTS OF COUNSEL

      James E. Neuman, New York City, for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Cheryl Hone and John M. Castellano of counsel), for respondent.
   OPINION OF THE COURT

Smith, J.

The primary issue here is whether Supreme Court’s imposition of three consecutive sentences for robbery is permissible under the facts of this case and the Penal Law.

The indictment charged defendant with three counts of robbery against the Mount Vernon Money Center and two individuals, for a total of nine counts of robbery in the first degree (Penal Law § 160.15). The jury found defendant guilty of each of these counts. Supreme Court, exercising its discretionary sentencing power, imposed the following term of imprisonment: sentences on the robbery counts relating to the same victim were to run concurrently and these three groups of concurrent sentences were to run consecutively with each other.

We hold that defendant’s sentence must be modified as contrary to the dictates of Penal Law § 70.25 (2) in which the Legislature has delimited a court’s discretion to impose consecutive sentences for the same criminal acts which constitute multiple offenses. For sentencing purposes, the theft of property belonging to two different owners did not convert one act into two when said property was forcibly stolen from a single person.

The facts are relatively straightforward. On Christmas eve, 1992, Martin Bailey and Kevin Donahue, two off-duty police officers working for the Mount Vernon Money Center, drove into the parking lot of a hotel located in Queens to make a payroll delivery. After parking their vehicle, Bailey walked toward the security booth while Donahue remained with the car to unload the money bags. Without warning, a grey sedan appeared and stopped behind the guards’ vehicle. A man exited the sedan while pointing what appeared to be an automatic weapon and ordered both guards to lie face down on the ground. Other men who were similarly armed followed from the sedan.

At their direction, Bailey and Donahue dropped to the pavement. When Bailey started to move toward the security booth again, he was repeatedly shot in the back. Bailey attempted to return fire but lost his grip on his weapon as he staggered to safety. Finally making his way inside the hotel, Bailey collapsed. The gunmen proceeded to remove Donahue’s weapon from his waistband. At the same time, Donahue heard rummaging around in the vehicle where he had left the payroll bags belonging to the Money Center. The thieves then hurried into their sedan and sped away from the hotel. Getting to his feet, Donahue discovered that his gun, the payroll and Bailey’s gun were all missing.

A jury found defendant guilty of nine counts of robbery in the first degree; and one count each of attempted murder, possession of a weapon in the second degree, possession of a weapon in the fourth degree, and possession of stolen property in the fifth degree. Upon sentencing the defendant, Supreme Court imposed separate sentences for each possession count which were to run concurrently with each other and with the sentence imposed on the attempted murder conviction. The structure of the sentences on the robbery counts was necessarily more complex.

The nine counts of robbery consisted of three counts related to the theft of Donahue’s weapon, three related to the theft of Bailey’s weapon and three counts related to the theft of the payroll belonging to the Money Center.* Supreme Court imposed concurrent sentences on the robbery counts that related to the same victim. Under its discretionary sentencing power, Supreme Court determined that the concurrent terms relating to the same victim should run consecutively to sentences relating to the other victims. Thus, Supreme Court imposed three sets of consecutive sentences on the nine robbery counts.

As set forth in the Penal Law, the minimum and maximum sentencing terms for specific crimes reflect a legislative policy choice which delimits judicial sentencing authority. Yet, within these statutory ceilings, a court has broad discretion to impose an appropriate sentence. As this Court noted in People v Day, "Sentencing courts, in the exercise of their unique judicial function in criminal proceedings, are wisely allocated wide latitude as they are recognized to be in a superior position to dispense proportionate and fair punishment” (73 NY2d 208, 212). That discretionary power includes the ability to impose consecutive penalties for multiple crimes (Matter of Walker v Walker, 86 NY2d 624, 629, citing People v Ingber, 248 NY 302, 305). In choosing to exercise its discretion, Supreme Court may properly consider a variety of factors including the number and seriousness of the oifenses involved.

As set forth in 1992, the year defendant committed his crimes, Penal Law § 70.30 provided that when multiple sentences run concurrently, "the times served under imprisonment on any of the sentences shall be credited against the minimum periods of all the concurrent sentences, and the maximum terms merge in and are satisfied by discharge of the term which has the longest unexpired time to run” (Penal Law § 70.30 [1] [a]). Thus, concurrent sentences represent a single punishment measured by the sentence for the highest grade offense into which all concurrent sentences merge (see, People ex rel. Maurer v Jackson, 2 NY2d 259, 269-270).

In contrast, when consecutive sentences are imposed, "the minimum periods of imprisonment are added to arrive at an aggregate minimum period of imprisonment equal to the sum of all the minimum periods, [and] the maximum terms are added to arrive at an aggregate maximum term equal to the sum of all the maximum terms” (Penal Law § 70.30 [1] [b]). Under the consecutive sentences for the robbery counts imposed by Supreme Court, defendant received a term ranging from 371/2 years to 75 years. If Supreme Court had, instead, imposed the same sentences to run concurrently, defendant’s term would run from 12x/2 years to 25 years, a maximum period that would be over 10 years less than the minimum sentence actually imposed.

The Penal Law provides that concurrent sentences must be imposed "for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other” (Penal Law § 70.25 [2]). Thus, sentences imposed for two or more offenses may not run consecutively: "(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (People v Laureano, 87 NY2d 640, 643). The Penal Law defines an "act” as a "bodily movement” (People v Brown, 80 NY2d 361, 364, citing Penal Law § 15.00 [1]).

We have noted that it is defendant’s act or omission which constitutes the offense, the "actus reus,” that must inform any inquiry under Penal Law § 70.25 (2) (see, Laureano, 87 NY2d, at 643). Necessarily, a sentencing court must "examine the statutory definitions of the crimes for which defendant has been convicted” to determine whether concurrent sentences are required pursuant to section 70.25 (2) (Laureano, 87 NY2d, at 643). However, even if the statutory elements of multiple offenses overlap, sentences may be imposed to run consecutively when multiple offenses are committed through separate and distinct acts, though they are part of a single transaction (see, Laureano, 87 NY2d, at 643; People v Brown, 80 NY2d 361, 364, supra). Imposition of consecutive sentences under the latter inquiry must be supported by identifiable facts (Laureano, 87 NY2d, at 644). Thus, consecutive sentences may be imposed when either the elements of the crimes do not overlap or if the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct.

Applying this analysis to the present facts requires an examination of the statutory elements of the crimes for which defendant was convicted. Under the Penal Law, robbery is a "forcible stealing” in which a defendant "uses or threatens the immediate use of physical force upon another person” (Penal Law § 160.00). Third degree robbery, the lowest degree of robbery defined in article 160 of the Penal Law, is a class D felony with a maximum sentence of seven years (Penal Law §§ 160.05, 70.00 [2] [d]). However, when the commission of a robbery includes certain aggravating circumstances "which cause, threaten to cause, or increase the risk of physical injury to another, the Legislature has deemed the crime to be more serious and deserving of greater punishment” (People v Hedgeman, 70 NY2d 533, 538). For example, a robbery may be elevated to the first degree, a class B felony, when the defendant causes "serious physical injury” to any person who is not a participant in the crime (Penal Law § 160.15 [1]), is armed with a deadly weapon (Penal Law § 160.15 [2]) or displays what appears to be a firearm (Penal Law § 160.15 [4]).

Here, a jury determined that such aggravating circumstances were present and defendant was convicted of nine counts of robbery in the first degree. Specifically, defendant was convicted of three counts of robbery relating to Donahue under Penal Law § 160.15 (1), (2) and (4), with the same three provisions of the Penal Law charged in the three counts relating to Bailey and the three counts relating to the Money Center.

Although defendant may be convicted under separate crimes for the taking of Donahue’s gun while armed with a deadly weapon and displaying what appeared to be a firearm, defendant’s single act under the facts here was a material element of both offenses. Consequently, Supreme Court properly imposed concurrent sentences for counts relating to Donahue charged under Penal Law § 160.15 (2) (count 6) and Penal Law § 160.15 (4) (count 9). A similar analysis may be applied to the two counts relating to the Money Center and charged under Penal Law § 160.15 (2) (count 4) and Penal Law § 160.15 (4) (count 7).

Supreme Court determined that concurrent sentences for counts 6 and 9 were to run consecutive to concurrent sentences for counts 4 and 7. The prosecution argues that this determination was a permissible exercise of discretion because the crimes charged involved separate and distinct acts affecting different victims. The prosecution’s position cannot be sustained. A theft is not a robbery unless the defendant "uses or threatens the immediate use of physical force upon another person” (Penal Law § 160.00; see also, Greenberg, New York Criminal Law § 16.3 [1996 ed] ["The force or threat must be directed against a person, rather than property”]). Thus, that defendant was armed and displayed an obvious and actual firearm before Donahue was a necessary element of the robbery of the payroll belonging to the Money Center.

