author: Jones, J.

text:
    Allison C. Collard et al., Appellants, v Incorporated Village of Flower Hill, Respondent.
    Argued March 31, 1981;
    decided May 7, 1981

      POINTS OF COUNSEL

      Eugene G. Lamb for appellants.
    I. Proper judicial construction requires that there be read into the agreement that consent of the board of trustees was not to be unreasonably withheld. (Bensons Plaza v Great Atlantic & Pacific Tea Co., 44 NY2d 791; Van Valkenburgh, Nooger & Neville v Hayden Pub. Co., 30 NY2d 34, 409 US 875; Gelder Med. Group v Webber, 41 NY2d 680; Matter of Friedman, 64 AD2d 70; Rush v Rush, 19 AD2d 846; Saladino v Stuyvesant Ins. Co., 39 AD2d 765; Johnson v Walker, 63 AD2d 422; Grad v Roberts, 14 NY2d 70; Pernet v Peabody Eng. Corp., 20 AD2d 781.) II. The complaint states a cause of action for breach of the covenant of good faith and fair dealing implied to all contracts including the declaration of covenants. (Town of Greenburgh v Buser, 4 Misc 2d 513; Grad v Roberts, 14 NY2d 70; Pernet v Peabody Eng. Corp., 20 AD2d 781; Rush v Rush, 19 AD2d 846.)

      John M. Farrell, Jr., for respondent.
    I. The declaration of covenants can be enforced by the Board of Trustees of the Village of Flower Hill against plaintiffs-appellants as owners of the subject premises. (Church v Town of Islap, 8 NY2d 254; Point Lookout Civic Assn. v Town of Hempstead, 22 Misc 2d 757, 12 AD2d 505, 9 NY2d 961; Neponsit Prop. Owners’ Assn. v Emigrant Ind. Sav. Bank, 278 NY 248; Matter of Flushing Prop. Owners Assn. v Planning Comm. of City of N. Y., 43 AD2d 515, 33 NY2d 520; Lefferts Manor Assn. v Fass, 28 Misc 2d 1005; Poughkeepsie, N. Y. Congregation of Jehovah’s Witnesses, North Unit v Booth, 67 Misc 2d 53; Ginsberg v Yeshiva of Far Rockaway, 45 AD2d 334, 36 NY2d 706.) II. If a party’s actions conform to the terms of the contract, they need not be reasonable. (Mosler Safe Co. v Maiden Lane Safe Deposit Co., 199 NY 479; Backer Mgt. v Acme Quilting Co., 46 NY2d 211; Bayview Gen. Hosp. v Associated Hosp. Servs. of N. Y., 45 Misc 2d 218; Mandel v Liebman, 303 NY 88; Dress Shirt Sales v Hotel Martinique Assoc., 12 NY2d 339.) III. The covenant of good faith and fair dealing has no application to this case. (Kirke La Shelle Co. v Armstrong Co., 263 NY 79; Van Valkenburgh, Nooger & Neville v Hayden Pub. Co., 30 NY2d 34, 409 US 875; Saladino v Stuyvesant Ins. Co., 39 AD2d 765; Rush v Rush, 19 AD2d 846; Grad v Roberts, 14 NY2d 70; Pernet v Peabody Eng. Corp., 20 AD2d 781; Gelder Med. Group v Webber, 41 NY2d 680.)
   OPINION OF THE COURT

Jones, J.

Where a local municipality conditions an amendment of its zoning ordinance on the execution of a declaration of covenants providing, in part, that no construction may occur on the property so rezoned without the consent of the municipality, absent a provision that such consent may not be unreasonably withheld the municipality may not be com-polled to issue such consent or give an acceptable reason for failing to do so.

Appellants now own improved property in the Village of Flower Hill. In 1976, the then owners of the subject premises and appellants’ predecessors in-title, applied to the village board of trustees to rezone the property from a General Municipal and Public Purposes District to a Business District. On October 4 of that year the village board granted the rezoning application by the following resolution:

“RESOLVED that the application of Ray R. Beck Company for a change of Zone of premises known and designated as Section 6, Block 73, Lots 9, 12 and 13 on the land and tax map of Nassau County from General Municipal and Public Purposes District be and the same hereby is granted upon the following conditions:

“(a) The Subject Premises and any buildings, structures and improvements situated or to be situated thereon, will be erected, altered, renovated, remodelled, used, occupied and maintained for the following purposes and no other;

“(i) Offices for the practice of the professions of medicine, dentistry, law, engineering, architecture or accountancy;

“(ii) Executive offices to be used solely for the management of business concerns and associations and excluding therefrom, but without limitation, retail or wholesale sales offices or agencies, brokerage offices of all types and kinds, collection or employment agencies or offices, computer programming centres or offices, counseling centres or offices and training offices or business or trade schools.

“(b) No more than four separate tenancies or occupancies are to be permitted on the subject premises or in any building, structure or improvement situated therein at any one time.

“(c) No building or structure or any portion thereof situated or to be situated on the Subject Premises is to be occupied by more than one person (excluding visitors, clients or guests of any tenant or occupant of such building or structure) for each 190 square feet of the gross floor area of such building or structure;

“(d) No building or structure situated on the Subject Premises on the date of this Declaration of Covenants will be altered, extended, rebuilt, renovated or enlarged without the prior consent of the Board of Trustees of the Village.

“(e) There will be maintained on the Subject Premises at all times, no less than twenty-six paved off-street, on-site parking spaces for automobiles and other vehicles, each such parking space to be at least 9’ x 20’ in dimensions and will be served by aisles and means of ingress and egress of sufficient width to permit the free movement and parking of automobiles and other vehicles.

“(f) Trees and shrubs installed on the Subject Premises pursuant to a landscape plan heretofore filed with the Village in or about 1964, will be maintained in compliance with said landscape plan.”

Subsequently, appellants’ predecessors in title entered into the contemplated declaration of covenants which was recorded in the office of the Clerk of Nassau County on November 29, 1976. Consistent with paragraph (d) of the board’s resolution, that declaration provided that “[n]o building or structure situated on the Subject Premises on the date of this Declaration of Covenants will be altered, extended, rebuilt, renovated or enlarged without the prior consent of the Board of Trustees of the Village.” Appellants, after acquiring title, made application in late 1978 to the village board for approval to enlarge and extend the existing structure on the premises. Without any reason being given that application was denied. Appellants then commenced this action to have the board’s determination declared arbitrary, capricious, unreasonable, and unconstitutional and sought by way of ultimate relief an order directing the board to issue the necessary building permits.

Asserting that the board’s denial of the application was beyond review as to reasonableness, respondent moved to dismiss the complaint for failure to state a cause of action. Special Term denied the motion, equating appellants’ allegation that the board’s action was arbitrary and capricious with an allegation that such action was lacking in good faith and fair dealing — an allegation which it found raised triable issues of fact. The Appellate Division reversed and dismissed the complaint, holding that the allegation of arbitrary and capricious action by the board was not the equivalent of an allegation that the board breached an implied covenant of fair dealing and good faith. We now affirm.

At the outset this case involves the question of the permissibility of municipal rezoning conditioned on the execution of a private declaration of covenants restricting the use to which the parcel sought to be rezoned may be put. Prior to our decision in Church v Town of Islip (8 NY2d 254), in which we upheld rezoning of property subject to reasonable conditions, conditional rezoning had been almost uniformly condemned by courts of all jurisdictions — a position to which a majority of States appear to continue to adhere. Since Church, however, the practice of conditional zoning has become increasingly widespread in this State, as well as having gained popularity in other jurisdictions (see, e.g., Scrutton v County of Sacramento, 275 Cal App 2d 412; Goffinet v County of Christian, 30 Ill App 3d 1089; City of Greenbelt v Bresler, 248 Md 210; Sylvania Elec. Prods. v City of Newtown, 344 Mass 428; Gladwyne Colony v Lower Merion Twp., 409 Pa 441).

