author: Chief Judge Breitel. Wachtler, J. (dissenting).

text:
    Allan Fried et al., Respondents, v Edward Straussman et al., Copartners, Doing Business Under the Name of Grace Plaza of Great Neck, Appellants.
    Argued January 6, 1977,
    decided February 22, 1977

      Bernard S. Meyer and Robert M. Callea, Mineola, for appellants.

      Harry Kamer, Great Neck, for respondents.
   Chief Judge Breitel.

Defendants, owners of a proprietary nursing home, appeal from an affirmance of a judgment of Supreme Court, after trial, which enjoined defendants from barring two physicians, husband and wife, from visiting their patients in the nursing home. The exclusion resulted from practices which defendants found objectionable, including alleged overvisiting, improper billing, and refusal to comply with administrative directives.

The issue is whether a physician, excluded from a private nursing home in good faith and on objectively reasonable grounds, is entitled to a judicial hearing and determination to establish the truth of the facts upon which the otherwise reasonable grounds depend.

The order of the Appellate Division should be reversed, and a new trial ordered. At common law, a private proprietary hospital or nursing home could bar a physician for any reason or for no reason. Section 2801-b of the Public Health Law changed the common-law rule to permit exclusion of a physician for reasons limited to patient welfare, institutional objectives, and character or competency of the physician. The statute does not, however, authorize plenary judicial review of every exclusion of a physician. Consequently, judicial review may assure only that the exclusion was made in good faith and on objectively reasonable grounds. Since the legal standard applied below was incorrect, there must be a new trial.

Defendants Edward and George Straussman have owned and operated a nursing home and health-related facility, the Grace Plaza of Great Neck, since May, 1972. Plaintiffs, Allan and Maxine Fried, were granted visiting privileges not long after the Grace Plaza was opened by the Straussmans. By 1974, the Frieds had been designated personal physicians for about 50 of the home’s approximately 200 residents. Dr. Allan Fried visited the home several times a week and Dr. Maxine Fried much less frequently, perhaps a dozen times a year.

The Frieds apparently were in frequent conflict with the administration of the nursing home. In 1973, they left for a two-week summer vacation without notifying the home so that their substitute physician could, when necessary, be located. They refused to adhere to a policy forbidding the use of mechanically reproduced physicians’ orders, and objected to other administrative policies. The Frieds apparently acquired as patients 20 of Grace Plaza’s residents at the expense of other physicians treating patients at the home.

More significant, however, is that the administration received complaints of overvisiting and improper billing by the Frieds. All of their patients at Grace Plaza were covered by Medicare and most by Medicaid, and, given the advanced age and deteriorating physical condition of many of the patients, the potential for abuse was present. The unfavorable public image of nursing homes, combined with the widespread publicity of Medicaid and Medicare abuses, would naturally have made any charges of improper billing or overvisiting matters of concern to the Grace Plaza administrators.

Finally, on January 31, 1975, Dr. Allan Fried, on his own initiative and without consulting the Grace Plaza administration, called the Nassau County Police to report an alleged sexual assault on one of his patients by a security guard nearly two days earlier. The home administrators had already investigated the matter and, after interviewing and examining the alleged "victim”, concluded that there had been no criminal assault. The implicated guard was nevertheless discharged. Thus, the Straussmans were understandably disturbed by the sudden appearance of uniformed police.

On February 4, four days later, the Frieds’ visiting privileges were revoked. Faced with arrest as trespassers if they attempted to re-enter the nursing home, plaintiffs brought this action on February 7. A temporary restraining order was served on the Straussmans simultaneously. On February 26, a preliminary injunction was issued, and, after trial without a jury, a permanent injunction was entered on May 19, 1975. The Appellate Division affirmed, with one Justice dissenting.

The evidence on the trial was in sharp conflict, especially the opinion evidence supplied by experts offered by both parties on the issue of overvisiting. Similarly, there was conflict on the issue of the occasion for calling the police, and the one instance of the "false billing”. Depending on the fact finder’s view of the conflicting evidence, the issues could have been decided either way, and either way would have been supported by sufficient evidence.

At the outset, plaintiffs’ vaguely outlined constitutional and Federal statutory claims should be rejected. State regulation of nursing homes is not "state action” sufficient to require a due process hearing before a physician may be excluded from the home (cf. Jackson v Metropolitan Edison Co., 419 US 345, 350, 358-359; Ascherman v Presbyterian Hosp., 507 F2d 1103, 1104-1105; Mulvihill v Butterfield Mem. Hosp., 329 F Supp 1020, 1024). Moreover, the nursing home’s exclusion of the physicians, at least perhaps so long as the patients were able and free to move, does not deprive Medicare or Medicaid patients of any right, constitutional or statutory, to free choice of a physician. On the submitted and present analysis, plaintiffs’ only legal remedy must come from the Public Health Law.

Subdivision 1 of section 2801-b of the Public Health Law provides, in relevant part: "It shall be an improper practice for the governing body of a hospital to * * * terminate or diminish in any way a physician’s * * * professional privileges in a hospital, without stating the reasons therefor, or if the reasons stated are unrelated to standards of patient care, patient welfare, the objectives of the institution or the character or competency of the applicant.” "Hospital” is defined to include nursing homes (§ 2801, subd 1; see Matter of Sigety v Hynes, 38 NY2d 260, 268, cert den sub nom. Kent Nursing Home v Office of Special State Prosecution, 425 US 974). Section 2801-c provides for injunctive relief in the event that violations occur.

It is true that the Frieds were excluded from the nursing home before they were provided with explicit, written reasons for the home’s action. Previous communications between the Frieds and the Grace Plaza administration, however, notified the physicians of the sources of dissatisfaction. Moreover, explicit reasons were set forth in an affidavit in opposition to plaintiffs’ motion for a preliminary injunction. Mere failure to provide reasons at the moment of exclusion should not forever bar a hospital or nursing home from excluding a physician when satisfactory reasons do exist and are communicated to the physician on request. Hence, the home’s failure to provide stated reasons on its own initiative should not be dispositive of the case.

As noted earlier, the statutes marked a change from the common-law rule that, absent a contractual obligation to the contrary, denial of visiting privileges constituted no legal wrong (Leider v Beth Israel Hosp. Assn., 11 NY2d 205, 208-209; Van Campen v Olean Gen. Hosp., 210 App Div 204, 209, affd 239 NY 615; Halberstadt v Kissane, 31 AD2d 568; Exclusion of Physician by Hospital, Ann., 37 ALR3d 645, 659-661). No longer may a physician be denied professional privileges arbitrarily (Matter of Fritz v Huntington Hosp., 39 NY2d 339, 348; but see General Municipal Law, § 128, subd 4, providing that the board of managers of a municipal hospital may remove physicians “at pleasure”). Reasons must be given for any termination, and those reasons must relate to legitimate concerns of the hospital or nursing home: patient care, patient welfare, objectives of the institution, or competency of the physician.

Thus, in Matter of Fritz v Huntington Hosp. (supra), where physicians were denied visiting privileges for reasons assertedly wholly unrelated to proper concerns of the hospital, judicial intervention was warranted. In the Fritz case, physicians who were originally trained at osteopathic colleges, but later fully licensed as general physicians, and who had completed fully accredited intership programs, were denied privileges solely because of their failure to complete American Medical Association accredited formal training programs (pp 341-343). No questions as to the competency of the physicians were raised.

In Fritz, the only question presented immediately of interest was whether the stated reason for the exclusion was related to institutional concerns and needs, and the matter was remitted to Special Term for a determination. There was no need to consider whether the stated reasons were fabrications of the hospital administration, since it was conceded that the osteopathic physicians had not completed the AMA programs. It was not necessary, therefore, in the Fritz case to consider whether the underlying facts upon which the hospital acted were true or false, let alone to determine whether a hospital has the right to act on apparent facts as reasonably perceived by it.

One must not confuse the issue in the Fritz case with the one involved in this appeal. The issue in Fritz was whether the grounds for refusing hospital privileges to the osteopathic physicians were "related” to standards of patient care, patient welfare, and the objectives of the institution. On that issue the physicians had invoked the intervention of the Public Health Council, whose findings of unrelatedness were, under the statute, prima facie evidence in any judicial action or proceeding (Public Health Law, §§ 2801-b, 2801-c). In this case, plaintiffs never invoked the jurisdiction of the Public Health Council and, as stated above, the relatedness of the exclusion was never in doubt. Had plaintiffs invoked the jurisdiction of the Public Health Council on the issues in this case, any findings it made would have been prima facie evidence of the facts, namely, whether the grounds for exclusion were related or unrelated, and also whether the grounds were objectively reasonable and were, as later discussed, sincere and authentic. Even the Public Health Council, viewing the matter as it must from a different perspective—whether cause exists to credit the complaint of the individual physician—is limited in the scope of its inquiry. It, too, is not concerned with the ultimate truth or falsity of the fact of physician misconduct alleged. Rather it is charged with responsibility to determine whether there existed objectively reasonable grounds for the physician’s complaint and whether it was made in good faith and not for some impermissible ulterior reason.

The statutory language indicates only that the reasons stated must be related to one of the various institutional concerns; there is no explicit requirement that the reasons have any basis in truth. In subdivision 1 the statute refers to the statement of reasons for exclusion and requires that they be related to the statutory standards. Subdivision 3 requires the Public Health Council, upon investigation of a proper complaint and finding that there is cause for crediting of the allegations of the complaint, to direct that the governing body of the hospital make a review of its actions in excluding the affected physicians. There is no reference to an inquiry by the council to determine the ultimate truth of the underlying facts upon which the physician’s complaint was made or the hospital’s actions were based. (For convenience Public Health Law, § 2801-b, is set forth in full in an appendix to this opinion.)

