author: Titone, J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Samuel Bolden, Appellant.
    Argued January 5, 1993;
    decided February 25, 1993

      POINTS OF COUNSEL

      Martin Geoffrey Goldberg, Franklin Square, for appellant.
    In order to exclude time periods for speedy trial purposes pursuant to CPL 30.30 (4) (c) the prosecution must demonstrate that defendant is "absent” or "unavailable”. (People v Garrett, 171 AD2d 153; People v Quiles, 176 AD2d 164; People v Colon, 59 NY2d 921; People v Sturgis, 38 NY2d 625; Matter of Smathers, 309 NY 487.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Richard T, Faughnan, Jay M. Cohen and Leonard Joblove of counsel), for respondent.
    I. The People were not required to exercise due diligence to apprehend defendant after he failed to appear in court as required and a bench warrant was issued for his arrest. (People v Bolden, 174 AD2d 111; People v Sinistaj, 67 NY2d 236; People v Osgood, 52 NY2d 37; People v Sturgis, 38 NY2d 625; People v Colon, 59 NY2d 921; People v Worley, 66 NY2d 523; People v Bratton, 103 AD2d 368, 65 NY2d 675; Matter of Randy K., 77 NY2d 398; People v Walker, 122 AD2d 654.) II. The People were not required to exercise due diligence to apprehend defendant because his location was unknown and he was attempting to avoid prosecution. (People v Patterson, 38 NY2d 623; People v Garrett, 171 AD2d 153; People v Jackson, 150 AD2d 609; Sanders v Winship, 57 NY2d 391; People v Cohen, 66 AD2d 901; People v Nieves, 67 NY2d 125; Sega v State of New York, 60 NY2d 183; People v Tabarez, 69 NY2d 663.)

      Andrew C. Fine, New York City, for Criminal Appeals Bureau of the Legal Aid Society of New York, amicus curiae.

    The explicit language of CPL 30.30 (4) (c) (as amended by L 1984, ch 670) and the legislative history regarding the amendment, conclusively establish that the provision continues to require the prosecution to exercise due diligence in attempting to locate and produce a defendant following the issuance of a bench warrant, in order to demonstrate the excludability of the period during which the warrant is outstanding. (People v Sturgis, 38 NY2d 625; People v Quiles, 176 AD2d 164; People v Williams, 56 NY2d 824; People v Colon, 110 Misc 2d 917, 112 Misc 2d 790, 59 NY2d 921; People v Tychanski, 78 NY2d 909; People v Parris, 79 NY2d 69; People v Bolden, 174 AD2d 111; People v Surita, 137 Misc 2d 794; People v Rodriguez, 132 Misc 2d 1044.)
   OPINION OF THE COURT

Titone, J.

CPL 30.30 (4) (c) excludes certain periods during which the defendant is "absent” or "unavailable” from the time in which the People must otherwise become ready for trial. In 1984, the Legislature amended that paragraph to expand the scope of its exclusion (L 1984, ch 670). The issue in this appeal is whether the previously existing requirement that the People must exercise "due diligence” in locating an "absent” defendant or obtaining an "unavailable” defendant’s presence applies to cases arising under the amendment. We hold that, far from exempting such cases from the "due diligence” requirement, the amendment expressly incorporates it. Accordingly, the People cannot obtain the benefit of the exclusion in these circumstances without satisfactorily demonstrating their compliance with that precondition.

The underlying facts are not in dispute. Defendant was arraigned on a felony complaint charging him with first degree robbery and related offenses on September 19, 1987. Three days later, he was released on his own recognizance (see, CPL 180.80). The felony complaint was subsequently replaced by an indictment that was filed on November 13, 1987. Defendant failed to appear for his arraignment on that indictment, which was scheduled for November 24, 1987. On December 7, 1987, a bench warrant for defendant’s arrest was issued. Defendant was not returned to court on the warrant until April 28, 1988, which was some 143 days after the warrant’s issuance. The People did not declare their readiness on the record at any point during this period.

On May 10, 1988, defense counsel moved to dismiss the indictment under CPL 30.30, arguing that there had been a total of 198 unexcused days of delay attributable to the People and that, consequently, the People had failed to satisfy the statutory six-month readiness requirement. With regard to the 143-day period between the issuance of the bench warrant and defendant’s return on that warrant, defense counsel asserted that "[d]uring that time, the defendant’s location [at a specified address] was known to the prosecution and defendant’s presence could have been obtained had the prosecution exercised due diligence.” The People’s only response was that the entire period in question was excludable from the People’s time to become ready because "[i]n light of the 1984 statutory amendment to [CPL] § 30.30 (4) (c), due diligence need not be shown.” The People did not dispute defense counsel’s factual assertions concerning defendant’s whereabouts during the contested period. Additionally, they did not dispute the contention that they should be charged with the 55-day period between defendant’s initial arraignment on the felony complaint and the November 13, 1987 filing of the indictment.

The trial court adopted the People’s position and denied defendant’s dismissal motion. The court observed that the 1984 amendment on which the People relied had been enacted "to exclude from statutory speedy-trial considerations, the period of time during which a bench-warranted defendant voluntarily fails to appear in court.” Thus, the court concluded, the need for the People to demonstrate due diligence in attempting to secure the defendant’s return had been "obviated.”

Defendant was subsequently tried before a jury and convicted of attempted first degree robbery and fourth degree criminal possession of a weapon. On appeal, the Appellate Division, Second Department, upheld the judgment of conviction, holding that the 1984 amendment to CPL 30.30 (4) (c) had been intended to eliminate any "due diligence” requirement in these circumstances (174 AD2d 111). The Court specifically rejected the First Department’s holding in People v Quiles (see, 176 AD2d 164), in which the contrary conclusion had been reached (174 AD2d, at 116, n). Defendant then took a further appeal by leave of a Judge of this Court. We now reverse the order of the Second Department and hold that the People’s failure to exercise due diligence in attempting to locate defendant or secure his presence is fatal to their claim for an exclusion under CPL 30.30 (4) (c).

CPL 30.30 requires that the People become ready for trial within six months of the commencement of a felony prosecution, subject to certain enumerated exclusions. Among those exclusions is the one described in CPL 30.30 (4) (c), which, as originally enacted, excepted from the time in which the People must become ready "the period of delay resulting from the absence or unavailability of the defendant” (emphasis supplied). As amended in 1984 (L 1984, ch 670), the paragraph now also permits an exclusion for "the period extending from the day the court issues a bench warrant * * * to the day the defendant subsequently appears in the court” in situations "where the defendant is absent or unavailable and * * * has previously been released on bail or on his own recognizance” (emphasis supplied). The paragraph’s final clause provides:

"A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence” (emphasis supplied).

The first issue in this appeal is whether this definitional clause, which was part of the statute before 1984, was intended to apply to the class of "absent” or "unavailable” defendants referred to in the amendment, as well as to the "absent” or "unavailable” defendants referred to in the preexisting portion of the statute. The second issue is whether this clause, if applicable, was intended as the exclusive definition of the statutory terms "absent” and "unavailable” in these circumstances. The underlying question is whether the final clause’s requirement that the People exercise "due diligence” in attempting to locate an "absent” defendant or secure the presence of an "unavailable” one is applicable where a bench warrant has been issued and remains outstanding.

Despite the seemingly clear language of the statute, the People contend that the clause defining "absence” and "unavailability,” which includes the "due diligence” requirement, was not intended to apply to claims for exclusion based on the 1984 amendment. According to the People, "absence” and "unavailability” under the amendment mean something different than they mean elsewhere in the subdivision. In the People’s view, a defendant is "absent” or "unavailable” within the meaning of the amendment simply because he has escaped or failed to appear in court when required. However, there is no support for the premise that "absent” and "unavailable” mean one thing when the period of delay in question involves an outstanding bench warrant and something else when the delay merely "resulted] from” the defendant’s absence or unavailability.

Initially, the argument the People advance is inconsistent with basic principles of statutory construction. It is elementary that "where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout, and the same meaning will be attached to similar expressions in the same or a related statute” (McKinney’s Cons Laws of NY, Book 1, Statutes § 236, at 401; see, Mangam v City of Brooklyn, 98 NY 585).

Furthermore, it is unreasonable to suggest that the Legislature, which was at pains to provide a statutory definition for "absent” and "available” when it initially enacted CPL 30.30 (4) (c), would ignore the structure it had created and use those exact terms in a different sense when it amended that paragraph. Such an inference is particularly far-fetched in this context, where the statute in question is detailed, precisely worded and contains numerous interlocking provisions. Given the Legislature’s precision in drafting all of the other subdivisions of CPL 30.30, the Legislature would undoubtedly have used different words if it intended the terms "absent” and "unavailable” to have a different meaning.