Because much criticism has been mounted against the practice, both by commentators and the courts of some of our sister States, further exposition is in order._

Probably the principal objection to conditional rezoning is that it constitutes illegal spot zoning, thus violating the legislative mandate requiring that there be a comprehensive plan for, and that all conditions be uniform within, a given zoning district. When courts have considered the issue (see, e.g., Baylis v City of Baltimore, 219 Md 164; Houston Petroleum Co. v Automotive Prods. Credit Assn., 9 NJ 122; Hausmann & Johnson v Berea Bd. of Appeals, 40 Ohio App 2d 432), the assumptions have been made that conditional zoning benefits particular landowners rather than the community as a whole and that it undermines the foundation upon which comprehensive zoning depends by destroying uniformity within use districts. Such unexamined assumptions are questionable. First, it is a downward change to a less restrictive zoning classification that benefits the property rezoned and not the opposite imposition of greater restrictions on land use. Indeed, imposing limiting conditions, while benefiting surrounding properties, normally adversely affects the premises on which the conditions are imposed. Second, zoning is not invalid per se merely because only a single parcel is involved or benefited (Matter of Mahoney v O’Shea Funeral Homes, 45 NY2d 719); the real test for spot zoning is whether the change is other than part of a well-considered and comprehensive plan calculated to serve the general welfare of the community (Rodgers v Village of Tarrytown, 302 NY 115). Such a determination, in turn, depends on the reasonableness of the rezoning in relation to neighboring uses — an inquiry required regardless of whether the change in zone is conditional in form. Third, if it is initially proper to change a zoning classification without the imposition of restrictive conditions notwithstanding that such change may depart from uniformity, then no reason exists why accomplishing that change subject to condition should automatically be classified as impermissible spot zoning.

Both conditional and unconditional rezoning involve essentially the same legislative act — an amendment of the zoning ordinance. The standards for judging the validity of conditional rezoning are no different from the standards used to judge whether unconditional rezoning is illegal. If modification to a less restrictive zoning classification is warranted, then a fortiori conditions imposed by a local legislature to minimize conflicts among districts should not in and of themselves violate any prohibition against spot zoning.

Another fault commonly voiced in disapproval of conditional zoning is that it constitutes an illegal bargaining away of a local government’s police power (see, e.g., Hartnett v Austin, 93 So 2d 86 [Fla], supra; Baylis v City of Baltimore, 219 Bd 164, supra; Ziemer v County of Peoria, 33 Ill App 3d 612, supra). Because no municipal government has the power to make contracts that control or limit it in the exercise of its legislative powers and duties, restrictive agreements made by a municipality in conjunction with a rezoning are sometimes said to violate public policy. While permitting citizens to be governed by the best bargain they can strike with a local legislature would not be consonant with notions of good government, absent proof of a contract purporting to bind the local legislature in advance to exercise its zoning authority in a bargained-for manner, a rule which would have the effect of forbidding a municipality from trying to protect landowners in the vicinity of a zoning change by imposing protective conditions based on the assertion that that body is bargaining away its discretion, would not be in the best interests of the public. The imposition of conditions on property sought to be rezoned may not be classified as a prospective commitment on the part of the municipality to zone as requested if the conditions are met; nor would the municipality necessarily be precluded on this account from later reversing or altering its decision (cf. Matter of Grimpel Assoc. v Cohalan, 41 NY2d 431).

Yet another criticism leveled at conditional zoning is that the State enabling legislation does not confer on local authorities authorization to enact conditional zoning amendments (see, e.g., Houston Petroleum Co. v Automotive Prods. Credit Assn, 9 NY 122, supra; Baylis v City of Baltimore, 219 Md 164, supra). On this view any such ordinance would be ultra vires. While it is accurate to say there exists no explicit authorization that a legislative body may attach conditions to zoning amendments (see, e.g., Village Law, § 7-700 et seq.), neither is there any language which expressly forbids a local legislature to do so. Statutory silence is not necessarily a denial of the authority to engage in such a practice. Where in the face of nonaddress in the enabling legislation there exists independent justification for the practice as an appropriate exercise of municipal power, that power will be implied. Conditional rezoning is a means of achieving some degree of flexibility in land-use control by minimizing the potentially deleterious effect of a zoning change on neighboring properties; reasonably conceived conditions harmonize the landowner’s need for rezoning with the public interest and certainly fall within the spirit of the enabling legislation (see Church v Town of Islip, 8 NY2d 254, supra).

One final concern of those reluctant to uphold the practice is that resort to conditional rezoning carries with it no inherent restrictions apart from the restrictive agreement itself. This fear, however, is justifiable only if conditional rezoning is considered a contractual relationship between municipality and private party, outside the scope of the zoning power — a view to which we do not subscribe. When conditions are incorporated in an amending ordinance, the result is as much a “zoning regulation” as an ordinance adopted without conditions. Just as the scope of all zoning regulation is limited by the police power, and thus local legislative bodies must act reasonably and in the best interests of public safety, welfare and convenience (Village of Euclid v Amber Realty Co., 272 US 365, 387; Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125, 130; Matter of Concordia Coll. Inst. v Miller, 301 NY 189,196), the scope of permissible conditions must of necessity be similarly limited. If, upon proper proof, the conditions imposed are found unreasonable, the rezoning amendment as well as the required conditions would have to be nullified, with the affected property reverting to the preamendment zoning classification.

Against this backdrop we proceed to consideration of the contentions advanced by appellants in the appeal now before us. It is first useful to delineate arguments which they do not advance. Thus, they do not challenge the conditional zoning change made in 1976 at the behest of their predecessors in title; no contention is made that the village board was not authorized to adopt the resolution of October 4,1976, conditioned as it was on the execution and recording of the declaration of covenants, or that the provisions of that declaration were in 1976 arbitrary, capricious, unreasonable or unconstitutional. The reason may be what is apparent, namely, that any successful challenge to the adoption of the 1976 resolution would cause appellants’ premises to revert to their pre-1976 zoning classification— a consequence clearly unwanted by them.

The focus of appellants’ assault is the provision of the declaration of covenants that no structure may be extended or enlarged “without the prior consent of the Board of Trustees of the Village”. Appellants would have us import the added substantive prescription — “which consent may not be unreasonably withheld”. Their argument proceeds along two paths: first, that as a matter of construction the added prescription should be read into the provision; second, that because of limitations associated with the exercise of municipal zoning power the village board would have been required to include such a prescription.

Appellants’ construction argument must fail. The terminology employed in the declaration is explicit. The concept that appellants would invoke is not obscure and language to give it effect was readily available had it been the intention of the parties to include this added stipulation.

Appellants point to no canon of construction in the law of real property or of contracts which would call for judicial insertion of the missing clause. Where language has been chosen containing no inherent ambiguity or uncertainty, courts are properly hesitant, under the guise of judicial construction, to imply additional requirements to relieve a party from asserted disadvantage flowing from the terms actually used (cf. Dress Shirt Sales v Martinque Assoc., 12 NY2d 339).

The second path either leads nowhere or else goes too far. If it is appellants’ assertion that the village board was legally required to insist on inclusion of the desired prescription, there is no authority in the court to reform the zoning enactment of 1976 retroactively to impose the omitted clause. Whether the village board at that time would have enacted a different resolution in the form now desired by appellants is open only to speculation; the certainty is that they did not then take such legislative action. On the other hand, acceptance of appellants’ proposition would produce as the other possible consequence the conclusion that the 1976 enactment was illegal, throwing appellants unhappily back to the pre-1976 zoning of their premises, a destination which they assuredly wish to sidestep.

Finally, we agree with the Appellate Division that the allegation of the complaint that the village board in denying appellants’ application acted in an arbitrary and capricious manner is not an allegation that the board acted in bad faith or its equivalent.

For the reasons stated the Board of Trustees of the Incorporated Village of Flower Hill may not now be compelled to issue its consent to the proposed enlargement and extension of the existing structure on the premises or in the alternative give an acceptable reason for failing to do so. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . Prior to 1964 the subject premises, then vacant, had been zoned for single-family dwellings with a minimum lot size of 7,500 square feet. In that year the then owners applied to the village board to rezone a portion of the property and place it in the General Municipal and Public Purposes District so that a private sanitarium might be constructed. Concurrently with that application a declaration of covenants restricting the use of the property to a sanitarium was recorded in the county clerk’s office. The village board then granted the rezoning application, but limited the property’s use to the purposes set forth in the declaration of covenants. The 1976 rezoning application, which as conditionally granted is the subject of this suit, was made because the private sanitarium had fallen into disuse and it was asserted that without rezoning the property could neither be sold nor leased.

      . Instances of the application of the principle have been before this court in Matter of Dexter v Town Bd. of Town of Gates (36 NY2d 102), Albright v Town of Manlius (28 NY2d 108), and Point Lookout Civic Assn. v Town of Hempstead (9 NY2d 961).