But, of course, it would be a strange reading of the statute or of its policy which would allow devious administrators to circumvent the legislative intent by fabricating reasons which are baseless, but which, if substantiated, would be related to institutional concerns. Good faith, at least, should be required. There must be reasons, but they must be authentic ones, not pretenses.

What should not be authorized or required is what has already taken place in this case, namely, a judicial hearing to determine the ultimate truth of the facts upon the basis of which the physicians may have been excluded. That determination is not one that courts, under the present legislation, are authorized or required to make.

This case illustrates the point. The Frieds allegedly overvisited many of their Medicaid and Medicare patients. If the allegation is true, it justifies excluding them from practice in Grace Plaza. But, if there is a reasonable objective basis for the administrators to have acted as they did, the administrators, in the absence of legislation much more restrictive than the present, should not be required to establish the ultimate truth of the apparent facts on which they reasonably relied.

Several of the other reasons advanced by defendants for excluding the plaintiffs from Grace Plaza were similarly not frivolous. Dr. Fried’s call to the police, which resulted in the appearance of uniformed police in the nursing home, could have been seriously destructive of both the institutional objectives and the patients’ welfare. So too, the failure to notify the home of a two-week summer vacation could have jeopardized the lives of the Frieds’ elderly patients.

It is true, as said earlier, that the evidence at trial conflicted as to the merits of the Frieds’ visiting practices and as to the medical benefits of using individually written rather than mechanically reproduced physicians’ orders. Moreover, reasonable explanations were offered for Dr. Fried’s call to the police and for the failure to notify Grace Plaza of the Frieds’ vacation plans. But it was not the province of the courts to decide whether the ultimate truth behind these grounds justified the exclusion; rather, the court should have restricted itself to a determination whether the purported grounds were reasonably related to the institutional concerns set forth in the statute, whether they were based on the apparent facts as reasonably perceived by the administrators, and whether they were assigned in good faith.

It has become a justified commonplace to deplore conditions in nursing homes, and to look to government regulation as a corrective measure. But stripping the administration of a hospital or nursing home of discretion to make even the most basic personnel decisions would not necessarily solve the problems of abuse and neglect. The Legislature has not thus far taken such an approach, and the courts are therefore required to engage in only a limited review of the determinations of hospital administrators.

Accordingly, the order of the Appellate Division should be reversed, with costs to abide the event, and the action remitted to Supreme Court for a new trial.

APPENDIX

PUBLIC HEALTH LAW § 2801-b

§ 2801-b. Improper practices in hospital staff appointments and extension of professional privileges prohibited.

1. It shall be an improper practice for the governing body of a hospital to refuse to act upon an application for staff membership or professional privileges or to deny or withhold from a physician, podiatrist or dentist staff membership or professional privileges in a hospital, or to exclude or expel a physician, podiatrist or dentist from staff membership in a hospital or curtail, terminate or diminish in any way a physician’s, podiatrist’s or dentist’s professional privileges in a hospital, without stating the reasons therefor, or if the reasons stated are unrelated to standards of patient care, patient welfare, the objectives of the institution or the character or competency of the applicant.

2. Any person claiming to be aggrieved by an improper practice as defined in this section may, by himself or his attorney, make, sign and file with the public health council a verified complaint in writing which shall state the name and address of the hospital whose governing body is alleged to have committed the improper practice complained of and which shall set forth the particulars thereof and contain such other information as may be required by the council.

3. After the filing of any such complaint, the public health council shall make a prompt investigation in connection therewith. In conducting such investigation, the public health council is authorized to receive reports from the governing body of the hospital and the complainant, as the case may be, and the furnishing of such information to the public health council, or by the council to the governing body or complainant, shall not subject any person or hospital to any action for damages or other relief. Such information when received by the public health council, or its authorized representative, shall be kept confidential and shall be used solely for the purposes of this section and the improvement of the standards of patient care and patient welfare. The records of such proceedings shall not be admissible as evidence in any other action of any kind in any court or before any other tribunal, board, agency, or person. If the council shall determine after such investigation that cause exists for crediting the allegations of the complaint, the council shall promptly so advise the governing body of the hospital against which the complaint was made, and shall direct that such governing body make a review of the actions of such body in denying or withholding staff membership or professional privileges from the complainant physician, podiatrist or dentist or in excluding or expelling such physician, podiatrist or dentist from staff membership or in curtailing, terminating or in any way diminishing such physician’s, podiatrist’s or dentist’s professional privileges in the hospital.

4. The provisions of this section shall not be deemed to impair or affect any other right or remedy.

Wachtler, J. (dissenting).

I dissent. I find unacceptable the rule set down in the majority opinion—i.e., that the directors of a hospital or nursing home are free to exclude a physician as long as they acted in good faith in doing so and that the excluded physician is not entitled to a judicial determination of the validity of the grounds purportedly underlying his exclusion. Hence, under the majority’s view, the physician’s only hope lies in being able to establish bad faith on the hospital’s part. In my view, considering both the physician’s rights and the individual patient’s right to be treated by a doctor of his choosing, it should be presumed that the physician was acting in good faith in carrying out those functions which the State has licensed him to perform, and the directors of the hospital or nursing home should bear the burden of showing that the doctor has in some substantial manner acted in bad faith in the performance of his services. In addition, consistent with the statutory mandate, the doctor’s misfeasance must be related to patient care or welfare, institutional objectives, or the character or competency of the physician in order to justify barring him from practicing within the facility.

In the instant case, defendants, the owner-operators of a nursing home and health-related facility, revoked plaintiffs’ visiting physician privileges on February 4, 1975 after a series of conflicts between the parties dating back to early 1973. The plaintiffs in turn commenced this action to enjoin the defendants from barring them from visiting their patients in the home. Although the defendants failed to state the reasons for their action at the time they revoked the plaintiffs’ privileges, those reasons, as outlined in the majority opinion, subsequently came to light in the course of their defense of this suit. After trial, the trial court sitting without a jury found that the defendants’ charges against the plaintiff physicians did not constitute reasonable grounds for excluding them from the facility and that defendants had acted arbitrarily and without just cause. These findings were affirmed by the Appellate Division.

It cannot be denied that under common law a privately funded hospital in its sole discretion could exclude any physician and its action in doing so was free of judicial review (Leider v Beth Israel Hosp. Assn., 11 NY2d 205; Van Campen v Olean Gen. Hosp., 210 App Div 204, affd 239 NY 615). By section 2801-b of the Public Health Law, however, the Legislature affected a change in the former rule, providing: "It shall be an improper practice for the governing body of a hospital to * * * exclude or expel a physician * * * from staff membership in a hospital or curtail, terminate or diminish in any way a physician’s * * * professional privileges in a hospital, without stating the reasons therefor, or if the reasons stated are unrelated to standards of patient care, patient welfare, the objectives of the institution or the character or competency of the applicant.” Section 2801-c confers jurisdiction upon the Supreme Court to enjoin "violations or threatened violations” of article 28 of the Public Health Law (see Matter of Fritz v Huntington Hosp., 39 NY2d 339, 345-346, holding that the aggrieved physician has standing to seek injunctive relief under 2801-c).

Today the majority has ruled that these statutes merely require that the directors of the hospital or nursing home acted "in good faith and on objectively reasonable grounds” and that the court, although specifically empowered to act by the Legislature, cannot look behind the charges to determine if there is any basis in fact for them. In addition the majority has held that the Public Health Council, empowered to investigate complaints under section 2801-b (Public Health Law, § 2801-b, subd 2), also is powerless to look to the substance of the reasons for excluding the physician other than to determine if they are related to the standards of patient welfare or care and the objectives of the institution. In essence the plaintiffs have been prevented from attending to the needs of their patients—and the patients deprived of their right to be treated by the physician of their choice—while at the same time these doctors have been foreclosed the opportunity to test the underlying validity of the hospital’s allegations. Such a result is at variance with both the public policy embodied in the statute and the spirit of our holding in Matter of Fritz v Huntington Hosp. (39 NY2d 339, supra).

Section 2801-b alters the common-law rule and provides physicians with a modicum of due process. In Matter of Fritz we construed the statute and held that a court would be warranted in intervening in the hospital’s decision to exclude a physician where the hospital has acted "without proper foundation and without proper reason” (Matter of Fritz v Huntington Hosp., supra, at p 348). Implicit in our holding is the power of the intervening court to look to the substance of the reasons put forward by the hospital and to determine if these reasons warrant the denial of the physician’s privileges. In this case the trial court did exactly that and found the defendants’ action was without just cause, and this finding was affirmed on appeal. I cannot accede to the view that the defendants should be allowed to exclude these plaintiffs, without just cause, on the ground that they had acted in good faith.

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

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

Order reversed, etc.


source: Caselaw Access Project

author: Chief Judge Breitel.

license: Public Domain

text:
    Frank Halloran et al., Respondents, v Virginia Chemicals Incorporated, Appellant, and A & E Auto Glass & Service Corporation, Respondent. Virginia Chemicals Incorporated, Third-Party Plaintiff-Appellant, v Crown Can Company et al., Third-Party Defendants-Respondents.
    Submitted January 10, 1977;
    decided February 22, 1977

      James M. O’Brien, Rockville Centre, for appellant.

      Hubert F. Sullivan, Jamaica, for Frank Halloran and another, respondents.

      John J. Moore, New York City, for A & E Auto Glass & Service Corporation, respondent.

      William F. McNulty, Joseph F. Onorato and Anthony J.

      McNulty, New York City, for Crown Can Company, third-party defendant-respondent.

