author: Jones, J.

text:
    In the Matter of Town of Shandaken, Respondent, v State Board of Equalization and Assessment, Appellant.
    Argued October 11, 1984;
    decided November 15, 1984

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Nancy A. Spiegel, Robert Hermann and Peter H. Schiff of counsel), for appellant.
    I. The ruling of the court below that respondent’s valuation of lands in the forest preserve is conclusive on the State Board is contrary to the language, history and intent of section 542 of the Real Property Tax Law. (People ex rel. Town of Brighton v Williams, 145 App Div 8; Matter of Town of Arietta v State Bd. of Equalization & Assessment, 56 NY2d 356.) II. A determination of the validity vel non of the State Board’s former procedures under section 542 of the Real Property Tax Law has no bearing on the Board’s substantive authority under the statute. (Matter of Kerwick v New York State Bd. of Equalization & Assessment, 114 Misc 2d 928.)

      John J. Lynch for respondent.
    I. The determination of the court below that the procedures followed by the State Board of Equalization and Assessment were not in compliance with the statutory criteria in section 542 of the Real Property Tax Law is a proper determination. (Matter of State Bd. of Equalization & Assessment v Kerwick, 72 AD2d 292, 52 NY2d 557; City of Mount Vernon v State Bd. of Equalization & Assessment, 44 NY2d 960; People ex rel. Town of Brighton v Williams, 145 App Div 8; Matter of New York Tel. Co. v Whethers, 36 AD2d 541, 30 NY2d 791; Bache & Co. v State Div. of Human Rights, 35 AD2d 928.) II. The determination of the court below under the facts of this case and the mandates of subdivisions 1 and 3 of section 542 of the Real Property Tax Law that the tentative assessments established by the assessors on State-owned taxable land be declared final and conclusive as to value is a proper determination.

      Stephen L. Oppenheim for Robert Kerwick and another, amici curiae.

    I. The procedures of the State Board of Equalization and Assessment do not compare the assessment of State-owned lands with the assessment of private-owned lands on the same tax roll. II. The Legislature has refused to grant the State Board of Equalization and Assessment the powers it asserts herein. (Matter of Kerwick v New York State Bd. of Equalization & Assessment, 114 Misc 2d 928.) III. The procedures adopted by the State Board of Equalization and Assessment in 1983 are essentially the same as those it employed in 1981, justifying the refusal of the court below to treat the case as moot. (Matter of Kerwick v New York State Bd. of Equalization & Assessment, 114 Misc 2d 928.) IV. The language of section 542 of the Real Property Tax Law has remained essentially unchanged since chapter 280 of the Laws of 1886 and is unaffected by the adoption of section 545 of the Real Property Tax Law. V. It is not necessary to agree that an assessor’s values are conclusive to affirm.
   OPINION OF THE COURT

Jones, J.

The role of the State Board of Equalization and Assessment in the assessment of State forest lands is limited to determination that the assessment made by the local assessors is in conformity with the applicable equalization rate. Authority for determination of valuation is vested in the local assessors.

Petitioner, Town of Shandaken (Town), is located wholly. within a forest preserve, and the State of New York owns 45,000 acres out of approximately 75,000 acres of land within the township. On June 1, 1981 the assessors of the Town filed their tentative tax roll for the 1981 year and copies of the tentative assessments applicable to taxable State forest lands situated in the Town were sent to the State Board of Equalization and Assessment. The Town valued these State lands at $19,874,655. The State Board had previously made its own determination of the assessments for these lands, valuing the property at $15,899,720. On August 20,1981, the State Board adopted a resolution approving a $16,516,600 assessment of the State forest lands in the Town for purposes of the 1981 assessment roll.

The Town commenced this article 78 proceeding to challenge the assessments approved by the State Board and to require approval by the State Board of the assessments made by the Town’s assessors. Supreme Court converted the proceeding to a declaratory judgment action, declared that the procedures followed by the State Board were in compliance with law and dismissed the Town’s complaint. The Appellate Division modified by vacating the declaration made by Supreme Court and substituting a declaration that the State Board’s procedures violated section 542 of the Real Property Tax Law and that the Town’s assessment was conclusive with respect to the value of the State lands, and, as so modified, affirmed.

The State Board has appealed as of right. There should be an affirmance.

The applicable statute is section 542 of the Real Property Tax Law, which provided in pertinent part:

“§ 542. Assessment of state lands; approval thereof

“1. State lands subject to taxation shall be valued as if privately owned and assessed at the same percentage of full valuation as other taxable real property in the assessing unit.

* * *

“3. Not later than ten days after the tentative completion of the assessment roll in any assessing unit in which state lands are subject to taxation, the assessors shall notify the state board of the amount of any assessment of such state lands. Thereafter and not later than five days prior to the last day set by law for the final completion of the assessment roll each such assessment shall be approved by the state board in such an amount as will place it at the same percentage of full valuation as other taxable real property in the assessing unit. No such assessment shall be valid for any purpose without the approval of the state board”. Analysis of the unambiguous provisions of this statute leads us to our conclusion. Subdivision 1 provides that State lands subject to taxation “shall be valued as if privately owned and assessed at the same percentage of full valuation as other taxable real property in the assessing unit.” Subdivision 2 prescribes a scheduled procedural sequence by which such valuation and assessment shall be made. It first contemplates tentative completion of the assessment roll in the normal manner, i.e., valuation and assessment by the local assessors. The statute then prescribes that not later than 10 days after the tentative completion of the roll, the assessors shall notify the State Board of the amount of their assessment of State lands. Next the statute mandates that not later than five days prior to the last day set by law for the final completion of the assessment roll, each such assessment shall be approved by the State Board and that no such assessment shall be valid without such approval. The statute then prescribes with express particularity the legislatively determined standard which must be met for such approval, namely, that each such assessment shall be “in such an amount as will place it at the same percentage of full valuation as other taxable real property in the assessing unit.” This is conspicuously a relational standard. Nothing in the statutory prescriptions grants initial or final valuation authority to the State Board; its authority is only to assure that the final assessment conforms to the applicable equalization rate.

That, as the State Board asserts, past practice has varied from the pattern of the statute does not warrant our disregard, when we are called on to consider the issue, of the explicit language of the statute (cf. Matter of Heller-stein v Assessor of Town of Islip, 37 NY2d 1). Appellant further invites our attention to various legislative documents from which it may be inferred that in the past there has been legislative acquiescence and perhaps approval of departure in practice from the statutory mandate. Whatever may be the vitality of such views in other contexts, their expression in collateral documents does not accomplish legislative enactment. If it is the intention of our Legislature to invest the State Board of Equalization and Assessment with the authority to determine valuation as well as to assure conformity with the equalization rate, the means is readily available to amend the statute so to provide. Until there has been such revision, we are called on to interpret and apply the statute as presently enacted.

Past practice with respect to assessment for real property taxation in general, however, does explain the rationale for the design of section 542. Until our decision in Hellerstein (supra), it had been the nearly uniform practice of local taxing districts to assess real property at less than 100% of real value. Accordingly, ultimate fairness in assessment required scrutiny of the two steps in the assessment process — the propriety of the initial valuation of the property and then the correctness of the assessment percentage applied. Responsibility for the former is vested in the local assessors and procedures for the judicial review of their determinations are prescribed in article 7 of the Real Property Tax Law. With reference to State lands subject to taxation, authority and responsibility for determination that the assessment percentage conforms to the equalization rate in the particular taxing district is committed to the State Board whose responsibility it is to determine equalization rates throughout the State (Real Property Tax Law, § 202, subd 1, par [b]). When the Legislature desires to give the State Board original authority to determine valuation for assessment purposes it makes clear its intention to do so (Real Property Tax Law, § 600, subds 1, 3; see City of Mount Vernon v State Bd. of Equalization & Assessment, 44 NY2d 960, 963).

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

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

Order affirmed, with costs.

      . In 1977, following our decision in Matter of Hellerstein v Assessor of Town of Islip (37 NY2d 1) the Town was ordered by Supreme Court to assess all real property within its borders at 100% of actual value.

      . The State Board has abandoned this practice of sending its suggested assessment to the Town prior to the fixing of a tentative assessment by the Town, and the Board no longer seeks to justify this practice in the present litigation.

      . For unsuccessful efforts on the part of the State Board to obtain such statutory revision, see, e.g., the Board’s bill introduced in the 1984 session, S7761/A9151, with the Board’s accompanying memorandum in support of that bill (Proposal No. 83-15-R) and the Assembly 1984 Committee Bill Memorandum with respect thereto May 10, 1984.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    D & N Boening, Inc., Appellant, v Kirsch Beverages, Inc., et al., Respondents.
    Argued October 9, 1984;
    decided November 20, 1984

      POINTS OF COUNSEL

      Abel Jack Schwartz and Brad Becker for appellant.
    I. Plaintiff’s oral franchise agreement expressly granted defendant the option to terminate this agreement if defendant deemed plaintiff’s performance unsatisfactory; accordingly, the instant agreement is outside of the Statute of Frauds. (North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171; Blake v Voigt, 134 NY 69; Storer v Ripley, 282 App Div 950.) II. Plaintiff’s oral franchise agreement is not governed by the law applicable to employment or sales/service contracts and, accordingly, is outside of the Statute of Frauds. (Polykoff Adv. v Houbigant, Inc., 43 NY2d 921; Zupan v Blumberg, 2 NY2d 547; Martocci v Greater N. Y. Brewery, 301 NY 57; Cohen v Bartgis Bros. Co., 264 App Div 260; Genesco, Inc. v Joint Council 13, 341 F2d 482; Savodnik v Korvettes, Inc., 488 F Supp 822; Vassallo v Texaco, Inc., 73 AD2d 642.) III. Defendants’, or their predecessors’, words and actions reasonably and foreseeably induced plaintiff to act to its detriment in reliance thereon and the egregious harm that plaintiff will suffer if defendants are not estopped from attempting to void this oral agreement, renders it unconscionable not to invoke the doctrine of promissory estoppel. (Smith & Co. v USLIFE Corp., 554 F2d 34; United States v Consolidated Edison Co., 452 F Supp 638; American Bartenders School v 105 Madison Co., 91 AD2d 901; Buddman Distrs. v Labatt Importers, 91 AD2d 838.)