      . (See, e.g., Babcock, The Zoning Game, chs 1, 3; Basset, Zoning, ch. 9; Crolly, The Rezoning of Properties Conditioned on Agreements with Property Owners — Zoning by Contract, NYLJ, March 9, 1961, p 4, col 1; Scott, Toward a Strategy for Utilization of Contract and Conditional Zoning, 51 J Urban L 94; Trager, Contract Zoning, 23 Md L Rev 121; Note, Three Aspects of Zoning; Unincorporated Areas — Exclusionary Zoning — Conditional Zoning, 6 Real Prop, Prob & Tr J 178; Comment, The Use and Abuse of Contract Zoning, 12 UCLA L Rev 897. For judicial criticism, see e.g., Allred v City of Raleigh, 178 SE2d 432; Baylis v City of Baltimore, 219 Md 164; City of Farmers Branch v Hawnco, Inc., 435 SW2d 288 [Tex] ; Ford Leasing Dev. Co. v Board of County Comrs., 186 Col 418; Hartnett v Austin, 93 So 2d 86 [Fla] ; Haymon v City of Chattanooga, 513 SW2d 185 [Tenn] ; Houston Petroleum Co. v Automotive Prods. Credit Assn., 9 NJ 122; Sandenburgh v Michigamme Oil Co., 249 Mich 372; Ziemer v County of Peoria, 33 Ill App 3d 612.)

      . Inasmuch as no contention is made that the adoption of the 1976 resolution by the village board constituted impermissible spot zoning or that the action of the board at that time was otherwise unreasonable or constituted an impermissible exercise of its zoning powers, we do not reach or consider such issues.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    Donald Hoenig, Appellant, v Henry P. Westphal, Respondent. Robert F. Calhoun, Appellant, v Joan A. Pickett et al., Respondents.
    Argued March 26, 1981;
    decided May 5, 1981

      POINTS OF COUNSEL

      James M. Woolsey, Jr., for appellants.
    I. CPLR 3121, a specific statute, governs the disclosure of medical reports and prevails over CPLR 3101 (subd [a]) which is a general statute; thus the reliance of the court below on CPLR 3101 (subd [a]) was improper and its decision should be reversed. (Allen v Crowell-Collins Pub. Co., 21 NY2d 403; Matter of Fox Mem. Hosp. Soc. v Whalen, 55 AD2d 495; St. Germain v St. Germain, 25 AD2d 568; Matter of County of Rensselaer v Capital Dist. Transp. Auth., 42 AD2d 445; People v Mobil Oil Corp., 48 NY2d 192; Lebowitz v Cinberg, 94 Misc 2d 872; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205.) II. Even assuming that CPLR 3101 (subd [a]) applies here, defendants are still not entitled to discovery of plaintiff’s doctors’ reports. (Orr v Martin, 98 Misc 2d 391; Cepin v General Motors Corp., 66 AD2d 764; Dunning v Shell Oil Co., 57 AD2d 16; Linton v Lehigh Val. R. R. Co., 25 AD2d 334.)

      Dormid P. Ford, Jr., for respondents.
    I. CPLR article 31 mandates disclosure of the attending physicians’ reports.
      (Allen v Crowell-Collier Pub. Co., 21 NY2d 403; Main Place Pharmacy Corp. v Central Buffalo Project Corp., 55 AD2d 1007; Wolfe v Fazzini, 50 AD2d 723; Kenford Co. v County of Erie, 41 AD2d 586, 62 AD2d 1176; Zellman v Metropolitan Transp. Auth., 40 AD2d 248; State of New York v Jancyn Mfg. Corp., 70 AD2d 633; Gates v State of New York, 72 Misc 2d 844; Montgomery Ward Co. v City of Lockport, 44 Misc 2d 923; Kaza v Gardner, 65 AD2d 958.) II. There is no exclusion prohibiting disclosure under CPLR article 31. (Chemical Bank v National Union Fire Ins. Co. of Pittsburgh, Pa., 70 AD2d 837; Kandel v Tocher, 22 AD2d 513; Baker v Younts, 96 Misc 2d 132; Zimmerman v Nassau Hosp., 76 AD2d 921; Mold Maintenance Serv. v General Acc. Fire & Life Assur. Corp., 56 AD2d 134; Yannick v Tube City Iron & Metal Co., 77 AD2d 623; Matter of Weaver v Waterville Knitting Mills, 78 AD2d 574; Koump v Smith, 25 NY2d 287; Steinberg v New York Life Ins. Co., 263 NY 45; Hethier v Johns, 233 NY 370.) III. CPLR 3121 (subd [b]) does not bar disclosure of attending physicians’ reports. (Moses v Woodbury, 54 AD2d 961.)
   OPINION OF THE COURT

Chief Judge Cooke.

Involved on these appeals are questions concerning the effect, operation and interaction of CPLR 3101 and 3121. Specifically, this court is asked to determine whether, in personal injury actions, attending physicians’ reports are discoverable when a plaintiff has not requested an exchange of medical reports.

These actions were commenced by plaintiffs for personal injuries resulting from automobile accidents in which defendants were involved. Following service of the complaint and answer in Hoenig v Westphal, plaintiff served a verified bill of particulars which specified the treating physicians and dates of treatment. By interrogatories, defendant sought to establish the existence of attending physicians’ reports and their contents, including medical history, prescribed treatment, diagnosis and prognosis. Defendant also requested production of any reports identified. Plaintiff failed to comply and defendant moved to compel answers to the interrogatories. Plaintiff opposed the motion on the ground that the disclosure requested was contrary to CPLR 3121. Special Term denied the motion.

As in Hoenig, plaintiff in Calhoun v Pickett served a verified bill of particulars specifying treating physicians and the dates of treatment. Defendant served a notice of examination before trial together with a notice to produce the reports of each attending physician showing examination, diagnosis and treatment. Plaintiff thereafter successfully moved for a protective order to strike the request for production of attending physicians’ reports.

Both orders were appealed to the Appellate Division. That court reversed in each case, determining that CPLR 3101 permits discovery of attending physicians medical reports. The dissent disagreed, arguing that CPLR 3121 limits the more general provision of CPLR 3101 and prohibits discovery of doctors’ records and reports absent an exchange initiated by the party examined under CPLR 3121 (subd [a]). The Appellate Division thereafter certified to this court the questions of the correctness of its orders. We now affirm and answer the questions certified in the affirmative.

CPLR 3101 defines the scope of disclosure and provides that “[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof” (CPLR 3101, subd [a]). This provision has been liberally construed to require disclosure where the matter sought will “assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406). Thus, restricted only by a test for materiality “of usefulness and reason” (id.), pretrial discovery is to be encouraged.

Specifically exempted from this mandate for full disclosure are matters protected by some privilege (CPLR 3101, subd [b] and material prepared for litigation (CPLR 3101, subd [d]). Of course, plaintiffs do not and may not claim the physician-patient privilege, for that privilege was waived by commencement of these personal injury actions in which physical condition was affirmatively put in issue (Prink v Rockefeller Center, 48 NY2d 309; Koump v Smith, 25 NY2d 287). Nor can plaintiffs now claim the exemption for material prepared for litigation, as the requests here on their face seek only reports of specified attending or treating doctors concerning medical history, diagnosis and treatment. Plaintiffs did not below and do not here support a claim that such reports are material prepared primarily, if not solely, for litigation (see Zimmerman v Nassau Hosp., 76 AD2d 921; Weisgold v Kiamesha Concord, 51 Misc 2d 456; Siegel, New York Practice, § 348, p 430). Since there can be no dispute that the reports sought are “material and necessary” to the defense, CPLR 3101 on its face permits discovery.

Plaintiffs nonetheless resist disclosure based upon a purported restriction in CPLR 3121 on disclosure otherwise authorized. In plaintiff’s view, CPLR 3121 is the exclusive mechanism for discovery of medical reports and a plaintiff may prevent discovery by the simple expedient of refusing to request medical reports in the hands of another party. Thus, the scope of discovery is to be determined by a plaintiff’s strategic decision not to request an exchange of medical information. We decline to adopt such a narrow view of the discovery procedures and conclude that defendants were entitled to disclosure.