      Joseph D. Ahearn and J. Robert Morris, New York City, for Irving Frank, third-party defendant-respondent.
   Chief Judge Breitel.

Defendant Virginia Chemicals appeals in a personal injury products liability action. Plaintiff Frank Halloran, an automobile mechanic, obtained a verdict in his favor, after a jury trial on the issue of liability only, for injuries he sustained while using a can of refrigerant packaged and sold by the chemical company. A divided Appellate Division affirmed, and certified a question of law for review in this court.

The principal issue argued by defendant Virginia Chemicals is that plaintiff failed to make out a prima facie case because no particular defect in the packaged refrigerant was ever discovered or established. That issue merits little discussion. In a products liability case it is now established that, if plaintiff has proven that the product has not performed as intended and excluded all causes of the accident not attributable to defendant, the fact finder may, even if the particular defect has not been proven, infer that the accident could only have occurred due to some defect in the product or its packaging (see Codling v Paglia, 32 NY2d 330, 337-338; Fogal v Genesee Hosp., 41 AD2d 468, 478; see, generally, 47 NY Jur, Products Liability, §§ 14, 18).

There is one other issue meriting extended discussion: whether evidence that the injured mechanic had previously used an immersion heating coil to heat the can of the refrigerant should be admissible to show that on the particular occasion he was negligent and ignored the labeled warnings on the can. Evidently relying on the rubric excluding prior instances of carelessness to create an inference of carelessness on a particular occasion, both the Trial Judge and the Appellate Division, save for two dissenting Justices, agreed that such evidence was not admissible.

There should be a reversal and a new trial. If plaintiff, when necessary to stimulate the flow of the refrigerant, a highly compressed liquefied gas, habitually or regularly used an immersion coil to heat the water in which the container was placed, evidence of that habit or regular usage should be admissible to prove he followed such a procedure on the day of the explosion. Evidence of habit or regular usage, if properly defined and therefore circumscribed, involves more than unpatterned occasional conduct, that is, conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances; it involves a repetitive pattern of conduct and therefore predictable and predictive conduct. On this view, the excluded evidence was offered to show a particular method of executing a task followed by the mechanic, who, on his own testimony, had serviced "hundreds” of air-conditioning units and used "thousands” of cans of the refrigerant. If on remittal the evidence tends to show that the mechanic used an immersion coil a sufficient number of times to warrant a finding of habit, or regular usage, it would be admissible to aid the jury on its inquiry whether he did so on the occasion in question.

On June 1, 1970, the day of the accident, Frank Halloran, a mechanic for 15 years, had been employed by the Hillcrest Service Station for over three years. Among his duties was the servicing and charging of automobile air-conditioning units, a job for which he had been specially trained, and for which he used "all [his] own tools.” The particular task involved that day was the changing of the air-conditioning compressor on a 1967 Chrysler automobile. Plaintiff testified that he had emptied the system, removed the old compressor, and installed a new one. He then began to charge the unit.

The first two cans of the refrigerant, Freon, flowed into the system without difficulty. By the time he was emptying the third can, however, plaintiff found it necessary to accelerate the flow of the refrigerant. The mechanic described how he filled an empty two-pound coffee tin with warm tap water, used a thermometer to determine that the water temperature was about 90 to 100 degrees, and inserted into the coffee tin the third can of Freon. Having a similar problem with the flow of the fourth can, Halloran again dropped the Freon into the warm water. Noticing that his low pressure gauge showed a rapid increase in the pressure, and aware that "something was wrong”, Halloran reached down to remove the can from the water, but was too late. The can exploded before he could touch it.

Neither the thermometer Halloran claimed to have used nor the bottom of the exploded can of Freon was produced at trial. Halloran knew that excessive heating of the can would cause damage, and that the warnings on the can specified 130 degrees as the maximum permissible safe temperature. As discussed earlier, he proved no particular defect in the can, its contents, or in so much of the exploded can which was produced at the trial. Having worked alone that day, Halloran was the only eyewitness to the explosion.

Defendant Virginia Chemicals, on cross-examination of Halloran and on its defense, sought to establish that it was Halloran’s "usage and practice” to use an immersion coil to heat the water in which the Freon was placed. Halloran denied ever making such use of an immersion coil. But defendant offered a witness prepared to testify not only that he had seen Halloran on previous occasions using an immersion coil to heat Freon, but that he had warned plaintiff of the danger as well. Plaintiff, relying on the rule that extrinsic evidence cannot be introduced to impeach a witness on collateral matters, objected to the admissibility of such testimony. The Trial Judge sustained the objection.

Of course, had an immersion heating coil been used at the time of the accident the unexplained and thus far unexplainable explosion would have been fully explained.

Were the evidence defendant sought to produce collateral, defendant generally would be bound by plaintiff’s denial. For it is now well settled that extrinsic evidence introduced solely to impeach credibility on a collateral issue is, with special exceptions, inadmissible (People v Schwartzman, 24 NY2d 241, 245; Potter v Browne, 197 NY 288, 293; Richardson, Evidence [10th ed], § 491).

To be sure, Halloran’s practice prior to June 1, 1970 is not conclusive proof of the method he employed in working on the 1967 Chrysler. "Collateral”, however, it is not. Logically probative it is and ought to be. While courts of this State have in negligence cases traditionally excluded evidence of carefulness or carelessness as not probative of how one acted on a particular occasion, in other cases evidence of a consistent practice or method followed by a person has routinely been allowed (compare, e.g., Zucker v Whitridge, 205 NY 50, 58-66 [carefulness], and Hartley v Szadkowski, 32 AD2d 550 [carelessness], with People v Bombard, 5 AD2d 923, cert den 358 US 849 [prosecutor’s practice of insisting defendant be advised of right to counsel]). That a kind of habit, practice, or method was proffered in this case to establish negligence should not, without more, affect its admissibility.

Because one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again, evidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions (e.g., Miller v Hackley, 5 Johns 375, 384; 1 Wigmore, Evidence [3d ed], § 92; Richardson, Evidence [10th ed], § 185; Fed Rules Evidence, rule 406 [in US Code, tit 28, Appendix]; see, generally, Lewan, Rationale of Habit Evidence, 16 Syracuse L Rev 39). Hence, a lawyer, to prove due execution of a will, may testify that he always has wills executed according to statutory requirements (Matter of Kellum, 52 NY 517, 519-520). So too, to prove that notice is mailed on a specified day of the month, one is allowed to testify that he is in the habit of being home on that day of the month to transact such business (Beakes v Da Cunha, 126 NY 293, 298).

When negligence is at issue, however, New York courts have long resisted allowing evidence of specific acts of carelessness or carefulness to create an inference that such conduct was repeated when like circumstances were again presented (e.g., Warner v New York Cent. R. R. Co., 44 NY 465, 472; Grenadier v Surface Transp. Corp. of N. Y., 271 App Div 460, 461; Lefcourt v Jenkinson, 258 App Div 1080; Richardson, Evidence, § 186; Fisch, New York Evidence, § 202; cf. Cabezudo v New York’s Eldorado, 50 AD2d 794, 795). Hence, evidence of a plaintiff’s habit of jumping on streetcars may not be offered to prove he was negligent on the day of the accident (Eppendorf v Brooklyn City & Newtown R. R. Co., 69 NY 195, 197). Nor could testimony that the deceased had usually looked both ways before crossing railroad tracks be introduced to establish his care on the particular occasion (Zucker v Whitridge 205 NY 50, 58-66, supra). Whether a carry-over from the prohibition against using so-called "character” evidence in civil cases, or grounded on the assumption that even repeated instances of negligence or care do not sufficiently increase the probability of like conduct on a particular occasion, the statement that evidence of habit or regular usage is never admissible to establish negligence is too broad (see 1 Wigmore, Evidence [3d ed], § 97, esp p 532).

At least, as in this kind of case, where the issue involves proof of a deliberate and repetitive practice, a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence, and hence negligence on a particular occasion (see McCormick, Evidence [2d ed], § 195, advocating an even more expansive approach; see, also, 1 Wigmore, Evidence [3d ed], § 97). Far less likely to vary with the attendant circumstances, such repetitive conduct is more predictive than the frequency (or rarity) of jumping on streetcars or exercising stop-look-and-listen caution in crossing railroad tracks. On no view, under traditional analysis, can conduct involving not only oneself but particularly other persons or independently controlled instrumentalities produce a regular usage because of the likely variation of the circumstances in which such conduct will be indulged. Proof of a deliberate repetitive practice by one in complete control of the circumstances is quite another matter and it should therefore be admissible because it is so highly probative.

As previously noted, Halloran, in the course of his work as a mechanic, had serviced "hundreds” of automobile air conditioners and had used "thousands” of cans of Freon. From his testimony at trial it seems clear that in servicing these units he followed, as of course he would, a routine. If, indeed, the use of an immersion coil tended to be part of this routine whenever it was necessary to accelerate the flow of the refrigerant, as he indicated was often the case, the jury should not be precluded from considering such evidence as an aid to its determination.

Of course, to justify introduction of habit or regular usage, a party must be able to show on voir dire, to the satisfaction of the Trial Judge, that he expects to prove a sufficient number of instances of the conduct in question (see Fed Rules Evidence, rule 406; Model Code of Evidence, rule 307, subd [3], par [b], including Comment, Illustrations 2, 3 [1942]; Uniform Rules of Evidence, rule 406, subd [b]; see, also, 2 Wigmore, Evidence [3d ed], § 376). If defendant’s witness was prepared to testify to seeing Halloran using an immersion coil on only one occasion, exclusion was proper. If, on the other hand, plaintiff was seen a sufficient number of times, and it is preferable that defendant be able to fix, at least generally, the times and places of such occurrences, a finding of habit or regular usage would be warranted and the evidence admissible for the jury’s consideration.