Further, contrary to the dissenter’s contentions, there is nothing in the legislative history or the circumstances surrounding the enactment of the 1984 amendment to suggest that the Legislature intended not to incorporate the statute’s requirement of prosecutorial "due diligence” into the amendment’s new exclusion for periods of "absence” and "unavailability” that are accompanied by outstanding bench warrants. It is beyond dispute that the 1984 amendment to CPL 30.30 (4) (c) was intended to overrule this Court’s decision in People v Sturgis (38 NY2d 625), in which it was held that the exclusion for periods of the defendant’s absence should not be applied where there was no causative relationship between the defendant’s absence or unavailability and the People’s delay in preparing their case (see also, People v Colon, 59 NY2d 921). This holding was based directly on the language of CPL 30.30 (4) (c), which at that time provided for an exclusion only for periods of delay "resulting from” the defendant’s absence or unavailability.

The Sturgis holding created what some policy-makers perceived as an untoward consequence, in that it "forced [prosecutors] to present cases to grand juries even after defendants have jumped bail” (Governor’s Program Bill Mem, Bill Jacket, L 1984, ch 670; but cfi, People v Bratton, 65 NY2d 675, affg 103 AD2d 368). Accordingly, the Governor proposed, and the Legislature passed, an amendment to CPL 30.30 (4) (c) whose specific purpose was "to correct [the] problem created by the * * * decision in People v. Sturgis” (Governor’s Approval Mem, 1984 McKinney’s Session Laws of NY, at 3628; see also, Mem from Attorney-General Robert Abrams, June 8, 1984, Bill Jacket, op. cit). The specific mechanism chosen to accomplish that goal was the addition of narrow language exempting from the "resulting from” proviso those cases in which the absent or unavailable defendant had previously been released on bail or recognizance and was the subject of an outstanding bench warrant. Nothing in the language or history of the amendment suggests an intent to delete, rather than incorporate, the preexisting requirement of prosecutorial diligence.

Indeed, since the holding in Sturgis did not concern the "due diligence” requirement of CPL 30.30 (4) (c), the most that can be said is that the drafters of the Sturgis amendment were unconcerned about that aspect of the exclusion. Thus, notwithstanding the dissenter’s arguments, no inferences can be drawn from the fact that several of the memoranda in the Bill Jacket use formulations such as "escape[ ] from custody” or "fail[ure] to appear in court when required” and do not specifically repeat the statutory "due diligence” element in connection with their use of the terms "absent” and "unavailable” (see, e.g., Governor’s Approval Mem, 1984 McKinney’s Session Laws of NY, at 3628). In fact, to the extent that any of the memoranda in the Bill Jacket do focus on the requirement of prosecutorial "due diligence,” they assume without extended discussion that that requirement would continue to be applicable (Letter from Off of Ct Admin, July 18, 1984, Bill Jacket, op. cit.; Letter from Richmond County Dist Attorney, June 13, 1984, Bill Jacket, op. cit.). The fact that these memoranda also advocate additional legislation to eliminate the "due diligence” requirement — a fact on which the dissent relies — only serves to strengthen our conclusion that the 1984 amendment was not itself directed toward accomplishing that result.

To be sure, the legislative goal underlying the enactment of the Sturgis amendment was, as the Appellate Division observed, "to lessen the People’s burden in discharging their 'speedy trial’ obligation where a defendant has absconded” (174 AD2d, at 115, supra; see, 1984 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 30.30, 1992 Supp Pamph, at 64-65). However, the specific burden that the amendment was aimed at reducing was the People’s duty to show a causative relationship between the defendant’s absence and their delay, not their wholly independent duty to show "due diligence” in locating or producing the defendant.

We also reject the People’s alternative argument that, despite CPL 30.30 (4) (c)’s language, the courts are free to consider defendants to be "absent” or "unavailable” in "other unspecified circumstances,” including those in which no prosecutorial diligence has been shown. Even assuming that CPL 30.30 (4) (c)’s definition of "absent” and "unavailable” defendants was not intended to be exhaustive, as the People contend, it would defy common sense to suggest that the Legislature, which was at pains to incorporate a requirement of prosecutorial diligence where the defendant’s "location cannot be determined” or "his presence for trial cannot be obtained,” also intended to include as "other unspecified circumstances” cases that would fit the statutory definition but for the absence of the diligence element.

The People’s final argument concerns the impracticality of requiring them to make diligent efforts to enforce bench warrants as a condition to invoking the exclusion provided by the 1984 amendment. In support of this argument, the People point out that in 1991 there were a total of 435,574 bench warrants outstanding in New York City and that fully a third of these had been issued in the preceding year alone. Further, in an argument that has been adopted by the dissent, the People stress what they perceive as the undesirable consequences of permitting absconding defendants to benefit from their own misconduct by obtaining CPL 30.30 dismissals for delays occurring during periods when they have absented themselves. Such arguments, however, entail questions of policy that go well beyond the question of statutory construction that we are empowered to resolve on this appeal. Where a statute is clear and unambiguous, our role is limited to ensuring that the Legislature’s will is implemented. Unambiguous statutes must be read as written, unless changed circumstances have rendered it anachronistic (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675).

In this instance, the legislative design is clear. By adopting the 1984 amendment to CPL 30.30 (4) (c), the Legislature relieved the People of their burden of showing a causative relationship between the defendant’s absence and their delay, but the quid pro quo was that the People had to obtain a bench warrant as precondition for availing themselves of the relaxed burden of proof. Manifestly, having taken the trouble to inject the new requirement of a bench warrant into the equation, the Legislature did not intend the bench warrants to be treated as empty paper symbols. Nor did it contemplate that our law enforcement authorities would be relieved of their obligation to attempt to enforce judicially issued process because of the large number of outstanding bench warrants or the limited chances of success. To the contrary, the more plausible inference is that the Legislature expected and intended that the People would exercise "due diligence” in the enforcement of the bench warrants that the new statute required. To the extent that the People perceive such an expectation to be unrealistic or unworkable, their arguments would be more appropriately addressed to the Legislature, which has the authority to make the necessary policy choices. Contrary to the People’s contentions, it is hardly an absurd result from the judiciary’s perspective for this, the State’s highest Court, to adopt a construction requiring the People to make reasonable efforts to enforce the warrants issued by the lower court Judges of this State.

In sum, both the legislative history and the unambiguous language of CPL 30.30 (4) (c) point inexorably to the conclusion that prosecutorial diligence in locating the defendant and/or securing his presence must be shown in order to invoke the exclusion for periods when the defendant was "absent” or "unavailable” and a bench warrant for his apprehension was outstanding. Here, no such showing was made. In fact, the People did not even attempt to refute defendant’s claim that his address was known to the People during the entire period in question and that his presence could have been secured had the People exercised the required diligence. Nor did they attempt to show that defendant’s "location [wa]s unknown and he [wa]s attempting to avoid apprehension or prosecution,” a circumstance that would not require a showing of due diligence under the literal terms of the statute (CPL 30.30 [4] [c]). To the extent that the People now attempt to bring themselves within this category, their claim is unpreserved and is therefore not cognizable in this Court (see, e.g., People v Cortes, 80 NY2d 201).

In the absence of any statutorily cognizable ground for doing so, the 143-day period when a bench warrant for defendant’s apprehension was outstanding should not have been excluded from the People’s time to become ready. And, since this period, when added to the 55 other days of unexcused delay, exceeds the six-month period in which the People were statutorily required to become ready under CPL 30.30, the indictment against defendant should have been dismissed.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to dismiss granted and the indictment dismissed.

Bellacosa, J.

(dissenting). We respectfully dissent and vote to affirm the conviction for attempted robbery in the first degree and criminal possession of a weapon in the fourth degree.

A bench warrant for defendant’s arrest had to be issued on December 7, 1987 because, after having been released on his own recognizance, he failed to return to court on two separate occasions to answer criminal charges. He was finally apprehended and returned on the warrant on April 28, 1988. Defendant, as appellant before this Court, now contends that the time during which he violated the terms of his release should be counted against the People’s responsibility to be ready for trial within a prescribed period. This bold argument succeeds and the indictment against him is dismissed because the People failed to use "due diligence” to go out and again bring him back to court.

In our view, this result contradicts the spirit and letter of CPL 30.30 (4) (c), the ready trial rule. That statute does not retain the requirement of prosecutorial due diligence in circumstances such as these, where defendants render themselves fugitives necessitating that the People seek a judicial warrant for their arrest and return to stand trial. To hold the People accountable for this time relieves defendants of their singularly personal responsibility to honor the original court process that freed them pending criminal charges. This statutory construction grants defendants an irresistible incentive not to appear to answer criminal charges because the reward is the ultimate, ironic windfall — dismissal of those very charges. In like fashion, the Legislature has created a parallel universe with Family Court Act § 340.1, which is the functional equivalent of CPL 30.30, and thus provides inducements to incorrigibility and disregard for the law and its processes by countless juveniles (see, Matter of Randy K., 77 NY2d 398; see also, Matter of Natasha C., 80 NY2d 678).