CPLR 3121 is an important disclosure device available in cases in which physical or mental condition is in controversy. Subdivision (a) requires a party to submit to a physical examination upon request of another party and to give authorization for release of hospital records. Subdivision (b) provides that a copy of the report of the examining physician must be given to “any party requesting to exchange therefor a copy of each report in his control of an examination made with respect to the mental or physical condition in controversy” (CPLR 3121, subd [b]). Contrary to plaintiffs’ argument, this rule broadens rather than restricts discovery. Read in context, the exchange provision relates to reports of examinations conducted pursuant to subdivision (a) or otherwise specifically for the litigation. Since such reports, for whomever prepared, could be classified as material prepared for litigation and thus exempt from disclosure under CPLR 3101 (subd [d]), 3121 (subd [b]) gives the plaintiff or another party a right to discovery not otherwise available. Subdivision (b) quite simply makes discoverable from a person requesting an examination material otherwise not discoverable. It cannot be read to restrict the right to discover material generally subject to disclosure.

Plaintiffs offer no reason to shield these doctors’ reports from discovery. Indeed, plaintiffs’ interpretation of the discovery scheme runs counter to its rationale. The procedures advance the truth-determining function of trial and speedy disposition of cases (see Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 407, supra; Rios v Donovan, 21 AD2d 409, 411). With the advent of liberal disclosure rules, there was an abandonment of the notion that the results of trial would be based on tactics or surprise; the outcome is to be based on the facts as developed through meaningful preparation prior to trial.

Plaintiffs have placed their physical condition in controversy and may not insulate from disclosure material necessary to the defense concerning that condition (see Greuling v Breakey, 56 AD2d 540; Moses v Woodbury, 54 AD2d 961; Brooks v Hausauer, 51 AD2d 660). Given the purposes of discovery, artificial barriers are not to be read into the carefully designed system favoring “full disclosure”. Where, as here, the requests are specific and impinge upon no privilege, there can be no justification for a shield against disclosure.

Accordingly, the orders of the Appellate Division should be affirmed, with costs, and questions certified answered in the affirmative.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

In each case: Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v Dominick J. Grimaldi, Appellant.
    Argued March 25, 1981;
    decided May 5, 1981

      POINTS OF COUNSEL

      Michael P. Joseph for appellant.
    I. Statements made by Grimaldi to his father were the direct result of improper police inducement and interrogation conducted in the absence of counsel. The admission of this evidence violates the Fourth, Fifth and Sixth Amendments, as well as GPL 60.45. (Massiah v United States, 377 US 201; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Townes, 41 NY2d 97; Brewer v Wiliams, 430 US 387; People v Di Biasi, 7 NY2d 544; People v Meyer, 11 NY2d 162; People v Maerling, 46 NY2d 289.) II. The evidence seized incident to Grimaldi’s arrest should have been suppressed since probable cause did not exist prior to said arrest. (People v Malinsky, 15 NY2d 86; People v Loria, 10 NY2d 368; Chimel v California, 395 US 752; Beck v Ohio, 379 US 89; People v Castro, 29 NY2d 324; Henry v United States, 361 US 98; Wong Sun v United States, 371 US 471; People v Corrado, 22 NY2d 308; Terry v Ohio, 392 US 1; People v Cantor, 36 NY2d 106.) III. The District Attorney committed error by arguing that Grimaldi’s “bad moral character” and Grimaldi’s association with people of “bad moral character” established a predisposition to commit the murder charged in the indictment. (People v Zackowitz, 254 NY 192; People v Sharp, 107 NY 427; People v Fiore, 34 NY2d 81; People v Montanez, 41 NY2d 53; People v Mullin, 41 NY2d 475.) IV. The court made numerous evidentiary errors in improperly allowing testimony into evidence. V. The instruction given by the court as to the inference that may be drawn from a finding that Grimaldi aided in the “moving and/or cutting” of the deceased’s body is confusing, incomplete and inaccurate. (Bollenbach v United States, 326 US 607; Sandstrom v Montana, 442 US 510; Bacon v Celeste, 30 AD2d 324; Nantasket, Inc. v Raboy & Co., 31 AD2d 804; People v Galbo, 218 NY 283; People v Batten, 40 AD2d 549; Matter of Winship, 397 US 358.) VI. The Judge, in his charge, implied that Grimaldi was involved in the homicide. VII. As a matter of law, the evidence does not establish Grimaldi’s guilt. (People v Insogna, 28 AD2d 771; People v Foley, 283 App Div 239; People v Lewis, 275 NY 33.) VIII. The admission of testimony that Grimaldi refused to speak with a police officer after his arrest constitutes a deprivation of his Fifth Amendment rights. (People v Masters, 30 AD2d 723; People v Travato, 309 NY 382; Miranda v Arizona, 384 US 436; People v Rutigliano, 261 NY 103.) IX. Inflammatory photographs should not have been admitted into evidence.

      Seymour Meadow, District Attorney (James H. Eckl of counsel), for respondent.
    I. The testimony relating appellant’s statements to his father was properly allowed. (People v Schwimmer, 99 Misc 2d 980; People v Lynes, 49 NY2d 286; People v Huffman, 41 NY2d 29; People v Garofolo, 46 NY2d 592; People v Maerling, 46 NY2d 289; People v Kaye, 25 NY2d 139; People v Cunningham, 49 NY2d 203; Denson v United States, 424 F2d 329, 400 US 844; Lanza v New York, 370 US 139; Hearst v United States, 563 F2d 1331, 435 US 1000.) II. The physical evidence seized from appellant’s person was properly received. (People v Santiago, 86 Misc 2d 785; People v Balian, 49 AD2d 94; People v Tibbs, 82 Misc 2d 7.) III. The question of the propriety or impropriety of the District Attorney’s remarks in the course of the prosecution summation has not been preserved for review by this court; the remarks were not improper. (People v Cook, 42 NY2d 204; People v Rivera, 69 AD2d 868; People v Shippee, 64 AD2d 794; People v Fragale, 60 AD2d 972; People v Manor, 59 AD2d 584; People v Garcia, 51 AD2d 329, 41 NY2d 861; People

      v Crews, 50 AD2d 517; People v Paul, 46 AD2d 838; People v Broadie, 37 NY2d 100, 423 US 950; People v Grandone, 35 AD2d 587, 28 NY2d 733.) IV. There was no impropriety-in allowing certain testimony; if there were any improprieties they were harmless. (People v Luciano, 46 NY2d 767; People v Sangamino, 258 NY 85; People v Dinser, 192 NY 80.) V. The instruction in response to the jury’s question was accurate and sufficient. (People v Galbo, 218 NY 283; People v Batten, 40 AD2d 549, 31 NY2d 737; People v Nicholas, 93 Misc 2d 1037, 70 AD2d 804; People v Riddick, 69 AD2d 826; Sandstrom v Montana, 442 US 510; People v Carroll, 37 AD2d 1015.) VI. The entirety of the charge did not suggest the belief of the trial court in appellant’s involvement. (People v Gist, 42 AD2d 968.) VII. The proof was not insufficient as a matter of law. (People v Gruttola, 43 NY2d 116; People v Bland, 37 NY2d 858; People v Scheck, 36 NY2d 918, 37 NY2d 924; People v De Tore, 34 NY2d 199; Wedra v New York, 419 US 1025; People v Kennedy, 47 NY2d 196, 48 NY2d 635; People v Hicks, 91 Misc 2d 205, 70 AD2d 1061; People v Montanez, 41 NY2d 53; People v Benzinger, 36 NY2d 29; People v Cleague, 22 NY2d 363; People v Barnes, 50 NY2d 375.) VIII. The question of the propriety or impropriety of permitting the prosecution witness to testify that appellant “didn’t want to talk” has not been preserved for review by this court; there was no impropriety in permitting him so to testify; if there was any impropriety it was harmless. (People v Rutigliano, 261 NY 103; People v Travato, 309 NY 382; People v Masters, 30 AD2d 723; People v Von Werne, 41 NY2d 584; People v Crimmins, 36 NY2d 230.) IX. The photographs were properly received. (People v Pobliner, 32 NY2d 356, 33 NY2d 657, 416 US 905; People v Culhane, 45 NY2d 757, 439 US 1047; People v Arca, 72 AD2d 205; People v Corbett, 68 AD2d 772; People v Leyra, 1 NY2d 199; People v Luongo, 47 NY2d 418.)
   OPINION OF THE COURT

Chief Judge Cooke.

At issue on this appeal is whether certain statements made by defendant during a telephone call with his father should be suppressed — because they were obtained by a police officer after defendant had been assigned counsel. In the circumstances of this case, it must be concluded that admission of the statements violated defendant’s State constitutional rights.