      Stanley Israel and Fred E. Scharf for respondents.
    I. If, as the complaint alleges, the claimed oral agreement was terminable by defendants only for cause, such agreement would be void and unenforceable pursuant to section 5-701 (subd a, par 1) of the General Obligations Law. (Zupan v Blumberg, 2 NY2d 547; Vassallo v Texaco, Inc., 73 AD2d 642; North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171; Polykoff Adv. v Houbigant, Inc., 43 NY2d 921; Mar-Bond Beverage Corp. v Dublin Distrs., 9 AD2d 951; Martocci v Greater N. Y. Brewery, 301 NY 57; Kastner v Gover, 19 AD2d 480, 14 NY2d 821; Belfert v Peoples Planning Corp., 22 Misc 2d 753, 11 AD2d 760, 986, 11 NY2d 755; Harris v Home Ind. Co., 6 AD2d 861; Blake v Voigt, 134 NY 69.) II. If, as plaintiff now contends notwithstanding the allegations of its complaint, the alleged oral agreement was terminable by defendants at any time without cause, based upon their own subjective evaluation of plaintiff’s performance, such agreement would entitle plaintiff to no relief in this action. (Ginsberg v Fairfield-Noble Corp., 81 AD2d 318; Vassallo v Texaco, Inc., 73 AD2d 642.) III. Plaintiff’s contention that even if the Statute of Frauds is applicable to the alleged oral agreement, defendants should be estopped to invoke it, is entirely without merit. (Bulkley v Shaw, 289 NY 133; Adams v Gillig, 199 NY 314; Burns v McCormick, 233 NY 230; Smith & Co. v USLIFE Corp., 554 F2d 34; Chromalloy Amer. Corp. v Universal Housing Systems, 495 F Supp 544; Fletcher v Greiner, 73 AD2d 591; Montgomery v Futuristic Foods, 66 AD2d 64; Associated Coal Sales Corp. v Hughes, 64 AD2d 562, 46 NY2d 1071, 48 NY2d 602; Health Delivery Systems v Scheinman, 42 AD2d 566; American Bartenders School v 105 Madison Co., 91 AD2d 901, 59 NY2d 716.)
   OPINION OF THE COURT

Jasen, J.

We are asked on this appeal to decide whether the alleged oral franchise agreement between the parties is barred by the Statute of Frauds.

In 1955, defendants’ predecessor, Minck Beverages, the prime distributor of “Yoo-Hoo” chocolate beverage, entered into a verbal agreement with plaintiff’s predecessors, Joseph Boening and his sons. Pursuant thereto, the Boenings were granted the subdistribution rights of “Yoo-Hoo” beverage in Nassau County and a portion of Suffolk County as well. They were required to cease distribution of a competitor’s chocolate drink and, in return, their subdistributorship was to be exclusive and would continue “for as long as they satisfactorily distributed the product, exerted their best efforts and acted in good faith.”

In 1963, defendant American Beverage Corp. (American) acquired the prime “Yoo-Hoo” beverage franchise from Minck and continued the exclusive subdistributorship agreement with plaintiff’s predecessors until Joseph Boening’s death in 1965, after which his sons continued in business under the name of D & N Boening, Inc., the plaintiff in this action. At that time, plaintiff requested that American reduce the exclusive franchise arrangement to writing, which it refused. American did agree verbally, however, to continue the prior arrangement on the condition that plaintiff’s performance remain satisfactory.

In 1982, defendant Kirsch Beverages, Inc. (Kirsch), purchased American, assuming the latter’s obligations to plaintiff. Thereafter, in that same year, Kirsch informed plaintiff that it was terminating the subdistributorship agreement and would henceforth distribute “Yoo-Hoo” itself. Plaintiff then instituted this action against both American and Kirsch seeking damages for breach of contract or, in the alternative, for specific performance, asserting that “defendants unilaterally terminated the exclusive franchise agreement, without cause thereby breaching the agreement between the parties.” (Emphasis added.)

Defendants made separate motions to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 5) on the ground that the agreement was barred under the Statute of Frauds in that section 5-701 (subd a, par 1) of the General Obligations Law requires all agreements to be in writing which cannot be performed within one year from the date of its making. Special Term denied the motions, holding that the oral agreement by its terms was terminable by defendants at any time and, hence, did not necessarily extend beyond one year and was not within the ambit of the Statute. The Appellate Division unanimously reversed, holding instead that the agreement could not actually be performed within one year but could only be terminated by a breach. Consequently, that court found the agreement to be governed by the Statute of Frauds and void because unwritten. We agree and now affirm.

The ancient Statute of Frauds is derived from the original English “Act for Prevention of Frauds and Perjuries” enacted in 1677, which provided in part that “no action shall be brought * * * upon any agreement that is not to be performed within the space of one year from the making thereof * * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith” (29 Charles II, C.3, 8 Stat at Large 405; see 6 Holdsworth, History of English Law [1924], pp 379-397). The entire Statute was intended to prevent fraud in the proving of certain legal transactions particularly susceptible to deception, mistake and perjury and, with regard specifically to the requirement for a signed writing for a contract not to be performed within one year, “the design of the statute was, not to trust to the memory of witnesses for a longer time than one year”. (Smith v Westfall, 1 Lord Raymond 316, 317 [1697]; see Calamari and Perillo, Contracts [2d ed], § 19-1; Fuller and Eisenberg, Basic Contract Law [4th ed], at p B-2.)

Unfortunately, the Statute does not in many cases provide an effective means of serving that purpose. There is no necessary relationship between the time of the making of a contract, the time within which its performance is required, and the time when it might come to court to be proven. Accordingly, the courts have generally been reluctant to give too broad an interpretation to this provision of the Statute and instead have limited it to those contracts only which by their very terms have absolutely no possibility in fact and law of full performance within one year. (2 Corbin, Contracts [1950], § 444; 3 Williston, Contracts [3d ed], § 495.)

In a leading case on this provision of the Statute of Frauds, the United States Supreme Court in 1896 reviewed the case law of both Great Britain and the several States throughout this country and concluded, with regard to the oral agreement before it, that “[t]he parties may well have expected that the contract would continue in force for more than one year; it mav well have been very improbable that it would not do so; and it did in fact continue in force for a much longer time. But they made no stipulation which in terms, or by reasonable inference, required that result. The question is not what the probable, or expected, or actual performance of the contract was; but whether the contract, according to the reasonable inter pretation of its terms, required that it should not be performed within the year.” (Warner v Texas & Pacific Ry., 164 US 418, 434.) Likewise, this court almost 40 years previous gave a similar construction of this State’s Statute of F'rauds. At that time, we explained that “[i]t is not the meaning of the statute that the contract must be performed within a year. If it can be so performed consistently with the language in which the parties have expressed themselves, in other words, if the obligation of the contract is not, by its very terms, or necessary construction, to endure for a longer period than one year, it is a valid agreement, although it may be capable of an indefinite continuance.” (Trustees of First Baptist Church v Brooklyn Fire Ins. Co., 19 NY 305, 307; see, also, Calamari and Perillo, Contracts [2d ed], § 19-18; Restatement, Contracts 2d, § 130, Comment a.)

This narrow interpretation was unaltered by subsequent legislative reenactments of the Statute of Frauds and by more recent decisions of this court. As presently found in section 5-701 of the General Obligations Law, the statute today provides in pertinent part:

“a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:

“1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime”.

The General Obligations Law thus preserves unchanged the critical language which was contained in the earlier statutes (see, e.g., 2 Rev Stats, part II, ch VII, tit II, § 2) and construed in the earliest judicial decisions of this State (see, e.g., Plimpton v Curtiss, 15 Wend 336; Moore v Fox, 10 John 244). Moreover, consistent with that narrow interpretation, this court has continued to analyze oral agreements to determine if, according to the parties’ terms, there might be any possible means of performance within one year. Wherever an agreement has been found to be susceptible of fulfillment within that time, in whatever manner and however impractical, this court has held the one-year provision of the Statute to be inapplicable, a writing unnecessary, and the agreement not barred. So, for example, in the following situations, the oral agreements which were challenged under the Statute of Frauds were all upheld as fully performable within one year: where either party had the option to terminate the agreement on seven months’ notice (Blake v Voigt, 134 NY 69); where the agreement merely set the terms of anticipated prospective purchases but did not bind either party to any particular transaction (Nat Nal Serv. Stas. v Wolf, 304 NY 332); where defendant had the option to discontinue at any time the activities upon which the agreement was conditioned (North Shore Bottling Co. v Schmidt & Sons, 22 NY2d 171); where defendant had the option of selling at any time the property on lease to plaintiff for four years (Coinmach Inds. Corp. v Domnitch, 37 NY2d 889); where no provision in the agreement directly or indirectly regulated the time for performance despite the extreme unlikelihood of its completion within one year (Freedman v Chemical Constr. Co., 43 NY2d 260, 265); where employment was terminable for any just and sufficient cause wherever dismissal was deemed necessary for the welfare of the company (Weiner v McGraw-Hill, Inc., 57 NY2d 458, 462)

On the other hand, while the foregoing oral agreements and similar ones which are performable within one year are saved from the writing requirement of the Statute of Frauds, clearly there are others which simply are impossible of completion within that time by their own terms and are, therefore, void if unwritten. (See, e.g., Polykoff Adv. v Houbigant, Inc., 43 NY2d 921.) Prominent among these latter agreements falling within the Statute are those which are terminable within one year only upon a breach by one of the parties. A breach can in no way be equated with an option to discontinue or cancel, the exercise of which would constitute an alternative performance of the agreement. (See Coinmach Inds. Corp. v Domnitch, supra; North Shore Bottling Co. v Schmidt & Sons, supra.) Where one or both parties have such an explicit option to terminate their agreement within one year, that agreement is, by its own terms, capable of completion within that period and is not governed by the Statute. But, of course, there is no such analogous option to breach. Rather, a breach by definition can never constitute a mode of fully performing an agreement. Performance, if it means anything at all, is “carrying out the contract by doing what it requires or permits” (Blake v Voigt, supra, at p 72), and a breach is the unexcused failure to do so.