The ready trial rule, CPL 30.30 (4) (c), was amended in 1984 to exclude "the period extending from the day the court issues a bench warrant pursuant to section 530.70 because of the defendant’s failure to appear in court when required, to the day the defendant subsequently appears in the court pursuant to a bench warrant or voluntarily or otherwise”. The demise of the due diligence requirement in situations in which a bench warrant has been issued is also readily deducible from People v Patterson (38 NY2d 623), which was decided the same day as People v Sturgis (38 NY2d 625). In Patterson, the defendant, who was employed at a parking lot "in close proximity to the county jail” during the time that there was an outstanding bench warrant for his arrest due to his failure to appear in court, indicated that he was waiting for the authorities "to come and get him” (38 NY2d, supra, at 625). Without discussing due diligence, the Court held that this period of time was not to be counted against the People because the defendant was attempting to avoid prosecution (id.). Notably, Patterson has recently been construed as holding that defendants do not have to act affirmatively — if they fail to appear in court as required, the People are not charged with that time (see, People v Jackson, 150 AD2d 609, 610; People v Yanez, 128 Misc 2d 716, 719). To relegate Patterson into solitary oblivion — "no bearing on the meaning or significance of the 1984 amendment to CPL 30.30 (4) (c)” (majority opn, at 152, n 1) — is puzzling, because if the Legislature did not overrule it, this Court should not do so sub silentio in this context. Since the Legislature is presumed here to have been aware of it and did not touch it, apparently because its holding is consistent with the amendment, it should still be binding and useful law.

In any event, we all agree that this Court’s decision in People v Sturgis (38 NY2d 625, supra) was the impetus for the 1984 amendment. However, the conclusion next drawn by the Court that the amendment addresses only the narrow issue of reducing "the People’s duty to show a causative relationship between the defendant’s absence and their delay” (majority opn, at 153) is too restrictive and lacks authoritative statutory construction support.

The definitions and categories of excludable or includable time and circumstances in this complex statute are not mutually exclusive and must each be given effective meaning (Anglin v Anglin, 80 NY2d 553, 555-556). The central thrust of the amendment and the Legislature’s manifest intent were evidenced in the most overt way — an explicit overruling of a prior precedent of this Court.

It is axiomatic that legislative intent is “collected from the context, from the occasion and necessity of the law, from the mischief felt, and the objects and the remedy in view” (1 Kent, Commentaries on American Law, at 462, quoted in Matter of Di Brizzi, 303 NY 206, 220). The remedial objective of the statute must be considered in construing a statute (see, Matter of Toomey v New York State Legislature, 2 NY2d 446, 448; McKinney’s Cons Laws of NY, Book 1, Statutes § 95). A standard proposition of statutory construction is that the courts should not interpret in such a way that produces “absurd” results (Milbrandt v Green Refractories Co., 79 NY2d 26, 36; People v Boston, 75 NY2d 585, 588; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675). As the Court acknowledges, the underlying purpose of the amendment to CPL 30.30 (4) (c) was “ 'to lessen the People’s burden in discharging their “speedy trial” obligation where a defendant has absconded’ ” (majority opn, at 153, quoting People v Bolden, 174 AD2d 111, 115). This goal is turned on its head if the People must exert due diligence in returning a defendant against whom a bench warrant has been issued for failure to appear in court as required to answer criminal charges. The People’s burdens are increased, not "lessened,” by the Court’s construction of the amendment.

Weighty legislative history of the 1984 amendment supports the argument tendered by the People, whose position was accepted by the Appellate Division and which we, too, find persuasive. The Governor’s Approval Memorandum stated that the amendment excludes the period that a bench warrant is outstanding against defendants who are absent or unavailable because they have “escaped from custody or [have] failed to appear in court when required” (1984 McKinney’s Session Laws of NY, at 3628). The absence of any discussion of an additional requirement of a showing of prosecutorial due diligence is strong evidence that none was thought or intended to survive. Additional support for this view is found in several other legislative memorandums supporting the amendment (see, e.g., Letter from Dept of Correctional Servs, June 8, 1984, Bill Jacket, L 1984, ch 670 [time when defendant is a fugitive is excluded]; Mem of State Grim Justice Coordinator [Kurlander], June 11, 1984, Bill Jacket, op. cit. ["all of the time during which a bench warrant is outstanding against the defendant will expressly not be counted” (emphasis added)]; Letter of State Commn of Correction, June 22, 1984, Bill Jacket, op. cit. [time where defendant is a fugitive is excluded]), as well as in memorandum submitted in opposition (see, e.g., Letter from Legis Representative of Legal Aid Socy, June 18, 1984, Bill Jacket, op. cit. [exclude time where "defendant is absent or unavailable because either he has escaped from custody or, his having been released, he fails to appear in court when required”] [emphasis added]).

The Court cites two bill jacket memorandums to support the reversal in this case (majority opn, at 153). While those items assume that the due diligence requirement survived the statutory amendment, insufficient attention is given to the underlying current of those memorandums — strong dissatisfaction with the retention of the due diligence burden in instances such as this case. Indeed, the memorandum of the Office of Court Administration includes a recommendation that the requirement be clearly removed (Legislative Mem from Off of Ct Admin, May 31, 1984, Bill Jacket, op. cit. [communicating opposition of the Advisory Committee on Criminal Law and Procedure "to the extent that it continues to condition excludability of the period during which a bench warrant is outstanding upon the people’s exercise of due diligence in attempting to locate defendant”]). In any event, none of the memorandums cited by the majority or this dissent constitutes an authoritative or unequivocal manifestation of the Legislature’s intention to retain or abandon the due diligence requirement when a bench warrant situation is interposed. The job of unearthing that intent rests uniquely and ultimately on this Court, which may not draw definitive inferences from the collective or competing viewpoints of various nonneutral special interest depositors into the legislative "Bill Jacket”.

Public policy considerations, manifest in the legislative history, further fuel the conclusion that due diligence is irrelevant in the bench warrant situations. Imposition of that requirement on the People induces and makes it worthwhile for defendants to abscond, since the massive number of outstanding bench warrants renders it not only highly unlikely, but near to impossible, that any of such defendants will be returned other than accidentally or for new criminal conduct within the ready time limits (see, Letter from Richmond County Dist Attorney, June 13, 1984, Bill Jacket, op. cit. [as of December 1983 more than 300,000 outstanding bench warrants in the City of New York]; Letter from New York State Defenders Assn. Inc., June 12, 1984, Bill Jacket, op. cit. [bill should be rejected "because it may actually encourage defendants to abscond”]; Legislative Mem from Off of Ct Admin, May 31, 1984, Bill Jacket, op. cit.). This is precisely the undesirable consequence that the Legislature targeted in overruling People v Sturgis (38 NY2d 625, supra; see, Letter from Off of Mayor of City of NY, June 13, 1984, Bill Jacket, op. cit.; Letter from Nassau County Dist Attorney, June 11, 1984, Bill Jacket, op. cit). Moreover, it is hard to imagine anything more self-defeating than the expenditure of finite prosecutorial resources to chase after hundreds of thousands of bench warrant scoffers in lieu of using those resources to try the cases themselves. Indeed, and most unfortunately, prosecutors and courts are likely to be far more wary and reluctant to allow for pretrial releases in the teeth of the likely denouements of this interpretation of CPL 30.30. This does not well serve defendants’ interests or that of the fair and speedy administration of justice.

We completely support the view that the ready trial statute strikes an important balance, including necessary protections to defendants against prosecutorial delays (see, People v Santana, 80 NY2d 92, 110 [concurring opn, Titone and Bellacosa, JJ.]). The statute is designed to accomplish its laudable goals, however, without superimposing a self-contradictory due diligence requirement on the People in these circumstances — a time factor attributable solely to the actions of released defendants, who are either negligently or intentionally scornful of the law’s express dictates to them.

We would affirm the order of the Appellate Division upholding the conviction.

Acting Chief Judge Simons and Judges Kaye and Hancock, Jr., concur with Judge Titone; Judge Bellacosa dissents and votes to affirm in a separate opinion in which Judge Smith concurs.

Order reversed, etc.

      . The dissenter’s reliance on People v Patterson (38 NY2d 623) is puzzling. First, since that decision was published in 1976, it could have no bearing on the meaning or significance of the 1984 amendment to CPL 30.30 (4) (c). Second, and more importantly, the outcome in Patterson was premised on the existence of a period "when it could be found that defendant’s location was unknown and he was attempting to avoid prosecution (CPL 30.30, subd 4, par [c])” (38 NY2d, at 625 [emphasis supplied]). Under the plain language of the statute as it existed both before and after the 1984 amendment, the quoted language constitutes a separate and independent ground for categorizing a defendant as "absent,” without regard to whether the People have exercised "due diligence.” Thus, the holding in Patterson has no relevance to this dispute, in which the People did not even attempt to argue in the trial court that defendant was "attempting to avoid prosecution” by his absence.

