author: Cooke, J. Fuchsberg, J.

text:
    The People of the State of New York, Appellant, v Gregory Wise, Respondent.
    Argued November 29,1978;
    decided December 27,1978

      POINTS OF COUNSEL

      Eugene Gold, District Attorney (Julian L. Kalkstein of counsel), for appellant.
    The cross-examination of respondent was proper. (Miranda v Arizona, 384 US 436; Oregon v Hass, 420 US 714; Harris v New York, 401 US 222; People v Rodriquez, 39 NY2d 976; People v Rahming, 26 NY2d 411; People v Kulis, 18 NY2d 318; People v Miles, 23 NY2d 527; Loughlin v Brassil, 187 NY 128; Dallas v Lahl, 269 App Div 699; People v Johnson, 27 NY2d 119.)

      Joel A. Brenner for respondent.
    I. The People failed to sustain their "heavy burden” of demonstrating "beyond a reasonable doubt” that respondent voluntarily waived his Miranda rights. (Miranda v Arizona, 384 US 436; People v Baldwin, 25 NY2d 66; Brown v Illinois, 422 US 590; People v Martinez, 37 NY2d 662; United States v Jarvis, 560 F2d 494; United States v Waston, 423 US 411; United States v Bayer, 331 US 532; People v Chapple, 38 NY2d 112; Westover v United States, 384 US 436; People v Huntley, 15 NY2d 72.) II. Respondent was deprived of a fair trial by the introduction and misuse of a statement taken in violation of his constitutional rights. (People v Rahming, 26 NY2d 411; People v Walls, 42 AD2d 575; People v Miles, 23 NY2d 527; Oregon v Hass, 420 US 714; Agnello v United States, 269 US 20; Rothschild v State of New York, Comr. of Correctional Servs., 388 F Supp 1346, 525 F2d 686; People v Johnson, 27 NY2d 119; People v Kulis, 18 NY2d 318.) III. The ineffective assistance respondent received from his counsel deprived him of his right to a fair trial and due process of law. (Powell v Alabama, 287 US 45; People v Tomaselli, 7 NY2d 350; People v Rosado, 43 AD2d 916; People v Roberts, 29 Misc 2d 621; United States v Carroll, 510 F2d 507; People v La Bree, 34 NY2d 257; People v Bennett, 29 NY2d 462; People v Jones, 25 NY2d 637; McMann v Richardson, 397 US 759.)
   OPINION OF THE COURT

Cooke, J.

We hold that a statement taken in violation of the Miranda rule may properly be used to impeach a defendant’s credibility where the statement tends to prove a version of the facts contrary to that given in the defendant’s trial testimony.

Late on the night of January 26, 1973, Albert Jenks was shot to death while sitting at a kitchen table in apartment ID, 281 Dumont Avenue, Brooklyn. A preliminary investigation undertaken by Detective John Grosso pointed to defendant Gregory Wise as a prime suspect. Following a more detailed inquiry, Wise was arrested and accused of having committed the murder. At trial, defendant took the stand and related his account of the events transpiring on the night of the fatality. When the shooting occurred, defendant testified, he was in the hallway outside apartment ID, having just departed from another apartment, that of his cousin, in the company of Hank Williams. Seconds before the murder, Williams, who earlier in the evening had brandished a gun in front of defendant, entered apartment ID. By this testimony, defendant suggested that Williams was responsible for the homicide.

On cross-examination, the prosecution sought to question defendant as to statements allegedly made by him at the police station to a Detective Martin. Earlier, these statements had been ruled inadmissible under Miranda. Nonetheless, the Trial Judge, overruling defendant’s objection, permitted the line of questioning to continue:

"Q Did there come a time when you were at the 77th Police Precinct on the 27th of January 1973, that Detective Anthony Martin accompanied you to a men’s room?

"A Possibly.

"Q Did you have a conversation with him?

"A Not that I can remember.

* * *

"Q Did he say to you words to this effect, 'How could a guy like yourself, a Vietnam Vet, get involved in something like this?’

* * *

"Q And did you answer that question?

* * *

"Q Did you say to him, 'I don’t know, the gun must have had a hair trigger. It went off accidentally, or it just went off —words to that effect?

"A No.

"Q You deny that; you deny saying that?

"A Yes, sir.”

To rebut the defendant’s denial, the People called Detective Martin as a witness. Martin stated that defendant had in fact made the "hair trigger” remark attributed to him by the District Attorney. After the officer left the stand, the court charged the jury that his testimony was to be considered only on the issue of defendant’s credibility. Subsequently, the jury convicted defendant of the murder.

Finding the cross-examination of defendant and the rebuttal testimony of Martin improper, a divided Appellate Division reversed the conviction and ordered a new trial. In substance, the majority reasoned that, since defendant’s direct testimony "virtually excluded all reference to Detective Martin” (60 AD2d, at p 922), it was error to allow cross-examination concerning statements made to the officer. As to the rebuttal evidence given by Martin, the Appellate Division concluded that the "hair trigger” cross-examination was collateral and that therefore defendant’s answers were not subject to contradiction by the People. We disagree with both branches of this analysis.

. [1, 2] The rules governing impeachment of witnesses are deeply rooted in our adversary system. That system, premised upon a "bi-partisan presentation” of evidence in judicial proceedings, provided the impetus for the development of techniques whereby a party could test the credibility of his opponent’s witnesses (see, e.g., 3 Wigmore, Evidence [3d ed], § 875). Credibility is a many faceted concept, of course, requiring a careful assessment of a number of subtle factors before testimony can be labeled as believable or unbelievable (seé McCormick, Evidence [2d ed], § 33, p 66, n 1). While it might be accurate to say that no one factor predominates, there are two fundamental considerations in evaluating whether a particular witness is speaking the truth: the honesty of the witness, and his ability to recall details. Especially adapted to test these important characteristics is the device commonly referred to as impeachment by "prior inconsistent statement” (see 3 Wigmore, Evidence [3d ed], § 1017, p 685).