As this court early explained, “termination is not performance, but rather the destruction of the contract * * * where there is no provision authorizing either of the parties to terminate as a matter of right.” (Blake v Voigt, supra, at p 72.) And, more recently, in deciding that the contract then under review fell within the Statute because not truly performable within one year, this court held that “[t]he contract was not, then, one which might be performed within a year, but rather one which could only be terminated within that period by a breach of one or the other party to it [emphasis in original]. The possibility of such wrongful termination is not, of course, the same as the possibility of performance within the statutory period.” (Zupan v Blumberg, 2 NY2d 547, 552 [emphasis added]; see, also, Polykoff Adv. v Houbigant, Inc., supra, at p 922, where the court distinguished the contract in North Shore Bottling Co. v Schmidt & Sons, supra, as being outside the Statute because “susceptible of termination by the defendant within a year without breach of the contract” [emphasis added].) Indeed, the commentators have long agreed that the mere possibility of a breach within the first year of an agreement does not constitute the possibility of some alternative performance which would take the agreement out of the Statute. (2 Corbin, Contracts [1950], § 449, p 564; 3 Williston, Contracts [3d ed], § 498, pp 593-594.) Clearly, termination of an agreement as a result of its breach is not performance thereof within the meaning of the Statute of Frauds, and an oral agreement which by its own terms must continue for more than a year unless terminated by its breach is void.

Here, as the Appellate Division correctly held, the oral agreement between the parties called for performance of an indefinite duration and could only be terminated within one year by its breach during that period. As such, the agreement fell within the Statute of Frauds and was void.

The agreement, as alleged in the complaint, specifically provided that the parties’ relationship was to continue “for as long as [plaintiff and its predecessors] satisfactorily distributed the product, exerted their best efforts and acted in good faith.” There was no provision under which “either party might rightfully terminate it within the year [of its making].” (Blake v Voigt, 134 NY 69, 72, supra.) This was not an agreement where, at any time, one or both parties could discontinue their activities (compare North Shore Bottling Co. v Schmidt & Sons, supra) or reject any or all particular transactions (compare Nat Nal Serv. Stas. v Wolf, supra), or sell the properties essential to the contractual relationship thereby rendering performance impossible (compare Coinmach Inds. Corp. v Domnitch, supra), or determine for any just or sufficient reason that termination was necessary for the good of the business (compare Weiner v McGraw-Hill, Inc., 57 NY2d 459, supra). Rather, the alleged agreement in the present case was “one which could only be terminated within [the first year] by a breach of one or the other party to it.” (Zupan v Blumberg, supra, at p 552.)

According to its terms, the agreement required defendants to continue plaintiff’s subdistributorship indefinitely. It provided for no expiration and there was no contemplation of any completion or final discharge. The sole limitation on the agreement’s duration was its explicit requirement — especially crucial to an exclusive agency — that plaintiff conduct its subdistributorship satisfactorily, exerting its best efforts and acting in good faith. Only upon plaintiff’s failure to do so within the first year could the agreement have been terminated during that period.

Such a failure would not have constituted a permitted manner of performance or exercise of an option, but rather, a breach of the agreement. And other than such a breach, there was no provision under the terms of the agreement for it to come to an end. Neither party had an option to cancel, and there was no specified time or event which automatically would cause the agreement to terminate. Instead, under a reasonable interpretation of its own terms, the agreement would extend beyond the first year and, indeed, would continue in perpetuity unless plaintiff failed to perform its part of the bargain.

Being terminable only by plaintiff’s breach, the agreement alleged in the complaint was not one which by its terms could be performed within one year. As such, it came within the ambit of the Statute of Frauds and is void for being unwritten.

We have considered plaintiff’s other arguments and find them to be without merit.

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

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

Order affirmed, with costs.

       It should be noted that the reference in Weiner v McGraw-Hill, Inc. (57 NY2d 458, 463) to an agreement terminable “only for just cause” falling outside the Statute of Frauds is not to be construed as including an agreement where “just cause” can only be the other party’s breach. Such an agreement would fall within the Statute. (See infra.)


author: Chief Judge Cooke. Jasen, J.

text:
    Scott L. Alexander, Respondent, v Frank D. Eldred et al., Respondents, and City of Ithaca, Appellant.
    Argued October 17, 1984;
    decided November 20, 1984

      POINTS OF COUNSEL

      Robert A. Small for appellant.
    I. The absence of a stop sign was not the proximate cause of this accident involving drivers who knew the intersection, its right of way, and its hazards. The accident occurred because one driver proceeded without seeing his way clear and yielding the right of way. (Atkinson v County of Oneida, 77 AD2d 257, 59 NY2d 840; Gleich v Volpe, 32 NY2d 517; Tomassi v Town of Union, 46 NY2d 91; Cimino v City of New York, 54 AD2d 843, 43 NY2d 966; Applebee v State of New York, 308 NY 502; Rivera v City of New York, 11 NY2d 856.) II. Ithaca’s notice requirement barred plaintiff’s claim that a stop sign should have been erected on Edgecliff Place because it forms an integral part of the municipal planning process. Plaintiff failed to prove the absence of a stop sign was without reasonable basis. (Johnstown Leather Corp. v City of Gloversville, 56 AD2d 345; Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362; Flynn v Town of North Hempstead, 114 Misc 2d 125, 97 AD2d 430; Weiss v Fote, 7 NY2d 579; Tomassi v Town of Union, 46 NY2d 91; Ufnal v Cattaraugus County, 93 AD2d 521, 60 NY2d 554.)

      Paul K. Lange for Scott L. Alexander, respondent.
    I. The record contained sufficient evidence for a jury to rationally conclude that the absence of a stop sign at this intersection was a proximate cause of the intersection accident. (Commisso v Meeker, 8 NY2d 109; Cohen u Hallmark Cards, 45 NY2d 493; Tomassi v Town of Union, 46 NY2d 91; Cimino v City of New York, 54 AD2d 843,43 NY2d 966.) II. Neither the ordinance of appellant City requiring prior written notice of defective conditions nor the limited immunity found in Weiss u Fote, should bar plaintiff Alexander’s recovery against the City of Ithaca. (Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362; Weiss v Fote, 7 NY2d 579; Lopes v Rostad, 45 NY2d 617; Atkinson v County of Oneida, 77 AD2d 257.)

      Nancy L. Pontius for Frank D. Eldred and another, respondents.
    I. Sufficient evidence was presented at trial for the jury to rationally conclude that the City of Ithaca’s failure to place a stop sign at the intersection was a proximate cause of the accident. II. Plaintiff’s claim against the City of Ithaca is not barred by either the notice requirement or the limited immunity doctrine of Weiss v Fote. (Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 263; Weiss v Fote, 7 NY2d 579; Holt v County of Tioga, 56 NY2d 414; Sanchez v Lippincott, 89 AD2d 372; Lopes v Rostad, 45 NY2d 617; Ufnal v Cattaragus County, 93 AD2d 521, 60 NY2d 554.)
   OPINION OF THE COURT

Chief Judge Cooke.

One who is injured in a traffic accident can recover against a municipality if it is shown that its failure to install a traffic control or warning device was negligent under the circumstances, that this omission was a contributing cause of the mishap, and that there was no reasonable basis for the municipality’s inaction. As plaintiff here has satisfied his burden of establishing these factors, he is entitled to damages against defendant City of Ithaca.

On this appeal challenging the sufficiency of the evidence to support a verdict for plaintiff, as often recited, the testimony presented to the jury is viewed in the light most favorable to plaintiff (see Cohen v Hallmark Cards, 45 NY2d 493, 499; Flamer v City of Yonkers, 309 NY 114, 117). This court, therefore, is generally unconcerned with conflicting evidence unless it renders plaintiff’s evidence incredible as a matter of law so as to remove any rational basis for the verdict (see Blum v Fresh Grown Preserve Corp., 292 NY 241).

Plaintiff was injured while riding his motorcycle on the evening of July 20,1978, in the City of Ithaca when struck by a cab owned by defendant Terminal Taxi, Inc., and driven by defendant Frank D. Eldred. The accident occurred at the intersection of Stewart Avenue, a winding road, and Edgecliff Place, a private road with an extremely steep incline to Stewart Avenue. These conditions resulted in a limited line of sight for cars leaving Edgecliff Place, which was exacerbated by dense foliage on the roadside. There was no stop sign or other traffic control on Edgecliff Place, although there was a stop sign on Thurston Avenue, a City road almost directly opposite Edgecliff Place.

Plaintiff did not see the taxi until just before the collision. He testified that he saw the cab when it was about 10 to 15 feet down Edgecliff Place and moving toward Stewart Avenue at around 15 to 20 miles per hour.' Plaintiff asserted that, without ever stopping, the taxi entered Stewart Avenue and struck plaintiff, throwing him some 30 feet to the other side of the road. Plaintiff suffered serious injuries to his right foot.

At trial, plaintiff presented an expert on highway safety who stated unequivocally that there should have been a stop sign on Edgecliff Place. He also testified that a “stop line” or “stop bar” — a white line painted on the pavement to indicate where a vehicle should stop — would have been helpful, but only in a limited fashion as the severity of the upgrade would have prevented a driver from being able to see it from very far down the hill.

The Traffic Engineer for the City of Ithaca testified that he was responsible for deciding whether traffic controls should be installed by the municipality. He admitted that traffic counts were completed at the intersection of Stewart and Thurston Avenues in 1960 and 1976, but he never saw the latter study until after the 1978 accident. The engineer also declared that he never considered putting a stop sign on Edgecliff Place because he believed that, as a private road, it was outside the City’s jurisdiction.