      . Contrary to the dissenter’s argument (dissenting opn, at 158), our holding does not in any way "increase” the People’s burden. Rather, it simply leaves intact the burden they had before the 1984 amendment of showing "due diligence” as a precondition to claiming excludable time under CPL 30.30 (4) (c).

      . We express no opinion at this point as to whether, as a general proposition, there may be circumstances other than those enumerated in the statute when a defendant may be considered "absent” or "unavailable” for the purpose of determining the People’s entitlement to the exclusion set forth in CPL 30.30 (4) (c).

      . Similarly, the dissenter’s suggestion that legislation such as CPL 30.30 and Family Court Act § 340.1 "provides inducements to incorrigibility and disregard for the law and its processes” (dissenting opn, at 157) involve matters of policy that are exclusively within the legislative province. We note only that CPL 30.30, the statute at issue here, was designed to regulate the conduct of prosecutors, not criminal offenders, and that, consequently, our interpretative efforts must be directed toward encouraging prosecutorial compliance, rather than to the larger goal of deterring crime. Further, no legislative choice or decision of this Court relating to a technical provision like CPL 30.30 or Family Court Act § 340.1 could promote "incorrigibility and disregard for the law” as much as the conceded inability of the State to enforce judicially issued bench warrants and the equally disturbing suggestion that we should construe CPL 30.30 (4) (c) so as to accommodate and excuse that shortcoming.

      . Contrary to the dissenter’s expressed views, our interpretation of CPL 30.30 (4) (c) does not relieve absconders of "their singularly personal responsibility to honor the original court process” nor does it "make[ ] it worthwhile for defendants to abscond” (dissenting opn, at 156, 159). What the dissenter overlooks is that the law already provides substantial penalties in the form of criminal sanctions for the offense of bail jumping (see, Penal Law §§ 215.55-215.57; see also, § 70.25 [2-c] [requiring sentence for bail jumping to run consecutively absent "mitigating circumstances”]).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Gordon Parks, Appellant, v Leahey & Johnson, P. C., et al., Respondents.
    Decided April 5, 1993

      POINTS OF COUNSEL

      George H. Fowler, New York City, for appellant.
    I. Contrary to respondents’ assertions, Executive Law § 142-a permits damages actions against notaries. (Four Star Stage Light. v Merrick, 56 AD2d 767; Independence Leasing Corp. v Aquino, 133 Misc 2d 564; Guggenheimer v Ginzberg, 43 NY2d 268.) II. No sanctions should have been imposed.

      Leahey & Johnson, P. C., New York City (Michael Conforti of counsel), respondent pro se, and for Kevin B. Lynch, respondent.
    I. Executive Law § 142-a acts to bar this action as a matter of law. (Gramercy Equities Corp. v Dumont, 72 NY2d 560; Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Matter of Facey v Department of State, 132 AD2d 698; Matter of Yankopoulos v State of New York, 103 AD2d 95;
      Independence Leasing Corp. v Aquino, 133 Misc 2d 564; Four Star Stage Light. v Merrick, 56 AD2d 767.) II. Plaintiff’s complaint fails to adequately plead a cause of action sounding in fraud. (Barclay Arms v Barclay Arms Assocs., 74 NY2d 644.) III. As a matter of law, the failure of the notary to properly qualify as such was not a proximate or legal cause of the dismissal of plaintiff’s complaint in Parks v Greenberg (76 NY2d 888). (Amodei v New York State Chiropractic Assn., 77 NY2d 890; Fidelity N. Y. v Hanover Cos., 162 AD2d 582; People ex rel. Fifth Ave. & 37th St. Corp. v Miller, 286 NY 628; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700; Vreeland v Pennsylvania Tanning Co., 130 App Div 405; Heidelberger v Heidelberger, 196 App Div 626.) IV. The denial of plaintiff’s motion to set aside the judgment in Parks v Greenberg acts as a bar to the maintenance of this action. (Collins v Bertram Yacht Corp., 53 AD2d 527, 42 NY2d 1033; Crouse v McVickar, 207 NY 213; Rizzo v Ippolito, 137 AD2d 511; Bianco v Dougherty, 54 AD2d 681; De Coss v Turner & Blanchard, 267 NY 207; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304.) V. The instant action was properly dismissed since a plenary action does not lie to challenge a judgment or order procured by alleged fraud or misconduct. (Mizerik v Mizerik, 170 AD2d 886; Rizzo v Ippolito, 137 AD2d 511; Oppenheimer v Westcott, 47 NY2d 595; Fuhrmann v Fanroth, 254 NY 479; Jacobowitz v Herson, 268 NY 130; Rivero v Ordman, 277 App Div 231; Collins v Bertram Yacht Corp., 42 NY2d 1033.) VI. Sanctions were properly imposed in this case.
   OPINION OF THE COURT

Per Curiam.

Plaintiff commenced this action pursuant to Judiciary Law § 487, alleging that, in a prior negligence suit by plaintiff, defendant law firm Leahey & Johnson committed fraud upon the trial court by knowingly submitting affidavits on behalf of the defendants therein which were notarized by defendant Lynch, whose notary public commission had, at that time, expired. Based on the information contained in those documents, Supreme Court dismissed plaintiff’s negligence action on the defendants’ summary judgment motion. Plaintiff’s previous attempts to have the judgment against him in the prior action vacated were rebuffed on the theory that Lynch’s defective notarization of the affidavits did not constitute fraud and. was an official act of a notary public validated by Executive Law § 142-a.

In plaintiff’s present Judiciary Law § 487 action, Supreme Court granted defendants’ motion to dismiss the complaint on the same ground. The court also imposed sanctions on plaintiff and his attorney under 22 NYCRR 130-1.1 on the ground that the judgment in the prior action put plaintiff and his attorney on notice that the present action was frivolous, having no basis in law or fact. The Appellate Division affirmed the dismissal of the complaint, but reduced the amount of the sanctions imposed.

As plaintiff argues, Executive Law § 142-a does not bar a fraud action against a notary-attorney brought pursuant to both Judiciary Law § 487 and Executive Law § 135, which respectively address attorney and notary misconduct. Executive Law § 142-a merely provides that the expiration of a notary’s term shall not invalidate that notary’s official certificates and other acts, such as administering oaths and taking depositions (see, Executive Law § 142-a [2] [b], [c], [d], [f]). The statute, which was intended to allow the public to rely on the presumption of validity attached to a notary’s certificate (see, 1958 Report of NY Law Rev Commn, 1958 NY Legis Doc No. 65 [E], at 5, reprinted in 1958 McKinney’s Session Laws of NY, at 1723), does not expressly preclude suits for damages predicated on a notary-attorney’s misconduct in knowingly submitting defective documents to a court. Indeed, the legislative history of the statute specifically indicates that section 142-a was not intended to relieve notaries public from criminal liability for official misconduct (id., 1958 McKinney’s Session Laws of NY, at 1726), thereby demonstrating that section 142-a was not meant to provide an impenetrable shield against actions predicated on deceitful conduct.

Nonetheless, plaintiff’s fraud action was properly dismissed on the merits. Although plaintiff’s allegations and supporting affidavits state that defendant Lynch knowingly notarized and filed documents with a lapsed notary commission in an effort to deceive the court as to those documents’ authenticity, his complaint was deficient because its allegations on the issue of damages were merely conclusory (see, CPLR 3016 [b]). The pleadings and affidavits do not support the conclusion that plaintiff would have been successful in the negligence case absent Lynch’s alleged fraud. Indeed, section 142-a validated those defectively notarized documents, and Supreme Court’s reliance upon them in dismissing the earlier action was proper.

Finally, although plaintiff’s complaint was properly dismissed, the courts below abused their discretion in imposing sanctions. Supreme Court imposed sanctions against plaintiff and his attorney on the ground that the suit brought pursuant to Judiciary Law § 487 and Executive Law § 135 lacked any basis in law or fact, was "frivolous” and was brought to "harass” within the meaning of 22 NYCRR 130-1.1. The Appellate Division agreed that sanctions were warranted on the ground that Executive Law § 142-a did not provide a legal basis for plaintiff’s fraud claim. However, plaintiff’s claim, that Executive Law § 142-a did not bar a suit for a notary-attorney’s misconduct under Judiciary Law § 487 and Executive Law § 135, is correct. Although plaintiff cannot prevail on the merits of his fraud cause of action, bringing that claim was not an abuse of judicial process approaching sanctionable conduct.