The law pertaining to prior inconsistent statements is well developed, having originated at early common law (see, e.g., Langhorn’s Trial, 7 How St Tr 451, 462) and having been refined over the intervening decades (see, e.g., People v Bornholdt, 33 NY2d 75, 88-89). Thus, the elements of the rule are easily stated: "If a proper foundation is laid, a party may show that one of his adversary’s witnesses has, on another occasion, made statements which are inconsistent with some material part of his present testimony” (Richardson, Evidence [10th ed — Prince], § 501, p 486). To set the stage for the prior inconsistency, the questioner must first inform the witness of the circumstances surrounding the making of the statement, and inquire of him whether he in fact made it (e.g., Larkin v Nassau Elec. R. R. Co., 205 NY 267, 269; see 3 Wigmore, Evidence [3d ed],» §§ 1025-1029; McCormick, Evidence [3d ed], § 37). Once properly admitted, the previous statement traditionally might be used only to affect credibility (e.g., Richardson, Evidence [10th ed — Prince], § 501, pp 486-487), but under a modern view of the hearsay rule adopted by some authorities it is admissible as evidence in chief (e.g., McCormick, Evidence [2d ed], § 251; 3 Wigmore, Evidence [3d ed], § 1018, pp 687-688; contra CPL 60.35, subd 2).

Primarily at issue here is whether defendant’s previous utterance was sufficiently inconsistent with his trial testimony to warrant its use on cross-examination. From earliest common-law days, a prior statement was admissible for impeachment purposes even though it did not directly contradict the witness’ testimony (e.g., Foster v Worthing, 146 Mass 607; 3 Wigmore, Evidence [3d ed], § 1040). Our case law accords with this established precept. In Larkin v Nassau Elec. R. R. Co. (205 NY 267, 269, supra), for example, we emphasized: "Nor need there be a direct and positive contradiction. It is enough that the testimony and the statements are inconsistent and tend to prove differing facts.” More recent cases, too, reiterate and apply the rule in this fashion (e.g., People v Bornholdt, 33 NY2d 75, 88, supra; see People v Miles, 23 NY2d 527, 543-544, cert den 395 US 948; People v Johnson, 27 NY2d 119, 122-123, cert den 401 US 966). Indeed, a more rigorous rule requiring direct contradiction would be at odds with the purpose underlying use of prior inconsistents, since such statements are admitted principally to assist the jury in its fact-finding role (e.g., McCormick, Evidence [2d ed], p 69). In case of doubt, therefore, the balance should be struck in favor of admissibility, leaving to the jury the function of determining what weight should be assigned the impeachment evidence. Applied in this fashion, the law of previous contradictory statements will advance rather than impede the truth-seeking process.

Measured against these standards, the cross-examination of defendant was proper. Upon taking the stand, defendant recited a detailed account of his activities on the night of the shooting. Included were statements to the effect that he was in the hallway and not in apartment ID at the time of the incident, and that he observed Williams handling the gun soon after it was fired. Standing in stark contrast to this testimony is defendant’s "hair trigger” remark. That prior utterance tends to prove that defendant was present in the room when the decedent was killed and that defendant rather than Williams possessed and discharged the weapon. Although the "hair trigger” statement may not directly conflict with defendant’s trial testimony, it does tend to establish a differing version of the facts. Under seasoned impeachment principles, then, defendant’s comment was properly used to affect his credibility.

Relying upon Agnello v United States (269 US 20) and People v Rahming (26 NY2d 411), defendant nonetheless contends that since he did not testify as to the conversation with Officer Martin, he did not "open the door” to cross-examination concerning statements made during that conversation. Nothing contained in these cases, however, detracts from our analysis. True, defendant by his direct testimony must "open the door” to impeachment; otherwise such cross-examination would be impermissible (People v Rahming, 26 NY2d 411, 418, supra; People v Miles, 23 NY2d 527, 542-545, supra). But this is merely another way of saying that there must be an inconsistency between the trial testimony and the previous statement. Defendant need not testify with respect to the conversation to create such a contradiction. So long as defendant recounts the events to which the prior inconsistent statement relates, he has opened the door to impeachment (e.g., People v Miles, supra, at pp 543-544; People v Johnson, 27 NY2d 119, 122-123, supra). Simply put, where a defendant’s trial testimony offers one version of the events in question, and his prior remark to a police officer suggests a contrary view of those events, the jury is entitled to hear the previous statement so that it may fully assess the witness’ credibility.

We likewise find no error in the introduction of the rebuttal testimony of Detective Martin, admitted after defendant denied making the "hair trigger” comment. As a general rule, the prosecution is not bound by defendant’s answer to a question designed to test his credibility, unless the inquiry concerns a matter deemed collateral to the case (People v Schwartzman, 24 NY2d 241, 246, cert den 396 US 846; People v Sorge, 301 NY 198, 201; Wells v Kelsey, 37 NY 143; 3 Wigmore, Evidence [3d ed], §§ 1003, 1021; Richardson, Evidence [10th ed — Prince], § 491). Evidence is not collateral, however, when it is relevant to some issue other than credibility (People v Schwartzman, supra, at p 245; 3 Wigmore, Evidence [3d ed], § 1020; Richardson, Evidence [10th ed— Prince], § 491). The obvious and salutary purpose of this rule is to prevent needless multiplication of issues in a case so as not to confuse the jury.

Accordingly, here not only could the statement made by defendant to Detective Martin be used for purposes of cross-examination of defendant while he was on the stand, as in People v Harris (25 NY2d 175, affd 401 US 222), but the statement itself was properly introduced through Detective Martin in rebuttal. Inasmuch as the content of the statement was relevant to issues otherwise before the jury, its introduction did not expose the jury to the risk of diversionary excursion into collateral matters. But for the Miranda violation, the prosecution could have used the remark on its direct case as tending to establish defendant’s complicity in the crime. The jury was, of course, instructed that the statement was not to be considered on the merits but only on the issue of defendant’s credibility. As to such issue it was of significant value, tending to impeach not alone defendant’s general credibility but particularly his credibility with respect to the very issues he had asked the jury to resolve. Viewed from this perspective, the introduction of the statement in rebuttal was not error.