The jury returned a verdict for plaintiff, finding him free of any contributory negligence. It found the City of Ithaca to be 30% liable and Terminal Taxi and Eldred to be 70% liable. The jury award of $85,000 was set aside, however, and the trial judge ordered a new hearing limited to the issue of damages unless plaintiff consented to a reduced judgment for $55,000, which he did not do.

All the parties appealed to the Appellate Division. That court unanimously reinstated the jury’s award of $85,000 for damages. Three justices also upheld the verdict against the City of Ithaca, but two justices would have reversed on this issue for differing reasons.

The City has appealed to this court, arguing three grounds why the verdict against it should be set aside. It claims that its decision whether to install a stop sign is not justiciable. Next, the City asserts that, by virtue of a local law, it could not be responsible for injuries caused by the absence of a stop sign because no prior written notice of the “defect” was given. Lastly, the City posits that, as a matter of law, the lack of a stop sign was not a proximate cause of the accident. As none of these are persuasive, we now affirm.

The City’s first argument relies on the principle that courts generally will not substitute their judgment for governmental decisions on allocating public resources. In the field of traffic engineering, the modern lead case is Weiss v Fote (7 NY2d 579). That litigation concerned the “clearance time” programmed into traffic lights to allow all cars to travel through an intersection before cross-traffic received a green light to proceed. This court declined to “go behind the ordinary performance of planning functions by officials to whom those functions were entrusted” (id., at p 584). It was recognized then that planning decisions might be the result of conflicting expert decisions that required a choice to be made among one or the other (id., at p 586). “To accept a jury’s verdict as to the reasonableness and safety of a plan of governmental service and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts” (id., at pp 585-586). Absolute immunity was not granted to municipalities, however. “[Liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis” (id., at p 589).

In the present matter, plaintiff adduced evidence sufficient to establish both inadequate study and an unreasonable basis for the City’s traffic plan at Edgecliff Place and Stewart Avenue. At the time of the accident, the City’s Traffic Engineer had never seen a traffic count for that intersection that was less than 18 years old; he admittedly did not review a more recent study until after the accident. He also conceded that the conditions required one to stop on Edgecliff Place before proceeding onto Stewart Avenue and that the Manual of Uniform Traffic Control Devices of the State of New York required a stop sign to be installed in that situation.

The most critical evidence was the Traffic Engineer’s assertion that nothing was done on Edgecliff Place because he believed the City had no power to install a stop sign on a private road. In other words, the City did not consider the merits of installing a stop sign because it believed that it could not erect a sign in any event. Section 1640 (subd [a], par 1) of the Vehicle and Traffic Law expressly authorizes a city to install stop signs on “private roads open to public motor vehicle traffic”. Indeed, the City concedes its authority over Edgecliff Place pursuant to this statute. The utter lack of any basis in law for the City’s forbearance renders its plan unreasonable in the present circumstances.

In so holding, it must be noted that not every misjudgment as to the status of the law will expose a municipality to liability. The legality of a particular course of action quite often is subject to differing opinions stemming from the unsettled nature of the controlling law. Implementing a recommendation derived from a reasoned analysis cannot be deemed culpable conduct merely because the analysis is later determined to have been erroneous by virtue of a subsequent judicial declaration on the pertinent point of law. A different situation prevails when, as here, the specific legal question is settled, whether by statute, case law, or both. If the municipality proceeds in direct contravention, or ignorance, of all legitimate interpretations of the law, its plan of action is inherently unreasonable.

The City’s second argument relies on its local law (Ithaca City Charter, § 7.10) requiring prior written notice of defects in streets or sidewalks before the City can be held liable for injuries resulting from such conditions. The City contends that plaintiff’s action is barred because he did not prove that notice of the condition — a nonexistent stop sign — at the intersection of Edgecliff Place and Stewart Avenue was ever given to the City so as to trigger its planning process. It is well-settled, however, that such prior-notice laws refer to physical defects such as holes and cracks, not to the failure to maintain or erect traffic signs (see Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362).

Lastly, the City posits that as a matter of law the absence of a stop sign was not the proximate cause of the accident. Pointing to evidence that Eldred stopped his taxi at the very top of Edgecliff Place before entering Stewart Avenue and that both drivers were familiar with the intersection, the City proposes that the presence of a stop sign would not have altered their conduct in any meaningful way.

This court has previously held that a municipality may be excused from liability when its conduct in maintaining a road could not be the proximate cause of an accident. In Atkinson v County of Oneida (59 NY2d 840), the failure to install additional warning signs and lights was deemed to be irrelevant when both drivers were familiar with the intersection. There, the plaintiff admitted that he had passed through the intersection as many as 10 to 20 times a day over a five-year period. The other driver had lived in the area for 24 years. In Tomassi v Town of Union (46 NY2d 91), the plaintiffs were injured after their speeding car hit another one, whose driver was admittedly not concentrating on the road, and swerved into a ditch maintained by the municipality. This court declined to hold the town liable, holding that the road was “reasonably safe for people who obey the rules of the road” (id., at p 97). And, in Cimino v City of New York (54 AD2d 843, affd on opn below 43 NY2d 966), the failure to install a traffic light was held not to be the proximate cause when both drivers could see that they were approaching an uncontrolled intersection and they had a clear line of sight over a vacant lot.

Although these cases demonstrate that a lack of proximate cause can be found as a matter of law, the different factual background of the present case does not compel the same result. Unlike Cimino and Tomassi, here, neither was there a clear line of vision of the approaching cross-traffic nor was the municipality’s asserted negligence totally independent of the accident. To the extent that the City relies on evidence that Eldred stopped at the point where expert testimony established that a stop sign should have been installed, its plea is misdirected. Whether and where Eldred stopped was the subject of conflicting evidence that would support various inferences. As such, it was properly a question of fact for the jury. It is not within the province of this court to substitute its assessment of the evidence for that of the fact finder: having failed to convince the jury of its cause, the City may not find succor in this forum. There was sufficient evidence to establish that Eldred either did not stop or stopped too far down Edgecliff Place to be able to see traffic on Stewart Avenue and that a properly placed stop sign could have avoided this.

Similarly, the drivers’ familiarity with the intersection was not clear. Plaintiff had lived in the neighborhood for three years. Eldred had been driving a taxi for only a year. From the City’s perspective, at best, the evidence showed that he drove past Edgecliff Place three or four times a night, but that he had been down that road only three or four times previously. At worst, the evidence was seriously conflicting. To contrast, in Atkinson, this court dealt with uncontroverted evidence that the parties had transversed a marked intersection either numerous times or over an extremely lengthy period. In the special circumstances of that case, the drivers’ familiarity superseded any negligence by the municipality in not posting additional warnings. The circumstances of the present case do not warrant such treatment.

In summary, plaintiff presented evidence that would support a determination that: the City had omitted installing a needed stop sign on Edgecliff Place without an adequate study or a reasonable basis; the taxi driver failed to stop at the proper point before entering Stewart Avenue; and that the accident might have been averted had a stop sign been in place. Insofar as there are items of evidence to the contrary, these merely raised questions of fact for resolution by the jury.

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

Jasen, J.

(dissenting). I would reverse the order of the Appellate Division by setting aside, as a matter of law, the finding of liability against the City of Ithaca for the reason stated in the concurring in part and dissenting in part opinion of Justice John T. Casey (100 AD2d, at p 668) that “even if it could be said that in failing to erect a stop sign or warning sign the city breached a duty owed to plaintiff, there is no evidence from which the jury could reasonably conclude that such a breach was a proximate cause of the accident.” (See, also, Atkinson v County of Oneida, 59 NY2d 840, 843.)

Judges Jones, Wachtler, Meyer, Simons and Kaye concur with Chief Judge Cooke; Judge Jasen dissents and votes to reverse in a separate opinion.

Order affirmed, with costs.


text:
    In the Matter of Kevin D. Bigelow, Appellant, v Board of Trustees of the Incorporated Village of Gouverneur, Respondent.
    Submitted October 8, 1984;
    Decided November 20, 1984

      POINTS OF COUNSEL

      Thomas J. Snider for appellant.
    An individual has been denied due process of law when an administrative agency reviews information not of record when making a determination regarding a sanction. (Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Thompson v Lent, 53 AD2d 721.)

      Robert J. Leader for respondent.
    I. Petitioner-appellant was granted due process. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Lee v Board of Educ., 90 AD2d 775; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Avery v Rechter, 56 AD2d 963; Matter of Thompson v Lent, 53 AD2d 721.) II. The decision of the court below should be affirmed. (Matter of Kleinsmith v Connelie, 68 AD2d 271; Matter of Alfieri v Murphy, 38 NY2d 976; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Lewis v Board of Trustees, 13 AD2d 592.)
   OPINION OF THE COURT

Jones, J.

After a civil service employee has been found guilty of misconduct the public employer may consider material included in the employee’s employment record in determining an appropriate sanction; however, the employee must first be given notice of the data to be considered and an opportunity to submit a written response relative to such information.

By this article 78 proceeding petitioner employee challenges his dismissal by respondent Village Board from a position as village police officer after a departmental hearing pursuant to section 75 of the Civil Service Law on five charges that had been lodged against him. The hearing officer had exonerated petitioner of four of the charges but found him guilty of the fifth involving issuance of a bad check. Noting that the record before him was silent as to petitioner’s employment record, he had recommended that a 30-day suspension without pay be imposed as a sanction.

The Village Board, after reviewing a transcript of the hearing, adopted the findings of fact made by the hearing officer and found petitioner guilty of the bad check charge. In connection with fixing the penalty, however, without notice to the officer it also reviewed his record of employment maintained by the Chief of Police, which included documents disclosing that a charge of violation of the Conservation Law on July 15,1975 had been compromised by petitioner’s payment of a fine and that, with respect to two charges of disobedience of an order and dereliction of duty on May 2, 1980, petitioner had waived the right to a hearing and accepted a sanction of temporary loss of duty without pay. The notice of determination thereafter issued by the Board advised petitioner of the Board’s acceptance of the hearing officer’s findings and of its own finding of guilt and stated that “after reviewing your record of employment in connection with fixing a penalty” it was imposing a punishment of dismissal.