Accordingly, the order of the Appellate Division should be modified by vacating the award of sanctions and, as so modified, affirmed.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Smith taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

       Judiciary Law § 487 (1) establishes criminal liability for an attorney who is guilty of "deceit or collusion, with intent to deceive the court or any party,” and authorizes an injured party to recover treble damages in a civil suit against such an attorney.
      Executive Law § 135 provides that a notary shall be liable for all damages due to misconduct in the performance of official duties.


author: Smith, J.

text:
    The People of the State of New York, Respondent, v Alfred "Nick” Rattenni, A-1 Compaction, Inc., American Disposal Services, Inc., Frank Giannattasio, Jr., G & G Waste Systems, Inc., and Wasteway Carting Corp., Appellants.
    Argued February 18, 1993;
    decided April 5, 1993

      POINTS OF COUNSEL

      Gilleece & Gilleece, White Plains (Kevin P. Gilleece of counsel), and Lanna & Coppola, Yonkers, for Alfred "Nick” Rattenni and others, appellants.
    I. To the prejudice of defendants, the Grand Jury was never instructed to apply the "rule of reason” to the dealings between the parties but was instructed that any allocation of customers was per se illegal and could not have a business justification. (Business Elecs. Corp. v Sharp Elecs., 485 US 717; National Socy. of Professional Engrs. v United States, 435 US 679; National Coll. Athletic Assn. v Board of Regents, 468 US 84; Federal Trade Commn. v Indiana Fedn. of Dentists, 476 US 447; United States v Portsmouth Paving Corp., 694 F2d 312; United States v Suntar Roofing, 897 F2d 469; United States v Cooperative Theatres, 845 F2d 1367; Baker’s Aid v Hussmann Foodservice Co., 730 F Supp 1209; Anheuser-Busch, Inc. v Abrams, 71 NY2d 327.) II. The evidence presented to the Grand Jury was legally insufficient. (People v Jennings, 69 NY2d 103; People v Mikuszewski, 73 NY2d 407; Anheuser-Busch, Inc. v Abrams, 71 NY2d 327.)

      B. Anthony Morosco, White Plains, and James M. Rose for Frank Giannattasio, Jr., and others, appellants.
    The People charged the Grand Jury to consider the agreement between the parties as a per se violation of the Donnelly Act, despite the fact that the Grand Jury should have considered the facts before it and applied the "rule of reason” in which case it would have found the evidence was insufficient. (National Socy of Professional Engrs. v United States, 435 US 679; United States v Koppers Co., 652 F2d 290; United States v Suntar Roofing, 897 F2d 469; Pennsylvania Dental Assn. v Medical Serv. Assn., 745 F2d 248, 471 US 1016; Northern Pac. Ry. Co. v United States, 356 US 1; Standard Oil Co. v United States, 221 US 1; Atkin v Union Processing Corp., 90 AD2d 332; 59 NY2d 919, 465 US 1038; Baker’s Aid v Hussmann Foodservice Co., 730 F Supp 1209; Meteor Indus, v Metalloy Indus., 149 AD2d 483; Purchasing Assocs. v Weitz, 13 NY2d 267.)

      Robert Abrams, Attorney-General, New York City (Gary J. Malone, George Sampson, Jerry Boone and Joseph Opper of counsel), for respondent.
    I. An agreement among competitors to allocate customers, such as the agreement charged in the indictment, is a per se violation of the Donnelly Act. (Anheuser-Busch, Inc. v Abrams, 71 NY2d 327; State of New York v Mobile Oil Corp., 38 NY2d 460; National Socy of Professional Engrs. v United States, 435 US 679; United States v Topco Assocs., 405 US 596; Palmer v BRG of Ga., 498 US 46; United States v Suntar Roofing, 897 F2d 469; United States v Cooperative Theatres, 845 F2d 1367; United States v Cadillac Overall Supply Co., 568 F2d 1078; United States v Consolidated Laundries Corp., 291 F2d 563; United States v Goodman, 850 F2d 1473.) II. The evidence before the Grand Jury was legally sufficient to sustain the indictment. (People v Warner-Lambert Co., 51 NY2d 295, 450 US 1031; People v Jennings, 69 NY2d 103; People v Mikuszewski, 73 NY2d 407.)
   OPINION OF THE COURT

Smith, J.

The primary issue on this appeal is whether the Grand Jury was properly instructed that any allocation of customers by the defendants was per se illegal under the Donnelly Act (General Business Law §§ 340, 341) or whether a "rule of reason” should be applied to the facts presented.

The indictment charging antitrust violations stemmed from the activities of competing waste carting firms. The evidence presented to the Grand Jury disclosed that defendant A-l Compaction, Inc. (A-l) was a waste carter which made commercial and industrial garbage collections in the metropolitan New York area. It had a Connecticut subsidiary, defendant American Disposal Services, Inc. (ADS). Defendant Alfred Rattenni was the majority shareholder and principal officer of A-l. Defendant G&G Waste Systems, Inc. (G&G) was a waste carter based in Connecticut. It had a New York subsidiary, defendant Wasteway Carting Corp. (Wasteway). The shareholders and officers of G&G were Frank Giannattasio, Sr., and his sons, defendant Frank, Jr., and John.

In 1981, G&G began a carting business in areas of Connecticut, including Greenwich, Stamford, Darien, Norwalk and Westport. In 1984, ADS was formed in order to compete with G&G and other carters in southern Connecticut. The competitive practices of both ADS and G&G resulted in complaints to the offices of the Attorney General of Connecticut and New York, complaints to the office of the District Attorney of Westchester County, and civil litigation between these defendants.

Beginning in December 1987, defendant Wasteway solicited and serviced customers of A-l in Yonkers, New York. The evidence before the Grand Jury was that some of A-l’s customers were contacted by Waste way and considered breaking contracts with A-l but that A-l either retained or got back some of these customers through matching prices, underbidding or suing. The evidence indicated further that Wasteway’s efforts to establish a viable business in Yonkers were unsuccessful although it did establish accounts with about 100 customers, 75% being former A-l customers. Wasteway attributed this failure to its inability to obtain dumping rights in Westchester, harassment by local law enforcement officials, and lawsuits against it.

The indictment against defendants grew out of Wasteway’s decision to cease doing business in Yonkers and New York State. At a first meeting between the principals of A-l and G&G prior to June 24, 1988, defendant Rattenni was solicited but he declined to purchase Wasteway.

A second meeting was held on or about June 24, 1988. Present for A-l and ADS were Rattenni, Ralph Cerretta, the manager of ADS, and Andrew Bowman, an attorney. Present for G&G and Wasteway were the three Giannattasios and their attorney, Joseph Richichi. As the result of the meeting, a letter of intent was drawn up but never signed. Instead, Rattenni agreed to cease serving about 55 "front end container” customers in Norwalk, Connecticut, and gave G&G and Wasteway a list of those ADS customers. ADS, however, continued to compete for "compaction and roll-off work” in Norwalk. The Giannattasios agreed to cease doing business in Yonkers, and Rattenni was given a list of approximately 100 Wasteway customers in Yonkers. Thus, ADS relinquished a portion of its business in Norwalk and Wasteway ceased doing business in Yonkers altogether. Neither ADS nor Wasteway assumed the contracts of the other but entered into new contracts with customers, some at prices substantially higher than before the agreement to allocate customers.

After the presentation of evidence relevant portions of the Donnelly Act were read to the Grand Jury along with the following further instructions:

"Now, the Donnelly Act makes illegal only combinations and conspiracies which unreasonably restrain trade and competition. It is the law, however, and I do instruct you that an arrangement, combination or conspiracy among actual or potential competitors to divide and allocate customers is, without more, an unreasonable restraint of trade which violates the Donnelly Act.
"This means that if there was such a conspiracy, it does not matter whether the allocation of customers was based on any business justification. You need not determine whether an agreement to allocate customers is reasonable or unreasonable * * *
"A conspiracy to allocate customers is an agreement or mutual understanding between two or more actual or potential competitors not to compete for the business of particular customers. For example, customer allocation exists where two or more actual or potential competitors agree that each of them will not service or solicit specific customers that they have agreed should be serviced by the other.
"A business, however, has the right to select its customers entirely on its own and to sell its services to whomever it chooses. Likewise, a business may decide not to solicit or sell its services to a customer, provided that the decision results from an independent business judgment and not from an understanding with a competitor.” (Emphasis supplied.)

The Grand Jury voted to indict all six defendants. It charged them in count one of the indictment with the crime of combination in restraint of trade and competition in violation of sections 340 and 341 of the General Business Law. Specifically, the defendants were charged with knowingly and intentionally entering into "a contract, agreement, arrangement, combination and conspiracy * * * to divide and allocate among themselves certain customers for garbage collection services in Westchester County, New York, Putnam County, New York, and the State of Connecticut.”

On defendants’ motion, Supreme Court dismissed count one of the indictment, concluding that the Grand Jury had been improperly instructed that any allocation of customers was a per se violation of the Donnelly Act, and that under the proper "rule of reason” standard the evidence was legally insufficient to sustain the indictment. The Appellate Division reversed and reinstated count one, holding that the proper charge to the Grand Jury was a per se charge and that the evidence before the Grand Jury was legally sufficient. We affirm.