Inasmuch as the cross-examination of defendant and the rebuttal testimony of Officer Martin were proper, as gauged by familiar rules of evidence, the instant proceedings were not beset by error of a constitutional dimension. It has previously been established that statements elicited in violation of Miranda, although not admissible on the prosecution’s case in chief, may nonetheless be used to impeach the defendant’s credibility (People v Harris, 25 NY2d 175, affd 401 US 222, supra). Once a particular statement is found appropriate for impeachment purposes, any Miranda infirmity becomes irrelevant (see Oregon v Hass, 420 US 714). In the present case, therefore, defendant Wise’s Miranda rights were not impaired.

Defendant urges another and unrelated ground as justifying the Appellate Division’s reversal of the conviction. During trial, Detective Grosso, the officer heading the murder investigation, testified as to incriminating remarks made by defendant during custodial detention. While these statements were found to be voluntarily made in full compliance with Miranda, defendant now argues they were the fruit of illegal police conduct and hence inadmissible as evidence. Mounting a two-pronged attack, defendant contends that the police had no predicate for taking him into custody and, more important, that the suppression court refused to allow exploration of the legality of the detention.

We agree with defendant insofar as he asserts it was incumbent upon the suppression court to permit an inquiry into the propriety of the police conduct. That the People bear the burden of going forward to justify police activity, such as an arrest or a custodial interrogation, once it is challenged by defendant is too basic to dispute (People v Baldwin, 25 NY2d 66, 70-71; People v Malinsky, 15 NY2d 86, 91). Ordinarily, where the defendant is denied an opportunity at the suppression hearing to delve into the circumstances attendant upon his arrest or detention, his motion to suppress would be favorably entertained on appeal (cf. People v Baldwin, supra, at pp 70-71). Especially would this be so when the District Attorney has not established, prima facie, that the police acted upon probable cause or reasonable suspicion, as the case may require. Confronted by such a failure of proof, an appellate court might be unable to remit for new or supplementary proceedings (cf. People v Havelka, 45 NY2d 636). Thus, noncompliance with the procedural devices designed to afford the defendant an opportunity to be heard might well result in suppression of evidence which otherwise could be properly admitted.

Here, however, defendant simply was not prejudiced by the erroneous ruling. Irrefutable evidence offered at the suppression hearing demonstrates that Detective Grosso had knowledge of defendant’s presence at the murder scene prior to any custodial interrogation. Having spoken with Ennette Holliman, an eyewitness to the happenings in apartment ID, as established during cross-examination, Grosso possessed information as to the nature and extent of defendant’s involvement. Indeed, the officer stated during the hearing that he had received such information, and, buttressing this testimony, Holliman related at trial that she had recounted to Grosso the events of the 26th. These statements of an eyewitness placing defendant at the scene of the crime were sufficient to form the basis for a custodial detention (see, e.g., People v Morales, 42 NY2d 129, 135-136). So long as the police are solicitous of an individual’s rights, and carefully delimit the scope of the intrusion, a custodial detention predicated upon reasonable suspicion can hardly be termed "unreasonable” (People v Morales, supra). On this record, therefore, defendant’s pretrial suppression motion was correctly denied.

Accordingly, reversal is required. Inasmuch as the Appellate Division determination was based solely upon the law, without any indication as to whether the facts were considered (CPL 470.25, subd 2, par [d]), there must be a remittal for a review of the facts (CPL 470.40, subd 2, par [b]).

For the reasons stated, the order of the Appellate Division should be reversed, and the matter is remitted to that court for a review of the facts.

Fuchsberg, J.

(dissenting). It is well understood that the exclusionary rule, under which a statement taken from a defendant in violation of his Miranda rights is suppressible, operates under the principled and practical theory that, by allowing the prosecution no benefit from the use of the suppressed material, the State will be deterred from engaging in conduct which trespasses on a defendant’s constitutional rights. This policy may be circumvented, however, when, though a statement so taken is suppressed, as it was here, it may be used to impeach the defendant if and when he takes the stand.

At the very least this prospect can have the chilling effect of restraining the defendant from taking the stand. If he nevertheless does so, the prosecution, in addition to whatever other means is at its disposal to attack the defendant’s credibility, enjoys the advantage of the use of material which, but for the violation of the defendant’s rights, would not have been in its possession.

Even allowing for those cases which have cut back on the application of this policy (see majority opn below 60 AD2d 921), since the defendant’s testimony here consisted essentially of but a denial of his guilt and a narrow recital of his exculpatory version of the events, but did not directly confront the matter later introduced by his cross-examination and Detective Martin’s testimony, the door was not opened and it should be irrelevant that, but for Miranda, the testimony may have been admissible. If that is to be the criterion, the rationale and policy of Miranda will have been drained of much of its force since in few cases would its transgression leave the People without some benefit. At least as a matter of State constitutional law, that should not be allowed. I therefore would affirm the Appellate Division’s determination that a new trial is required.

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

Order reversed and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

        (Miranda v Arizona, 384 US 436.)


source: Caselaw Access Project

author: Chief Judge Breitel. Gabrielli, J. Fuchsberg, J. Cooke, J.

license: Public Domain

text:
    Walter L. Nolechek, Individually and as Administrator of the Estate of Scott W. Nolechek, Deceased, Respondent, v Thomas Gesuale et al., Appellants, et al., Defendants. Walter L. Nolechek, Third-Party Plaintiff-Appellant-Respondent, v Paul Neiman et al., Third-Party Defendants-Respondents.
    Argued October 26,1978;
    decided December 27,1978