Petitioner thereafter instituted this article 78 proceeding to annul his dismissal, challenging the action of the Board in inspecting his personnel file and considering its contents in imposing the penalty that it did. Supreme Court found no impropriety on the part of the Board, noting that the employment record had been considered by neither the hearing officer nor the Board in the determination of petitioner’s guilt and that consideration of the contents of such record was permissible for determination of an appropriate penalty for the proved charge. Rejecting a claim by petitioner that the penalty was irrational, arbitrary and capricious, the court observed that, even without resort to petitioner’s employment record, the penalty imposed was rational.

The Appellate Division affirmed Special Term’s dismissal of the petition, casting doubt on the propriety of the Board’s examination of the contents of petitioner’s employment record without its having been introduced at the hearing or petitioner having been given an opportunity to respond to its contents, but concluding that, because the penalty imposed was appropriate for the violation established “regardless of petitioner’s prior employment record” (98 AD2d, at p 934), remittal for reconsideration of the penalty was unnecessary. On petitioner’s appeal by our leave, we reverse.

It must be observed at the outset that this is not an instance in which material outside the record of the disciplinary hearing was considered in the adjudicatory determination of petitioner’s guilt — the practice that we condemned in Matter of Simpson v Wolansky (38 NY2d 391). Here, recourse to petitioner’s employment record maintained by the Chief of Police was had — and properly so — only after there had been a decision, based on the hearing transcript, that the police officer’s misconduct had been established. In the determination of an appropriate sanction for a proved present act of misconduct an employee’s past history contained in the departmental file, including both material which is commendatory and that which reflects unfavorably on the employee, is relevant and appropriately taken into account (Matter of Gibides v Powers, 45 NY2d 994; Matter of Bal v Murphy, 43 NY2d 762; Matter of Pell v Board of Educ., 34 NY2d 222,240). Accordingly, in the present case the Village Board was entitled, and in the responsible discharge of its duty it might even be said required, to give attention to the documents disclosing earlier dispositions of charges of violation of statute and of misconduct in connection with petitioner’s employment.

Fundamental fairness to petitioner (although not rising to the dignity of constitutional entitlement), as well as regard for the integrity of the Board’s consideration of his employment record, however, required that examination of the documents in his file not be ex parte. Petitioner should have been informed of the adverse material which was contained in his personnel file prior to the Board’s determination of sanction and at a time sufficient to have permitted him an opportunity to furnish to the Board a written response. Such notice to an employee for whom discipline is impending will permit discovery of any error in the compilation of the employment record as well as afford the employee an opportunity to put before the disciplining body any relevant ameliorating data so as to assure that the body is in a position to make a considered judgment of the significance to be attached to prior, unfavorable incidents. In the present case, petitioner does not dispute the accuracy of the documents contained in his file which record the dispositions of the 1975 and 1980 charges against him; this of course would not necessarily be so in the instance of every disciplined employee. He does, however, seek to tender matter in mitigation — i.e., the reason for his conduct which was the basis of the charge of violation of the Conservation Law. Whether an employee on whom discipline is about to be imposed would offer challenge to the records included in his file or would submit mitigating information concerning the data contained, prior notice of the material to be considered would in either event be a prerequisite.

In a somewhat similar context we have, in the interest of nonconstitutional fundamental fairness, encouraged disclosure of matter that may enter into the determination of a sentence in a criminal action (People v Perry, 36 NY2d 114, 120; cf. L 1975, ch 310, § 1, amdg CPL 390.50).

Because such prior notice was lacking in petitioner’s case, the matter must be remitted to respondent Village Board for compliance with the procedure here described and to afford petitioner opportunity for a written responsive submission. The error in failing to have given petitioner notice of the content of his personnel file cannot be disregarded, as the court below has suggested because in its view the charge of which petitioner had been found guilty itself provided adequate basis for dismissal irrespective of his employment record. There can be no assurance that the Village Board, which was vested in the first instance with authority to select an appropriate sanction, would have imposed dismissal in face of whatever submission petitioner might have furnished with respect to the data included in his personnel file. A remittal of the matter to that body for the exercise of its judgment is therefore required (Matter of Admiral Wine & Liq. Co. v State Liq. Auth., 61 NY2d 858; cf. Matter of von Wiegen, 63 NY2d 163).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court with direction to return it to the Village Board for determination of an appropriate penalty in accordance herewith.

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

Order reversed, with costs, and matter remitted to Supreme Court, Essex County, with directions to return it to the Village Board for further proceedings in accordance with the opinion herein.


author: Simons, J.

text:
    In the Matter of Julius P. Monroe County Department of Social Services, Respondent. Margaret P., Appellant.
    Argued October 17, 1984;
    decided November 27, 1984

      POINTS OF COUNSEL

      Edward, J. Nowak, Public Defender (Paul D. MacAulay of counsel), for appellant.
    I. Statutory authority and case law places a very heavy burden on the petitioning agency seeking to terminate parental rights on the ground of “abandonment”. (Pierce v Society of Sisters, 268 US 510; Stanley v United States, 405 US 645; Wisconsin v Yoder, 406 US 205; Santosky v Kramer, 455 US 745; Matter of Bristany, 239 NY 19; Matter of Maxwell, 4 NY2d 429.) II. The trial court correctly held that the agency had failed to establish abandonment. (Matter of Michael B., 58 NY2d 71; Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96; Matter of Corey L v Martin L, 45 NY2d 383; Matter of Rose Marie M., 94 AD2d 734; Matter of Wesley L., 72 AD2d 137; Matter of Madeline R., 117 Misc 2d 14; Matter of Ulysses T., 87 AD2d 998.) III. The trial court properly considered the contract signed by the parties as one factor in evaluating the issue of abandonment. (Santosky v Kramer, 455 US 745.)

      Paul N. Humphrey and Milo I. Tomanovich for respondent.
    I. Proof of diligent efforts to foster visitation during an alleged period of abandonment is not required upon trial of an abandonment guardianship. (Matter of Anonymous [St. Christopher's Home], 40 NY2d 96; Matter of Malik M., 40 NY2d 840.) II. No evidence supports the finding that respondent-appellant left a message with the Department of Social Services during the abandonment period. III. Petitioner-respondent was not obligated to prove that appellant’s abandonment of her child occurred without good reason. (Matter of Corey L v Martin L, 45 NY2d 383.) IV. There was no culpable failure by petitioner-respondent to encourage visitation during the abandonment period. (Matter of Robertson v Robertson, 54 AD2d 1081; Matter of Denlow, 87 Misc 2d 410; Matter of Wayne T. D., 104 Misc 2d 314.)

      Ardeth L. Houde and John J. Rivoli, Law Guardian.

    I. It was error for the Family Court to require respondent to prove in an abandonment proceeding the performance of acts to encourage visitation where such proof is specifically excluded under section 384-b (subd 4, par [b]; subd 5, par [b]) of the Social Services Law. (Matter of Ulysses T., 87 AD2d 998; Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96; Matter of Malik M., 40 NY2d 840; Smiling Lady Corp. v Estate of Rosenthall, 187 Misc 719, 188 Misc 214; Williams Inst. Colored M.E. Church v City of New York, 275 App Div 311,300 NY 716; Matter of Metropolitan Life Ins. Co. v Boland, 281 NY 357.) II. Respondent proved by clear and convincing evidence that appellant had abandoned her child. (Matter of Anonymous [Si. Christopher’s Home], 40 NY2d 96; Matter of Kelsey, 29 AD2d 450, 26 NY2d 792; Ward v New York Life Ins. Co., 225 NY 314; Roberge v Bonner, 94 App Div 342, 185 NY 265; Matter of Vanesa “F”, 76 Misc 2d 617; Matter of Corey L v Martin L, 45 NY2d 383; Matter of Ulysses T., 87 AD2d 998; Matter of Terence R., 90 AD2d 796; Matter of Donald U., 91 AD2d 1125.) III. It was error for the Family Court to allow in evidence extensive testimony on the subjective intentions of appellant. (Matter of Ulysses T., 87 AD2d 998.)
   OPINION OF THE COURT

Simons, J.

Petitioner, the Monroe County Department of Social Services, brought this proceeding to terminate respondent’s parental rights to her child, Julius P., because she had abandoned him. It contends that respondent failed to visit or communicate with Julius or to communicate with petitioner for a period of six months although able to do so and not prevented or discouraged from doing so by the petitioner (see Social Services Law, § 384-b, subd 5).

Family Court did not pass upon respondent’s conduct but dismissed the petition because petitioner had failed to assist respondent in maintaining contact with her child, a contractual obligation which the court found petitioner had assumed by the terms of a voluntary placement instrument executed by the parties. The Appellate Division reversed, holding that petitioner’s evidence “overwhelmingly” supported a finding that respondent had abandoned her child and that she had not overcome that evidence by testimony of her efforts to contact the agency or her son or of her inability to do so (see Matter of Ulysses T., 87 AD2d 998). It held that the voluntary placement instrument imposed no duty on petitioner greater than its statutory obligation toward respondent and her child.

The Social Services Law provides that a child is abandoned if the parent evinces an intent to forego her parental rights and obligations. Intent is manifested by the parents’ failure to visit the child or communicate with the child or the agency although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, the ability to visit or communicate is presumed (Social Services Law, § 384-b, subd 5, par [a]). The statute makes clear that the burden rests on the parent to maintain contact and that subjective good faith will not prevent a finding of abandonment (Social Services Law, § 384-b, subd 5, par [b]). Conversely, it provides that the agency has no obligation to exercise diligent efforts to encourage visits or communications between parent and child, but it may not prevent or discourage them (Social Services Law, § 384-b, subd 5, pars [a], [b]). In this respect, the duty imposed on the agency differs from that required by the statute before an agency may successfully urge termination of parental rights based upon a finding of permanent neglect (see Social Services Law, § 384-b, subd 7; see, also, Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96, 102).