Plaintiff in his brief raised no procedural issue, but the obvious question of whether the chemical company preserved its objection to the ruling excluding its proffer of evidence of Halloran’s prior practice in using an immersion coil is not avoidable (see CPLR 5501, subd [a], par 3; 4017).

Defendant offered the testimony to prove Halloran’s "usage and practice”. Plaintiff objected that it was collateral, and defendant responded that, since plaintiff denied ever using an immersion coil, the evidence was admissible on the issue of plaintiff’s credibility. The court in excluding the proffered evidence did not give its reasoning, but evidently adopted plaintiff’s contention that the evidence related only to a collateral issue.

True, it was on cross-examination that Halloran testified he never used an immersion coil in heating cans of Freon. And, as previously noted, were the issue truly collateral, defendant indeed would, in the great majority of situations, be precluded from introducing extrinsic evidence to impeach plaintiff’s credibility on such a matter (e.g., Potter v Browne, 197 NY 288, 293, supra). On direct examination, however, Halloran testified to his regular practice in using Freon. It involved no more than using warm tap water in the coffee tin, checking with a thermometer to prevent excessive heat, and immersing the Freon can in the warm water. He always read, repetitiously, before any use of the refrigerant, the warning instructions on the label about maximum safe temperatures.

Consequently, the practice he followed, even if it were not admissible as evidence of habit, became a material issue as to which contradictory evidence was not precluded, even if, as defendant mistakenly urged, it involved solely credibility. Halloran had "opened the door” on the issue, made what he later argued was a collateral issue a material one, and he could not benefit from his testimony on direct examination, yet bar its refutation on defendant’s case (see People v Leonardo, 199 NY 432, 441-442; Blossom v Barrett, 37 NY 434, 438, and cases cited). Defendant’s objection to the court’s ruling, therefore, adequately preserved the issue for review. Of course, on a new trial defendant would no longer be limited to its too narrow objection, if too narrow it was.

With respect to Virginia Chemicals’ third-party complaint, dismissal was recited in the judgment, but not in the ordering paragraphs (see order of affirmance at App Div 50 AD2d 852). The omission was a matter of form, correctable for the asking by a motion to resettle the interlocutory judgment (see CPLR 2001, 5019, subd [a]; 5 Weinstein-Korn-Miller, NY Civ Prac, par 5019.03; cf. Marino v Nolan, 29 AD2d 541, affd 21 NY2d 738). The judgment should be accorded, therefore, the effect patently intended (see CPLR 5019, subd [a]). Virginia Chemicals, however, offers no persuasive argument why the third-party complaint should be reinstated, and none is perceived.

Accordingly, the order of the Appellate Division should be modified by reversing so much of the order as affirmed the award of judgment to plaintiffs, on their complaint, and to A & E, on its cross claim against Virginia Chemicals, with costs to abide the event, and affirming as to the dismissal of the third-party complaint, intended by the decision and judgment of the Supreme Court, with costs to third-party defendants, and the action remitted for a new trial on the issue of liability.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order modified, and the case remitted to Supreme Court, Queens County, for a new trial in accordance with the opinion herein, with costs to abide the event, and, as so modified, affirmed, with costs to third-party defendants-respondents. Question certified answered in the negative.

       Frank Halloran, and his wife Barbara, sued Virginia Chemicals, páckager of the refrigerant, and A & E Auto Glass & Service Corporation, a distributor. Relevant to this appeal are A & E’s cross claim against Virginia Chemicals for indemnification and Virginia Chemicals’ third-party complaint against both Crown Can Company, manufacturer of the can used to package the refrigerant, and the owner of the Hillcrest Service Station, Halloran’s employer. At Supreme Court, defendants Virginia Chemicals and A & E were found liable, upon a jury verdict, for breach of warranty; Virginia Chemicals was found liable to codefendant A & E on its cross claim; and the third-party complaint was dismissed, according to the recital in the interlocutory judgment. By leave of the Appellate Division, Virginia Chemicals appeals from the affirmance of the judgment of its liability to plaintiffs and to A & E. Also appealed from is the dismissal of the third-party complaint.


author: Fuchsberg, J.

text:
    Edward C. Perkins, Respondent, v Merchants Mutual Insurance Company, Appellant.
    Argued January 11, 1977;
    decided February 24, 1977

      Thomas A. Ford and John J. McCall, Buffalo, for appellant.

      John Marshall Gorman, Buffalo, for respondent.

      Edward J. Hart, Merrick, amicus curiae.

   Fuchsberg, J.

The question presented on this appeal is whether plaintiff, a motorcyclsit who was injured in a collision with an automobile, is entitled to the out-of-pocket medical and hospital expenses and lost earnings recoverable as "first party benefits” under a "no-fault” policy of insurance issued by the defendant to enable the automobile owner to comply with the provisions of article XVIII of the Insurance Law.

Defendant having rejected his claim, plaintiff instituted this action and each party thereafter moved for summary judgment. Special Term granted plaintiffs motion, denied that of the defendant, and entered judgment accordingly. The Appellate Division has affirmed; for the reasons which follow, we conclude that its holding is correct.

Defendant’s primary contention is that, since motorcycles are expressly excluded from article XVIII’s definition of "motor vehicle” (Insurance Law, § 671, subd 6, par [b]), and their owners are therefore exempt from obtaining either a "no-fault” policy of insurance or the alternative form of "no-fault” financial security now required of motor vehicle owners, motorcyclists are not intended to be eligible for the benefits payable from the financial resources so provided. However, the short answer to that position is to be found in the fact that perhaps the most pressing purpose urged by its proponents for the adoption of article XVIII was to assure the prompt and full reimbursement of the "economic” losses those injured in automobile accidents may suffer (Montgomery v Daniels, 38 NY2d 41, 51).

It is unquestioned that that concern was by no means limited to those automobile accident victims who, as owners of motor vehicles, would, upon enactment of the statute, be compelled to secure "no-fault” coverage. For instance, pedestrians, who ordinarily would be complete strangers to the owners of the motor vehicles in the course of whose use or operation their injuries were sustained, were expected to, and, under the statute as actually enacted, now do receive reimbursement of their allowable monetary losses though they do not contribute a cent to the cost of purchasing such coverage.

For the purposes of article XVIII those involved in automobile accidents may be regarded as falling in to either or both of two classifications. One consists of those required to provide the "no-fault” coverage from which benefits are to be paid. The other is made up of those who, as a result of sustaining recoverable losses, are persons to whom those benefits are to be paid. As already indicated, membership in one group is not necessarily dependent on membership in the other. Nor are they mutually exclusive (cf. McConnell v Fireman's Fund Amer. Ins. Co., 79 Misc 2d 219 [Lynch, J.], affd 49 AD2d 676).

Thus, reference in Montgomery v Daniels (supra, p 46) to the exclusion of motorcycles from the act’s "coverage”, made there in the context of a description of the particular beneñts for which compensation must be made available, is to be read as excluding motorcycle owners only from any obligation to provide for "no-fault” payments for those who may be injured in the course of the use or operation of their motorcycles. It was not an exclusion from eligibility to receive benefits from coverage provided by the owners of automobiles in the course of whose use or operation motorcyclists are injured. The fact that the use or operation of a motorcycle is also involved in an automobile accident and that the motorcyclist is exempt from providing "no-fault” coverage does not alter his or her status as a claimant.

The word "coverage” as used in that context both in Montgomery and in this opinion, is most consistent with its common employment as a term of art to connote " 'protection by insurance policy * * * or beneficial plan * * * against * * * claims’ ” (State Farm Mut. Auto. Ins. Co. v Brower, 204 Va 887, 891). It is to be assumed that the Joint Legislative Committee on Insurance, under whose aegis our "no-fault” legislation was drafted, was not unaware of that usage.

True it is, as the defendant correctly points out, the Legislature, before enacting article XVIII, carefully considered the ability of motorcycle owners to bear the cost of no-fault insurance coverage (Report of Proceedings of Committee on Insurance Rates and Regulation, NY Legis Doc, 1972, No. 21, p 17; Note, 37 Albany L Rev 675). And, in deciding to exempt the owners of motorcycles from the need to purchase such coverage, it apparently hearkened to their problem. To conclude, however, that the same legislative hand that reached out to grant that exemption by the overt device of narrowing the definition of motor vehicle so as to expressly exclude motorcycle owners therefrom intended at the same time to deprive them of their status as "no-fault” claimants would be to venture beyond the indications of its intent. It would also run counter to both the statute’s broad definition of claimants as "persons, other than occupants of another motor vehicle” (Insurance Law, § 672, subd 1, par [a]) and, subject to carefully delineated exceptions (Insurance Law, § 672, subd 2, pars [a], [b], [c]) the policy to compensate "every auto accident victim” proclaimed by the Governor when he signed it into law (1973 McKinney’s Session Laws of New York, p 2335).

Accordingly, the order should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Order affirmed, with costs.


text:
    Brown Bros. Electrical Contractors, Inc., Respondent, v Beam Construction Corp. et al., Appellants.
    Argued January 5, 1977;
    decided February 24, 1977

      Richard W. Cook, Syracuse, for Cale Development Co., Inc., and another, appellants.

      William V. Canale, Glens Falls, for respondent.
   Fuchsberg, J.

The issue in this case is whether the course of conduct and communications between plaintiff-respondent Brown and defendants-appellants Cale created a legally enforceable agreement. Trial Term found that it did and entered judgment for the plaintiff for the balance due for electrical work Brown had performed at Gale’s building project. Cale now appeals from the Appellate Division’s order of affirmance.