      POINTS OF COUNSEL

      Joseph D. Ahearn, for appellants.
    I. In view of the incontrovertible proof that plaintiff Walter L. Nolechek purchased a motorcycle for his infant son who had one eye and whose vision at long distances could not be corrected and in view of the fact that plaintiff Walter L. Nolechek was fully cognizant of the fact his 16 VS-y ear-old son did not possess a driver’s license of any type, that the motor vehicle was unregistered, and that plaintiff had no facial protection while operating the motorcycle, the counterclaim asserted by defendants Thomas Gesuale and Star Sand and Gravel Company, Inc., against plaintiff Walter L. Nolechek is manifestly legally sufficient. The counterclaim is not based upon mere failure to supervise. The counterclaim is predicated upon the allegation that the father furnished a dangerous instrumentality to his physically handicapped infant son. (Holodook v Spencer, 36 NY2d 35; Lastowski v Norge Coin-O-Matic, 44 AD2d 127; Goedkoop v Ward Pavement Corp., 51 AD2d 542; Wheeler v Bello, 78 Misc 2d 540; Dole v Dow Chem. Co., 30 NY2d 143; Allstate Ins. Co. v Reliance Ins. Co., 85 Misc 2d 734; Pico v Canini, 47 AD2d 951; Rabadi v Miller, 47 AD2d 937.) II. In response to the argument made by the third-party defendants at the court below. (Stasky v Bernardon, 81 Misc 2d 1067; Seeberger v Le Gare, 48 AD2d 994; Lampman v Cairo Cent. School Dist., 81 Misc 2d 395; Kroupa v Southampton Hosp., 49 AD2d 926; Zambraski v Eller, 44 AD2d 691; Delaney v Philhern Realty Holding Corp., 280 NY 461; McFarlane v City of Niagara Falls, 247 NY 340; Clifford v Dam, 81 NY 52.)

      Charles F. Brady and Benjamin Purvin for appellant-respondent.
    The counterclaim fails to state a cause of action. (Lastowski v Norge Coin-O-Matic, 44 AD2d 127; Holodook v Spencer, 36 NY2d 35; Zambraski v Eller, 44 AD2d 691.)

      E. Richard Rimmels, Jr., for third-party defendants-respondents.
    I. The third-party complaint fails to state a cause of action. (Gelbman v Gelbman, 23 NY2d 434; Dole v Dow Chem. Co., 30 NY2d 143; Cotroneo v Sabatino, 50 AD2d 1081; Rice v Argento, 59 AD2d 1051; Lalomia v Bankers & Shippers Ins. Co., 35 AD2d 114, 31 NY2d 830.) II. The counterclaim fails to state a cause of action. (Corbett v Scott, 243 NY 66; Reiszel v Fontana, 35 AD2d 74; Smedley v Piazzolla, 59 AD2d 940; Goedkoop v Ward Pavement Corp., 51 AD2d 542; Holodook v Spencer, 36 NY2d 35; Seeberger v Le Gare, 48 AD2d 994; Kroupa v Southampton Hosp., 49 AD2d 926; Zambraski v Eller, 44 AD2d 691; Steinberg v Cauchois, 249 App Div 518; Pico v Canini, 47 AD2d 951.)
   OPINION OF THE COURT

Chief Judge Breitel.

Plaintiff Walter L. Nolechek, individually and as administrator of the estate of his son Scott, brought this action against defendants Gesuale, Star Sand and Gravel Co., Inc., and others for wrongful death resulting from the son’s motorcycle accident. A counterclaim by defendants Gesuale and Star alleges negligence by the plaintiff father in providing his son, blind in one eye and with impaired vision in another, with a motorcycle. Special Term denied a motion to dismiss the counterclaim. From the Appellate Division’s reversal and dismissal of the counterclaim, one Justice dissenting, defendants appeal. Plaintiff cross-appeals from the Appellate Division’s dismissal of a third-party complaint against James and Paul Neiman, his son’s companion and the companion’s father.

The primary issue is whether an alleged tort-feasor, who may be cast in damages for injuries suffered by an infant child, may seek indemnity or contribution from the injured child’s parent when the child’s injury, and the tort-feasor’s consequent tort liability, resulted from the parent’s negligent entrusting of a dangerous instrument to the child.

The order of the Appellate Division should be modified to reinstate the counterclaim. The third-party complaint should stand dismissed. A minor child has no cause of action against his parent for negligent supervision in general, or for negligently entrusting him with a dangerous instrument in particular. There is, however, a duty by a parent to protect third parties from harm resulting from an infant child’s improvident use of a dangerous instrument, at least, and perhaps especially, when the parent is aware of and capable of controlling its use (e.g., Lalomia v Bankers & Shippers Ins. Co., 35 AD2d 114, 117, affd on opn at App Div 31 NY2d 830; Carmona v Padilla, 4 AD2d 181, 183, affd 4 NY2d 767; see Restatement, Torts 2d, § 316; Prosser, Torts [4th ed], pp 872-873). Since defendants in this action stand to be harmed by the plaintiff father’s alleged breach of duty, namely, they may be cast in damages for the son’s death, the counterclaim against the father was improperly dismissed by the Appellate Division.

The complaint alleges that defendants Gesuale and Star, owners or lessees of property abutting Lawrence Road in Smithtown, were engaged in the business of mining sand and gravel. Lawrence Road was used by these defendants to transport the mined sand and gravel. Owners of adjacent properties, also named as defendants, had permitted on their property construction of concrete pillars supporting steel beams. From these beams, Gesuale and Star suspended a one-inch steel cable to close off the road. The cable, it is conceded, was in place "for a long time prior to” the date of the fatal accident.

On September 30, 1973, Scott Nolechek, 16 years old, and a friend, James Neiman, were riding motorcycles on Lawrence Road. Young Nolechek, as noted, was blind in one eye, had impaired vision in the other eye, and his long distance vision was uncorrectable. He did not possess, and had never applied for, an operator’s license of any type. Yet, his father had purchased a motorcycle for him. The motorcycle had not been registered, nor had it been inspected. Scott Nolechek, riding his friend’s motorcycle, for they had switched motorcycles just before the accident, was killed when he rode into the suspended steel cable.