Early on the morning of December 14, 1979, defendant was arrested and charged with second degree murder. He was arraigned and assigned counsel on the same day. Counsel from the Public Defender’s office visited Grimaldi at 9:00 a.m. the next morning in the Greene County Jail.

A few hours later, Investigator Reidy of the State Police, accompanied by another officer,, went to the Greene County Jail to interview defendant. Defendant was then brought to the jail library. Although Reidy himself testified that he knew defendant was represented by counsel, he nonetheless proceeded with the questioning. Defendant refused to make any statements to the officers until he had an opportunity to talk with his father. Despite Reidy’s exhortations to defendant to make a statement, defendant insisted upon speaking to his father. Finally, Reidy said to defendant “if you want to talk to your father and explain anything to him then you talk to him, and that I would get back and talk to you [defendant]”.

Officer Reidy then arranged for defendant to be returned to his cell and for a phone to be provided. When the jail guard arrived with the phone, Reidy stood about 15 or 20 feet away from defendant’s cell, outside defendant’s view. The officer had not accompanied defendant back to his cell nor did he inform defendant that he would be within a short distance of the cell during the call. Thus, as far as defendant knew, no officer was present on the cell block during his phone conversation.

Officer Reidy overheard defendant make certain statements on the phone and recorded them in his notebook. Defendant’s motion to suppress the statements was denied and they were admitted at trial. A jury returned a verdict of guilty to the charge of second degree murder.

Throughout the proceedings, defendant has maintained that the statements were obtained in violation of his State constitutional right to counsel. The Appellate Division, only briefly discussing the issue, concluded that because the police questioning had not directly elicited incriminating remarks, the statements were admissible. Reversal is mandated.

It is now firmly established by a long line of cases that a waiver of rights may be obtained from a criminal defendant who is actually and known to be represented by an attorney only in the presence of counsel (e.g., People v Settles, 46 NY2d 154, 162; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325, 329; 51 St John’s L Rev 216). Any statement obtained in disregard of this rule violates the State Constitution and must be suppressed (e.g., People v Settles, supra, at p 162; People v Hobson, supra). This “indelible” right to counsel also attaches upon defendant’s request for an attorney, at arraignment or upon the filing of an accusatory instrument (People v Cunningham, 49 NY2d 203; People v Samuels, 49 NY2d 218, 222-223; People v Settles, supra, at pp 165-166). Underlying the rule is the concept that a criminal defendant confronted by the awesome prosecutorial machinery of the State is entitled, at a bare minimum, to the advice of counsel when he is considering surrender of his valuable legal rights (People v Cunningham, 49 NY2d 203, 207-208, supra). Indeed, to deny a defendant the guidance of counsel at such a time could be tantamount to and sometimes even more harmful than denial of an attorney at the trial itself (see, e.g., People v Hobson, 39 NY2d 479, 484-485, supra; People v Lopez, 28 NY2d 23, 29 [dissenting opn], overruled People v Settles, supra).

In this case, defendant at the time of the questioning had been assigned counsel and had been arraigned. His indelible right to counsel had therefore undoubtedly attached and no waiver could be validly obtained. Aware of these facts, the officers nonetheless undertook to converse with defendant regarding the criminal charges in the absence of his attorney. Statements made by defendant in the course of the discussion would, of course, be inadmissible.

The People contend, however, that the statements here were volunteered by defendant at a time when no questioning was going on and were not a product of an interrogation. They conclude that the statements were thus spontaneous and admissible. This argument represents an inaccurate view of the spontaneity doctrine.

It is true that previous cases have articulated a narrow exception to the rule that statements made by a defendant who possesses an indelible right to counsel must be suppressed. Admission of a truly spontaneous statement, blurted out by defendant without any “inducement, provocation, encouragement or acquiescence [by the authorities], no matter how subtly employed” has been said to be proper, even if the statement was made in the absence of counsel (e.g., People v Maerling, 46 NY2d 289). That a statement was volunteered or not made in direct response to questioning, however, does not render it spontaneous (e.g., People v Lucas, 53 NY2d 678, 680; People v Rogers, 48 NY2d 167, 174). Rather, it must satisfy the test for a blurted out admission, a statement which is in effect forced upon the officer (People v Maerling, supra, at p 303).

In the present circumstances, the statements overheard by the officer were indeed the result of the illegal questioning. It was only because of the police conduct that defendant found it necessary to communicate with his father. And, the officer even suggested at one point that defendant converse with his father and then make a statement. Had defendant followed this suggestion, the resulting statement would have been inadmissible. That the officer was able to overhear the statement before defendant returned for further questioning should not alter the result. In short, since the need to make the telephone call was created by and was in effect an extension of the illegal questioning, and since the police ultimately arranged, acquiesced in and took affirmative advantage of the phone call, the statements must be deemed inadmissible (cf. People v Rogers, supra, at p 174). Given this conclusion, it is unnecessary to address the issue whether admission of the overheard conversation violated the Fourth Amendment.

One other contention by defendant merits brief comment. Defendant argues that certain items of physical evidence should be suppressed as they resulted from an arrest that was not based upon probable cause. Although the question is an extremely close one, and could well have been decided the other way as a factual matter, absent an error of law an affirmed finding of probable cause is generally not reviewable by this court (e.g., People v McRay, 51 NY2d 594, 601). It cannot be said here as a matter of law that the record is without support for the inference of probable cause drawn by the suppression court and affirmed by the Appellate Division.

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress the statements granted, and a new trial ordered.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

Order reversed, etc.

       Reidy testified at one point that defendant did not want the lawyer assigned to represent him. The People do not now claim, nor could they, that this constituted a waiver of the right to counsel (e.g., People v Hobson, 39 NY2d 479).


text:
    The People of the State of New York, Appellant, v Lawrence Raymond Albro, Jr., Respondent.
    Argued March 23, 1981;
    decided May 5, 1981

      POINTS OF COUNSEL

      Stewart E. McDivitt, District Attorney (Steven Foyer of counsel), for appellant.
    I. The rule of People v Rogers is not applicable since defendant was not in custody at the time he confessed. (People v Rogers, 48 NY2d 167; People v Bell, 50 NY2d 869; People v Cunningham, 49 NY2d 203; People v Rodney P., 21 NY2d 1; Miranda v Arizona, 384 US 436; People v Yukl, 25 NY2d 585; Matter of Kwok T., 43 NY2d 213.) II. The finding that defendant was not in custody involved a factual question. (People v Robles, 27 NY2d 155; People v Huffman, 41 NY2d 29; People v Paulin, 25 NY2d 445; People v Oden, 36 NY2d 382; People v Rizzo, 40 NY2d 425.) III. Defendant’s release on his own recognizance was proper and not a sham. (People v Pugliese, 26 NY2d 478; People v Yukl, 25 NY2d 585; People v Bryant, 71 AD2d 564; People v Ellis, 91 Misc 2d 28; People v Alston, 79 Misc 2d 586; Oregon v Mathiason, 429 US 492.)

      Robert L. Miller and Gerald A. Keene for respondent.
    I. The existence or nonexistence of custody is a mixed question of law and fact; the court below did not err by reversing the lower court’s finding. (People v Oden, 36 NY2d 382; People v Paulin, 25 NY2d 445; People v Huffman, 41 NY2d 29; People v Leonti, 18 NY2d 384.) II. The statement obtained from defendant was inadmissible by virtue of the fact that it was the product of custodial interrogation. (People v Rogers, 48 NY2d 167; People v Bell, 50 NY2d 869; People v Cunningham, 49 NY2d 203; People v Arthur, 22 NY2d 325; People v Hobson, 39 NY2d 479; People v Rodney P., 21 NY2d 1; Miranda v Arizona, 384 US 436; People v McKie, 25 NY2d 19; People v Yukl, 25 NY2d 585; People v Crimmins, 36 NY2d 230.) III. Defendant’s right to counsel should not be conditioned on the existence of custody. (People v Rogers, 48 NY2d 167; People v Arthur, 22 NY2d 325; People v Hobson, 39 NY2d 479; People v Donovan, 13 NY2d 148; People v Settles, 46 NY2d 154.)
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal presents the court with its first opportunity to interpret the recent amendment to CPU 450.90 (subd 2, par [a]) — a provision designed to permit appeals to the Court of Appeals in certain criminal cases where the Appellate Division reverses or modifies on the law and the facts. In the present case, although the Appellate Division reversal was so based — on the law and the facts — we conclude that the amendment authorizes an appeal. The only question reviewable by us on the appeal, however, is the Appellate Division’s determination of law.