Furthermore, the circumstances do not support the prosecution’s contention that the crimes were separate and distinct. Despite the fact that the stolen property belonged to two different victims, it is the acts of the defendant that control. In People v Brathwaite (63 NY2d 839), this Court affirmed the imposition of consecutive sentences for two convictions of felony murder. As we noted in that case, "although the two deaths may be said to have occurred in the course of a single extended transaction — the robbery — it was separate 'acts’ which caused the deaths of the owner and the clerk (i.e., there is no contention that it was the firing of the same shot that killed both the owner and the clerk), and neither was a material element of the other” (id., at 843; see also, People v Truesdell, 70 NY2d 809, 811). While both cases involved different victims, the criminal acts in Brathwaite are clearly dissimilar to the inseparable acts underlying the counts at issue here. Rather, the "actus reus” of counts 4, 6, 7 and 9 was "merely a single inseparable act violative of more than one statute” which thereby warrants a single punishment (People ex rel. Maurer v Jackson, 2 NY2d 259, 264, supra [emphasis in original]; see also, Laureano, 87 NY2d 640, supra [homicidal act of slitting victim’s throat was inseparable from robbery causing serious physical injury to same person which required sentence for manslaughter to run concurrently with sentence for robbery in the first degree]). Thus, the sentences relating to counts 4, 6, 7 and 9 must run concurrently.

Defendant was also convicted of three counts of robbery under Penal Law § 160.15 (1), with each count relating to property stolen from separate owners, Donahue (count 3), Bailey (count 2) and the Money Center (count 1). Supreme Court determined that the sentences imposed on all three counts should run consecutively. However, Penal Law § 160.15 (1) proscribes a robbery accompanied by a serious physical injury to any person who is not a participant in the crime. A serious physical injury is a "physical injury which creates a substantial risk of death” (Penal Law § 10.00 [10]). Here, the only "serious physical injury” related to the multiple gunshot wounds of Bailey who, according to Supreme Court, was "luckily” wearing a bullet proof vest. The actuality that property belonging to three different people was stolen does not negate the fact that the shooting of Bailey was a single, inseparable act for sentencing purposes.

Nevertheless, these crimes also involve a second element — the forcible taking from a person. As addressed above, the forcible taking from Donahue was an inseparable element of the robbery of the Money Center’s property. Thus, counts 1 and 3 must run concurrently with counts 4, 6, 7 and 9.

On the other hand, the entire tenor of the robbery of Donahue was distinct from the life-threatening assault upon Bailey. Consecutive sentencing is permissible when the defendant’s acts are "distinguishable by culpable mental state, nature and manner of use, time, place and victim” (People v Brown, 80 NY2d 361, 365, supra). Here, the violent and repeated shooting of Bailey was a separate and distinct act which was not a material element of the forcible theft of Donahue’s gun and the payroll bags (cf., People v Day, 73 NY2d 208, 212, supra [possession of forged checks and then attempting to withdraw such funds from a bank were "successive separate acts” which permitted consecutive sentencing for such conduct]; People v Brown, 80 NY2d 361, supra [possessing stolen vehicle then recklessly endangering lives by driving into a wall of pedestrians were independent acts and consecutive sentencing was permissible]).

While all of the sentences relating to Donahue and the Money Center must run concurrently, these terms may run consecutively to sentences relating to Bailey. Thus, Supreme Court’s discretionary imposition of consecutive sentencing was permissible for the counts concerning the robbery of Bailey’s handgun with the remaining counts relating to the other two victims.

Defendant argues that all of these counts must run concurrently because "only one robbery in fact occurred.” However defendant chooses to characterize the crimes for which he was convicted, it does not resolve the sentencing issue before this Court. The fact that the crimes were temporally close in a single criminal episode is not dispositive (see, People v Di Lapo, 14 NY2d 170). Accordingly, the concurrent sentences for counts 1, 3, 4, 6, 7 and 9 may run consecutively to the concurrent sentences for counts 2, 5 and 8. Although it was not required to do so, Supreme Court could properly exercise its discretion and impose such consecutive terms of imprisonment.

Accordingly, the order of the Appellate Division should be modified by remitting to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order modified, etc.

      . Defendant also contends on appeal that his constitutional right to counsel was violated during a line-up identification. That issue in this case is a mixed question of law and fact and, since the record supports the Appellate Division’s conclusions, the issue is beyond the review powers of this Court. Defendant’s remaining contentions are baseless.

      . Specifically, count 1 charged that defendant forcibly stole certain property of the Money Center and caused serious physical injury to Bailey; count 2 charged that defendant forcibly stole Bailey’s handgun and caused serious physical injury to Bailey; count 3 charged that defendant forcibly stole Donahue’s handgun and caused serious physical injury to Bailey; count 4 charged that defendant forcibly stole certain property of the Money Center while armed with a deadly weapon; count 5 charged that defendant forcibly stole Bailey’s handgun while armed with a deadly weapon; count 6 charged that defendant forcibly stole Donahue’s handgun while armed with a deadly weapon; count 7 charged that defendant forcibly stole certain property of the Money Center and displayed what appeared to be a handgun; count 8 charged that defendant forcibly stole Bailey’s handgun and displayed what appeared to be a handgun; and count 9 charged that defendant forcibly stole Donahue’s handgun and displayed what appeared to be a handgun.

      . The statutory limits for sentences relating to crimes such as defendant’s robbery conviction are illustrative (as set forth in 1992, the year the criminal episode took place). Penal Law § 160.15, robbery in the first degree, is a class B violent felony offense (Penal Law § 70.02 [1] [a]). Under Penal Law § 70.00, a court must impose an indeterminate sentence of imprisonment that shall not exceed a maximum term of 25 years for a conviction of a class B felony (Penal Law § 70.00 [1], [2] [b]). The minimum period of imprisonment under an indeterminate sentence for a violent felony offense must be fixed by a court at one third (now one half [L 1995, ch 3]) of the maximum term imposed (Penal Law § 70.02 [4]). A court may adjust the minimum term for such an offense (up to one half the maximum term imposed) for a conviction of a class B felony offense while armed (Penal Law § 70.02 [4]).

      , The cited provisions of Penal Law § 70.30 were revised in 1995 and expressly incorporated both indeterminate and determinate sentences therein (see, L 1995, ch 3). That distinguishing feature does not affect our discussion herein.

      . This Court has noted that the constitutional prohibition against double jeopardy "is embodied in, if not * * * extended by” Penal Law § 70.25 (2) (People v Snyder, 241 NY 81, 83 [construing former Penal Law § 1938, the statutory precursor to Penal Law § 70.25]). Section 70.25 (2) does not prohibit convictions of multiple offenses containing overlapping elements. Rather, the statute prohibits double punishment for an act or omission which violates more than one section of the law and is accordingly punishable in different ways.

      . Supreme Court properly determined that counts 2, 5 and 8 under Penal Law § 160.15 (1), (2) and (4), respectively, relating to the forcible taking of Bailey’s gun must run concurrently. Defendant was armed, displayed his weapon and caused Bailey’s injuries, all of which constitute a single act against Bailey.

      . We note that both the aggregate maximum term and the aggregate minimum period of imprisonment for consecutive sentences are subject to certain statutory limits (Penal Law § 70.30 [1] [b]) under which the Department of Correctional Services is bound to calculate the maximum sentence for defendant at 50 years (see, Penal Law § 70.30 [1] [e] [vi]). In accordance with the opinion herein, defendant’s maximum sentence remains unchanged at the statutory limit of 50 years.


author: Levine, J.

text:
    [677 NE2d 728, 654 NYS2d 1004]
    The People of the State of New York, Respondent, v Kenneth Maher, Appellant.
    Argued January 6, 1997;
    decided February 13, 1997

      POINTS OF COUNSEL

      Monroe A. Semble, Riverhead, and Robert C. Mitchell for appellant.

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Steven A. Hovani and Thomas Capezza of counsel), for respondent.
   OPINION OF THE COURT

Levine, J.

Defendant Kenneth Maher was convicted of counts of intentional murder and felony murder and criminal contempt in connection with the shooting death of Ann Kotel, his estranged paramour. The principal issue on appeal is whether hearsay statements of the victim concerning defendant’s prior violent acts and express or implied threats against her, were admissible as evidence-in-chief in the People’s case.