The evidence in the record comports with the Appellate Division’s finding that respondent had abandoned her child and its determination on that issue should be sustained. That evidence established that Julius was born to respondent August 6, 1969. His father is unknown. From the time of his birth, respondent entrusted him to her mother who cared for him until she became ill in 1980. Respondent then executed a voluntary placement with petitioner which has been continued periodically by court order until the present time. After Julius was transferred to the agency, he was placed in a children’s home where he remained until July, 1981 when the agency placed him in a foster home. Respondent visited him in the children’s home sporadically and when the agency advised respondent in June or July of Julius’ pending transfer to a foster home, she expressed the wish that he be returned to her. There was some discussion about returning him and further appointments were arranged but respondent did not keep them. In August, 1981 petitioner’s caseworker visited respondent’s home on two separate occasions but was unable to find her. There were no further attempts to visit her after August but the agency did write. In September it sent a letter to respondent which was returned with a notation that she had moved. Petitioner eventually located respondent at a new address and in September it sent another letter to her there. It was not returned. Finally, on October 13, 1981 a certified letter was sent to respondent. She denies receiving it although a return receipt was executed by someone. Petitioner was unable to contact respondent from August, 1981 until February, 1982, when it instituted this proceeding, and respondent did not visit or communicate with her son or the agency during that period. Additionally, it should be noted that the court conducted a review proceeding in October, 1981 to continue the placement, as required by section 392 of the Social Services Law, and respondent failed to appear at that time. In opposition to this evidence, respondent offered only unpersuasive claims that she had tried unsuccessfully to reach her caseworker.

It remains to decide whether Family Court’s order should be reinstated because the placement instrument imposed a duty on petitioner to encourage contact between parent and child. Notwithstanding the explicit language of the statute Family Court found petitioner assumed an additional duty when it executed the placement instrument and it held petitioner was compelled to establish that it had fulfilled that duty before the petition could be granted. The language of the instrument it relied upon provided: “(I) (we) have been advised of (my) (our) right to visit (my) (our) child and have been informed of the importance of visiting regularly. (I) (We) understand that visiting schedules may not always be definitely fixed, and that sometimes it may be necessary to change them because of changes in (my) (our) circumstances or situations in the foster family home or institutions in which (my) (our) child is placed, but we further understand that the agency is responsible for helping (me) (us) visit as frequently as possible. (I) (We) agree to cooperate with the agency in establishing appropriate visiting periods, which initially will be

It continued: “(I) (We) understand that none of the above provisions may be changed without (my) (our) consent or that of an individual acting in (my) (our) behalf with (my) (our) consent and the consent of the Commissioner of Social Services or an individual acting in his behalf with his consent. If any such provision is to be changed, it shall be so indicated in writing in a supplemental instrument which will be acknowledged and signed in the same manner as this agreement, and shall be attached to and become a part of the original agreement.”

The recitations of the placement instrument are consistent with the requirements of section 384-a of the Social Services Law which provides that surrender instruments shall contain certain information and advice to the parent and the advice shall be stated in laymen’s language. Thus, the statute provides that the instrument shall advise that the parent has the right of the supportive services of the agency, to visit the child and to have the child returned (Social Services Law, § 384-a, subd 2, par [c], cl [ii]). It also requires an admonition to the parents of their obligations to visit the child, to plan for his future, to consult with the agency, to contribute to the child’s support, to inform the agency of any change of name or address and that their failure to do these things may result in termination of their parental rights (Social Services Law, § 384-a, subd 2, par [c], els [iii], [iv]). These provisions were added when section 384-a was amended in 1976 (L 1976, ch 669). The purpose of the amendment was to ensure that parents were fully advised of the help available to them when placing a child with an agency and to ensure that when they agreed to placement they knew their rights and duties toward their child (NY Legis Ann, 1976, pp 262-263). By requiring that the information be included in the placement instrument the Legislature intended that the parents be made aware of their responsibilities for the long-range planning of the child’s future at the time when their interest and motivation was highest. The language expresses the general statutory policy of fostering the parent-child relationship by means available to the agency but it does not impose an added duty upon it to encourage contact between parent and child. The scope of the agency’s duty is defined in subdivision 5 of section 384-b. That statute prohibits the agency from interfering with the parents’ attempts to visit or communicate with the child but it expressly states that diligent efforts need not be shown. In view of its language, the recitals in the placement instrument may not be construed by the courts to impose an obligation of diligent efforts or some intermediate level of conduct greater than that required by the statute (see Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96, 102-103, supra; Matter of Malik M., 40 NY2d 840; Matter of Ulysses T., supra).

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

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

Order affirmed, with costs.


author: Chief Judge Cooke.

text:
    In the Matter of Johnny Roballo, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Argued October 16, 1984;
    decided November 27, 1984

      POINTS OF COUNSEL

      Susan K. Jones and Norman P. Effrnan for appellant.
    No statutory authority exists to render section 70.30 (subd 1, par [c]) of the Penal Law inapplicable where appellant was convicted of a class B felony and a class D felony but received consecutive terms of imprisonment pursuant to section 70.10 of the Penal Law. (People v Moore, 96 AD2d 601.)

      Robert Abrams, Attorney-General (Wayne L. Benjamin and Peter H. Schiff of counsel), for respondents.
    Section 70.30 (subd 1, par [c]) of the Penal Law does not apply to consecutive sentences imposed pursuant to persistent felony offender sentencing (Penal Law, § 70.10, subd 2) and not imposed on the underlying crimes. (Matter of Licitra v Coughlin, 61 NY2d 450; Golden v Koch, 49 NY2d 690; Patrolmen’s Benevolent Assn, v City of New York, 41 NY2d 205; People v Mobil Oil Corp., 48 NY2d 192; Matter of Albano v Kirby, 36 NY2d 526; People v Ditta, 52 NY2d 657.)
   OPINION OF THE COURT

Chief Judge Cooke.

Petitioner was convicted of first degree rape, a class B felony, and second degree assault, a class D felony. He was sentenced on each conviction as a persistent felony offender, under section 70.10 (subd 1, par [a]) of the Penal Law, to consecutive indeterminate terms of 25 years to life for the rape and 20 years to life for the assault. Following petitioner’s commitment to a New York correctional facility, respondent Department of Correctional Services calculated, pursuant to section 70.30 (subd 1, par [b]) of the Penal Law, the aggregate minimum and aggregate maximum terms to be served by petitioner to be 45 years to life imprisonment.

Petitioner brought this article 78 proceeding challenging said calculation and requesting a recomputation on the ground that section 70.30 (subd 1, par [b]) of the Penal Law was erroneously applied and that section 70.30 (subd 1, par [c]) of the Penal Law, which provides a limitation on the aggregate maximum terms of consecutive indeterminate sentences of imprisonment imposed for two or more crimes, was the controlling provision.

Supreme Court granted the petition in part and recomputed the aggregate minimum and maximum terms to be 15 to 30 years’ imprisonment. The Appellate Division reversed and dismissed the petition on the ground that section 70.30 (subd 1, par [c]) did not apply in the present circumstances. This court now affirms.

Calculation of terms of imprisonment is governed by section 70.30 of the Penal Law. To calculate the aggregate minimum and maximum terms of two or more consecutive indeterminate sentences, the minimum and maximum terms of each sentence are added together for the respective totals (Penal Law, § 70.30, subd 1, par [b]). This is subject to the limitations in paragraph (c) of subdivision 1, which imposes a ceiling on the aggregate maximum term of 20 years or, if a class B felony is involved, 30 years, and restricts the aggregate minimum term to one half of the reduced aggregate maximum term. This subdivision does not apply if at least one of the convictions was for a class A felony.

Petitioner correctly argues that a literal reading of section 70.30 requires that his sentence be limited to 15 to 30 years under paragraph (c) of subdivision 1. This overlooks that petitioner received enhanced sentences as a persistent felony offender (see Penal Law, §§ 70.00, 70.10). The purpose of these provisions is to protect society when “the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest” (Penal Law, § 70.10, subd 2). In that instance, the normal sentencing limits for the underlying felony may be ignored and the court may sentence a defendant to a term authorized for a class A-l felony, which includes life imprisonment (Penal Law, § 70.00, subd 2, par [a]; § 70.10, subd 2).

If section 70.30 were applied as petitioner suggests, the public interest in imposing enhanced punishment on persistent felony offenders would be defeated because, under paragraph (c), petitioner’s two life sentences would be reduced to an aggregate maximum of 30 years. Indeed, this construction would reward the defendant who receives consecutive persistent felony offender sentences by reducing his or her maximum sentence, while leaving the defendant with concurrent persistent felony offender sentences subject to a maximum of life imprisonment.

The courts should strive to avoid an interpretation of a statute where the literal application of one section will nullify the effect of another, especially when this produces an absurd result (see Matter of Albano v Kirby, 36 NY2d 526, 530). Sections 70.10 and 70.30 are both integral parts of the Penal Law’s comprehensive sentencing scheme and, as such, they must be read together and harmonized, if possible, to achieve a reasonable result giving effect to each one (see People v Mobil Oil Corp., 48 NY2d 192, 199; Matter of Albano v Kirby, 36 NY2d 526, 530-531, supra; People v Yale, 49 AD2d 167, 168).

Section 70.10 was obviously intended to authorize harsher treatment of persistent felony offenders. Section 70.30, entitled “Calculation of terms of imprisonment”, was not intended to restrict the number or length of the sentences that may be imposed, but merely to direct how the aggregate length of those sentences should be calculated (see Commission Staff Notes on Proposed NY Penal Law, 1982-1983 Gilbert Criminal Law and Procedure, p 2A-29).