The father brought this action against Gesuale and Star, against the property owners who had permitted construction of the concrete pillars, and against the town and its superintendent of highways. It was alleged that all parties were negligent in permitting a dangerous condition to exist without any warnings or safeguards. Defendants Gesuale and Star counterclaimed, alleging negligence by the father in providing his vision-impaired son with a motorcycle. Plaintiff responded by interposing a third-party complaint against James and Paul Neiman, his son’s companion and the companion’s father, alleging that due to the switch in motorcycles just before the accident, it was they who had provided young Nolechek with the motorcycle on which he was killed. The Neimans, third-party defendants, moved to dismiss both the counterclaim and the third-party complaint, and Special Term denied the motion. On appeal by the Neimans, the Appellate Division reversed and dismissed the counterclaim and the third-party complaint. From this order, defendants Gesuale and Star appeal. Plaintiff Nolechek also appeals, alleging error in dismissal of the third-party claim.

In Holodook v Spencer (36 NY2d 35, 51), it was held that an infant child has no cause of action against his parent for inadequate supervision. Defendants, arguing that a motorcycle is a "dangerous instrument” in the hands of a 16-year-old boy with impaired vision, would carve an exception to the Holodook rule. But deciding when to permit a minor to Use a "dangerous instrument”, whether it be a motorcycle, a bow and arrow, a knife, a hammer, or even a pencil, is as much an element of parental supervision as is the decision to monitor a child’s play activity more or less closely (compare id., pp 41-42; see, also, Seeberger v Le Gare, 48 AD2d 994, 995). The proposed "dangerous instrument” exception to the Holodook rule is, therefore, neither analytically persuasive nor practically sound.

The thrust of the holding in Holodook is that parents are in the best position to determine how much supervision is right for their children (see 36 NY2d, esp pp 49-51, supra). When children are young, the decisions may involve the extent to which they will be permitted to stray from the immediate physical presence of their parents; when children are older, the decisions are more varied. Children might, at various points in their development, be permitted, and properly so, to use bicycles, lawn mowers, power tools, motorcycles, or automobiles, all of which are, in some contingencies, "dangerous instruments”.

The guiding principles, however, remain the same: "The duty to supervise a child in his daily activities has as its objective the fostering of physical, emotional and intellectual development, and is one whose enforcement can depend only on love. Each child is different, as is each parent * * * For this reason parents have always had the right to determine how much independence, supervision and control a child should have, and to best judge the character and extent of development of their child” (Holodook v Spencer, 43 AD2d 129, 135 [Greenblott, J.], quoted at 36 NY2d 35, 50, supra). All the more, when a "dangerous instrument” or a sometimes dangerous instrument may be entrusted to a minor child is a significant discretionary decision in the proper exercise of this parental right.

Moreover, the practical consequences of permitting a child to recover on the "dangerous instrument” theory could be serious and unfortunate. One need only imagine young Nolechek riding his motorcycle on the family’s own property, and encountering a ditch or an obscured rock. It would be unjust to permit one of Nolechek’s parents, either individually or as administrator of the estate, to hold the other liable in a wrongful death action for entrusting the boy with a dangerous instrument. Recovery in such an instance might result in unwarranted benefit to both parents at the expense of their homeowner’s insurance carrier.

By contrast, it is well-established law that a parent owes a duty to third parties to shield them from an infant child’s improvident use of a dangerous instrument, at least, if not especially, when the parent is aware of and capable of controlling its use (see, e.g., Lalomia v Bankers & Shippers Ins. Co., 35 AD2d 114, 117, affd on opn at App Div 31 NY2d 830, supra; Carmona v Padilla, 4 AD2d 181, 183, affd 4 NY2d 767, supra; Lichtenthal v Gawoski, 44 AD2d 771, 772; Zuckerberg v Munzer, 277 App Div 1061; Agnesini v Olsen, 277 App Div 1006). This is not because parents are obliged to raise their children in any particular way; it is because however the children are raised, there must be respect for the hazards created for third parties. Parents are permitted to delegate to their children the decision to participate in dangerous activities, but they are not absolved from liability for harm incurred by third parties when the parents as adults unreasonably, with respect to such third parties, permit their children to use dangerous instruments.

To be sure, the harm to third parties in this case is not the direct, physical injury ordinarily caused by dangerous instruments. Instead, involved is financial harm resulting from potential liability of a "concurrent” tort-feasor for the child’s death while using the dangerous instrument. But this is harm nevertheless, and harm for which a parent should be responsible if permitting his child to use the dangerous instrument was indeed negligent. It matters not that the parent would not be liable to his child in an action for personal injuries; the financial harm suffered by the third party results from a legally cognizable breach of duty different in kind from any moral breach of duty to the child. The situation is analogous to the workmen’s compensation situation where a third-party tort-feasor may implead for contribution or indemnity the employer of an injured employee, despite the employee’s inability to recover from the employer directly (see, e.g., Dole v Dow Chem. Co., 30 NY2d 143, 152; but cf. Holodook v Spencer, 43 AD2d 129, 137, supra).

Emphasized must be the duty that creates the liability. Not involved is a parental duty to prevent children from injuring themselves by use of dangerous instruments. Such a legal duty has never been recognized in this State, and certainly this case offers no need to do so. Indeed, because the decision to permit a child to use such instruments is an element of parental supervision, such a duty was implicitly rejected in the Holodook case. Analytically separate, well established, and key to this case is the duty owed by parents to third parties to control their children’s use of dangerous instruments to avoid harm to third parties (Lichtenthal v Gawoski, 44 AD2d 771, 772, supra; cf. Holodook v Spencer, 36 NY2d 35, 45, supra).

Of course, it was established in the Holodook case that even third-party tort-feasors are not entitled to contribution from parents for liability resulting in part from negligent supervision of children (Holodook v Spencer, 36 NY2d 35, 51, supra). When dangerous instruments are involved, however, the considerations are different.

Negligent supervision of children, in general, creates no direct, unreasonable hazard to third parties. Absent injury to the child himself, and consequent tort liability of third parties, negligent supervision creates no substantial risk to third parties. Any duty to third parties would therefore, as noted in the Holodook opinion, be dependent on the nonexistent duty to the child.