The Donnelly Act declares, "Every contract, agreement, arrangement or combination whereby * * * [competition or the free exercise of any activity in the conduct of any business, trade or commerce or in the furnishing of any service in this state is or may be restrained * * * to be against public policy, illegal and void” (General Business Law § 340 [1]). The Donnelly Act was modelled on the Federal Sherman Act of 1890 (State of New York v Mobil Oil Corp., 38 NY2d 460, 463), and thus we have observed that State antitrust law "should generally be construed in light of Federal precedent and given a different interpretation only where State policy, differences in the statutory language or the legislative history justify such a result” (Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 335).

While most trade practices are analyzed under a "rule of reason” standard — that is, it must be shown that under the circumstances there is an unreasonable restraint of trade— some activities are deemed so pernicious to competition that they are found to be per se unreasonable (Northern Pac. Ry. Co. v United States, 356 US 1, 5). Among these are price fixing and division of markets (id.).

The charge to the Grand Jury that an allocation of customers was a per se violation of the Donnelly Act was proper and the Appellate Division’s order should be affirmed. Federal law is clear on the issue. In United States v Topco Assocs. (405 US 596), for example, the Supreme Court, rejecting a decision by a Federal District Court that a case was governed by a "rule of reason”, held an agreement and conduct analogous to that charged here was a per se violation of the Sherman Act. There, Topeo, an association of approximate 25 small and medium-sized regional supermarket chains operating in 33 States, entered into agreements with its members to sell Topco-controlled brands only within a given territory and to refrain from selling them in other territories. The Supreme Court stated, "[o]ne of the classic examples of a per se violation of [the Sherman Act] is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition” (405 US, at 608).

More recently, the Supreme Court reiterated its position that an allocation of markets was a per se violation of the Sherman Act in Palmer v BRG of Ga. (498 US 46). There, BRG of Georgia, Inc. and Harcourt Brace Jovanovich Legal and Professional Publications both offered Bar review courses in the State of Georgia. The two entities agreed, among other things, that Harcourt would not compete in Georgia and BRG would not compete outside of Georgia. The Supreme Court found this agreement a per se violation of the Sherman Act (498 US, at 49-50).

While defendants argue that we should reject the per se rule under the Donnelly Act insofar as it applies to customer and territory allocation agreements, they have presented no persuasive reason grounded in statutory language, legislative history or policy for us to depart from the Supreme Court’s interpretation of the Sherman Act (see, Anheuser-Busch, Inc. v Abrams, 71 NY2d, at 335). Accordingly, we agree with the Appellate Division that the Grand Jury was properly instructed.

Defendants’ claim that the Giannattasios were not viable competitors in Westchester and were going out of business there irrespective of any agreement to allocate customers does not render the jury charge erroneous. The Grand Jury was specifically required to find that the firms were "actual or potential competitors.” Should the People fail to prove at trial that the firms were actual or potential competitors, of course, defendants may be acquitted.

Similarly, defendants’ claim that what occurred was not an unlawful customer allocation agreement but merely the sale of a business with an ancillary covenant not to compete (see, Purchasing Assocs. v Weitz, 13 NY2d 267, 271) is a factual claim that may be presented at trial. However, that argument does not undermine the validity of the indictment.

Finally, we agree with the Appellate Division that the evidence before the Grand Jury was legally sufficient to sustain the indictment.

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

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed.

      . The second count of the indictment charged the defendant Giannattasio with perjury. On July 10, 1990, a jury found him not guilty of the charge.

      . The Sherman Antitrust Act, 15 USC § 1, reads, "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal”.


author: Chief Judge Kaye.

text:
    CT Chemicals (U.S.A.) Inc., Respondent, v Vinmar Impex, Inc., Appellant.
    Argued March 23, 1993;
    decided April 29, 1993

      POINTS OF COUNSEL

      DeGraff, Foy, Holt-Harris & Mealey, Albany (Kirk M. Lewis and Carroll J. Mealey of counsel), and Dunn & Zuckerman, P. C, New York City, for appellant.
    I. Pursuant to UCC 2-207, the January 13, 1987 "confirmation order” is not the contract. (Matter of Marlene Indus. Corp. [Carnac Textiles], 45 NY2d 327; Roto-Lith, Ltd. v Bartlett & Co., 297 F2d 497; St. Charles Cable TV v Eagle Comtronics, 687 F Supp 820, 895 F2d 1410; Lorbrook Corp. v G & T Indus., 162 AD2d 69; Tuck Indus. v Reichhold Chems., 151 AD2d 566; Rite Fabrics v Stafford-Higgins Co., 366 F Supp 1; Diamond Fruit Growers v Krack Corp., 794 F2d 1440; CBS, Inc. v Auburn Plastics, 67 AD2d 811; Mateo Elec. Co. v American Dist. Tel. Co., 156 AD2d 840.) II. Vinmar, as an insecure buyer, had the right to withhold payment for the partial shipment until it received assurances that the balance of the contract would be shipped. (Cameras for Indus, v I. D. Precision Components Corp., 49 Misc 2d 1044, 30 AD2d 526; National Farmers Org. v Coast Trading Co., 488 F Supp 944; AMF, Inc. v McDonald’s Corp., 536 F2d 1167; Created Gemstones v Union Carbide Corp., 47 NY2d 250; American Elec. Power Co. v Westinghouse Elec. Corp., 418 F Supp 435; Cuba Cheese v Aurora Val. Meats, 113 AD2d 1012.) III. The Court below improperly resolved disputed questions of fact. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Weiss v Garfield, 21 AD2d 156; McBride v County of Schenectady, 110 AD2d 1000; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965.)

      Snitow & Pauley, New York City (Franklyn H. Snitow and Lyle D. Brooks of counsel), for respondent.
    I. The Court below correctly held that the terms of CT’s January 13, 1987 sales confirmation were controlling. (Tougher Heating & Plumbing v State of New York, 73 AD2d 732; Browning-Ferris Indus. v County of Monroe, 103 AD2d 1040, 64 NY2d 1046; Matter of Marlene Indus. Corp. [Carnac Textiles], 45 NY2d 327; Davidson Extruded Prods. v Babcock Wire Equip., 138 Misc 2d 118; Soffer v Elmendorf 108 AD2d 954; Hammerstein v Woodlawn Cemetery, 21 Misc 2d 42.) II. The Court below correctly held that Vinmar’s failure to timely open a letter of credit was a material breach entitling CT to refuse further deliveries and demand payment. (Penn v Valiante, 228 App Div 552; Indovision Enters. v Cardinal Export Corp., 44 AD2d 228, 36 NY2d 811; Arora v Arlee Home Fashions, 98 AD2d 655.) III. The Court below correctly held that plaintiff was entitled to payment upon delivery of each lot, because the contract required, and defendant demanded and accepted, separate deliveries. (Kosinski v Woodside Constr. Corp., 77 AD2d 674.) IV. The Court below properly granted summary judgment on the uncontested facts. (Olan v Farrell Lines, 64 NY2d 1092.)
   OPINION OF THE COURT

Chief Judge Kaye.

This appeal requires application of the Uniform Commercial Code to a dispute over the alleged breach of an agreement for the sale of high density polyethylene (HDPE) between two dealers in chemical compounds — plaintiff-seller, CT Chemicals (U.S.A.), and defendant-buyer, Vinmar Impex.

The events in issue — largely an exchange of telexes and other documents — took place during a six-month period beginning October 1986. On October 28, Vinmar by telex to CT memorialized its oral offer to buy 1,000 metric tons of HDPE, stating that payment was to be by letter of credit. The next day, CT sent Vinmar written confirmation that CT would ship

1.000 metric tons in November, with payment by irrevocable letter of credit. CT, that same day, also sent a telex confirming the terms as stated on its sales confirmation, and offering Vinmar an additional 1,000 metric tons on the same terms and conditions. On October 31, Vinmar acknowledged receipt of CT’s confirmation of the sale of 1,000 metric tons, but made no mention of the additional amount.

Vinmar alleges that some time in November, the parties orally agreed to change the payment method from irrevocable letter of credit to "net 30 days,” or 30 days’ credit. CT disputes that such an agreement was made.

On November 24, 1986, Vinmar sent CT a purchase order form for 1,000 metric tons, filled out to reflect delivery in November/December and payment "Net 30” days.

Vinmar two weeks later expressed concern about CT’s plans to market HDPE as a competitor and purported to cancel its order. However, the parties soon thereafter agreed to continue with the contract, as evidenced by an exchange of telexes in mid-December, rescheduling shipment of 1,000 metric tons to January 1987. These communications also reflected that CT’s offer to sell Vinmar an additional 1,000 metric tons of HDPE remained outstanding.