The People presented other evidence that the victim and defendant were involved in an intimate relationship, living together in an apartment until an argument occurred between them on April 20,1990. After two additional incidents on April 24 and 26, Ms. Kotel contacted the police and vacated the apartment. Another altercation occurred on April 30, leading to the filing of a criminal complaint against defendant for menacing and unlawful imprisonment.

After midnight on June 3, 1990, defendant parked his car in a secluded wooded area near Ms. Kotel’s new apartment. Wearing black pants, a black shirt, a black jacket and a black bandanna, and armed with a 12 gauge single-shot sawed-off shotgun, defendant waited outside Ms. Kotel’s apartment until a friend who was visiting left, at which time defendant cut the telephone wires to the building and forcibly entered her apartment by smashing in a door with a baseball bat. When Ms. Hotel sought to flee to a neighbor’s apartment, defendant pursued her and forced her back into her own apartment, whereupon defendant shot her three times, killing her. Defendant was arrested 11 hours later.

The People proposed to introduce certain statements of the victim made to the police and a hospital security officer concerning violent and threatening behavior of defendant on April 24, 26 and 30, 1990, as bad acts probative of defendant’s intent and motive (see, People v Molineux, 168 NY 264). At the Ventimiglia hearing (People v Ventimiglia, 52 NY2d 350) on the admissibility of this evidence, as well as at trial, defendant’s sole objection was that these statements violated the evidentiary rule against the admissibility of hearsay. The People’s only ground for avoiding the hearsay objection was reliance upon the theory advanced in various forms in several lower court decisions and in the Federal courts (see, e.g., Matter of Holtzman v Hellenbrand, 92 AD2d 405; United States v Mastrangelo, 693 F2d 269) and subsequently adopted by this Court in People v Geraci (85 NY2d 359), authorizing the introduction of an out-of-court statement of a witness whose unavailability for trial was wrongfully procured by the defendant.

The trial court ruled that the victim’s statements were admissible. These essentially consisted of: (1) an April 26 statement to police concerning incidents on April 24 and 26 in which defendant grabbed her, forced her to the ground and held her down, on one occasion placing his hand over her mouth; (2) an April 30 statement to a hospital security officer when she accompanied defendant to the emergency room of a local hospital, prefatory to his voluntary admission to the hospital’s psychiatric ward, following an incident on that date at the couple’s former apartment. In that statement she described his suddenly coming out of a hiding place in a closet, handcuffing her to him and, while brandishing a pistol, stating "talk to me and I won’t kill you”; and (3) a May 1 recorded telephone conversation with the police, similarly describing the events of the April 30 incident and expressing her fear that defendant would kill her.

Defendant did not testify at the trial and did not contest causing Ms. Hotel’s death. Rather, he claimed that, by reason of medication for depression, he was unable to form the requisite criminal intent for the commission of intentional murder. Defendant also invoked the affirmative defense of extreme emotional disturbance (Penal Law § 125.25 [1] [a]). Defendant offered expert and other testimony supporting these defenses. The jury rejected both defenses, finding him guilty of intentional and felony murder, and of criminal contempt of an order of protection granted the victim after the April 30 incident. The Appellate Division affirmed defendant’s conviction (224 AD2d 549), upholding the admissibility of the victim’s statements under the authority of People v Geraci (supra). A Judge of this Court granted defendant leave to appeal.

In our view, admitting the hearsay statements of the victim into evidence was an unwarranted expansion of People v Geraci, in effect converting a narrow departure from the hearsay rule into a categorical authority for the admissibility of victims’ statements in all homicide cases.

In Geraci, we recognized an exception to the defendant’s constitutional right of confrontation as well as to the evidentiary rule against the admission of hearsay evidence upon a showing that a witness had been rendered unavailable to testify in court through the misconduct of the defendant personally, or of others on his or her behalf with the defendant’s knowing acquiescence (85 NY2d, at 366, 370, supra). We emphasized in Geraci that the exception is not based upon the inherent reliability of this class of hearsay evidence, but is essentially a rule "necessitated by the defendant’s misconduct” (id., at 367-368). That is, it is a rule of necessity to preserve the integrity of the adversary process by "reducing the incentive [of a criminal defendant] to tamper with witnesses” (id., at 368).

Because of the weighty countervailing interests, that is, the constitutional right of confrontation and the strong New York policy for narrow treatment of exceptions to the hearsay rule (see, People v Nieves, 67 NY2d 125, supra), we imposed a clear and convincing evidentiary standard of proof for the establishment of the factual basis for admitting out-of-court statements of a declarant whose unavailability was caused by the defendant (People v Geraci, 85 NY2d, at 368, supra).

For the very same reasons, the Geraci exception must not be expanded and applied to circumstances in which the facts giving rise to the necessity for the exception are absent. Thus, the Geraci exception cannot be invoked where, as in the instant case, there is not a scintilla of evidence that the defendant’s acts against the absent witness were motivated, even in part, by a desire to prevent the victim from testifying against him in court. Application of the Geraci exception is even more anomalous where, as here, it is invoked against a defendant in the very trial in which the charge is murder of the unavailable witness. Thus, application of the Geraci rule not only would swallow up the narrowly drawn traditional dying declaration hearsay exception, but also would require the trial court in a Sirois hearing to decide the ultimate question for the jury in the same case, i.e., whether the defendant caused the victim’s death.

Although the victim’s statements should not have been admitted into evidence at defendant’s trial, we conclude that the error was harmless. Since the only objection made against their introduction was the violation of a rule of evidence, the harmless error standard to be applied is whether there is a significant probability that the jury would have acquitted the defendant of intentional murder had the victim’s statements not been admitted (see, People v Crimmins, 36 NY2d 230, 242-243; see also, People v Rice, 75 NY2d 929, 932).

We find no such probability here. Defendant did not contest causing the victim’s death. The evidence of defendant’s conduct leading to the murder strongly negated his claim of drug-induced lack of intent and his affirmative defense of extreme emotional disturbance. He purchased the shotgun shortly before June 3, sawed off part of the barrel, assembled approximately 20 rounds of ammunition, a knife, bungee cord and black gloves. He dressed entirely in black, parked his car near the victim’s home in a secluded area and waited until she was alone. He then cut the telephone wires to the building to prevent any effort to summon rescuers. When she sought to escape, he pulled her back into the apartment and shot her three times with a shotgun requiring reloading and individual cocking each time before it could be fired. All of this conduct reflected a careful plan to take the victim’s life because of her rejection of him and her complaints to the authorities, rather than a spontaneous act committed mindlessly or in a largely uncontrollable, emotional fever.

Moreover, the victim’s statements concerning defendant’s prior violent acts and threats were essentially cumulative of admissions defendant made to her or others. Thus, defendant wrote a letter to the victim immediately following the April 26 incident apologizing for having "grabbed” her, as she described to the police. Additionally, defendant admitted to a hospital security officer on April 30 that earlier in the evening, he handcuffed himself to her and told her to "talk to me and I won’t kill you” — the exact words described by the victim to the police. The security officer also found the pistol, previously described by the victim, in defendant’s car and turned it over to the police.

Lastly, as to the impact of introduction of the victim’s statements, the proffered psychiatric basis for defendant’s claimed extreme emotional disturbance was undermined by his expert’s testimony that she was unaware of aspects of defendant’s careful preparation for the murder. Moreover, the victim’s rejection hardly fulfilled the objective element of the extreme emotional disturbance affirmative defense, its "reasonableness” as an explanation or excuse for the emotional state under the circumstances as perceived by the defendant (see, Penal Law § 125.25 [1] [a]; People v Casassa, 49 NY2d 668, 678, cert denied 449 US 842). Thus, in our view, any emotional disturbance of a thwarted lover in this case was unlikely to have induced "the finder of fact [to exercise] the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows”, as intended by the Legislature in enacting the defense (People v Casassa, supra, at 680).

We also conclude that the error, if any, was harmless in admitting into evidence the recording of defendant’s May 1, 1990 telephone conversation with the police regarding the April 30 altercation. As defendant pointed out in his memorandum of law, submitted in support of his pretrial omnibus motion, the statements in that conversation were largely exculpatory of any existing intent to cause the victim’s death.

The remaining contention of the defendant relates to the trial court’s charge to the jury on his affirmative defense of extreme emotional disturbance. As is undisputed by defendant, the trial court extensively and accurately instructed on the subjective and objective elements of the defense and upon the shifted burden of proof (see, Penal Law § 125.25 [1] [a]; People v Casassa, supra). However, in attempting to paraphrase the definition of the objective element of the affirmative defense it properly gave the jury, the court adopted a characterization of the concept of the defense in People v Casassa (49 NY2d, at 680-681, supra), and charged the jury: ”[t]hat is, the killing of Ann Hotel was not the result of the defendant’s malevolence, but rather an understandable human response deserving of mercy.”