As found by the Appellate Division, defendant was initially arrested on June 6,1976 for possession of marihuana. He was arraigned on that charge and bail was set at $5,000. At 9 A.M. the following day, defendant was rearraigned and was actually represented by counsel. That afternoon, defendant was brought before the same Judge, in the company of a State trooper, and released on his own recognizance. The trooper took defendant to a State Police substation, and within a short time defendant, without having a lawyer present, confessed to a murder and an assault. The confession was admitted at trial and defendant was convicted of those charges.

On appeal, the Appellate Division initially held the matter in abeyance and remitted for a hearing to determine whether defendant was still in custody when he made the statement. After the hearing, a majority of that appellate court reversed the convictions, finding that defendant indeed was in custody, and suppressed the statement. It was concluded that custodial interrogation in the absence of an attorney violated defendant’s State constitutional right to counsel (People v Rogers, 48 NY2d 167). Although the court’s order recited that the determination was on the law, the slip opinion and decision slip indicated that the reversal was predicated “on the law and the facts”. The People now argue that defendant was not in custody at the time he made the statement regarding the murder and the assault and therefore his right to counsel was not violated.

Because it appears that the Appellate Division reversal may have involved a factual issue, a threshold question as to this court’s jurisdiction must be resolved. In past years, an order of the Appellate Division reversing or modifying in a criminal case was appealable to the Court of Appeals only if it expressly stated that it was on the law alone (see, e.g., People v Coppa, 45 NY2d 244, 248-249). That the order recited that it was on the law, however, did not automatically give rise to an appeal; the court looked behind the order to determine the accuracy of the recital (e.g., People v Johnson, 47 NY2d 124, 126). Upon such examination, if it was discovered that the order was not on the law alone, the appeal would be dismissed (id.).

By contrast, if the intermediate appellate court order expressly recited that it was premised even partially “on the facts”, the appeal was automatically precluded (People v Mackell, 40 NY2d 59). Such an appeal simply did not satisfy the statute requiring the order to state expressly that it was on the law alone (id., at pp 62-63). And, the language of the statute prevented the court from looking through the order to determine whether it was on the law alone (id.).

A recent amendment to CPL 450.90 (subd 2, par [a]), however, has prescribed a new rule for appealability of orders of reversal or modification. Under this new legislation, such an order is appealable if the Court of Appeals determines that it was made “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal or modification”. One obvious purpose of the statute was to alter the rule applied in People v Mackell (supra) which precluded appeal of an intermediate appellate court order expressly stated to be on “the facts”. Appeal from such an order now is not automatically precluded. But the statute is not limited to the Mackell situation. Rather, it permits the Court of Appeals to determine in all cases whether the order satisfies the criteria for appeal. Thus, an appeal from an order stated to be “on the law”, even if found to involve factual considerations, no longer is subject to automatic dismissal. In those cases, the court must assess whether the intermediate appellate determination was based upon such facts which, but for the legal determination, would not have led to reversal or modification. In short, the statute permits appeals where there is a controlling legal question combined with incidental but nondispositive factual issues.

Here, the Appellate Division determination, although stated to be on the law, involved a question of custody, generally a fact issue (e.g., People v Williamson, 51 NY2d 801, 802). An examination of the court’s opinion confirms that the factual issue of custody was resolved. But the court also concluded, as a legal matter, that the rule of People v Rogers (48 NY2d 167, supra) prohibited custodial interrogation of defendant in the absence of counsel. Thus, the order was made upon the law and the facts.

Under the amendment the appeal may be entertained if the factual finding would not have led to reversal in the absence of the Appellate Division’s legal conclusion. In this case, the factual determination that defendant was in custody would not, in itself, have led to reversal. Absent the court’s legal conclusion that a custodial statement would violate defendant’s right to counsel, the finding would be irrelevant. Because the factual question was thus incidental and nondispositive, an appeal lies pursuant to CPL 450.90 (subd 2, par [a]).

That the appeal is properly here, however, does not mean that the court may review every issue passed upon by the Appellate Division. Indeed, the amendment does not purport to, nor could it, expand the constitutionally derived limits upon this court’s scope of review (see, e.g., People v Mackell, 40 NY2d 59, 64-65, supra [concurring opn]; cf. Bellacosa, Supplementary Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 450.90, pp 127-128). Thus, the traditional prohibition against the Court of Appeals reviewing facts remains intact and the only issue reviewable is the propriety of the Appellate Division’s legal conclusion.

The Appellate Division ruled that People v Rogers (supra) precludes custodial questioning of a defendant in the absence of an attorney where the defendant is actually represented on unrelated charges. The court also held that Rogers should be given retroactive effect. Inasmuch as these conclusions are correct (People v Kazmarick, 52 NY2d 322, 327; People v Bell, 50 NY2d 869), an affirmance is required. On this view of the case, it is unnecessary to address defendant’s argument that People v Rogers would require suppression of the statement even if defendant had not been in custody (cf. People v Skinner, 52 NY2d 24).

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

Order affirmed.

       It should be noted, however, that the amendment does not apply and thus does not operate to provide an appeal where the reversal or modification was at least partially based upon discretion exercised in the interests of justice (People v Moses, 52 NY2d 894; see, e.g., People v Humphrey, 50 NY2d 925; People v Lanzot, 49 NY2d 796).


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

text:
    Jon Holt, Appellant, v Board of Education of the Webutuck Central School District et al, Respondents. In the Matter of Wayne Doyle, Respondent, v Board of Education of the Ten Broeck Academy et al., Appellants.
    Argued April 1, 1981;
    decided May 7, 1981

      POINTS OF COUNSEL

      Gerard John De Wolf and Bernard F. Ashe for appellant in the first above-entitled proceeding.
    In summarily issuing to appellant the February 13, 1979 and June 15, 1978 letters, respondents have violated appellant’s rights under section 3020-a of the Education Law. (Matter of Boyd v Collins, 11 NY2d 228; People ex rel. Callahan v Board of Educ., 174 NY 169; Matter of Monan v Board of Educ., 280 App Div 14; Matter of Abramovich v Board of Educ., 46 NY2d 450; Ricca v Board of Educ., 47 NY2d 385; Board of Educ. v Gootnick, 65 AD2d 940, 49 NY2d 683; Matter of Adrian v Board of Educ., 60 AD2d 840; Matter of Schneider v Board of Educ., 61 AD2d 797; Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279; Matter of Baer v Nyquist, 34 NY2d 291; Brooklyn Union Gas Co. v New York State Human Rights Appeals Bd., 41 NY2d 84; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167.)

      Raymond G. Kuntz for respondents in the first above-entitled proceeding.
    I. Section 3020-a of the Education Law has no applicability to administrative criticisms, warnings or reprimands. (Matter of Abramovich v Board of Educ., 46 NY2d 450.) II. The letters issued by respondents O’Connell and Rindsberg were not designed to evade the requirements of section 3020-a. III. Adoption of appellant’s construction of the law would effectively preclude school districts from utilizing section 3020-a procedures.

      Donald J. Swanz for appellants in the second above-entitled proceeding.
    I. A school administrator has the authority, in fact the responsibility, to make written comments concerning the evaluation of an employee’s performance. II. An administrator’s written comment is not equivalent to discipline, nor is it a penalty contemplated by section 3020-a of the Education Law. III. The teacher’s personnel files are the proper depository for administrative criticism of job performance. (Board of Educ. v Areman, 41 NY2d 527.)

      Emanuel Tabachnick, Bernard F. Ashe and Rocco A. Solimando for respondent in the second above-entitled proceeding.
    I. The Education Law provides for statutory due process protections for tenured teachers prior to being disciplined by way of either a reprimand, a fine, a suspension without pay, or a discharge. (Matter of Moritz v Board of Educ., 60 AD2d 161; Matter of Boyd v Collins, 11 NY2d 228; People ex rel. Callahan v Board of Educ., 174 NY 169; Monan v Board of Educ., 280 App Div 14; Matter of Adrian v Board of Educ., 60 AD2d 840; Matter of Schneider v Board of Educ., 61 AD2d 797; Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279.) II. The March 15, 1978 letter to respondent constituted a reprimand, and its issuance deprived respondent of the protections granted by the Legislature to a tenured teacher. (Matter of Baer v Nyquist, 34 NY2d 291; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Holt v Board of Educ., 74 AD2d 839.) III. The minority of the court below did not realistically gauge the effects of the placement of the March 15, 1978 letter into the teacher’s personnel file. (Matter of Waterhouse v Hastings, 73 AD2d 1034.)