The purposes of both sections will be served if section 70.30 (subd 1, par [c]) is read as excluding those situations when the defendant receives consecutive sentences, at least one of which is as a persistent felony offender. When someone is sentenced as a persistent felony offender, the normal sentence range authorized for the particular class of the underlying conviction is ignored and a sentence applicable to a class A-l felony may be imposed (Penal Law, § 70.10, subd 2). Notably, the Legislature excluded sentences imposed for class A convictions from the scope of section 70.30 (subd 1, par [c]). A consistent application of the two statutes can be obtained if section 70.30 is read as referring not to the class of the underlying crime but to the class of the sentence imposed. Thus, in the present matter, petitioner’s sentencing as a class A-l felon would control the effect of section 70.30, notwithstanding that his convictions were for lesser felonies. Consequently, the reduction provisions in section 70.30 (subd 1, par [c]) are inapplicable here, and petitioner’s aggregate term should be calculated pursuant to paragraph (b) of subdivision 1.

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

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, without costs.

      . Petitioner also alleged that he could only be sentenced once as a persistent felony offender. Supreme Court rejected this argument, and petitioner has not pursued the claim.

      . Subdivision 1 of section 70.30 provides in pertinent part:
      “1. Indeterminate sentences. An indeterminate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the state department of correctional services. Where a person is under more than one indeterminate sentence, the sentences shall be calculated as follows:
      * ** *
      “(b) If the sentences run consecutively, the minimum periods of imprisonment 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, provided, however, that both the aggregate maximum term and the aggregate minimum period of imprisonment shall be subject to the limitations set forth in paragraphs (c) and (d) of this subdivision, where applicable;
      “(c) (i) Except as provided in subparagraph (ii) or (iii) of this paragraph, the aggregate maximum term of consecutive sentences imposed for two or more crimes, other than two or more crimes that include a class A felony, committed prior to the time the person was imprisoned under any of such sentences shall, if it exceeds twenty years, be deemed to be twenty years, unless one of the sentences was imposed for a class B felony, in which case the aggregate maximum term shall, if it exceeds thirty years, be deemed to be thirty years. Where the aggregate maximum term of two or more consecutive sentences is reduced by calculation made pursuant to this paragraph, the aggregate minimum period of imprisonment, if it exceeds one-half of the aggregate maximum term as so reduced, shall be deemed to be one-half of the aggregate maximum term as so reduced”.

      . It should be noted, however, that sentencing as a class A felony under the persistent felony offender section does not change the class of the underlying conviction. Classification as a persistent felony offender is not a separate offense. For this reason, there is no merit to the superintendent’s contention that paragraph (c) does not apply because this case fits literally within its exception for “consecutive sentences imposed for two or more crimes” that “include a class A felony.” The underlying crimes for which consecutive sentences were imposed here were not class A felonies but remain class B and D felonies.


author: Kaye, J. Jones, J.

text:
    The People of the State of New York, Respondent, v Benigno Class, Appellant.
    Argued October 12, 1984;
    decided November 27, 1984

      POINTS OF COUNSEL

      Mark C. Cogan and William E. Hellerstein for appellant.
    The police, after stopping appellant for driving a car with a cracked windshield 5 to 10 miles per hour over the speed limit, violated appellant’s right to be free from unreasonable searches and seizures where they entered his car to examine the vehicle identification number without a warrant or any reason to believe the car was stolen. (People v Marsh, 20 NY2d 98; Dyke v Taylor Implement Co., 391 US 216; People v Erwin, 42 NY2d 1064; People v Adams, 32 NY2d 451; Terry v Ohio, 392 US 1; People v Sobotker, 43 NY2d 559; People v Vidal, 71 AD2d 962.)

      Mario Merola, District Attorney (Roger L. Stavis and Steven R. Kartagener of counsel), for respondent.
    The seizure of a loaded weapon, inadvertently discovered in plain view during a routine inspection to verify appellant’s VIN number following a valid traffic stop, was reasonable and therefore lawful. (People v Farrell, 59 NY2d 686; People v Butler, 58 NY2d 1056; People v Harrison, 57 NY2d 470; People v Adams, 32 NY2d 451; People v Sobotker, 43 NY2d 559; People v Ingle, 36 NY2d 413; People v David L., 81 AD2d 893, 56 NY2d 698; People v Vidal, 71 AD2d 962; People v Livigni, 88 AD2d 386, 58 NY2d 894; Pennsylvania v Mimms, 434 US 106.)
   OPINION OF THE COURT

Kaye, J.

A police officer’s nonconsensual entry into an individual’s automobile to determine the vehicle identification number violates the Federal and State Constitutions where it is based solely on a stop for a traffic infraction (US Const, 4th Arndt; NY Const, art I, § 12).

On May 11, 1981, in the late afternoon, Police Officers Lawrence Meyer and William McNamee observed defendant driving 5 to 10 miles per hour above the speed limit, in a car with the windshield cracked on the passenger side. The officers drove alongside defendant’s car and instructed him to pull over. Defendant followed this directive, emerged from his car and approached Officer Meyer, the driver of the police car. He provided Meyer with his registration and proof of insurance but stated that he did not have a driver’s license in his possession. Meanwhile, Officer McNamee had gone directly to defendant’s car, opened the door and checked the left door jamb for the vehicle identification number (VIN). Since the VIN was not located on the door jamb, McNamee reached in and moved papers on the dashboard to enable him to view the VIN. In doing so, he saw a handle of a gun protruding from underneath the seat, seized it, and defendant was promptly arrested.

The hearing court denied defendant’s motion to suppress the gun. Although the court concluded that the officers had “no reason to believe the vehicle * * * was stolen” when defendant was stopped, it found their action reasonable in light of defendant’s “immediately exiting the car and walking over to the police car, instead of waiting in his automobile, coupled with the fact that the defendant did not have a driver’s license in his possession”. Defendant then pleaded guilty to criminal possession of a weapon in the third degree and was sentenced to five years’ probation. On appeal to the Appellate Division, the four-Justice majority affirmed, without opinion. The dissenting Justice found the search impermissible because “there was absolutely no predicate for believing the car was stolen.” (97 AD2d, at p 742.)

VIN inspections typically involve opening a car door to locate the VIN on the doorpost, opening the hood to locate the VIN on the engine, or looking for the hidden VIN in obscure parts of an automobile. While this court has not previously considered the legality of such inspections conducted without consent, lower courts in this State, as well as courts in other jurisdictions, have approached the question from divergent perspectives. Initially, courts are divided on the threshold issue of whether a VIN inspection constitutes a search. On the facts presented by this appeal, we conclude that a search was conducted.

The Fourth Amendment “protects people from unreasonable government intrusions into their legitimate expectations of privacy” (United States v Chadwick, 433 US 1, 7; see, also, Katz v United States, 389 US 347; People v Perel, 34 NY2d 462, 466). One has no legitimate expectation of privacy in locations in a car which are observable by passersby. Accordingly, an officer’s simply peering inside an automobile does not constitute a search and the Fourth Amendment consequently does not limit this activity (Texas v Brown, 460 US 730; People v Cruz, 34 NY2d 362, 370). But there are many places inside a car — including the area underneath the seats — which cannot be viewed from the outside and which an individual legitimately expects will remain private. The government intrusion here, Officer McNamee’s opening the door and reaching inside, was undertaken to obtain information and it exposed these hidden areas. It therefore constituted a search (cf. United States v Place, 462 US 696; People v Miller, 43 NY2d 789, affg 52 AD2d 425, 428; People v Sullivan, 29 NY2d 69).

The absence of any legitimate expectation of privacy in the VIN itself is not determinative of the issue presented. The fact that certain information must be kept, or that it may be of a public nature, does not automatically sanction police intrusion into private space in order to obtain it. In particular, the existence of a VIN on every automobile cannot enable police, without any basis, to make “wholesale entries of cars on nothing more than a hope that one of them might turn out to be stolen.” (1 LaFave, Search and Seizure, § 2.5, p 360.)

A VIN inspection normally involves a lesser invasion of privacy than a full-blown search because of the fixed, known and readily accessible location of the VIN on the automobile. Additionally, there is a compelling police interest, in situations such as automobile thefts and accidents, in the positive identification of vehicles. Consequently, it may well be that some lesser justification than probable cause would be appropriate. However, it is unnecessary in this case to determine whether probable cause or a lesser justification should have been required to support the search, because here there was no semblance of either. The trial court based its apparent finding of reasonable suspicion to believe the car was stolen on two factors: defendant’s exiting the vehicle and approaching the officers, and his failure to produce a driver’s license. But a driver’s emergence from a car upon being stopped by police is not indicative of criminal activity. Nor was reliance properly placed by the court on defendant’s failure to produce a license because McNamee, having proceeded directly to defendant’s car, was not even aware of that fact when he entered the automobile. Since competing inferences cannot reasonably be drawn from the undisputed facts presented, the hearing court erred as a matter of law in finding reasonable suspicion to believe the car was stolen (see People v Harrison, 57 NY2d 470, 477). The facts reveal no reason for the officer to suspect other criminal activity or to act to protect his own safety (compare People v David L., 56 NY2d 698, cert den 459 US 866). The sole predicate for the officer’s action here was defendant’s commission of an ordinary traffic infraction, an offense which, standing alone, did not justify the search (cf. People v Marsh, 20 NY2d 98).

Some lower court cases in New York have interpreted subdivision 4 of section 401 of the Vehicle and Traffic Law as authorizing VIN inspections (see, e.g., People v Gohn, 49 AD2d 585; People v Frank, 61 Misc 2d 450; People v Goldstein, 60 Misc 2d 745). That section provides, in pertinent part: “Carrying certificate of registration. Every person operating a motor vehicle or a motor vehicle and a trailer, registered or transferred in accordance with any of the provisions of this chapter, shall upon demand of any magistrate, motor vehicle inspector, peace officer, acting pursuant to his special duties, or police officer produce for inspection the certificate of registration or the registration renewal stub for such vehicle and shall furnish to such magistrate, inspector, officer or police officer any information necessary for the identification of such vehicle and its owner, and all information required concerning his license to operate, if he is required by law to have such a license, and shall, if required, sign his name in the presence of such magistrate, inspector, peace officer or police officer as a further means of identification.”