Cale was the owner and builder of Northway Shopping Plaza in the City of Glens Falls. In January, 1967, it entered into a written contract whereunder the defendant Beam became general contractor for a section of the plaza. At about the same time, Beam, in turn, subcontracted in writing with Brown for the installation of the electrical work.

Starting as early as March, Beam, though it was more than current in the receipt of moneys requisitioned by it pursuant to the terms of its agreement with Cale, was running into arrears in its own payments to Brown. As a result, Brown began to entertain such serious doubts about whether Beam would carry out its end of their agreement that it threatened in writing to claim a breach of contract unless the payments were brought up to date. True to the forebodings which apparently had alarmed Brown, before the end of July, Beam found himself in such financial distress that he abandoned the job entirely. In the interim, Brown and Cale had discussed ways and means of securing payment to Brown, with the result that, when Beam departed the project, Brown, with the knowledge, consent and co-operation of Cale, nevertheless continued to perform the electrical work. He completed it by the end of August. Immediately thereafter, in early September, responding to an invoice from Brown to Cale for the amount then still due for its work on the project, Cale wrote back that it would send its check for "payment of the balance” upon receiving underwriters’ inspection certificates from Brown. However, when Brown sent the certificates, Cale failed to make the promised payment, whereupon Brown initiated this litigation. Gale’s position is that no new contract was entered into directly between Cale and Brown, and that Brown, in completing the electrical work, had done no more than fulfill its obligation to Beam.

Before handing down its decision for the plaintiff, the trial court, sitting without a jury, received oral as well as written evidence. In affirming the judgment, the majority at the Appellate Division found that the record confirmed the existence of a direct contract between Brown and Cale and that, in accordance with that contract, Cale was obligated to pay Brown the balance due for the electrical work up to the time of its completion. Our own examination of the proof reveals that the course of conduct between Cale and Brown, including their writings, especially taken against the continuum of events from March through September, was sufficient to spell out a binding contract between Brown and Cale independent from the one that had pre-existed between Brown and Beam. We therefore affirm.

In accordance with long-established principles, the existence of a binding contract is not dependent on the subjective intent of either Brown or Cale (Mencher v Weiss, 306 NY 1, 7; Hotchkiss v National City Bank of N. Y., 200 F 287, 293 [Learned Hand, J.], affd 201 F 664, affd sub nom. National City Bank v Hotchkiss, 231 US 50). In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look, rather, to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds (see Mencher v Weiss, supra; Homan v Earle, 53 NY 267, 272). In doing so, disproportionate emphasis is not to be put on any single act, phrase or other expression, but, instead, on the totality of all of these, given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain (see Arnold v Gramercy Co., 15 AD2d 762, affd 12 NY2d 687; Aker v Fredella & Co., 227 App Div 226; cf. Jemzura v Jemzura, 36 NY2d 496, 503-504).

Generally, the aim is a practical interpretation of the expressions of the parties to the end that there be a "realization of [their] reasonable expectations” (1 Corbin, Contracts, § 1). That principle is especially applicable here, where, at least until the litigation ensued, the actions of neither party appears to have been guided by the norms and forms of legal counsel (cf. Matter of Doughboy Inds. [Pantasote Co.], 17 AD2d 216, 219 [Breitel, J.]).

And, while "it is the responsibility of the court to interpret written instruments (4 Williston, Contracts, § 601, supra)] where a finding of whether an intent to contract is dependent as well on other evidence from which differing inferences may be drawn, a question of fact arises (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291). In the present case, each of the courts below found as a fact that the parties intended to contract. We now examine the nature of the proof to determine whether they were warranted in doing so.

Turning to that proof, we note that, though Brown’s written notice in March that unless payments were brought up to date he would regard Beam as having breached his contract was made to Beam alone, it may be inferred that the problem it reflected was one which in the natural course of events caused Cale concern as well. Obviously, it raised a threat to the scheduled completion of his building project. It may also be said to have evidenced that Beam’s requisitions, which other proof showed had in fact resulted in advances to it in excess of Gale’s obligation, were not being rechanneled by Beam to Brown and other subcontractors in sufficient amounts to assure the expeditious progress of the construction. Indeed, by June, one of the Browns had already spoken of this problem directly by telephone to Castle, Gale’s president, several times and, early that month, in a personal meeting between Castle and Brown, Castle offered to include Brown’s name on Gale’s future checks to Beam; immediately thereafter, that practice was put into effect. The making of this arrangement was not one to which Beam was a party; it was made between Cale and Brown alone. Along with the course of events which had preceded its making, it also could form the basis of a conclusion that both Brown and Cale had become so apprehensive about Beam’s financial ability to continue that they were beginning to look directly to each other. The June arrangement served both Brown’s and Gale’s interests. It made Brown more certain of receiving payment; it gave greater assurance to Cale that the electrical work would not be suspended and that its money would go into the job.

The extent of Brown’s and Gale’s reliance on one another could be found too in the fact that Brown did not exercise its right to leave the job on Beam’s default. Instead, it continued performing the work, foregoing its right to treat Beam’s abandonment and arrearages as a breach justifying its own departure (cf. Wharton v Winch, 140 NY 287, 293-294). Cale, for its part, took over as general contractor on its own; it made no effort to substitute another in Beam’s place. These events, and the earlier ones to which we have referred, suggest that Brown had by then for sometime come to regard Cale rather than Beam as its source of payment. There is strong indication that Cale joined in that expectation. For, when Brown thereafter billed Cale alone, Cale made not the slightest objection to that procedure, not even when Castle, acting in a manner that one could take to be that of one who had assumed a direct obligation to pay for the items billed, wrote Brown to object to the inclusion in the invoice of an "extra” item incurred in Beam’s time. It was in that very letter that Cale wrote that it would make "payment of the balance”, a phrase specifically found by the Trial Judge and the Appellate Division to have been intended to refer to all moneys due except that for the "extra” item.

This step-by-step continuum of events and permissible inferences, viewed in totality, brought the determination of whether there was an intent to contract within the realm of fact finding. The consideration for such an independent contract between Brown and Cale can easily be found in the detriment to Brown in continuing the work and the benefit to Cale in having it done (1 Corbin, Contracts, §§ 122, 124). The Appellate Division found that Brown and Cale had in fact made a direct contract by the terms of which Brown would be bound to continue to perform the electrical installations which remained undone and Cale would be bound to pay Brown all sums still unpaid when the work was completed. We cannot say that there was insufficient evidence to support that finding.

Accordingly, the order should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Order affirmed, with costs.


author: Jasen, J. Fuchsberg, J. (dissenting).

text:
    The People of the State of New York, Respondent, v Alonzo Singleton, Appellant.
    Argued January 10, 1977;
    decided February 24, 1977

      Philip L. Weinstein and William E. Hellerstein, New York City, for appellant.

      Nicholas Ferraro, District Attorney (George Freed of counsel), Kew Gardens, for respondent.
   Jasen, J.

The crucial question raised on this appeal is whether a police officer’s suspicion of criminal activity justifies stopping a motor vehicle for an investigative check.

On the evening of September 24, 1971, New York City Officers Santiago and Braga were assigned to a taxi and truck surveillance unit. At about 8:00 p.m., they stopped a 1963 or 1965 blue Buick Riviera with Queens County license plates on Morningside Drive and 122nd Street. Two black men were in the car. Following a check of the license and registration, the car was permitted to proceed. At about 10:00 p.m., the officers saw a 1963 or 1965 blue Buick Riviera approaching the Triborough Bridge. This car, which appeared to the officers to be identical to the first car, had Brooklyn license plates and three black male occupants. As a result of seeing two apparently identical cars within two hours with different plates, the officers stopped the second car. The occupants exited from the vehicle. Upon examining the driver’s license and registration, the officers ascertained that the car did not belong to him. Hence, Officer Braga proceeded to check the VIN plate on the hinge of the driver’s front door. While Braga was in a crouched position searching for the VIN plate, Officer Santiago observed the back seat passenger approach the open door and reach over his partner’s shoulder into the car. Santiago, believing that there might be a gun in the car, grabbed the man and shined his flashlight inside the car. An open manila envelope containing a visible white powder was resting on the console. Santiago testified that he had made about 80 prior arrests involving cocaine and heroin and, based on his experience, he believed the white powder to be cocaine. All three occupants of the car, including the defendant, were arrested, and a further search revealed another identical envelope, containing white powder, between the driver’s seat and the console.

Defendant, as well as the other occupants of the car, were subsequently indicted for criminal possession of a dangerous drug in the fourth degree. (Penal Law, § 220.15.) After a hearing on defendant’s suppression motion, the court, apparently assuming that the officers had an unqualified right to stop the automobile, found the officer’s testimony credible and concluded that there were reasonable grounds to look inside the automobile prior to the discovery of the drugs. After a jury trial, defendant was convicted of the crime charged in the indictment. The Appellate Division affirmed the judgment of conviction.

Relying on the rationale of Terry v Ohio (392 US 1) and our recent decision in People v Ingle (36 NY2d 413), defendant argues that the action of the police officer in stopping the automobile in which he was a passenger "was unjustified in its inception and violated [his] Fourth Amendment rights.”

In People v Ingle (supra), the court examined the limitations upon the power of the police to stop a motor vehicle on the public highway. The issue before the court was whether the police may stop an automobile solely because of unusual appearance, to examine the motorist’s license and registration, or to inspect the vehicle for possible equipment violations. We held that a motor vehicle on a public highway may be stopped only where the officer has specific cause or reasonable suspicion of a violation of law or in accordance with nonarbitrary, nondiscriminatory, uniform procedures, such as at roadblocks, checkpoints and weighing stations. We specifically prohibited stops that are "the product of mere whim, caprice or idle curiosity.” (36 NY2d, at p 420.) As to permissible stops for specific cause or reasonable suspicion, we said it was "enough if the stop is based upon 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion’ (Terry v Ohio, 393 US 1, 21, supra). ”(36 NY2d, at p 420.)