Standing alone, a reference to the absence of "malevolence” in a charge on extreme emotional disturbance could be misleading to a jury because it might wrongly suggest that an absence of intent to kill was necessary to make out that defense, or that the defense was inconsistent with extremely violent homicidal conduct (cf., People v Moye, 66 NY2d 887). In addition, an indication that this defense may be found where defendant’s actions were an "understandable human response deserving of mercy” could, under certain circumstances, prompt the jury to consider factors not contemplated by the statute when weighing the evidence presented as to both the subjective and objective elements. Thus, the statement in question is disapproved and should not be used in jury instructions on the affirmative defense of extreme emotional disturbance. Here, however, the objectionable language was immediately followed by correct instructions that the defense could be adopted by the jury in its verdict notwithstanding defendant’s intent to kill, and, as previously noted, the entire instructions copiously informed the jury on the accurate meaning of the defense and of all of the factors to be taken into account. Thus, when considered as a whole, the charge was correct and insured that the jury was not misled.

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

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Ciparick and Wesley concur.

Order affirmed.

      . It is conceded by the People that the hearsay statements of the victim admitted as evidence in this case do not fit into any traditionally recognized New York exception to the hearsay rule. For the first time on appeal, the People also urge this Court to uphold the admissibility of these statements under a more "amorphous 'reliability’ test” (see, discussion in People v Nieves, 67 NY2d 125, 131). Inasmuch as the People failed to raise this issue before the trial court, it is not preserved for our review.

      . A Sirois hearing is the preliminary evidentiary hearing before the trial court to determine whether the factual elements for applying the exception have been established (see, People v Geraci, 85 NY2d, at 363, n 1, supra).


author: Bellacosa, J.

text:
    [678 NE2d 198, 655 NYS2d 742]
    In the Matter of Bella Vista Apartment Co. et al., Respondents, v Roger H. Bennett et al., Constituting the Board of Standards and Appeals of the City of New York, et al., Appellants.
    Argued January 7, 1997;
    decided February 6, 1997

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Fay Ng and Pamela Seider Dolgow of counsel), for appellants.
    No appearance for respondents.
   OPINION OF THE COURT

Bellacosa, J.

Petitioner, Bella Vista Apartment Co., a real estate developer, planned to build a 14-floor apartment house on its residentially zoned Lot 186 in Queens. The lot fell short, however, of the requisite floor area ratio (FAR) and bulk zoning specifications (see, NY City Zoning Resolution § 23-141). The owner of the adjoining Lot 185 had secured for itself a commercial use variance from New York City’s Board of Standards and Appeals (BSA) to build a movie theater. Thereafter, in 1986, Bella Vista purchased 120,000 feet of development rights, including 30,000 feet of air rights, from the owner of Lot 185, in an effort to satisfy the shortfall. Bella Vista allegedly paid $1 million for these assertedly surplus development rights.

Without preliminary and discrete BSA review and approval, Bella Vista sought a building permit to erect the 14-story building, by piggy-backing Lot 185’s FAR onto its own to eliminate the Lot 186 deficiency. The New York City Building Department rejected the application, premised on this creative combination, as did the BSA on review of that determination. Supreme Court and the Appellate Division disagreed and granted Bella Vista’s CPLR article 78 petition, annulling the determination and directing issuance of the building permit. We granted leave to appeal and now reverse, dismiss the petition and hold that the excess residential use development rights enjoyed by property that specially benefits from a commercial use variance may not be transferred to and tacked onto an adjoining property even for an as-of-right use by that lot owner, without discrete BSA approval. Appellants are the Board of Standards and Appeals of the City of New York, the Commissioner of Buildings of the City of New York and the Department of Buildings of the City of New York (collectively the City).

Central to this case is the fact that the owner of Lot 185, which was also zoned for residential use, had, in 1983, obtained a commercial use variance from the BSA to build a movie theater. The novel land use twist of this case, therefore, is that Bella Vista sought to consolidate a portion of the surplus development FAR of Lot 185, "varianced” into a commercial use, with its own Lot 186 FAR, for the purpose of complying with the requisite bulk floor space specifications. It would, thus, construct a residential building albeit otherwise consistent with that lot’s residential use.

Using this theory, Bella Vista filed an application in 1986 with the Department of Buildings, pursuant to New York City Zoning Resolution § 12-10, requesting approval of the zoning lot FAR merger and a permit for the construction of the proposed 14-story apartment house. \The application was ultimately disapproved. In a letter dated November 7, 1990 and updated April 8, 1991, the Buildings Department rejected the proposed plan. On May 29, 1991, the BSA confirmed the Building Department’s decision, stating:

"[I]n order to build the proposed fourteen (14) story building, a transfer of development rights from the variance site, lot 185 to lot 186 is needed which requires a zoning lot merger that results in an entirely new zoning lot; and * * * the creation of this new zoning lot affects the basis of the Board’s variance grant since its actions were based on a zoning lot which will now be significantly changed because of the zoning lot merger.”

Next, Bella Vista turned to the courts for relief. It sued the City seeking to (1) annul the BSA’s determination affirming the Building Department’s declaration requiring the petitioners to obtain pre-BSA approval to use Lot 186 for residential purposes by conjoining the additionally acquired FAR development rights from Lot 185; and (2) compel the Department to issue a building permit for the proposed construction project.

In 1992, Supreme Court granted both prongs of Bella Vista’s requested relief, provided that the permit application otherwise conformed to the Building Code’s standards (154 Misc 2d 579). Supreme Court relied on Matter of Clearview Gardens Pool Club v Foley (19 AD2d 905 [2d Dept 1963], affd without opn 14 NY2d 809) and stated that "[t]he existence of a variance on tax lot No. 185 does not require the transferor of unused development rights to obtain a new variance, as long as the acquirer is going to use those rights in conformance with the zoning resolution” (154 Misc 2d, at 583). The court added that the BSA irrationally juxtaposed "use and bulk” (id., at 582), reasoning that Bella Vista did not need a use variance, because the proposed apartment building was in conformance with the residential use requirements; all it needed was either a bulk variance or additional FAR and it had lawfully obtained the surplus FAR (id.). The court characterized the situation as "a hybrid of the usual zoning lot merger in which a developer merges two entire lots,” because "only the air rights of lot No. 185 [were] being merged with all of lot No. 186” (id., at 583). The Appellate Division, in 1995, affirmed for the reasons stated by Supreme Court (222 AD2d 502) and later denied leave to appeal. We granted the City leave to appeal.

The City argues that'the commercial use variance granted to Lot 185, by regulatory discretion based on landowner representations and BSA findings, precludes using a transferred portion of its development rights, without further review by the BSA. The City adds that shifting rights appurtenant to Lot 185 for residential purposes, when that lot had already been beneficially converted to an authorized commercial use by variance, would undermine the factors considered and the prerequisite findings made by the BSA in connection with the grant of the use variance.

Pursuant to section 72-21 of the New York City Zoning Resolution, the BSA must make the following five findings before it may grant a variance:

(a) That the lot has "unique physical conditions,” which create "practical difficulties or unnecessary hardship” when forced to comply strictly with the Zoning Resolution;
(b) That the unique conditions of the subject property preclude any "reasonable possibility” of a "reasonable return,” and the variance is "therefore necessary to enable the owner to realize a reasonable return from such zoning lot;”
(c) That the variance "will not alter the essential character of the neighborhood” or "substantially impair the appropriate use of development of adjacent property,” and that it "will not be detrimental to the public welfare;”
(d) That the owner did not create the difficulties or hardship leading to the necessity for the variance; and
(e) That the variance be "the minimum variance necessary to afford relief ’ (NY City Zoning Resolution § 72-21 [emphasis added]).

Further expanding upon section 72-21 (b), the City points to this Court’s "well-established rule that a landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses” (Matter of Village Bd. v Jarrold, 53 NY2d 254, 256 [emphasis added]).