In section 401, however, the Legislature has seen fit only to authorize an officer to demand information necessary to identify the car, as he may demand the certificate of registration for the vehicle. No basis has been shown for ignoring this legislative direction. Here, had the officer complied with the statute and demanded exhibition of the VIN, defendant could have avoided the intrusion on his privacy interests by simply moving the papers on the dashboard, thereby facilitating the Officer’s observation of the VIN through the windshield. Section 401, therefore, provided no justification for the officer’s entry of defendant’s car.

Accordingly, the order should be reversed, the motion to suppress granted, the conviction vacated and the indictment dismissed.

Jones, J.

(dissenting). I would affirm the order of the Appellate Division which upheld Criminal Term’s denial of defendant’s motion to suppress the .22 calibre revolver. I do not differ with the majority’s recital of the facts; I do depart, however, from the legal conclusion that it reaches.

It is undisputed that the police were warranted in stopping defendant’s 1972 Dodge Charger. They had observed that it was traveling in excess of the speed limit and that it had a cracked windshield. In this circumstance they were justified not only in stopping the vehicle but thereafter in obtaining its vehicle identification number (VIN).

The requirement that each motor vehicle be assigned a VIN is for the purpose of facilitating rapid, positive identification of each particular motor vehicle. The VIN is functional only when affixed to the particular vehicle and comes into the owner’s possession solely by reason of such affixation. The letters and digits constituting the VIN (as distinguished from the tab on which they may be imprinted) have no independent existence and are not susceptible of being possessed by the owner separate and apart from his possession of the vehicle or of being independently “seized” by the police.

The Supreme Court of the United States and our court have recognized that the owner of a motor vehicle has only a diminished expectation of privacy with respect to the contents of an automobile that is being operated on the highway (United States v Chadwick, 433 US 1, 11-13; People v Belton, 55 NY2d 49, 53). With respect to a VIN affixed to a motor vehicle, however, once the vehicle is on the highway the owner can have no expectation of privacy. The purpose of the VIN is to proclaim the identity of the vehicle, a purpose quite inconsistent with any legitimate privacy interest of the owner.

The police on the other hand have a compelling interest, usually in the identification of a particular motor vehicle, but always in the ready availability of a near-infallible method of vehicular identification. Positive identification of a motor vehicle may be sought by them for a variety of regulatory and administrative objectives as, for example, to establish correlation with a registration certificate produced by the driver, to make positive identification of a vehicle involved in an accident, or to determine whether the vehicle has been stolen. Its identification may also be sought, of course, for purposes of recovery of a vehicle previously known to have been stolen, but in many instances when inspection of the VIN is made the police have no intimation of actual preexistent criminal activity. Familiar concepts with respect to the necessity for probable cause to justify a search for or seizure of criminal evidence or contraband would be applicable to VIN inspection only if the objective of the police action was search for proof with respect to known or suspected preexisting criminal activity. These concepts are immaterial and have no application where, as here, there is no evidence that such was the purpose of police inspection of the VIN, the objective of which was identification of the vehicle only, with no thought of connection with known or suspected previous criminal activity. The purpose of the police was to obtain information, not to seize physical evidence.

In sum, except possibly in exceptional circumstances, I would hold that whenever the police are justified in making a traffic stop (cf. People v Ingle, 36 NY2d 413) they are authorized to inspect the VIN.

After the concededly permissible traffic stop in this instance Officer McNamee opened the driver’s door of the vehicle in expectation of finding the VIN on the inside panel of the door. Not finding it there he went directly to the other location where to his knowledge the VIN would be found — on top of the dashboard on the driver’s side. When he observed that view of the VIN in that location was obscured by some papers, he reached inside the vehicle and moved them aside to view the VIN. That he did not first request defendant to remove the papers or seek his consent to do so is immaterial; such consent could not permissibly have been withheld. The officer was not searching for or intending to seize any physical evidence on the ground that he had probable cause to believe that a crime had been committed; he was seeking information relevant and appropriate to the traffic stop which all concede he had been authorized to make.

The right of the police to inspect the VIN affixed to a motor vehicle is to be distinguished from the right of the police to search for or to seize a vehicular registration certificate. Registration of a motor vehicle, with the related license plates, in contrast to a VIN, serves to describe a vehicle and identify its owner and constitutes proof that the vehicle has been properly licensed for operation on the highway for a specified period of time, customarily one year. In the course of its life a motor vehicle may be, and customarily is, the subject of several different registration certificates, reflecting different periods of licensing and usually successive ownership. A registration certificate may be independently possessed by its owner, on his person, in the glove compartment of the vehicle, or otherwise. Without probable cause the police would have no right to search the person of the driver of the interior of the vehicle to obtain a registration certificate. Penalties might attach to the failure of the driver to produce the registration certificate, but that fact would not enlarge the right of the police to search. The VIN, however, is intended to be indelibly affixed to the particular vehicle throughout its existence, irrespective of changing ownership of the vehicle and whether or not it is licensed for operation on the highway. As its name states, its purpose is vehicle registration without reference to ownership or licensure for operation.

Inasmuch as in this instance the police had the right to inspect the VIN of the 1972 Dodge and the revolver was observed inadvertently and without intention to search for it, under the plain view doctrine it should not be suppressed (see Texas v Brown, 460 US 730).

Chief Judge Cooke and Judges Wachtler, Meyer and Simons concur with Judge Kaye; Judge Jones dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.

Order reversed, etc.

      . Compare, for example, United States v Polk (433 F2d 644); United States v Johnson (413 F2d 1396, affd en banc 431 F2d 441); Cotton v United States (371 F2d 385); People v Valoppi (61 Mich App 470); and People v Hart (75 Misc 2d 908), with United States v Powers (439 F2d 373, cert den 402 US 1011); Simpson v United States (346 F2d 291); State v Moore (_Hawaii_, 659 P2d 70); People v Piper (101 Ill App 3d 296); and State v Simpson (95 Wn 2d 170). Though not treating a VIN inspection as a search, some courts have limited the officers’ right to check the VIN “to those cases in which there is a legitimate reason to do so” (see, e.g., Cotton v United States, 371 F2d 385, 393, supra), The basis for imposing this limitation is not clear.

      . Although the gun was “protruding” from underneath the seat, Officer McNamee first observed it while conducting the search. The only question, then, is whether the officer had a right to be in the position from which he made his observation.

      . We are not confronted with a governmental intrusion so circumscribed as to expose only information or articles in which there is no legitimate expectation of privacy (compare United States v Place, 462 US 696; Smith v Maryland, 442 US 735). Nor are we concerned here with an inventory of an impounded car.

      . No suggestion has been made that the police without basis could search the person of the driver or the interior of the vehicle to obtain a registration certificate, yet the statutory provision is no different for the VIN and the certificate of registration; in both instances the information must be provided on demand of a police officer.

      . A large number of cases have expressly held that there is no expectation of privacy in a VIN (e.g., United States v Powers, 439 F2d 373 [4th Cir], cert den 402 US 1011; United States v Polk, 433 F2d 644 [5th Cir]; United States v Graham, 391 F2d 439 [6th Cir], cert den 393 US 941; United States v Ware, 457 F2d 828 [7th Cir]; State v Colon, 6 Conn Cir 722; Commonwealth v Hason, 387 Mass 169; People v Brooks, 405 Mich 225; People v Brewer, 112 Mich App 670; People v Valoppi, 61 Mich App 470; Commonwealth v Grabowski, 306 Pa Super Ct 483).

      . Several courts have adopted the view that entry into a motor vehicle to find the VIN is not a search for purposes of the Fourth Amendment (e.g., United States v Forrest, 620 F2d 446 [5th Cir]; United States v Duckett, 583 F2d 1309 [5th Cir]; United States v

        Williams, 434 F2d 681 [5th Cir]; United States v Polk, 433 F2d 644 [5th Cir]; United States v Johnson, 413 F2d 1396, affd en banc 431 F2d 441 [5th Cir]; United States v Graham, 391 F2d 439 [6th Cir], cert den 393 US 941; United States v Ware, 457 F2d 828 [7th Cir]; Cotton v United States, 371 F2d 385 [9th Cir]; State u Renfrow, 123 Ariz 64; State v Cohn, 284 So 2d 426 [Fla App]; People u Brewer, 112 Mich App 670; People v Valoppi, 61 Mich App 470; Fox v Commonwealth, 213 Va 97). Many courts have upheld the VIN inspection, even if it be termed a search, in circumstances amounting to less than probable cause (e.g., United States v Dadurian, 450 F2d 22 [1st Cir], cert den 405 US 1044; United States v Powers, 439 F2d 373 [4th Cir], cert den 402 US 1011; United States v Duckett, 583 F2d 1309 [5th Cir], supra; United States v Ware, 457 F2d 828 [7th Cir], supra; United States v Powless, 546 F2d 792 [8th Cir]; United States v Brown, 535 F2d 424 [8th C.]; Cotton v United States, 371 F2d 385 [9th Cir], supra; State v Renfrow, 123 Ariz 64, supra; State v Colon, 6 Conn Cir 722; People v Wolf, 60 Ill 2d 230; People v Brewer, 112 Mich App 670, supra; Wood v State, 632 SW2d 734 [Tex App]; Fox v Commonwealth, 213 Va 97, supra; cf. United States v Squires, 456 F2d 967,970 [2d Cir]). Research has disclosed only six reported cases in which police inspection of a VIN has been struck down (United States v Nikrasch, 367 F2d 740 [7th Cir]; Simpson v United States, 346 F2d 291 [10th Cir]; State v Moore, _ Hawaii _, 659 P2d 70; People v Piper, 101 111 App 3d 296; State v McGann, 124 NH 101; State v Simpson, 95 Wn 2d 170).

      . The right to inspect the VIN would not, of course, justify a rummaging search of a motor vehicle. The officer would be warranted only in going directly, as he did in this case, to a location where by the officer’s advance knowledge the VIN was to be found. By like token, a pretext search would not be condoned.

      . I would reach this result without reference to the provisions of subdivision 4 of section 401 of the Vehicle and Traffic Law.