      Henry F. Sobota for New York State School Boards Association amicus curiae.

    I. Section 3020-a should not be construed so as to entitle a tenured teacher to a section 3020-a hearing prior to the issuance of a critical letter. (Matter of Jerry v Board of Educ., 35 NY2d 534; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of McAulay v Board of Educ., 61 AD2d 1048; Farrell v Village Bd. of Trustees of Vil. of Johnson City, 83 Misc 2d 125; Paul v Davis, 424 US 693; Codd v Velger, 429 US 624; Russell v Hodges, 470 F2d 212; Gentile v Wallen, 562 F2d 193; Green v Kinsella, 36 AD2d 677.) II. Sections 3012 and 3020-a of the Education Law do not grant to tenured teachers a right to a hearing prior to reprimand. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Abramovich v Board of Educ., 46 NY2d 450; Matter of Jerry v Board of Educ., 35 NY2d 534; Humphrey’s Executor v United States, 295 US 602; Matter of Brewer v Board of Educ., 51 NY2d 855.) III. The tenure laws should be construed so as to advance the public’s interest in the education of our youth. (Matter of Moritz v Board of Educ., 60 AD2d 161; Ricca v Board of Educ., 47 NY2d 385; Matter of Bott v Board of Educ., 51 AD2d 81, 41 NY2d 265; Matter of Feinerman v Board

      of Coop. Educational Servs. of Nassau County, 48 NY2d 491; Ambach v Norwich, 441 US 68.)

      Roy Moskowitz for Frank J. Macchiarola, Chancellor of the City School District of the City of New York, amicus curiae.

   OPINION OF THE COURT

Jasen, J.

The issue on this appeal is whether a written communication from a school administrator to a tenured teacher which criticizes the latter’s performance or conduct may be made a part of the teacher’s permanent personnel file without affording him an opportunity for a hearing pursuant to section 3020-a of the Education Law.

Two of the proceedings before us involve Jon Holt, a tenured teacher in the Webutuck Central School System, who received two letters from school administrators which were critical of his performance on the job. The first was written by Stephen O’Connell, principal of the Webutuck Junior-Senior High School and Mr. Holt’s immediate supervisor. This letter, dated February 13, 1978, detailed O’Connell’s observation of Holt’s supervision of a “study hall” at the school and stated that Holt had failed to discharge his responsibility to maintain order in the classroom and had disregarded the principal’s request that he correct the problem. The letter concluded by stating that Holt’s actions indicated “incompetence and insubordination” and admonished Holt to make a greater effort in the future. This letter was made a part of Holt’s permanent personnel file.

On March 1, 1978, Holt responded in writing to O’Connell. He indicated his belief that certain statements in the O’Connell letter were factually incorrect, that the February 13, 1978 letter was disciplinary in nature and that such disciplinary action could not be taken without full compliance with both section 3020-a of the Education Law and the applicable provisions of the collective bargaining agreement between the school district and the teachers’ association. He requested that the letter be removed from his personnel file immediately. The letter was not removed, and on May 3, 1978 Holt commenced the first of two CPLR article 78 proceedings challenging the authority of the school district to retain a critical letter in his file.

The second proceeding commenced by petitioner Holt involves a letter written by District Principal Myron Rinds-berg on June 15, 1978. This letter describes Rindsberg’s observation of Holt on June 13, 1978, at which time Holt allegedly interrupted the class of another teacher in disregard of a prior warning not to do so. The letter characterized Holt’s behavior as “unbecoming of a teacher” and “insubordinate”. Holt made no response to this letter, although he apparently had a contractual right to do so. Instead, he commenced a second CPLR article 78 proceeding in the nature of mandamus to compel removal of the letter from his personnel file upon the ground that it constituted an improper reprimand within the meaning of the Education Law.

Both of Holt’s petitions were dismissed by Special Term. The court found in both cases that the school administrators were acting “well within the framework of [their] administrative responsibility in evaluating the performance” of petitioner and held that section 3020-a of the Education Law had no application to such administrative evaluations. On appeal, the Appellate Division, Second Department, affirmed the dismissal of both petitions. This court granted leave to appeal.

The remaining case before us involves Wayne Doyle, a tenured teacher in the Franklinville Central School System. In a letter dated March 15, 1978, William Schubeck, Secondary Principal of the Ten Broeck Academy and Franklin-ville Central Schools, sent a letter to Doyle setting forth several occasions on which Doyle was allegedly absent from his assigned duty station. The letter noted that such absences were in apparent disregard of a prior oral admonition from the principal and urged Doyle to “direct [his] efforts” toward the resolution of the problem. This letter was made a part of Doyle’s permanent personnel file. Doyle later requested that the letter be removed from his file. This request was not honored. As a result, Doyle commenced the instant proceeding seeking an order that the letter be expunged from the file.

Special Term dismissed the petition, relying in part on the decision of Supreme Court, Dutchess County, in the proceedings involving appellant Holt. On appeal, however, the Appellate Division, Fourth Department, reversed. The court stated that “the letter is more a statement of charges than it is an evaluation report” and concluded that the inclusion of the letter in the teacher’s record was a disciplinary act which could only be properly accomplished by resort to the statutory procedures set forth in section 3020-a of the Education Law.

Two Justices of the Appellate Division dissented, agreeing with the reasoning of Special Term in both the Holt and Doyle cases and of the Appellate Division, Second Department, in the Holt case. The dissenters were of the view that the school administrators should be allowed to make critical evaluations of a teacher’s performance without judicial interference. They noted also that if such evaluations were subsequently used against the teacher in a formal disciplinary proceeding, the teacher would then be entitled to the protection of the statutory procedures set forth in section 3020-a of the Education Law. In the absence of such formal disciplinary proceedings, however, the dissenters deemed court review of such critical evaluations to be inappropriate.

In both of the cases before us, the thrust of the teachers’ argument is that the written communications which have become a permanent part of their personnel files are the equivalent of a disciplinary “reprimand” and that such a reprimand can only be issued after formal charges have been preferred against them and after a finding of misconduct has been made in accordance with section 3020-a of the Education Law. We disagree. The documents in issue, critical as they may be of the respective teacher’s job performance, amount to nothing more than administrative evaluations which the supervisory personnel of the school district have the right and the duty to make as an adjunct to their responsibility to supervise the faculty of the schools. In our view, section 3020-a of the Education Law was not intended by the Legislature to apply to such evaluations and does not require a formal hearing as a prerequisite to the inclusion of such documents in the teachers’ personnel file.

At one time, teachers in this State had only so much job security as could be bargained for in their contract of employment. When that contract expired, the decision as to whether or not to continue the teacher’s employment was completely within the discretion of the school district. The Legislature, recognizing a need for permanence and stability in the employment relationship between teachers and the school districts which employ them, enacted a comprehensive statutory tenure system, the purpose of which was to provide some measure of security for competent teachers who had rendered adequate service for a number of years. One of the bulwarks of that tenure system is section 3020-a of the Education Law which protects tenured teachers from arbitrary suspension or removal. The statute has been recognized by this court as “a critical part of the system of contemporary protections that safeguard tenured teachers from official or bureaucratic caprice”. (Matter of Abramovich v Board of Educ., 46 NY2d 450, 454.)

However, while the protection afforded teachers by section 3020-a is quite broad, it should not, in our opinion, be read as insulating tenured teachers from all written critical comment from their supervisors. The purpose of the statute is to protect teachers from arbitrary imposition of formal discipline. It was not intended to interfere with the day-today operation of the educational system in which administrative evaluation of a teacher’s performance plays in important part. Indeed, the interpretation urged by the teachers would result in leaving the school administration with only a choice between oral admonition of a teacher and the initiation of formal disciplinary proceedings. Such an interpretation would provide the administrator with no way of correcting what may be perceived as inadequate performance of the teacher which does not rise to the level of misconduct requiring formal discipline. We believe a broader range of administrative review of a teacher’s performance is both necessary to the efficient management of a modern school system and consistent with the letter and spirit of section 3020-a of the Education Law.