It is undisputed that these findings were necessarily made at the time of, and as part of, the use variance grant for Lot 185, in 1983. The City correctly argues that if the owner of Lot 185 is permitted to retain the commercial use variance, and then also to sell off its as-of-right development rights under the original residential use authorization, the predicate findings by the BSA would be undermined as would the general over-all Zoning Resolution Plan. This is particularly so absent an updated review and ruling by the BSA to insure compliance with section 72-21, as Bella Vista and the adjoining owner would have it unprecedentedly applied to their arrangement. In other words, if a landowner retains the bonus option to sell surplus development rights as they existed before the use variance is acquired, the variance might not have been the "minimum variance necessary to afford relief,” and the lack of any "reasonable possibility” of a "reasonable return” is retrospectively placed in considerable doubt. This seems especially so in this case since the "residual development air rights” garnered a $1 million sale price in the marketplace.

The City urges that the beneficiary of a variance, as well as the courts on judicial review of such matters, are bound by the explicit variance record and findings of the BSA. The City’s argument would, therefore, require a landowner benefitted by a variance to seek additional authorizing relief from the BSA before effectively transferring prevariance rights and benefits to adjoining owners. Otherwise, the premium, on top of its acquired variance, from its sale of development rights, contradicts the no-reasonable-return predicate finding, necessary to have garnered the use variance in the first place.

Matter of Clearview Gardens Pool Club v Foley (19 AD2d 905, affd without opn 14 NY2d 809, supra) is plainly and significantly distinguishable. There, the Appellate Division concluded that "the prior variance grants could not and did not take from the owner of the property his statutory right to use the property for any purpose permitted by the applicable zoning resolution” (19 AD2d, at 906). Rather, the Court stated, "[t]he owner retained the right to revert at any time to a conforming use” (id., at 906).

Although in Clearview the court determined that a use variance did not prohibit an owner from reverting entirely to a conforming use, the reversion there was simply that, not some compound hybrid. That situation is far from the artful combination attempted in the instant case. Bella Vista’s acquisition and piggy-backing of Lot 185’s FAR to satisfy its Lot 186 bulk building deficiency might undermine the basis for the use variance grant and offend proper land use regulation and application. The fatal defect of this merger theory is that once the use variance was granted, the owner of Lot 185 could only use the property in the manner authorized by the variance or revert completely back to its as-of-right use under Clearview. The precedent should not be expanded to allow landowners to garner commercial use by variance and then, by resourceful fusions, leverage assertedly residual residential development rights, without discrete BSA approval. The inherent contradictions and dangers to effective land use planning regulation and application dictate otherwise.

The lower courts thus erred in concluding that additional BSA consideration and approval were not necessary in this kind of circumstance. The determinations of the BSA and the Buildings Department were rational and within their justifiable range of discretion (see, Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 314; see also, Matter of Cowan v Kern, 41 NY2d 591, 598). Allowing the combination of a use variance with a spinoff of as-of-right surplus development rights between adjoining properties, so that a FAR deficient lot could then qualify even for a permitted use, might enable variance holders to manipulate and augment the generous benefit of their variances. The BSA must retain the power of review over these kinds of proposals to preserve coherent land use determinations and adherence to the zoning plan itself.

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

Chief Judge Kaye and Judges Smith, Levine, Ciparick and Wesley concur; Judge Titone taking no part.

Order reversed, etc.


text:
    [678 NE2d 201, 655 NYS2d 745]
    Douglaston Manor, Inc., Appellant, v George Bahrakis et al., Respondents.
    Argued January 6, 1997;
    decided February 11, 1997

      POINTS OF COUNSEL

      Hiscock & Barclay, LLP, Syracuse (Diane L. Van Epps of counsel), for appellant.

      Frank R. Webster, Rochester, for respondents.

      Shamberg Marwell Hocherman Davis & Hollis, P. C, Mt. Kisco (John S. Marwell, Stuart R. Shamberg and Adam L. Wekstein of counsel), and Bertine Hufnagel Headley Zeltner Drummond & Dohn, Scarsdale (Frank M. Headley, Jr., of counsel), for The Adirondack League Club, Inc., amicus curiae.

      Bond, Schoeneck & King, LLP, Syracuse (John S. Ferguson, H. Dean Heberlig, Jr., and Thomas M. Shephard of counsel), for New York Blue Line Council, Inc., and others, amici curiae.

      Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo CRobert E. Glanville of counsel), for New York Rivers United and another, amici curiae.

      Neil F. Woodworth and John W. Caffry, Glens Falls, for Adirondack Mountain Club, Inc., amicus curiae.

      Jeffery H. Kirby, Glenmont, for New York Farm Bureau, Inc., amicus curiae.

   OPINION OF THE COURT

Bellacosa, J.

Plaintiff-appellant, Douglaston Manor, Inc., owns approximately one-mile-long sections of both shorelines of the Salmon River in Oswego County and the riverbed in between. It traces its title back to a conveyance from the pristine State of New York in 1792. The issue is whether Douglaston’s ownership entitles it to exclude the public from fishing in, though not from navigating through, its portion of the river.

Douglaston’s property encompasses the shoreline properties, the riverbed, and 10 islands within and along the Salmon River. It operates the Douglaston Salmon Run within its section of the river. Salmon Run is an exclusively managed private sport fishery from which the general public is excluded and for which users pay Douglaston a fee. Douglaston provides security for the property and has constructed support facilities for the benefit of its patrons, including a parking lot and stairways down to the river’s edge. It pays taxes upon the entire property, including riverbed land.

This lawsuit stems from Douglaston’s desire to redress past trespasses (with compensatory and punitive damages) and to prevent (by injunction) defendants, commercial fishing guides, from future anchoring upon and fishing in Douglaston’s privately owned section of the Salmon River. The complaint alleges that defendants entered upon the river at a point upstream of Douglaston’s property, navigated into and within the Salmon Run, and anchored, waded and fished within Douglaston’s protected enclave. Douglaston asserts that it possesses exclusive fishing rights by virtue of its ownership of the bed and both banks of the river. Defendants counterclaim for nuisance and intentional interference with business relations, also seeking compensatory and punitive damages, and for a permanent injunction barring Douglaston from interfering with their claimed public right to fish anywhere on the river.

Douglaston moved for partial summary judgment solely on its trespass claim. Defendants cross-moved for partial summary judgment to dismiss the complaint and for their injunction against Douglaston. Supreme Court held that defendants knowingly trespassed upon Douglaston’s property, granted its motion and scheduled an inquest on damages; the trial court denied defendants’ cross motion. Though the court found a public right of navigation because the Salmon River is a navigable-in-fact river, it held that navigation did not include a public right to fish and anchor.

The Appellate Division modified by striking the critical trial court holding and denying Douglaston’s motion for summary judgment; instead, the Appellate Division granted defendants’ cross motion in part and dismissed the complaint in its entirety (218 AD2d 300). The Appellate Division held that the public has the right to fish, ferry and transport on the navigable waters of the Salmon River, including Douglaston’s Salmon Run section.

We granted Douglaston leave to appeal. The order of the Appellate Division is brought to our review by a stipulation between the parties, treated as a final judgment, discontinuing all pending counterclaims. We now reverse and reinstate the ruling rendered by Supreme Court, because the settled law of New York continues to recognize the common-law distinction concerning the rights which a private owner may acquire and retain in nontidal, navigable-in-fact rivers and streams. These rights are distinguishable from public trust protections generally associated with waters deemed navigable-in-law or tidal navigable-in-fact waters, neither of which classification is before us in this case.

Douglaston rests its claim of exclusive fishing rights solely on its record ownership of the bed and the banks of the Salmon River, derived from the State’s 1792 conveyance, classified as within the Macomb Patent. The defendants counter that because the Salmon River is navigable, the State irrevocably holds a public trust easement that protects anyone’s navigation of the river, which includes a right of public fishery. We must decide, therefore, whether New York State, under these circumstances, has the power to transfer exclusive fishing rights to private parties in a nontidal, navigable-in-fact river, as part of a conveyance of property ownership, and whether the State in fact did so in the 205-year-old Macomb Patent, derivatively at issue here.

On this appeal, the parties do not dispute that the Salmon River is navigable. Their litigation positions differ, however, over what the key word connotes and what legal consequences flow from the applicable legal definition. The guides claim that the general classification of navigability alone defeats Douglas-ton’s claim to exclusive fishing rights. Their argument fails to credit the more nuanced concerns and complicated analysis pertaining to differences in private ownership rights between rivers navigable as a matter of common law and those navigable as a matter of fact, recognized for centuries as having distinct historical characteristics and legal consequences.