On January 9, Vinmar telexed CT instructions for shipping 1.000 metric tons and acceptance of the offer for the second quantity, which CT was to place on the purchase order sent for the first 1,000 metric tons. Four days later CT telexed confirmation that the initial contract was amended to state a purchase of 1,900/2,000 metric tons, with delivery in January/ February 1987 and all other terms and conditions unchanged. CT then sent Vinmar an amended sales confirmation stating it would ship 1,900/2,000 metric tons with delivery in January/February and payment by irrevocable letter of credit.

In January and February 1987, the parties exchanged several communications addressing the mechanics of both the letter of credit and the first shipment. Notably, Vinmar’s documents indicate no objection to the letter of credit. In fact, on January 28, Vinmar sent CT a copy of a proposed letter of credit in the amount of $510,000 — the agreed price for 1,000 metric tons — and on February 6, opened that letter of credit with Barclays Bank.

CT then shipped 1,000 metric tons of HDPE and later in the month Vinmar authorized shipment of the second amount. Due to the following events, however, the second shipment was never made.

On February 25, 1987 the first shipment arrived, and was accepted by Vinmar’s customers. That same day, CT made presentment to Barclays Bank for payment under the terms of the letter of credit. However, the bank could not confirm that it would honor the letter of credit, and Vinmar refused to waive the discrepancies. In an exchange of telexes, CT declined to ship the second lot until the payment problem was resolved. On March 30, Barclays formally rejected CT’s presentment, stating that on the advice of Vinmar, payment would be handled "outside of the L/C terms.” CT demanded payment, Vinmar did not comply, the second shipment was never sent, and this lawsuit ensued.

The parties submitted a CPLR 3031 joint statement in lieu of pleadings containing claims by CT and counterclaims by Vinmar. Supreme Court denied cross motions for summary judgment, concluding there was a material factual issue with regard to when payment was due. The Appellate Division modified to grant plaintiff summary judgment in the amount of $710,000 (reduced to $510,000 upon reargument). We granted leave and now affirm.

At the outset, we note that this dispute between merchants implicates several provisions of article 2 of the Uniform Commercial Code, which propounds clear sensible rules grounded in the reality of commercial transactions (see, UCC 2-101, comment).

Contrary to defendant’s contention, this case does not present a classic battle of forms — "the all too common business practice of blithely drafting, sending, receiving, and filing unread numerous purchase orders, acknowledgments, and other diverse forms containing a myriad of discrepant terms” (Matter of Marlene Indus. Corp. [Carnac Textiles], 45 NY2d 327, 329-330). In such situations, UCC 2-207 governs whether a contract has been formed, and if so its terms (see, Marlene Indus., 45 NY2d, at 332; 1 White and Summers, Uniform Commercial Code § 1-3, at 28-29 [3d ed]).

Here, the parties do not dispute the formation of a contract or the original terms: by virtue of the exchanges between Vinmar and CT in October 1986, a contract was formed for the sale of 1,000 metric tons of HDPE for delivery later that year, with payment by irrevocable letter of credit. Clearly also, this contract was later modified to double the quantity of HDPE and defer delivery to January/February 1987.

Disagreement centers on two alleged modifications — first, whether the payment method was changed from letter of credit to 30 days’ credit and second, whether the new quantity was to be delivered as one shipment or two (which then determines when payment was due). We conclude that payment was to be by letter of credit, that two shipments were contemplated with payment due after the first, and that Vinmar — the buyer — therefore was correctly identified by the Appellate Division as the defaulting party.

Once a contract is formed, the parties may of course change their agreement by another agreement, by course of performance, or by conduct amounting to a waiver or estoppel. In order to determine the terms of such change, we look to UCC 2-208 and 2-209, not 2-207 (see generally, 1 White and Summers, Uniform Commercial Code § 1-3, at 36-37, n 22; § 1-6, at 57).

Vinmar claims there was an express oral modification of the original payment method — letter of credit — to provide for payment on 30 days’ credit. However, that issue need not be reached, for the parties’ course of conduct makes abundantly clear that there was no modification of the payment term.

Where a contract involves repeated occasions for performance and opportunity for objection "any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement” (UCC 2-208 [1]). "[S]uch course of performance shall be relevant to show a waiver or modification of any term inconsistent with such course of performance” (UCC 2-208 [3]). This section recognizes that the "parties themselves know best what they have meant by their words of agreement and their action under that agreement is the best indication of what that meaning was” (UCC 2-208, comment 1).

Faced with repeated occasions to object during January and February, Vinmar chose instead to honor its obligation to furnish a letter of credit. We therefore conclude, based on the course of performance, that the modified contract required payment by letter of credit (UCC 2-208).

We reach a similar conclusion as to the time payment was due, an issue that turns on whether delivery was severable. The contract itself does not address this issue, and we therefore look to the UCC to fill in the term (UCC 2-204 [3]; and comment). The UCC has a specific provision with regard to delivery in lots: "Unless otherwise agreed all goods called for by a contract for sale must be tendered in a single delivery and payment is due only on such tender but where the circumstances give either party the right to make or demand delivery in lots the price if it can be apportioned may be demanded for each lot” (UCC 2-307).

Vinmar contends that it was entitled to delivery of the 2,000 metric tons in one lot and that payment was not due until the full amount was received, but again its actions belie that argument. The parties’ correspondence in January and February 1987 demonstrates that, while they discussed the possibility of collapsing delivery into one lot, the two amounts were always spoken of as severable. Indeed, the letter of credit Vinmar actually set up covered only the first 1,000 metric tons, indicating that the second 1,000 metric tons would be paid for separately. As the Appellate Division concluded, these actions constitute "circumstances” confirming CT’s right to make delivery in two lots and demand separate payment for each lot (UCC 2-307), and it had a right to payment for 1,000 metric tons as of the date that shipment was delivered.

Even if payment was due upon delivery of the first shipment, Vinmar contends that the letter of credit suspended its obligation to pay.

Again, the UCC provides the answer: "The delivery to seller of a proper letter of credit suspends the buyer’s obligation to pay. If the letter of credit is dishonored, the seller may on seasonable notification to the buyer require payment directly from him” (UCC 2-325 [2]). Whether Vinmar set up a "proper” letter of credit is a factual question, but one we need not reach. Once the bank notified CT of problems with the letter of credit, CT had the right to demand assurances that Vinmar would waive any discrepancies and to suspend further performance until such assurances were forthcoming (see, UCC 2-609 [1] ["When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return”]). CT did just that.

Furthermore, when the bank formally notified CT that the letter of credit would be dishonored, under UCC 2-325 (2) CT had the right to demand payment from Vinmar, and in fact did so. Vinmar’s refusal to make payment constituted a breach of the contract, entitling CT to withhold the second shipment (see, UCC 2-703 ["(w)here the buyer wrongfully * * * fails to make a payment due * * * then also with respect to the whole undelivered balance, the aggrieved seller may (a) withhold delivery of such goods”]).

Vinmar insists that, prior to paying for the first shipment, it had the right to demand adequate assurances that the second shipment would be sent because it had reason to believe CT would not be able to make the second shipment and that absent such assurances, it had no obligation to pay. We disagree. While CT did not receive the agreed return for the first shipment, Vinmar had the goods and therefore was not entitled to suspend payment. Created Gemstones v Union Carbide Corp. (47 NY2d 250, 255) is inapposite, as that case presented a factual issue that does not exist here — whether the seller had breached the contract.

Finally, since there was no dispute that the contract price for the 1,000 tons shipped was $500 per metric ton, we see no basis for disturbing the award of $500,000 plus incidental damages.

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

Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

Order affirmed, with costs.

       Vinmar holds a copy of the January 13, 1987 sales confirmation with the words "confirmed irrevocable letter of credit” crossed out, and a handwritten "net 30” added. There was no evidence, however, that this was ever sent toCT.


author: Hancock, Jr., J.

text:
    In the Matter of Nadine Hurwitz, Respondent, v Cesar A. Perales, Individually and as Commissioner of the New York State Department of Social Services, et al., Appellants.
    Argued March 24, 1993;
    decided April 29, 1993

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General, New York City (Robert J Schack and Jerry Boone of counsel), for appellants.
    I. Review of an employment termination for disability under the statutory standard for review of an application for reinstatement following such termination is contrary to the plain language and intent of Civil Service Law § 73. (Matter of Bodnar v New York State Thruway Auth., 52 AD2d 345; Matter of Shields v Guido, 97 AD2d 849; Matter of Dolan v Whalen, 49 NY2d 991; Matter of Driscoll v Department of Fire, 115 AD2d 300; Matter of Prue v Hunt, 157 AD2d 160, 78 NY2d 364.) II. The decision below that petitioner is entitled to a full pretermination hearing is in direct conflict with this Court’s decision in Prue v Hunt. (Matter of Prue v Hunt, 157 AD2d 160, 78 NY2d 364;
      Cleveland Bd. of Educ. v Loudermill, 470 US 532.) III. The ruling that the State doctor’s medical findings were not substantial evidence supporting the department’s determination because there was conflicting medical evidence is contrary to precedents of this Court and every department of the Court below. (Matter of Denise R. v Lavine, 39 NY2d 279; Matter of Nicholson v New York State Dept. of Social Servs., 155 AD2d 759, 75 NY2d 707; Matter of Bentley v Perales, 103 AD2d 1005; Matter of Harbeck v Blum, 78 AD2d 726; Matter of De Flumer v Dalsheim, 122 AD2d 872, 68 NY2d 612; Matter of Wagschal v Board of Examiners, 117 AD2d 470, 69 NY2d 672; Matter of Vickers v Toia, 66 AD2d 747; Matter of Ramseur v Regan, 154 AD2d 869.) IV. Petitioner’s remaining claims may be dismissed as a matter of law. (Goldberg v Kelly, 397 US 254; Matter of Johnson v Blum, 58 NY2d 454; Matter of Dolan v Whalen, 49 NY2d 991; Matter of Antonsen v Ward, 77 NY2d 506; Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128; Camporeale v Airborne Frgt. Corp., 732 F Supp 358, 923 F2d 842; Matter of Schmitt v Kiley, 124 AD2d 661; Matter of Halpin v State Human Rights Appeal Bd., 65 AD2d 898.)