When a parent has negligently permitted an infant child to use a dangerous instrument, however, there has been a breach of an established duty to third persons who may be harmed. That the harm may not, in a particular case, be a direct personal injury should not absolve the parent from liability. A dangerous instrument in the hands of an infant child may foreseeably cause various types of harm: personal injury, property damage, or, as in this case, exposure to tort liability. The parent’s duty, unlike the duty of adequate supervision not legally cognizable in tort, is not a duty owed the children. It is a duty to protect third parties from the foreseeable harm that results from the children’s improvident use of dangerous instruments, to the extent that such use is subject to parental control. It may not be concluded, as a matter of law, that the risk of a third party’s tort liability to an injured child is not a foreseeable risk to such third parties when a parent has negligently entrusted the child with a dangerous instrument. As has been said, now in classic terms, "It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye” (Munsey v Webb, 231 US 150, 156).

It might be argued that permitting a third-party tort-feasor to counterclaim against a parent will disrupt family harmony or dissuade parents from instituting action against the tortfeasor on the child’s behalf. This argument in its generality was rejected implicitly in Gelbman v Gelbman (23 NY2d 434, 438-439), where immunity for nonwillful torts between parent and infant child was abolished. If considerations of family harmony and vigorous prosecution of lawsuits by children were paramount, it would make no sense to permit infant children to sue their parents under any circumstances. But that is not how the law has developed.

Of course, in the particular contexts presented in the Holodook case, considerations of intrafamily relations were given greater prominence (see Holodook v Spencer, 36 NY2d 35, 46-49, supra). But that was because in the Holodook case, the duty suggested, explored, and rejected by the court was one running only from parent to child. Third-party rights were at issue only incidentally. By contrast, when dangerous instruments are involved with a third party’s conduct providing a concurrent condition or cause of the harm incurred, the duty is one running only from the parent to third parties. Intrafamilial considerations must therefore be subordinated, to some extent, to the other policy interests involved.

The sound rule of the Holodook case survives only if accompanied by sound exceptions. A parent who entrusts an infant child with a dangerous instrument creates a danger to all society. It would be repulsive to permit, under the guise of protecting intrafamily relations, such a parent to escape all liability to a "concurrent” tort-feasor who suffers financial harm as a consequence of the child’s inappropriate use of the dangerous instrument and resulting injury.

Moreover, even when it is most significant, the potential harm that could result from permitting counterclaims or third-party claims by tort-feasors against parents is somewhat speculative (cf. Holodook v Spencer, 36 NY2d 35, 52-53, supra [Jasen, J., dissenting]). (Finally, in this case, although obviously not decisive, since the infant child is already dead, no further strain on family relations could result from permitting assertion of the counterclaim.)

Although the counterclaim should be reinstated, the third-party claim by plaintiff against the Neimans should stand dismissed. The claim that the Neimans were negligent in providing young Nolechek with the motorcycle he was riding at the time of the fatal accident provides no basis for liability. There is no reason to believe that the decision of the two boys to exchange motorcycles temporarily made any more probable, or any less probable, the occurrence of the accident. Hence, the exchange was not a proximate cause of the accident.

The equities in this case are apparent. Young Nolechek’s father permitted his 16-year-old son, blind in one eye, to ride a motorcycle. It would be repulsive to permit the parent, to recover from a third party guilty of "concurrent” negligence for the death of his child while preventing the third party from counterclaiming for contribution against the parent. As demonstrated, the principles properly analyzed and applied do not permit such a result.

Accordingly, the order of the Appellate Division should be modified to reinstate the counterclaim, with costs to defendants-appellants against plaintiff-respondent Nolechek, and otherwise affirmed, with costs on the third-party claim to respondents Neiman against appellant Nolechek.

Gabrielli, J.

(concurring). While the majority has reached the correct result in this case, problems with its rationale compel me to concur separately. I do not agree with the holding that the counterclaim by Gesuale can be sustained in the absence of direct liability of the parent towards the child, but since I would hold that facts sufficient to support a direct claim by the child have been pleaded, I would sustain the counterclaim.

As pointed out by the dissent, third-party liability does not exist in the absence of a duty owed by the third-party defendant to the plaintiff (see, e.g., Barry v Niagara Frontier Tr. System, 35 NY2d 629; Rogers v Dorchester Assoc., 32 NY2d 553). In this case the well-established rule under Dole v Dow Chem. Co. (30 NY2d 143) precludes the counterclaim unless we also recognize the existence of a cause of action by the child against the parent. Since I would find no impediment to the direct child-parent suit in the instant case, and in a limited range of other situations, there is no problem with the counterclaim.

The majority correctly perceives that the decision to entrust a child with an allegedly dangerous instrument invariably involves parental discretion and could perhaps arguably be classified as negligent supervision. This should not, however, end our inquiry into the direct liability of the parent to the child (cf. Holodook v Spencer, 36 NY2d 35). Where the instrument given to the child is so obviously capable of causing harm to the child that the parental behavior can be classified as wanton, willful, or gross negligence, then the conduct has gone far beyond the bounds of ordinary parental discretion and should be actionable.

The type of conduct I refer to is distinguishable from the class of behavior termed "negligent supervision” which we refused to recognize as actionable in Holodook. Three cases were decided together in that opinion; Graney v Graney involved a parent supervising his child at the playground where the child fell from a slide; Ryan v Fahey involved a parent supervising her child in a neighbor’s yard where the child was injured by a lawn mower, and Holodook v Spencer involved a parent supervising a child who darted between parked cars into the street where he was struck by an automobile. No allegation was or reasonably could have been made that the parental conduct constituted gross negligence, rather each accident occurred during the course of normal, albeit arguably negligent, parental supervision. We discussed the weighty policy considerations against imposing liability on the negligent parent, and based our decision in each case to deny the children involved any recovery on the importance of those considerations.