A river is defined as "navigable in its natural or unimproved condition, affording a channel for useful commerce of a substantial and permanent character conducted in the customary mode of trade and travel on water * * * hav[ing] practical usefulness to the public as a highway for transportation” (Navigation Law § 2 [5] [emphasis added]). The common law more particularly distinguishes and "considers a river, in which the tide ebbs and flows, an arm of the sea, and as navigable, and devoted to the public use, for all purposes, as well for navigation as for fishing. It, also, considers other rivers, in which the tide does not ebb and flow, as navigable, but not so far belonging to the public as to divest the owners of the adjacent banks of their exclusive rights to the fisheries therein” (Hooker v Cummings, 20 Johns 90, 100 [Sup Ct 1822 (emphasis added)]; see, Hardin v Jordan, 140 US 371, 383-384; see also, State of New York ex rel. New York State Dept. of Envtl. Conservation v Federal Energy Regulatory Commn., 954 F2d 56). A distinction has also been recognized between public trust interests, presumptively retained by the State in navigable-in-law and tidal waters, and navigational servitudes (compare, Trustees of Brookhaven v Strong, 60 NY 56; see also, Langdon v Mayor of City of N. Y., 93 NY 129).

The Hooker case acknowledged the key distinction by presuming the Salmon River was nonnavigable at common law because the tide did not ebb and flow in it. The court then held that the plaintiff could maintain an action in trespass against a defendant where plaintiff alleged that defendant fished in that portion of the river in which the plaintiff possessed riparian ownership rights including the exclusive right of fishery (Hooker v Cummings, supra, 20 Johns, at 100). As to the discrete public right of navigation, the court noted that "in the case of a private river, * * * he who owns the soil has, prima facie, the right of fishing; * * * that the river was liable and subject to the public servitude, for the passage of boats; the private rights of the owners of the adjacent soil were no[t] otherwise affected, than by the river’s being subject to public use” (id., at 99 [emphasis added]). While Hooker is not dispositive of the only issue we resolve as to this controversy, it nevertheless provides important guidance.

A first premise for the analysis of this case is that this Court has long held that grants by the State to private owners of land under navigable-in-fact rivers remain subject to an implied, reserved public easement of navigation (see, Lewis Blue Point Oyster Cultivation Co. v Briggs, 198 NY 287, 292-294, affd 229 US 82; Sage v Mayor of City of N. Y., 154 NY 61, 79-81). Douglaston acknowledges as much, but adds, correctly in our view, that this limited easement extends only to the fulfillment of the proposition’s underlying purposes (see, Dalton v Levy, 258 NY 161, 167). This Court more fully, elucidated the principle in Smith v Odell (234 NY 267):

"[T]here is no necessary conflict between the reservation to the public of the right of navigation and the recognition of the exclusive privilege expressly granted to the owner. The public right, whatever it might otherwise be, must be held limited in such a situation to the right to use the waters for the purposes of a public highway. * * * [T]he easement of passage over navigable waters does not involve a surrender of other privileges which are capable of enjoyment without interference with the navigator” (id., at 272 [citations omitted] [emphasis added]; see also, Chenango Bridge Co. v Paige, 83 NY 178, 184-185; Fulton Light, Heat & Power Co. v State of New York, 200 NY 400, 418).

Thus, this Court has maintained that the long-standing public easement of navigation in navigable-in-fact rivers does not sweep away or displace other rights accompanying the private ownership of the bed of a navigable-in-fact river, including that of exclusive fishery (Morgan v King, 35 NY 454, 457-458; see generally, Humbach, Public Rights in the Navigable Streams of New York, 6 Pace Envtl L Rev 461, 467-471).

Defendants, instead, urge a definitive landmark ruling from this Court, through the instrumentality of this case, that New York State has abandoned the common-law property distinction between rivers navigable-in-fact and those navigable-in-law. As a result, they claim a public right of fishery in all "navigable” waters. This is not so and is too simplistic an approach, which would precipitate serious destabilizing effects on property ownership principles and precedents.

In support of their proposition which defendants acknowledge is of first impression character, they draw on language in Smith v City of Rochester (92 NY 463) to the effect that the public interest in "fishing, ferrying and transportation, are preserved in all navigable waters” by the State (id., at 480 [emphasis added]). The ratio decidendi of that case, however, does not support the destabilizing conclusion defendants promote from the dictum. The Court, in the portion of the discussion isolated by defendants, merely references adaptations of the common-law rule as to bodies of water such as the Hudson and Mohawk Rivers and sizeable freshwater lakes (id., at 482; see, People ex rel. Loomis v Canal Appraisers, 33 NY 461, 499-500; Canal Commrs. v People ex rel. Tibbits, 5 Wend 423, 446-447; see also, Stewart v Turney, 237 NY 117, 123-124; Granger v City of Canandaigua, 257 NY 126, 129-130). The holding of the Smith case, however, is that the public right of navigation reserved to the State did not encompass the right to draw water from a lake to the detriment of riparian owners along an outlet creek (Smith v City of Rochester, supra, 92 NY, at 483).

A fortiori, and also overlooked by defendants, is another key ingredient and observation of the Court in Smith that the "preponderance of judicial authority in the State favors the application of the common-law rule to the navigable waters of this State. * * * These decisions show a course of authority extending from an early period of our history to the most recent times, and although they do not constitute an unbroken chain, yet they are fortified by a wealth of learning, reason and illustration that render them irresistible as authority” (id., at 481; see also, Trustees of Brookhaven v Strong, 60 NY 56, 66-67, supra).

Importantly, New York State, as the original grantor of the Macomb Patent directly descending to the title involved in this case, has long respected private fishing rights in navigable-in-fact rivers and has even been engaged in purchasing precisely such rights for public benefit (see, 1935 Opns Atty Gen 310; ECL 51-0701 [4]; 51-0703 [5] [1972 Environmental Quality Bond Act — Stream Rights Acquisition Project]). We see no reason in this circumstance to curtail the State’s general authority to convey property and property rights, nor to countenance the view that the State has been expending public moneys unnecessarily on rights, according to defendants’ theory, the State already irrevocably holds in public trust. Indeed, when pursuant to this Court’s precedents, the State, "the plaintiffs, and perhaps others, have since possessed and enjoyed rights of property under the protection of its authority, [] it would require a much plainer demonstration than can be made of the point involved, to justify this court in overruling [them]” (Trustees of Brookhaven v Strong, supra, 60 NY, at 66). We similarly reject defendants’ unsettling theory.

Next, though the guides concede Douglaston’s ownership of the riverbed and associated property as successors in title from the Macomb Patent, they assert that the conveyance neither expressly granted exclusive fishing rights nor relinquished the public right of fishery. This argument also fails to overcome settled law and principles. The Macomb Patent describes the transfer of certain real property from the State to Douglas-ton’s predecessor in interest. It encompasses the disputed portion of the Salmon River bank and bed "[t]ogether with all and singular Rights, Hereditaments and Appurtenances to the same belonging or in anywise appertaining: Excepting and Reserving to ourselves, all Gold and Silver Mines, and five acres of every Hundred Acres of the said Tract of Land for Highways.” This Court has previously held that when land under rivers is included within the boundaries of a grant, the general language of conveyance is sufficient to transfer to the grantee the bed of the river and associated exclusive right of fishery (Trustees of Brookhaven v Strong, supra, 60 NY, at 71-72; see also, Humbach, op. cit., at 533-542). Moreover, the State’s reservation of designated mineral rights and specific public rights of way, without reserving to the public a right of fishery, additionally supports our analysis and conclusion that Douglaston enjoys a duly conveyed exclusive right of fishery (see, Blackman v Striker, 142 NY 555, 561).

In sum, the desirable definiteness attendant upon discrete property rights and principles, along with reliable, predictable expectations built upon centuries of precedent, ought not be sacrificed to the vicissitudes of unsupportable legal theories.

Accordingly, the order of the Appellate Division brought up for this Court’s review, through the stipulation by the parties deemed a final judgment, should be reversed, with costs, and the order of Supreme Court reinstated.

Chief Judge Kaye and Judges Titonb, Smith, Levine, Ciparick and Wesley concur.

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.


author: Chief Judge Kaye.

text:
    [678 NE2d 454, 655 NYS2d 842]
    In the Matter of the Claim of Edward M. Sinker, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.
    Argued January 8, 1997;
    decided February 6, 1997

      POINTS OF COUNSEL

      Edward M. Sinker, Utica, appellant pro se.

      Dennis C. Vacco, Attorney-General, New York City (Daniel F. De Vita, Barbara G. Billet, Peter H. Schiff and M. Patricia Smith of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Kaye.

Central to this appeal is our interpretation of Labor Law § 593 (4), which disallows unemployment insurance benefits for a period of one year after a claimant loses his or her job as a result of an act constituting a felony "in connection with” that employment. Does the statute preclude benefits where the claimant is convicted of a felony committed neither against the employer nor in the course of employment? In the circumstances presented we conclude, as did the Appellate Division, that benefits were properly denied.