We believe that the action of the police in stopping the motor vehicle in which the defendant was a passenger was permissible. Officer Santiago testified that the second car was stopped solely because it appeared to be the identical car he had seen earlier that evening with different license plates. Thus, the police stopped the car because of what they observed. The officer’s suspicion that the vehicle was stolen or that it had been involved in other criminal activity justified the stop for an investigative check of the operator’s license and registration. This was not a routine traffic stop, nor was it based on the sort of random and arbitrary stop that Ingle was designed to prohibit. Under these circumstances, it was reasonable for the police to believe that the driver and occupants of the car were involved in some criminal activity which made investigation appropriate. The State’s interest in crime detection supports a stop predicated on reasonable suspicion of criminal activity. Hence, this stop was permissible and the evidence obtained as a result of the stop was properly admitted at the trial.

One other issue remains. Defendant argues that the trial court’s refusal to grant him an adjournment to secure the presence of a vital witness violated his constitutional right to compulsory process and constituted an abuse of discretion as a matter of law. A granting of an adjournment for any purpose is a matter of discretion for the trial court. (People v Oskroba, 305 NY 113, 117.) A review of the facts and circumstances of this case leads to the conclusion that the trial court did not abuse its discretion, as a matter of law, in refusing to grant defendant a fourth adjournment.

The relevant facts can be briefly stated. The prosecution concluded its case on August 27, 1973. Two potential witnesses who had been arrested with the defendant were subpoenaed by the defense for appearance on the same date, but failed to appear in court. The Trial Justice granted the defendant a 24-hour adjournment in order to bring his two witnesses to court. That evening, one of the potential witnesses, David Knowles, was contacted by members of defendant’s family and assured them that he would appear in court the following morning. Nevertheless, the witness failed to appear and the court adjourned the trial a second time, directing that material witness orders be served on the missing witnesses. That same evening the witness Knowles was arrested and detained. Due to a misunderstanding as to the validity of the material witness order, the police released the witness. The following morning the court was informed of what had occurred and adjourned the trial for a third time to give the defendant another, but brief, opportunity to bring in the witness. Later that afternoon, when the defendant failed to produce the witness, the court denied a request for a fourth adjournment. Under these circumstances, it cannot be said, as a matter of law, that the court abused its limited discretion. Our holding in People v Foy (32 NY2d 473), upon which the dissent relies, is instructive. In Foy, the defense announced to the jury that it would present alibi witnesses who would testify that the defendant was actually in his apartment at the time of the incident. One of these witnesses, a truck driver, took a day off from work in order to be present in the courtroom. Yet the prosecutor’s case spilled over onto the next day and the driver apparently found justice not worth the cost of an additional day’s pay. He refused to honor a subpoena and an attempt to serve the second alibi witness was unsuccessful. The Trial Justice denied a request for an adjournment, holding counsel to a promise to complete the trial in time for the court to proceed to another judicial assignment. (32 NY2d, at p 475.) We held it to be error to deny a "short” adjournment for the purpose of obtaining a material witness where the witness had been identified to the court, could be found within the jurisdiction, and the movant demonstrated some diligence and good faith. (32 NY2d, at p 478.)

In Foy, the trial court refused, for its own convenience, to grant even the briefest of adjournments. The court here was most co-operative and accommodating. The difference is like night and day. Even though the court had previously adjourned the case on two prior occasions, the court granted the defendant a third short adjournment. When a fourth adjournment was requested, it was hardly an abuse of discretion for the court to direct counsel to try the case and not the court’s patience. Consequently, the court’s refusal to grant the additional adjournment cannot be described as an abuse of its limited discretion, as a matter of law. It should also be mentioned that, unlike Foy, defendant himself was instrumental in bringing about the unavailability of the requested witnesses at his trial. His failure to appear resulted in a bench warrant being issued. It was not vacated until February 23, 1973. During this period, both of the potential witnesses whom defendant contends he desired at his trial were readily available since both witnesses had matters pending before the court while defendant was evading justice. Thus, the defendant, by absconding from the jurisdiction of the court, brought about his difficulties in not being able to locate the witnesses at the time of the delayed trial. Certainly, the People did not intentionally cause the witnesses’ unavailability, nor delay the trial for more than a year. (People v Fowler, 46 AD2d 838, affd 37 NY2d 100.)

There is also some doubt as to the needfulness of the potential witnesses’ testimony since the defendant’s attorney informed the court that he did not have the "foggiest idea” of whether the testimony would help or hurt the defendant. We believe that, under these circumstances, the defendant should not be allowed to manipulate the Sixth Amendment to avoid due process of law.

Only a few words need be said in reference to the dissent. Foy did not hold that all requests for an adjournment are to be treated alike, without due regard for the surrounding factual circumstances. The three-point test to which the dissent alludes was eschewed in Foy in favor of a less mechanical and rigid rule. Although Foy requires that a trial court be duly receptive to a request for a "short adjournment” and defendant here received that much and more, the dissent would hold that a trial could not proceed if, after defendant absconds the jurisdiction, he complains about the loss of witnesses. Foy hardly fits this case like a glove, much less does it lace a straitjacket over a responsible exercise of discretion.

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

Fuchsberg, J. (dissenting).

I must resist the decision in this case because I believe it tolerates trespass on two of our people’s fundamental rights: to be free from unreasonable seizures (NY Const, art I, § 12; US Const, 4th Amdt) and that of a defendant to present witnesses in his defense (US Const, 6th Amdt; Civil Rights Law, § 12).

The "stop” of the automobile in this case was, of course, a seizure (People v Ingle, 36 NY2d 413, 418, citing Terry v Ohio, 392 US 1, 16). As I view it, to uphold it under the circumstances here is to further whittle away our security (see dissenting opn in People v De Bour, 40 NY2d 210, 226 et seq.).

I had thought that in Ingle we made it clear that, while the peculiar considerations arising out of the need to insure highway safety and compliance with the provisions of our Vehicle and Traffic Law permitted routine traffic inspections for such things as equipment violations, provided the stops for that purpose were "nonarbitrary, uniform and systematic” and conducted at "roadblocks, checkpoints, weighing stations and the like”, a police stop of an automobile in any other way or any other circumstances, if not for reasonable cause, must at least be based on "reasonable suspicion”. In most explicit language we said that such a reason must be a "valid” one and that, when the stop is made "gratuitously or by individual discriminatory selection” or is otherwise "the product of mere whim, caprice, or idle curiosity”, it is interdicted. (People v Ingle, supra, pp 416, 420; accord People v Simone, 39 NY2d 818.)

Concededly, the stop in the present case was not for a routine traffic check. And, if there was "suspicion” on the part of the officers, there is no basis, however frail, to which a finding that it was "reasonable” can attach. Not the slightest reason to suspect even a violation of a traffic regulation, much less that critilinal activity was afoot, has been offered. Certainly, none can be found in the bare assertion by the police that, two hours earlier, they had stopped a car of the same manufacture, model, color and vintage (variously described by them as blue or black in color and of 1963 through 1966 year of manufacture) as the one in which the defendant Alonzo Singleton was stopped and that, since both cars looked alike, their suspicions were aroused by the fact that the registration plate they had observed on the car at the time of the earlier stop bore a number indicating it had been issued out of the Queens office of the State Motor Vehicle Department while the one they saw at the time of the Singleton stop carried a license plate emanating from the Brooklyn (Kings County) office. Significantly, other than its license plate, not a single thing by which an individual identification of the car could be made has ever been suggested, not so much as a scratch or an item of decor or an attached appliance. A Buick Riviera model of General Motors manufacture, there was apparently nothing about its appearance, or that of the two cars (for that is what they turned out to be) to separate it (or them) from the tens and tens of thousands of look-alike Rivieras that, figuratively, must have been poured out of an identical Detroit mold during the years 1963 through 1966.

Even the appearance of the occupants provided no reason for believing the two vehicles were the same. In both instances the color of their skin was black, hardly surprising in as polyglot a city as New York, but they did not look like the same individuals to the police; they were different in number too, two men in the earlier car and three in the one stopped later. It hardly needs to be pointed out that, unlike mass-produced cars whose manufacture with precise and interchangeable parts correctly makes us expect them to be and look identical, people are remarkable to us when they are carbon copies of one another. Thus, neither the fact that the cars were as alike as two peas in a multipead pod, nor that their riders were as individual as people usually are, could serve as a "valid” ground for the police suspicion.

Specifically, it simply was not rational, and certainly not "reasonable”, to suspect that a wrongful change of plates had taken place merely because two Buick Riviera cars bore different license plates. In fact, it seems to me that debate on this point is precluded when one considers that one car was registered out of Brooklyn, the other out of Queens, that the stop did not take place in a rural or isolated area where Buick Rivieras were a rarity but while the car was en route from Manhattan to Queens, that these three contiguous boroughs of New York City were peopled at the time by well over six million of that teeming metropolis’ eight million inhabitants and that many hundreds, if not thousands, of identical Rivieras were no doubt plying its streets at that very time.