These policy arguments are much less compelling when the act complained of is more egregious than mere negligent supervision. In fact, in Holodook we were most concerned with the problems inherent in judicial determinations establishing a standard of what is good parental care. This does not present a problem when the act complained of is grossly negligent, for then the standard of care may readily be defined without infringing on the vast domain best left to parental discretion. Careful jury instructions will ensure that recovery is permitted only in egregious cases, while at the same time there is no unnecessary interference with the family unit.

To refuse to recognize certain conduct as tortious is to declare that no matter how heinous the parental behavior we will not compensate the child. To cloak this result in the term "parental discretion” will not strengthen the familial bonds at least insofar as the victim is concerned. We should not shirk the duty to establish a minimal standard of care below which no one should be permitted to fall.

This is not to say that intrafamilial suits should bé allowed for all conduct that would be actionable if it were between nonrelated persons. Only when the fact finder finds wanton, willful, or gross negligence should recovery be allowed. If a reasonable parent who is aware of the mental and physical characteristics of the child and all the surrounding circumstances would be shocked that any parent would perform the act or omission complained of, the injured child should be compensated. Any act which is less egregious is best described as a breach of the duty " 'whose enforcement can depend only on love’ ” (majority opn, p 338), and we should not interfere.

The facts alleged in this case are sufficient to state a claim. The pleadings, taken together, state the severe vision impairments suffered by the child and the action of his father in providing him with a motorcycle. Testimony at trial could conceivably prove gross negligence. Important of course would be the quality of the child’s vision, his ability to ride a motorcycle, the instruction given to him before riding, the restrictions placed on his activities, and any other evidence that might show gross negligence by the parent. Although this case may be difficult to prove, I cannot say as a matter of law at this stage of the litigation involving only the pleadings that it would be impossible to establish gross negligence.

Any other result would be inequitable. Insofar as direct suits by the child against the parent are concerned, to deny the child the right to sue means that regardless of how egregious the conduct, the child must suffer his injuries uncompensated. Let us assume a parent decides that a loaded revolver is a suitable toy for his five year old, or that it is safe for a two year old to swim unattended and the child is injured, fatally or otherwise. The majority would hold that any claim resulting therefrom would be beyond the scope of a negligence action, thereby denying the child a right which any other injured person possesses to seek compensation for a wrong.

Moreover, it would be unjust to deny a third-party claim or counterclaim against the parents by a party whose negligence is only an insignificant contributing cause of the injury. That third party may have only been a minor cause of the damage, and under Dole apportionment principles he would be entitled to seek contribution from the parent. This he cannot do if there is no direct liability from the parent to the child. The result is a penalty against a marginally negligent tort-feasor while the parent is not responsible for any of the loss. In fact, in situations such as the instant case, the parent may even receive substantial economic gains as a result of the law suit.

These unfortunate results would not apply were we to recognize the counterclaim in the instant suit. At the same time, the result remains consistent with Dole v Dow Chem. Co. (30 NY2d 143, supra) and the cases which follow it, by only recognizing the counterclaim where it is reasonably foreseeable that the parent’s gross negligence will be actionable by the injured child.

Accordingly, I vote to reverse and reinstate the counterclaim by defendants against Walter L. Nolechek.

Fuchsberg, J.

(concurring). My concurrence here is in result only.

In Gelbman v Gelbman (23 NY2d 434), building on Judge Fuld’s memorable dissent in Badigian v Badigian (9 NY2d 472), this court unqualifiedly and unanimously revoked a rule of this State which theretofore had prohibited child-parent suits for nonwillful torts. The historical, social and legal exigeses that supported those opinions were too clearly stated then to require repetition here. Yet, though nothing had occurred in the interim to substantiate the alarums of those who decried Gelbman, only seven years later, in Holodook v Spencer (36 NY2d 35), a divided court cut back on that holding when it decided to restore the immunity doctrine it had previously discarded for cases in which the tort committed by a parent against his child occurs in a factual framework that can be associated with parental supervision. And, though every one of our sister States that have considered the problem has rejected the Holodook rule (e.g., Gibson v Gibson, 3 Cal 3d 914; Goller v White, 20 Wis 2d 402; Silesky v Kelman, 281 Minn 431), though the critical analysis in Judge Jasen’s dissenting opinion in Holodook is supported by eminent scholarly authority (see McCurdy, Torts Between Persons in Domestic Relation, 43 Harv L Rev 1030, 1078-1080; Thuillez, Parental Nonsupervision: The Tort that Never Was, 40 Albany L Rev 336; Casenote, 42 Brooklyn L Rev 125; Note, 47 U Col L Rev 795), and though the majority of the court today seeks some escape from Holodook’s strictures, I find it regrettable that the court should tinker with rather than toss out the so-called negligent supervision exception.

Thus, to meet the need for a just result, one of my colleagues, despite Holodook, would carve out a further complicating subexception for parental behavior which, though supervisory in nature, could be characterized as wanton or gross negligence. Another member of the court, seeking a like objective, would, I respectfully suggest, stretch the principles of foreseeability and proximate cause beyond all recognition by placing on the parent here the responsibility not only to anticipate that an unknown party may suffer damage as a consequence of the parental negligence in entrusting a child handicapped by severely impaired vision with the operation of a motorcycle, a reasonably anticipatable result, but also to foresee that the unknown party in some unknown manner will have contributed to the accident by concurrent negligence on its part, a completely speculative and remote contingency for which no statistical or other basis exists, and, even beyond that, that the unknown party will be subjected to suit and will seek contribution from the erring parent (see Ventricelli v Kinney System Rent A Car, 45 NY2d 950; see, also, Sheehan v City of New York, 40 NY2d 496; Prosser, Torts [4th ed], § 43, pp 267-270).

Instead of either of these solutions to the dilemmas Holodook has created, I would return to the simple and fundamental principles enunciated in Gelbman and in the Badigian and Holodook dissents, which in effect would permit each parent-child case to be decided by answering the broad question at the heart of negligence law: What would an ordinarily reasonable and prudent person — taking into account the parent-child relationship — have done in similar circumstances? (Cf. Gibson v Gibson, 3 Cal 3d 914, 921-922.) In doing so, I do not ignore the values inherent in stare decisis, but regard this as an appropriate instance for the application of the balancing principle of which Mr. Justice Frankfurter spoke when he pointed out that "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience” (emphasis mine) (Helvering v Hallock, 309 US 106, 119, quoted in People v Hobson, 39 NY2d 479, 487).