For approximately 10 years, appellant — an attorney — served as Chief Title Counsel to Allied American Abstract Corp., a title abstract company. In that capacity, appellant performed title examinations, reviewed and negotiated contracts, and represented Allied in various other legal matters. In July 1994, appellant was indicted on one count of mail fraud under 18 USC § 1341, a felony. The charges stemmed from his submission of a false insurance claim to Allstate Insurance Company for theft of a political button collection.

Soon after his conviction and termination of his employment, appellant applied for unemployment insurance benefits, which respondent Commissioner of Labor denied on the ground that appellant had engaged in conduct constituting a felony in connection with his employment. On appellant’s request for further review, a hearing was held before an Administrative Law Judge, who sustained the Commissioner’s determination, as did the Unemployment Insurance Appeal Board and the Appellate Division. We now affirm.

Section 593 (4) of the Labor Law provides:

"No days of total unemployment shall be deemed to occur during a period of twelve months after a claimant loses employment as a result of an act constituting a felony in connection with such employment, provided the claimant is duly convicted thereof or has signed a statement admitting that he or she has committed such an act” (emphasis added).

Appellant admits that he was convicted of a felony, but urges that his conduct outside the workplace during nonworking hours was not "in connection with” his employment. In appellant’s view, a felony "in connection with” employment, as used in Labor Law § 593 (4), is an act committed against the employer in the course of employment which results in the employee’s dismissal.

We disagree. Had it intended to adopt appellant’s narrow view, the Legislature could easily have included phrases such as "committed against the employer” or "committed in the course of employment.” Instead, it chose the broader language "in connection with.” Thus, while felonies committed against an employer in the course of employment, such as embezzling employer’s funds, certainly trigger Labor Law § 593 (4), they are not the only felonies within the statute.

In our view, a felony is "in connection with” employment for purposes of Labor Law § 593 (4) if it results in breach of a duty, express or implied, the claimant owes the employer. The scope of such duty will vary depending on the nature of the employment involved. This interpretation comports both with the language of the subdivision and with the Legislature’s intent to award benefits only to those who find themselves unemployed "through no fault of their own” (Labor Law § 501). Moreover, in reaching this determination, we draw guidance from our prior decisions construing Labor Law § 593 (3) — where we found conduct to be disqualifying when it "evinces a willful disregard of standards of behavior which employers have the right to expect of their employees” (Matter of Punter [Ross], 43 NY2d 743, 744; Matter of De Grego [Levine], 39 NY2d 180, 184; Matter of Rosedietcher [Levine], 33 NY2d 377; see also, Matter of Bruggeman [Roberts], 101 AD2d 973 [disqualifying claimant who engaged in misconduct which was not directly job related]; Matter of Caryl [Morton Salt Div. of Morton Thickol — Roberts], 96 AD2d 989, 990 [same]; Matter of Markowitz [New York City Human Resources Admin. — Roberts], 94 AD2d 155, 156 [same]).

Here, appellant violated a basic duty owed his employer: to remain qualified for his position, a status he lost when he was automatically disbarred under Judiciary Law § 90 (4) (a). Appellant breached other duties as well. Allied was a fiduciary entrusted with handling funds for real estate closings and also acted as agent for insurance companies underwriting title insurance policies for Allied’s customers. As Chief Title Counsel, appellant personally dealt with numerous insurance companies. His conviction for defrauding an insurance company not only impaired his ability to perform his job effectively but also necessarily tarnished Allied’s reputation for trustworthiness in the relevant business community.

Appellant’s remaining contentions are either unpreserved or without merit.

Accordingly, the Appellate Division’s order should be affirmed, without costs.

Judges Bellacosa, Smith, Levine and Ciparick concur; Judges Titone and Wesley taking no part.

Order affirmed, without costs.


text:
    [678 NE2d 456, 655 NYS2d 844]
    Janet Kambat, Individually and as Executrix of Florence J. Fenzel and Another, Deceased, et al., Appellants, v St. Francis Hospital et al., Respondents, et al., Defendant.
    Argued January 8, 1997;
    decided February 13, 1997

      POINTS OF COUNSEL

      Raichle, Banning, Weiss & Stephens, Buffalo (R. William Stephens and R. Hugh Stephens of counsel), for appellants.

      Damon & Morey LLP, Buffalo (Julie M. Bargnesi and Michael J. Willett of counsel), for St. Francis Hospital, respondent.

      Saperston & Day, P. G, Buffalo (Albert J. D’Aquino of counsel), for Ralph C. Sperrazza, respondent.
   OPINION OF THE COURT

Chief Judge Kaye.

In this medical malpractice action, an 18-by-18-inch laparotomy pad was discovered in the abdomen of plaintiffs’ decedent following a hysterectomy performed by defendant physician at defendant hospital. The question before us is whether plaintiffs were entitled to submit the case to the jury on the theory of res ipsa loquitur. Contrary to the trial court and Appellate Division, we conclude that the jury could have inferred negligence under the doctrine of res ipsa loquitur, and that defendants’ evidence of due care and alternative causes of the injury did not remove the doctrine from the case. The trial court’s refusal to instruct the jury regarding res ipsa loquitur thus mandates reversal and a new trial.

I.

In August 1986, defendant physician Ralph Sperrazza performed an abdominal hysterectomy on decedent, Florence Fenzel, at defendant St. Francis Hospital. Ten laparotomy pads were marked and available for the operation, and Dr. Sperrazza placed several of these pads in decedent’s peritoneal cavity, next to the bowel, during the surgery. The patient was unconscious throughout the procedure.

In the months following the operation decedent’s condition was at first unremarkable. Eventually, however, she began to complain of stomach pain, and on November 30, 1986 X-rays taken at another hospital revealed a foreign object in her abdomen. On December 5, a laparotomy pad measuring 18-by-18 inches — similar to those used during the hysterectomy — was discovered fully or partially inside decedent’s bowel, and it was removed by Dr. Robert Barone. This finding was so unanticipated that a photographer was called to document it. Decedent’s condition continued to deteriorate, and she died on December 29, 1986, from infection-related illnesses.

Plaintiffs, decedent’s husband and children, commenced this medical malpractice action against Dr. Sperrazza and St. Francis Hospital, alleging that defendants were negligent in leaving the laparotomy pad inside decedent’s abdomen. At trial, plaintiffs presented evidence that the pad removed from decedent was the same type and size as those supplied to St. Francis Hospital in 1986 and commonly used during hysterectomies. Plaintiffs also adduced testimony that the pads were provided only to hospitals with operating rooms, where patients would not have access to them.

Plaintiffs called three expert witnesses, who disagreed as to the precise abdominal area where the pad was discovered. Two experts testified that the pad was both partially inside and partially outside decedent’s bowel. A third testified that the pad had originally been left outside the bowel, in the peritoneal cavity, where it caused an abscess to develop outside the bowel, which in turn created an artificial opening through which the pad had migrated into the bowel. According to this expert witness, the pad was completely within the decedent’s bowel when removed.

In response, defendants introduced evidence that standard procedures were followed during the operation, and that the number of sponges, medical instruments and laparotomy pads used and removed were counted several times, carefully and accurately. Defendants’ experts, moreover, opined that the pad had not been left inside decedent but, rather, that she had swallowed it. According to defendants’ witnesses, laparotomy pads were frequently left in places accessible to patients in hospitals; decedent suffered from chronic depression; overuse of sleeping pills could suppress the gag reflex and permit her to swallow the pad; and the human gastrointestinal tract would allow the pad to pass to the small bowel. Plaintiffs’ expert witnesses, by contrast, agreed that it would be anatomically impossible to swallow the laparotomy pad or for a swallowed pad to reach the bowel.

The trial court denied plaintiffs’ request to charge res ipsa loquitur, and the jury returned a defendants’ verdict. Plaintiffs moved to set aside the verdict and either enter judgment in their favor or grant a new trial, arguing that the trial court erred in refusing to deliver the requested charge. The court denied the motion, concluding that the lengthy and inconsistent expert testimony demonstrated that resolution of the case was not within a lay jury’s experience and, thus, res ipsa loquitur was not applicable. The Appellate Division affirmed Supreme Court’s dismissal of the complaint, two Justices dissenting, and we now reverse.

II.

Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it (see, Abbott v Page Airways, 23 NY2d 502, 510; Restatement [Second] of Torts § 328 D, comments a, b). Res ipsa loquitur "simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226).