In short, there was no articulable reason to warrant elevating the action taken here beyond the level of whim, caprice or even worse, and the evidence derived therefrom should therefore have been suppressed and the indictment dismissed (People v Cantor, 36 NY2d 106, 114; People v Allende, 39 NY2d 474, 477). Automobiles play an important part in our society and many of our citizens spend a great deal of time in them. To sanction the stop here is to open the door to stops on unsupported suspicion, or even on prejudice, the common handmaiden of suspicion. (Cf. People v T., 48 AD2d 779, 781, revd on dissenting opn 39 NY2d 1028, where Presiding Justice Stevens had occasion to observe that "[i]t would seem that the ethnic identity of these three boys is what really caused alarm”.) One cannot help but wonder here, for instance, whether the stop and search of the first Riviera two hours earlier, and which turned out to be as fruitless of any discovery that the car had been stolen as it had in the Singleton case, was rationalized on the basis that a third Riviera had been spied before that one.

I turn now to Singleton’s compulsory process point. Singleton was a passenger in the car. It was operated by Joseph Powell. The second passenger was David Knowles. There was never a direct inculpatory factual link shown between Singleton and the three eighths of one ounce of heroin, the aggregate quantity of drugs in the two small envelopes found in the car; the prosecution relied solely upon the presumption of possession provided against all occupants of automobiles by section 220.25 of the Penal Law (see People v Leyva, 38 NY2d 160). It therefore became important to Singleton’s defense that, if possible, he negate the effect of the presumption. To that end, it was not only natural but necessary for him to seek the testimony of Powell and Knowles, the only people who could shed light on the factual issue on the determination of which his guilt or innocence hinged. Indeed, it would have been hardly short of irrational for him not to call them as witnesses, especially since Knowles had previously pleaded guilty to the possession and, in doing so, in open court, had identified Powell as the owner of the drugs; neither had implicated Singleton.

As one would expect, both of these witnesses were subpoenaed for the afternoon the defense was scheduled to begin. However, neither witness responded to the subpoena, whereupon the defense brought the matter to the attention of the Trial Judge immediately. The Judge then adjourned the case until the following day in order that members of the defendant’s family could seek out the witnesses personally. They pursued that task assiduously; before that day was over they had located Knowles, who promised to appear the very next morning. But he did not keep that promise, so that defendant was required to make application to the court for material witness orders, which he did forthwith. Not surprisingly, the court found the application meritorious and granted it. The defendant lost no time in turning over the orders to the police for execution at once; that very night Knowles was taken into custody and held ready for production for the opening of court the next day. Unfortunately, however all these effots made on behalf of the defendant were thwarted when, as both parties to this appeal agree, later during the night of Knowles’ detention, upon erroneous and unauthorized advice from an Assistant District Attorney that the order under which Knowles was being held was defective, the police released the material witness and so could not produce him at the next day’s court session.

As soon as defense counsel learned what had happened, he advised the Judge of the problem with which the defendant was not confronted and the court, after personally verifying the accuracy of this information by telephoning the Assistant District Attorney who had created the problem at 10:45 a.m. that day on its own initiative directed "the attorney for the defendant to go with members of the family [from the courtroom in Queens] to the District Attorney [in Brooklyn] * * * [to] see if * * * [the witness Knowles] can’t be picked up this morning” and declared a recess, presumably for that purpose, until 2:00 p.m. of the same afternoon. The defendant’s wife and his attorney spent the intervening hours doing exactly what the court had ordered, but their visit to the District Attorney’s office turned out to be a fruitless trek from which they returned empty-handed. The Judge then made the announcement that no further adjournment would be granted, since the term of the court at which he was then sitting was scheduled to end two days later. This took place only hours after the production of Knowles pursuant to the successful execution of the material witness order had been vitiated by the People’s agent. Defendant’s plight could hardly have been brought to the court’s attention more quickly or more clearly. Thus, by no standard is it possible to say that the defendant was afforded any meaningful opportunity to make the urgently needed efforts to fill the void which had thus been imposed on his case. Since Singleton had no one else to call, the net result was to compel him to conclude his case without the vital testimony of either Knowles or Powell.

The refusal to grant counsel a short adjournment violated appellant’s right to compulsory process under the Sixth Amendment and the New York Civil Rights Law. Perforce, it constituted an abuse of discretion. For "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense” (Chambers v Mississippi, 410 US 284, 302). As described in Washington v Texas (388 US 14, 19), "[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.”

Our own decision in People v Foy (32 NY2d 473) is premised on those principles. In that case, we held that the trial court had abused its discretion as a matter of law by refusing to grant a short adjournment to enable the defense to produce two subpoenaed alibi witnesses who were referred to in counsel’s opening, one of whom had been in court on the previous day, a fact to be equated with that in the case before us, where but for the Assistant District Attorney’s unwarranted intervention, Knowles would also have been in court. Foy set forth the following guidelines: "(1) that the witness is really material and appears to the court to be so; (2) that the party who applies has been guilty of no neglect; (3) that the witness can be had at the time to which the trial is deferred” (32 NY2d, at p 476; see, also, People v Jackson, 111 NY 362).

Measured by these criteria, the trial court improperly denied counsel’s request for an adjournment as a matter of law.

As to the first requirement, every reasonable expectation was that Knowles’ testimony would assist the defense. Moreover, it borders on the redundant to point out that implicit, if not explicit, in the issuance of the material witness orders was a finding of materiality, a factual determination which, by the way, I would have thought to be beyond our review (NY Const, art VI, § 3).

In the circumstances of this case, it is therefore curious that the majority opinion would have the witnesses’ materiality vanish by excerpting an isolated comment by defense counsel, who had never spoken to either witness. Ignored by the opinion, for instance, is counsel’s express and uncontradicted statement that, in the allocution that accompanied Knowles’ plea, the latter had "told the Court that the drugs belonged to Joseph Powell and he knew that because he saw Joseph Powell buy the drugs and there was no implication at all of Mr. Singleton.”

As to the second guideline enunciated in Foy, granted Singleton’s truly Herculean efforts to produce Knowles, it appears impossible to understand how it can be contended that he shares any of the blame for the unauthorized release of his witness from the control of the police who were to see to his presence in court. It is even more incomprehensible that it should be seriously urged, consistently with either basic tenets of constitutional law or the most elementary standards of proximate cause, that, because Singleton absented himself from court on an occasion many months before his trial was held and an equally long time before the circumvention of the material witness order, he is to be deprived of an opportunity to secure the attendance of witnesses essential to his defense at trial. Such an assertion, so belatedly invoking an impermissible and so devastating a sanction, may no more go unchallenged than should the result it is designed to support. In my view, injection of punishment for a legally unrelated event violates more than the rights of Singleton; it offends our broader responsibility for the preservation of the principle that "even the criminal most deserving of punishment is entitled, under our system, to a fair and impartial trial” (People v Herman, 255 App Div 314, 315; see, generally, 23 CJS, Criminal Law, § 961, esp pp 830-831).

Foy’s third requirement is equally met. Everything points to the fact that Knowles would have been produced had a reasonable adjournment been granted. His disinclination to flee the jurisdiction was established by the ease with which he had been found by the police despite the fact that he must have been aware that defense counsel, whose subpoenas he had twice ignored, had been seeking his presence at trial.

In the face of all this, it is remarkable that the majority opinion should find it necessary to engage in an illusory statistical exercise which essays an impression that the refusal to grant an adjournment came only after three earlier requests by the defendant had been granted. The crucial issue, of course, was not whether there had been one, two or three prior requests; that would make the pursuit of justice more like a numbers game. The question, rather, is whether, in the totality of circumstances here, Singleton should have been forced to trial without an adequate opportunity to present evidence required for his proper defense. Ironically, in order to reach its statistical figure of four, the majority opinion counts the events of the frenzied day when Singleton learned of the irresponsible release of his witness as two adjournments requested by him, when, according to the record, the one in the morning was on the trial court’s own initiative and the one in the afternoon was a sua sponte denial before the defendant had the opportunity to make any request. Indeed, the sequence of events was so rapid that only two days had elapsed from the time the witnesses had failed to appear in answer to the subpoenas on Monday until the time on Wednesday of the same week when the judicial pronouncement that there was to be no adjournment forced Singleton to rest his case.

In sum, there just is no room in this case for misinterpretation of the standard laid down in Foy (32 NY2d 473, 478, supra), where, in the plainest of language, it was made clear that "when the witness is identified to the court, and is to be found within the jurisdiction, a request for a short adjournment after a showing of some diligence and good faith should not be denied merely because of possible inconvenience to the court or others.” That language fits this case like a glove.

Accordingly, were we not required, as I believe we are, to dismiss the indictment on the first ground, I believe we would be required to reverse and order a new trial on the second.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Cooke concur with Judge Jasen; Judge Fuchsberg dissents and votes to reverse in a separate opinion.

Order affirmed.

      . The stop in this case occurred in 1971.

      . According to the official 1974 New York State Legislative Manual (p 1228) the population of these three boroughs for 1970, the nearest tabulation date to that of the stop in this case, was 6,128,419. In addition, Bronx Borough (the stop here was made near the Triborough Bridge which connects Queens and Manhattan with The Bronx) had 1,471,701 residents at the time.

      . Figures of the National Vehicle Registration Service (RL Polk & Co., Detroit, Michigan) disclosed that at approximately that time there were 43,534 Buick automobiles of 1963-1966 manufacture registered from Brooklyn, Queens and Manhattan alone. The several Buick models are not separately listed for statistical purposes.


author:
      Per Curiam.
     Fuchsberg, J. (dissenting). Cooke, J. (dissenting).

text:
    Carmen Gonzalez, as Administratrix of the Estate of Roberto Gonzalez, Deceased, Appellant, v Concourse Plaza Syndicates, Inc., Defendant-Respondent and Third-Party Plaintiff. Flatiron Window Cleaning Company, Third-Party Defendant-Respondent.
    Argued January 7, 1977;
    decided February 24, 1977

      Arthur L. Kagan and Norman J. Mordkofsky, Bronx, for appellant.