The critical evaluations in issue fall within this permissible range of administrative evaluation. While the language of the administrators’ letters may appear to some to be in the nature of a “reprimand” within the literal meaning of that word, it falls far short of the sort of formal reprimand contemplated by the statute. Although the sharply critical content of the letters is unmistakable, the purpose of such communications — to call to the teacher’s attention a relatively minor breach of school policy and to encourage compliance with that policy in the future — is also clear. The purpose is to warn, and hopefully to instruct —not to punish. Further, the documents in question are issued by a single administrator. While the inclusion of such letters in the teacher’s permanent file may have some effect on his future advancement or potential employability elsewhere, it is by no means as damaging as a formal reprimand issued by the board of education as the result of a determination of misconduct made by an impartial hearing panel. Each letter represents one administrator’s view, not a formal finding of misconduct.

Such an informal warning serves, we believe, as a useful tool to help the administrator correct minor problems before they grow into major ones. Should the school administrator be deprived of this informal means of policy enforcement, one of two situations will ultimately prevail. The school administration must either overlook all minor infractions and allow them to go unremedied if an oral admonition had yielded no results or must initiate a formal disciplinary action to remedy each such infraction. In the first case, a tenured teacher would be allowed free reign to disregard supervisory directives so long as his infraction does not rise to the level of conduct which could result in a formal disciplinary proceeding. In the latter, the teacher would be faced with the spectre of formal proceedings upon any breach of school policy, however small. Surely, the Legislature has not expressly limited a school district to a policy choice between these extremes of permissiveness and strictness. Common sense dictates that another, more moderate, option should be available.

It should be noted that the Commissioner of Education has long recognized the existence of such an option. While the commissioner has expressed the view that summary-discipline such as salary reduction is. improper (Matter of Cadicamo, 15 Educ Dept Rep 274; Matter of Trono, 18 Educ Dept Rep 344), he has consistently held that an administrator may critically comment in writing on a teacher’s performance and that such an evaluation may be included in the teacher’s personnel file without resort to the statutory procedures set forth in section 3020-a of the Education Law. (See, e.g., Matter of Leber, — Educ Dept Rep — [No. 10269, decided May 23, 1980]; Matter of Hirsch, 17 Educ Dept Rep 237.) This interpretation of the scope of a school administrator’s supervisory power is eminently reasonable, and is adopted by this court.

It is argued that the inclusion of critical evaluations in the permanent record of a teacher will lead to abuses which the teacher will be powerless to remedy. We disagree. First, subdivision 7 of section 310 of the Education Law would allow an appeal to the Commissioner of Education should an abusive practice occur. Also, the teachers’ union can negotiate in the collective bargaining process to obtain the right to respond to a critical letter or to have an unfair or inaccurate document removed from a teacher’s file if an arbitrator finds an abuse to have occurred. Finally, as was noted by the dissenters in the Doyle proceeding, no formal disciplinary use can be made of these documents unless and until a timely charge of misconduct is made and the procedural requirements of section 3020-a of the Education Law have been fulfilled.

In sum, we believe that the critical evaluations in issue here were well within the scope of permissible administrative evaluation and were properly included in the personnel files of petitioners without resort to the formal procedures set forth in section 3020-a of the Education Law. Hence, the petitions of John Holt and Wayne Doyle, challenging the authority of school administrators to make and retain such evaluations, should be dismissed.

Accordingly, the order of the Appellate Division in Holt v Board of Educ. should be affirmed and the order of Appellate Division in Doyle v Board of Educ. should be reversed and the judgment of Supreme Court, Cattaraugus County, reinstated.

Chief Judge Cooke

(dissenting). Because I believe that both petitioners are entitled to the protections of section 3020-a of the Education Law against the action taken here, I am unable to concur with the majority or join fully in Judge Wachtler’s partial dissent and am constrained to dissent separately.

In my view, both Mr. Holt and Mr. Doyle have been subjected to disciplinary action sufficient to invoke the procedural protections of section 3020-a. As the partial dissent recognizes, the letters to Mr. Holt unequivocally charged him with incompetence and insubordination. The letter to Mr. Doyle, although not expressly characterizing his performance as misconduct, specified particular occasions on which he was not at his assigned duty station, referred to an earlier oral admonition and made clear that it was “necessary to remind [Mr. Doyle] of [his] lack of attention to assigned duties by letter”. Clearly, this letter was more than merely a matter of internal administration or supervision and not simply informational. The letter effectively accused Mr. Doyle of neglect of duty and a copy was sent to the president of the board of education. The letters to the teachers were made part of their personnel files. Under these circumstances, both Mr. Doyle and Mr. Holt were entitled to procedural safeguards.

That the determination of misconduct represents only one administrator’s “view” does not render the letters any less a form of disciplinary action. Indeed, the “view” expressed is now part of petitioners’ permanent files and, as the majority notes, may have some adverse effect on their employment or career prospects or may be used in future disciplinary proceedings. Nor is it sufficient to say that only when formal action by the board of education is contemplated is the section 3020-a procedure available. Such an analysis of section 3020-a ignores that it is the failure to present the charges to the board in the first instance that prevents “formal” action. Quite simply, a school should not be entitled to assert misconduct on the part of a tenured teacher and then avoid the procedures for resolution of such question by refraining from filing “formal” charges. Such action subjects the teacher to the kind of arbitrary decision-making that section 3020-a was designed to avoid.

The statute requires that charges first be referred to the board of education for a determination of probable cause, following which notice of the charges and procedural rights, including the right to a hearing, are to be given to the teacher (Education Law, § 3020-a, subd 2). As the majority recognizes, section 3020-a “form [s] a critical part of the system of contemporary protections that safeguard tenured teachers from official or bureaucratic caprice” (Matter of Abramovich v Board of Educ., 46 NY2d 450, 454). Here, there have been charges and what amounts to findings of misconduct — now part of petitioners’ records— that have never been subjected to the statutorily mandated due process mechanism. Because I believe such action is unauthorized and unfair, I respectfully dissent.

Wachtler, J.

(dissenting in part and concurring in part). I agree with the majority that the protection afforded teachers by section 3020-a of the Education Law is quite broad, and that the purpose of the statute is to insulate teachers from “arbitrary imposition of formal discipline”. For this reason, I am compelled to disagree with the majority’s categorization of letters placed in a teacher’s file, however critical, as inherently nondisciplinary.

It must be recognized that the content of a letter is of crucial significance; in the absence of that analysis the impact of a letter simply cannot be assessed.

A letter such as that placed in Mr. Doyle’s file, which is merely informational in nature concerning relatively minor infractions, and which expresses no more than the “wish [that] this problem can be resolved”, is not in my view of a punitive nature and therefore the procedural protections of section 3020-a should not be invoked.

On the other hand, the letters placed in the file of Mr. Holt illustrate that the content of a letter, when couched in the language of reprimand, can insure an impact which is the equivalent of administrative discipline. Thus, the letter by Mr. Eindsberg accusing Mr. Holt of repeated breaches of rules, despite prior warnings, which breaches were explained by a “flimsy excuse”, and which allegedly constituted conduct “unbecoming of a teacher and * * * insubordinate”, can only be viewed as severe in its tone, and qualitatively different from an informational note. Equally excoriating was the letter to Mr. Holt from Mr. 0‘Connell, which described Mr. Holt’s actions as demonstrating “both incompetence and insubordination”. A teacher should not be left without due process protections in the face of such severe accusations, and in this type of situation the procedural safeguards of section 3020-a should be invoked.

Accordingly, for the reasons stated above, I concur with the result reached by the majority in Matter of Doyle. In Holt I dissent and would reverse the order of the Appellate Division.

In Holt v Board of Educ.: Order affirmed, with costs.

Judges Gabrielli, Jones and Meyer concur with Judge Jasen; Chief Judge Cooke dissents and votes to reverse in a separate opinion; Judge Wachtler dissents and votes to reverse in another dissenting opinion in which Judge Fuchsberg concurs.

In Matter of Doyle v Board of Educ.: Order reversed, with costs, and the judgment of Supreme Court, Cattaraugus County, reinstated.

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

      . The school district contends that Doyle was subsequently offered an opportunity to discuss the problem with his superiors and to make a written response which would be attached to Mr. Schubeck’s letter.

      . Of course, such critical evaluations can only be used to support a formal charge of misconduct within three years of the occurrence which the evaluation addresses. (Education Law, § 3020-a, subd 1.) Thereafter, such evaluations can only be used to show that the teacher was given notice of the school district’s dissatisfaction with his performance. This is so because the teacher can be disciplined only for misconduct occurring within the three-year period, and this limitation would be frustrated by the substantive use of such evaluations beyond this time limit.