Once a plaintiff’s proof establishes the following three conditions, a prima facie case of negligence exists and plaintiff is entitled to have res ipsa loquitur charged to the jury. First, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff (Ebanks v New York City Tr. Auth., 70 NY2d 621, 623).

To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that "it is more likely than not” that the injury was caused by defendant’s negligence (Restatement [Second] of Torts § 328 D, comment e). Stated otherwise, all that is required is that the likelihood of other possible causes of the injury "be so reduced that the greater probability lies at defendant’s door” (2 Harper and James, Torts § 19.7, at 1086). Res ipsa loquitur thus involves little more than application of the ordinary rules of circumstantial evidence to certain unusual events (see, Prosser and Keeton, Torts § 40, at 257 [5th ed]), and it is appropriately charged when, "upon 'a commonsense appraisal of the probative value’ of the circumstantial evidence, * * * [the] inference of negligence is justified” (George Foltis, Inc. v City of New York, 287 NY 108, 115).

Submission of res ipsa loquitur, moreover, merely permits the jury to infer negligence from the circumstances of the occurrence. The jury is thus allowed — but not compelled — to draw the permissible inference (Dermatossian v New York City Tr. Auth., 67 NY2d at 226, supra; Prosser and Keeton, Torts § 40, at 258 [5th ed]). In those cases where "conflicting inferences may be drawn, choice of inference must be made by the jury” (George Foltis, Inc. v City of New York, 287 NY at 118, supra).

Here, the Appellate Division majority concluded that plaintiffs’ proof at trial failed to satisfy any of the three conditions. With regard to the first requirement in particular, the appellate court agreed with the trial court that a lay jury could not determine whether the occurrence was of a kind that ordinarily does not occur in the absence of negligence without evaluating the parties’ expert testimony and, therefore, res ipsa loquitur did not apply.

In the typical res ipsa loquitur case, the jury can reasonably draw upon past experience common to the community for the conclusion that the adverse event generally would not occur absent negligent conduct (Prosser and Keeton, Torts § 39, at 247 [5th ed]; Restatement [Second] of Torts § 328 D, comment d). In medical malpractice cases, however, the common knowledge and everyday experience of lay jurors may be inadequate to support this inference. Courts and commentators across the country have come to varying conclusions as to whether expert testimony can be used to educate the jury as to the likelihood that the occurrence would take place without negligence where a basis of common knowledge is lacking. Courts in this State, as well, have differed as to whether expert testimony can supply the necessary foundation for consideration of res ipsa loquitur by a jury (compare, Ceresa v Karakousis, 210 AD2d 884, with Stanski v Ezersky, 228 AD2d 311, reh denied App Div, 1st Dept, Sept. 19, 1996; and Schoch v Dougherty, 122 AD2d 467).

Widespread consensus exists, however, that a narrow category of factually simple medical malpractice cases requires no expert to enable the jury reasonably to conclude that the accident would not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon leaves a sponge or foreign object inside the plaintiffs body (see, e.g., Connors v University Assocs. in Obstetrics & Gynecology,, 4 F3d at 127, supra; Haddock v Arnspiger, 793 SW2d at 951, supra; Wasem v Laskowski, 274 NW2d at 225, supra; Todd v Eitel Hosp., 306 Minn at 260, 237 NW2d at 361, supra; Restatement [Second] of Torts § 328 D, comments d, g, illustration 9). As explained by Prosser and Keeton in their classic treatise:

"There are, however, some medical and surgical errors on which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care. When an operation leaves a sponge or implement in the patient’s interior, * * * the thing speaks for itself without the aid of any expert’s advice.” (Prosser and Keeton, Torts § 40, at 256-257 [5th ed] [emphasis added].)

Manifestly, the lay jury here did not require expert testimony to conclude that an 18-by-18-inch laparotomy pad is not ordinarily discovered inside a patient’s abdomen following a hysterectomy in the absence of negligence. Thus, plaintiffs’ undisputed proof that this occurred satisfied the first requirement of res ipsa loquitur. We therefore need not resolve today the question whether res ipsa loquitur is applicable in medical malpractice cases in which the jury is incapable of determining whether the first res ipsa loquitur condition has been met without the aid of expert testimony.

Plaintiffs’ expert testimony regarding how the presence of the pad led to decedent’s ultimate injury and contradicting defendants’ alternative theory that decedent swallowed the pad did not render res ipsa loquitur inapplicable. This evidence was probative of the questions of exclusive control and absence of contributory conduct on the part of decedent — the second and third foundational elements of res ipsa loquitur. The debate over the use of expert testimony in res ipsa loquitur cases, however, centers primarily on the first element, since it is with regard to the likelihood that the accident would not happen without negligence that the jury is generally expected to draw upon its common knowledge.

Turning to these remaining res ipsa loquitur conditions, plaintiffs’ evidence that similar pads were used during decedent’s surgery, that decedent was unconscious throughout the operation, that laparotomy pads are not accessible to patients and that it would be anatomically impossible to swallow such pads sufficed to allow the jury to conclude that defendants had exclusive control of the laparotomy pad "at the time of the alleged act of negligence” (Dermatossian v New York City Tr. Auth., 67 NY2d at 227, supra) and that it did not result from any voluntary action by the patient.

We agree with the Appellate Division dissenters, moreover, that defendants’ evidence tending to rebut the three conditions did not disqualify this case from consideration under res ipsa loquitur (see, Fogal v Genesee Hosp., 41 AD2d 468, 476 [Simons, J.]). Plaintiffs were not obligated to eliminate every alternative explanation for the event. Defendants’ evidence that they used due care and expert testimony supporting their competing theory that decedent might have had access to laparotomy pads and inflicted the injury upon herself by swallowing the pad merely raised alternative inferences to be evaluated by the jury in determining liability (see, Sweeney v Erving, 228 US 233, 240). The undisputed fact remained in evidence that a laparotomy pad measuring 18 inches square was discovered in decedent’s abdomen: "[f]rom this the jury may still be permitted to infer that the defendant’s witnesses are not to be believed, that something went wrong with the precautions described, that the full truth has not been told” (Restatement [Second] of Torts § 328 D, comment n). Thus, the inference of negligence could reasonably have been drawn "upon 'a commonsense appraisal of the probative value’ of the circumstantial evidence,” and it was error to refuse plaintiffs’ request to charge res ipsa loquitur (George Foltis, Inc. v City of New York, 287 NY at 115, supra).

In light of this determination, we need not address plaintiffs’ remaining contentions.

Accordingly, the orders of the Appellate Division should be reversed, with costs, and a new trial granted as to the first and second causes of action of the complaint.

Judges Bellacosa, Smith, Levine, Ciparick and Wesley concur; Judge Titone taking no part.

Orders reversed, etc.

       The modern trend tends toward allowance of experts to " 'bridge the gap’ between the jury’s common knowledge and the uncommon knowledge of experts” by testifying in medical malpractice cases as to what is common knowledge within their specialized fields (Connors v University Assocs. in Obstetrics & Gynecology, 4 F3d 123, 128 [2d Cir 1993]; see, e.g., Locke v Pachtman, 446 Mich 216, 230, 521 NW2d 786, 793 [1994]; Mireles v Broderick, 117 NM 445, 447-449, 872 P2d 863, 865-867 [1994]; Buckelew v Grossbard, 87 NJ 512, 525-528, 435 A2d 1150, 1157-1158 [1981]; Walker v Rumer, 72 Ill 2d 495, 500-502, 381 NE2d 689, 691 [1978]; Kerr v Bock, 5 Cal 3d 321, 323-325, 486 P2d 684, 686 [1971]; see also, Restatement [Second] of Torts § 328 D, comment d [expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the necessary inference]; Prosser and Keeton, Torts §§ 39, 40, at 247, 256-257 [5th ed] [same]). Other jurisdictions disallow the application of res ipsa loquitur in medical malpractice cases if expert testimony is necessary to provide the requisite foundation (see, e.g., Haddock v Arnspiger, 793 SW2d 948, 951 [Tex 1990], reh overruled [Sept. 6, 1990]; Wasem v Laskowski, 274 NW2d 219, 225 [ND 1979]; Anderson v Gordon, 334 So 2d 107, 109 [Fla Dist Ct App 1976]; Todd v Eitel Hosp., 306 Minn 254, 260-261, 237 NW2d 357, 361-362 [1975]; see also, Ablin, Res Ipsa Loquitur and Expert Opinion Evidence in Medical Malpractice Cases: Strange Bedfellows, 82 Va L Rev 325 [1996] [criticizing application of res ipsa loquitur in medical malpractice cases]).