      Remo J. Acito, P. C., and Elinore B. Klein, New York City, for defendant-respondent.

      Raymond C. Green, Peter M. Pryor, Francis Hugh McDermott and Joseph M. Stein, New York City, for third-party defendant-respondent.
   Per Curiam.

Plaintiff in a wrongful death action appeals from the Appellate Division’s affirmance of an order granting motions by defendant and third-party defendant to strike the action from the Jury Calendar and denying plaintiff’s motion to file a jury demand nunc pro tunc.

The issue is whether a plaintiff who has filed a note of issue requesting, expressly, a trial without jury is nevertheless entitled to a jury trial solely because two defendants who are no longer involved in the action once filed a demand for a jury trial. The order of the Appellate Division should be affirmed. A party who has expressed a preference for a nonjury trial should not be heard to complain when, because the only parties to demand a jury trial have already been absolved of liability and hence removed from the action, the expressed preference is finally given effect.

On October 3, 1961, at the Concourse Plaza Hotel, plaintiff’s husband, an employee of the third-party defendant Flatiron Window Cleaning Company, fell to his death while cleaning, from the outside, a window in the apartment of Mildred and Henry Weinberg. Plaintiff brought a wrongful death action against the Weinbergs and Concourse Plaza Syndicates, and filed a note of issue requesting a trial without jury. The Weinbergs filed a demand for jury trial, and the case proceeded to trial with a jury. After a mistrial, and then a dismissal at the close of plaintiff’s case, subsequently reversed on appeal (31 AD2d 401), a third trial was completed in September, 1969. At that third trial, a jury verdict was rendered for plaintiff against Concourse Plaza, and for the Weinbergs against plaintiff. The verdict against Concourse Plaza was set aside by the Appellate Division, and the action was again remanded for a new and fourth trial (37 AD2d 822). Meanwhile, Concourse Plaza impleaded decedent’s employer, Flatiron, pursuant to the general practice following the intervening decision of this court in Dole v Dow Chem. Co. (30 NY2d 143).

On October 7, 1974, 13 years after the accident, as the jury for the fourth trial was about to be selected, Concourse Plaza and Flatiron joined in a motion to strike the action from the Jury Calendar and transfer it to the Nonjury Calendar. The motion was based on the fact that the Weinbergs, the only parties ever to request a jury trial, were no longer parties to the litigation. After a hearing, the motion was granted, and plaintiffs subsequent motion to file a jury demand nunc pro tunc was denied. The Appellate Division affirmed, one Justice dissenting, and plaintiff appeals.

CPLR 4102 (subd [a]) provides that "[a]ny party may demand a trial by jury of any issue of fact triable of right by a jury, by serving upon all other parties and filing a note of issue containing a demand for trial by jury.” Once a demand has been served by any party, however, it may not be withdrawn or waived without the consent of the other parties (CPLR 4102, subds [a], [c]). This limitation is designed to protect a party who, in reliance on a demand for a jury trial already made by another party, quite reasonably forbears from making a similar demand of his own (Downing v Downing, 32 AD2d 350, 351). Plaintiff, however, is not such a party. Certainly, when, as here, plaintiff has already expressed a preference for a nonjury trial, the statutory protection is unnecessary. In effect, by making an express request for a nonjury trial, plaintiff consented, in advance, to any withdrawal or waiver of a demand for a jury trial. A contrary result would only encourage the tactical maneuvers so properly condemned by Mr. Justice Steuer in Downing v Downing (32 AD2d 350, 351-352, supra).

Of course, as CPLR 4102 (subd [e]) provides, a trial court "may relieve a party from the effect of failing to comply with this section if no undue prejudice to the rights of another party would result.” Thus, a trial court faced with a belated demand for a jury trial may, as Judge Cooke states in dissent, consider the equities involved. The import of the trial court’s remarks in denying the application to demand a jury, nunc pro tunc, should not be misread. The Trial Judge, not concerned with the jurisdictional limitations of the Court of Appeals, did not by using the words "abuse of discretion” manifest a meaning that granting the application would exceed his discretionary power and rise to the status of an error of law, but rather signified that granting the application would be an injudicious use, therefore an "abuse”, of the discretion vested in him (see, generally, the categories of discretion which concern the Court of Appeals because of the constitutional limitations on its power of review, Cohen and Karger, Powers of the New York Court of Appeals, §§ 145-158, esp §§ 148-149). On this view, the trial court has already considered, and rejected, giving plaintiff relief pursuant to CPLR 4102 (subd [e]). That should be the end of this issue in a litigation not yet concluded 16 years after decedent’s unfortunate death.

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

Fuchsberg, J. (dissenting).

This court has never previously treated with the issue raised here and I do not believe that we should adopt the Appellate Division’s reading of CPLR 4102 in Downing v Downing (32 AD2d 350) as the correct one; in my view, the dissenting opinion in that case by former Presiding Justice (then Mr. Justice) Owen McGivern, and joined in by Mr. Justice Louis J. Capozzoli, is more consonant with both the language of the statute and the legislative intention it manifests. A like analysis in Schnur v Gajewski (207 Misc 637 [Matthew M. Levy, J.]) is also persuasive. As Professor David D. Siegel puts it in his Supplementary Practice Commentary, "The Legislative view, insofar as any can be discerned, would apparently uphold Justice McGivern’s dissent” (Siegel, Supplementary Practice Commentaries [1970], McKinney’s Cons Laws of NY, Book 7B, CPLR 4102, Pocket Part [1976-1977], p 54; see, also, 7 Carmody-Wait 2d, NY Prac, § 49:47, pp 537-538; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4102.05, p 41-62.1).

Downing makes the procedure for waiving a jury in a case where one had previously been demanded vulnerable to unilateral opportunism on the part of one party. It does so in place of the far more desirable consensual practice that the statute would appear to require before an earlier "considered and definitive” choice is to be eradicated (Schnur v Gajewski, supra, p 639).

The right to trial by jury in cases such as the one before us is guaranteéd by our State Constitution (NY Const, art I, § 2; art VI, § 18). Procedures for its waiver should be strictly construed. And, until Downing, Trial Judges and trial lawyers so read it (see Siegel, Supplementary Practice Commentaries [1970], op. cit.). No wonder. The statutory language explicitly provides that a "party may not withdraw a demand for trial by jury without the consent of the other parties” (CPLR 4102, subd [a]). It also states expressly that "[a] waiver does not withdraw a demand for trial by jury without the consent of. the other parties” (CPLR 4102, subd [c]). There is nothing ambiguous about these words. Neither logic nor law requires that we freely interpret them as though they were.

Cooke, J. (dissenting).

There should be a reversal and a remittal to Supreme Court to determine whether plaintiff should be granted relief from his failure to demand a jury trial pursuant to CPLR 4102 (subd [e]).

Since the plaintiff in this action filed a note of issue and specifically requested a trial "without jury”, plaintiff should not be entitled to invoke CPLR 4102 (subd [a]), which provides, in part, that "[a] party may not withdraw a demand for trial by jury without the consent of the other parties.” One may accept, as did the Appellate Division both in this action and in Downing v Downing (32 AD2d 350), the interpretation of subdivision (a) as benefiting only those parties who have not filed a demand for a jury trial in reliance on a demand by another party. The problem is, however, that this interpretation of subdivision (a) appears, at least in the instant action, to have read subdivision (e) out of CPLR 4102.

CPLR 4102 (subd [e]) provides: "(e) Relief by court. The court may relieve a party from the effect of failing to comply with this section if no undue prejudice to the rights of another party would result.”

In the proceeding below, after the Trial Justice had determined that, based on Downing v Downing (supra), the plaintiff could not invoke CPLR 4102 (subd [a]) to prevent defendant Concourse Plaza Syndicates, Inc., from having the action transferred to the Nonjury Calendar, the following colloquy took place:

"Mr. Kagan: Your Honor, may I take exception to your ruling? Your Honor, in view of your prior ruling, may I request, then, under Section 4102, subdivision E, and also under Section 4103, that I be permitted to demand a jury, nunc pro tunc?

"The Court: I believe a granting of that application would be an abuse of discretion, and, accordingly, the application is denied.”

In view of the fact that defendant Concourse Plaza Syndicates, Inc., which moved to transfer the action to the Nonjury Calendar, had been a participant in three prior jury trials (resulting in one mistrial and two reversals by the Appellate Division), it is at least arguable that there would be no "undue prejudice” to the rights of that defendant if the case proceeded to a jury trial. As to the third-party defendant, Flatiron Window Cleaning Company, which was not a participant in the other jury trials, the possible prejudice to said party should also have been considered. Yet, instead of exercising his discretion, the Trial Justice appears to have concluded that it would have been an abuse of his discretion to even consider granting plaintiff relief under CPLR 4102 (subd [e]).

Plaintiff may well have intended to move earlier in this action for relief from his failure to demand a jury trial, but may have decided that such a motion was unnecessary because of the demand by one of defendants and, subsequently, because of each of the three prior jury trials (see Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 4102, Pocket Part [1976-1977], pp 54-55). The record manifests that the Trial Justice eliminated the possibility of relief under subdivision (e), apparently based on his determination that plaintiff could not invoke subdivision (a). Accordingly, there should be a reversal and a remittal to Supreme Court for the purpose of determining whether plaintiff should be afforded relief under CPLR 4102 (subd [e]).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judges Fuchs-berg and Cooke dissent and vote to reverse in separate dissenting opinions.

Order affirmed, with costs. Question certified answered in the affirmative.