      Gordon, Gordon & Tepper, P. C, New York City (Kenneth E. Gordon of counsel), for respondent.
    I. The Court below correctly held that petitioner was denied adequate pretermination due process. (Bishop v Wood, 426 US 341; Board of Regents v Roth, 408 US 564; Cleveland Bd. of Educ. v Loudermill, 470 US 532; Matter of Prue v Hunt, 78 NY2d 364; Matter of Economico v Village of Pelham, 50 NY2d 120.) II. The hearing ordered by the Court below was appropriate. III. Petitioner was not "absent” within the meaning of Civil Service Law § 73. (Matter of Bodnar v New York State Thruway Auth., 52 AD2d 345; Matter of Economico v Village of Pelham, 50 NY2d 120.) IV. The August 3, 1990 decision of the Department of Social Services was not supported by substantial evidence. V. Petitioner’s termination violated Executive Law § 296. (Matter of Miller v Ravitch, 60 NY2d 527; Matter of City of New York v State Div. of Human Rights [Granelle], 70 NY2d 100; Matter of Antonsen v Ward, 77 NY2d 506; Camporeale v Airborne Frgt. Corp., 732 F Supp 358, 923 F2d 842; Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128; Matter of Halpin v State Human Rights Appeal Bd., 65 AD2d 898.)
   OPINION OF THE COURT

Hancock, Jr., J.

The issue in this case is whether the pretermination opportunity to be heard afforded petitioner comported with the requirements of due process. In Matter of Prue v Hunt (78 NY2d 364), we held that in the context of termination from civil service employment under Civil Service Law § 73, due process requires notice and "some opportunity to respond” (id., at 369). We now address the companion question of what process is due at the pretermination stage. On transfer from the Supreme Court, the Appellate Division determined that petitioner was not provided pretermination procedures satisfying the requirements of due process. We disagree and, therefore, reverse.

I.

Petitioner Nadine Hurwitz had been a 20-year employee of respondent Department of Social Services (DSS) when she developed labyrinthitis and went on continuous sick leave beginning February 11, 1987. In December 1987, DSS informed petitioner that her sick leave would be extended until February 10, 1988 and that if she wished to return to her position she must provide medical documentation of her ability to perform her duties. DSS also informed her of potential termination upon her continuous absence for one year. In early January 1988, petitioner submitted to DSS a letter from her physician stating that she would be able to return to her position in early February 1988. The letter also requested that petitioner be permitted to work part time and with reduced responsibilities during the first two months.

On receipt of the letter, DSS required petitioner to submit to an Employee Health Service (EHS) examination conducted by respondent Dr. Ambewadikar. During the examination, Dr. Ambewadikar observed symptoms of labyrinthitis which, she concluded, would interfere with the performance of petitioner’s job duties. After conducting the examination, reviewing medical reports of six physicians submitted by petitioner, and discussing the matter with petitioner’s personal physician, Dr. Ambewadikar reported to DSS that petitioner was not able to perform the duties of her previous position.

Upon learning of DSS’s doctor’s report, petitioner contacted DSS to protest the evaluation and to request an appeal of Dr. Ambewadikar’s opinion. Petitioner was informed that there was no appeal process in existence but that DSS would withhold further action until she could discuss the report with Dr. Ambewadikar. Both petitioner and her personal physician discussed the evaluation with Dr. Ambewadikar and tried to get her to change her opinion regarding petitioner’s ability to return to work. Dr. Ambewadikar declined to reconsider her opinion or to reexamine petitioner.

Petitioner had also discussed the evaluation with Dr. Ambewadikar’s supervisor, Dr. Lacot, who told her that a second examination would be possible if DSS would make a referral for reexamination. At about this time, however, petitioner began to reexperience severe symptoms of labyrinthitis. Although DSS decided to make the referral for a second examination, petitioner withdrew her challenge to Dr. Ambewadikar’s findings before being informed of DSS’s decision. Thereafter, in April 1988, DSS terminated petitioner pursuant to Civil Service Law § 73.

Petitioner commenced a CPLR article 78 proceeding seeking reinstatement and back pay claiming that she had been discharged without being accorded her due process rights. Supreme Court granted the petition, holding that because petitioner was not informed of her right to a second evaluation before termination, she was deprived of a meaningful pretermination opportunity to be heard. On remand, however, DSS conducted a hearing addressing only whether she was continually absent and unable to perform the duties of her position for a one-year period.

After DSS adhered to its decision to terminate her, petitioner commenced the present article 78 proceeding challenging the sufficiency of the DSS hearing claiming that it was in substance a posttermination hearing and that she had not yet received meaningful pretermination opportunity to be heard. On transfer from the Supreme Court, the Appellate Division remanded the matter for "a hearing on her present ability to perform the duties of her position with DSS” (Matter of Hurwitz v Perales, 179 AD2d 586, 588). This Court granted leave.

II.

In Matter of Prue v Hunt (78 NY2d 364, supra), this Court held that the requirements of due process announced in Cleveland Bd. of Educ. v Loudermill (470 US 532) mandate that public employees discharged under Civil Service Law § 73 be given pretermination notice and some minimal opportunity to be heard (see, id., at 369-370). Significantly, we observed in Prue that due process does not require a formal hearing prior to discharge under section 73 (see, Prue, supra, at 370; Louder-mill, supra, at 545-546). Noting that employees discharged under section 73 are entitled to a full posttermination hearing, we held that at the pretermination stage, they need only be "given an explanation of the grounds for the discharge and an opportunity to respond” (Prue, supra, at 369-370 [emphasis added]; see, Loudermill, supra, at 546). We stated that it is not necessary that the opportunity to be heard be formal or procedurally elaborate. Rather, the procedure must only be sufficient to serve as "an initial check against mistaken decisions” and it "need not definitively resolve the propriety of the discharge” (Loudermill, supra, at 545-546). In the context of section 73 discharges, this amounts to no more than an opportunity for the employee to present opposing views as to whether she had been absent for one year or more and whether she was able to return to her position (see, Prue, supra, at 370).

In this case, petitioner was given adequate opportunity to respond to the claimed basis of her discharge prior to her termination. Petitioner was notified that she would be terminated upon her continuous absence for one year "by reason of a disability” and that she had the right to submit medical documentation demonstrating her ability to return to work in order to avoid discharge. Petitioner availed herself of this opportunity by having her physician report to respondent that petitioner was able to return to work. She then underwent the independent EHS evaluation by Dr. Ambewadikar and submitted numerous physicians’ reports to Dr. Ambewadikar for consideration. Indeed, petitioner’s own physician was consulted in compiling the report to DSS. Although she disagreed with Dr. Ambewadikar’s conclusions in the evaluation report, petitioner had several opportunities to dispute the correctness of the evaluation with Dr. Ambewadikar, with her supervisor and with the DSS, and to persuade each that the EHS was erroneous.

Under these circumstances, we conclude that petitioner has been given a sufficient "explanation of the grounds for the discharge and an opportunity to respond prior to [her] discharge” (Prue, supra, at 370). The fact that petitioner was not informed of DSS’s decision to make a referral for a second evaluation does not diminish the adequacy of her opportunity to be heard for due process purposes. Although the reexamination may have finally determined the correctness of Dr. Ambewadikar’s medical opinion, the ultimate validity of the evaluation is a matter properly addressed in the posttermination hearing. Due process does not require that such questions be finally resolved at the pretermination stage (see, Prue, supra, at 369-370; Loudermill, supra, at 545-546).

Accordingly, the order of the Appellate Division should be reversed, with costs, respondent Commissioner’s determination reinstated and petition dismissed.

Chief Judge Kaye and Judges Simons, Titone and Bellacos a concur; Judge Smith taking no part.

Order reversed, etc.