A standard of "reasonable care under the circumstances”, well understood in tort law and only recently reaffirmed by this court in a conceptually related context (see Quinlan v Cecchini, 41 NY2d 686; Basso v Miller, 40 NY2d 233, 241; Scurti v City of of New York, 40 NY2d 433, 437), would not require that a parent live up to some idealized picture of a model father or mother. A mere misjudgment in supervising one’s child would not necessarily constitute a tortious breach of duty. In determining whether the bounds of reasonable behavior have been transgressed, all of the relevant facts and circumstances would have to be considered. In a supervision situation, among the foremost are bound to be the existence of the relation of parent and child; the practical responsibilities, expectations and limitations that flow therefrom; and the judgmental nature of the decisions a parent must make in functioning in that capacity.

Without developing this point in extenso, the weight which a court or jury will ascribe to each of these and other related factors will depend on the facts peculiar to the particular case. For example, aside from the facts relating to the negligence itself, such variable matters as the age, mental and physical health, intelligence, aptitudes and needs of the child involved; the presence in the family of other children competing for parental time and attention; and the economic social and physical environment in which the parental conduct occurs, all may be expected to play a part.

It is hard to see why such a tailoring of the results of each case to its facts is not to be preferred to the erection of rigid classifications, be they catalogued as "trespasser”, "licensee” or "business visitor” (see Basso and Scurti, supra), as "grossly” or "ordinarily” negligent or as "supervising parent”. Looking to the entire picture, rather than merely the labels, is the surer path to a just result.

Cooke, J.

(dissenting). This court today concludes that one who is not a joint or concurrent tort-feasor may nonetheless be held liable for contribution under Dole v Dow Chem. Co. (30 NY2d 143). Because such a holding marks a sudden, unexplained departure from prior well-reasoned decisions, I must dissent.

At the outset, I note my agreement with the majority insofar as it refuses to create a cause of action in favor of the decedent against his parent. Surely, in the usual case, a father’s decision to give a particular article to his child, involving an assessment of the child’s unique capabilities, maturity and judgment, falls well within the realm of parental supervision. As such, the parent’s conduct is not actionable by the infant (Holodook v Spencer, 36 NY2d 35).

But, having found that the infant does not possess a cause of action against his father, I cannot subscribe to the view that the father may somehow be liable in contribution to a defendant tort-feasor. True, the landmark decision in Dole "permits apportionment of damages among joint or concurrent tort-feasors regardless of the degree or nature of the concurring fault” (Kelly v Long Is. Light. Co., 31 NY2d 25, 29). Thus, "two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them” (emphasis added) (CPLR 1401). If the person from whom contribution is sought owes no duty to the injured plaintiff, however, he simply is not a joint or concurrent tort-feasor. In such a case, no apportionment may be granted (Prosser, Torts [4th ed], § 50, p 309; cf. De Witt Props. v City of New York, 44 NY2d 417, 427).

This principle is inherent in the doctrine of contribution, and our cases have consistently so held. In Barry v Niagara Frontier Tr. System (35 NY2d 629), we refused to allow a contribution cause of action where the third-party defendant breached no duty to the injured plaintiff: "Since it is conceded that no prior notice of the dangerous condition was given to the village, no cause of action accrued against the village. To say that a third-party apportionment action may be brought against the village would permit indirectly what could not be done directly by the plaintiffs themselves” (id., at p 633). Directly relevant, too, is Holodook v Spencer (36 NY2d 35, supra), which held that a parent who negligently supervises his child may not be cast in damages, either in a direct tort action or by way of a Dole claim. The basis of this decision was clearly articulated: "Because the secondary right to contribution in these cases is dependent upon the parent’s alleged failure to perform a duty owing to the plaintiff child, the absence of the primary cause of action defeats” the contribution actions (id., at p 51). Perhaps the clearest statement of the rule, however, is contained in Rogers v Dorchester Assoc. (32 NY2d 553, 564 [Breitel, J.]): "The rule of apportionment applies when two or more tort-feasors have shared, albeit in various degrees, in the responsibility by their conduct or omissions in causing an accident, in violation of the duties they respectively owed to the injured person” (emphasis added).

Nor do the workers’ compensation situations relied upon by the majority represent a departure from this established rule. To be sure, a joint tort-feasor may obtain contribution from an employer, even though the employee plaintiff could not sue the employer directly. The bar to a direct action in those cases, however, lies not in the absence of a duty owing from the employer to the employee, but rather in the existence of a statutorily created exclusive remedy (Workers’ Compensation Law, § 11). Simply stated, the employer owes a duty of care to his employee, and when he breaches that duty he subjects himself to liability for contribution (Briscoe v Williams, 50 AD2d 883). That the injured party pursues his remedy for this breach in an administrative rather than judicial forum is irrelevant to the question of contribution.

Thus, to hold Walter Nolechek liable in contribution to a third-party tort-feasor, despite the absence of any duty owing from Walter to the injured plaintiff, is to ignore the theoretical underpinnings of the contribution concept. In an attempt to reach what might appear superficially to be a Solomon-like result, the majority has displaced case law which establishes a sound, and logically necessary, principle.

Seizing upon the claim that the parent owes a duty to defendants Gesuale and Star, the majority opinion concludes that this duty may serve as the predicate for a contribution action. As demonstrated above, however, no apportionment may be had absent a breach of duty owing to the injured infant. In this respect, therefore, the majority seems to be creating a new tort cause of action which defendants may assert directly against Walter Nolechek. The problem with this, of course, is that Gesuale and Star have not suffered any injury recognized by tort law. Indeed, the father’s breach of duty, if a duty there is, at most subjects Gesuale and Star to the potential of being cast in judgment for damages. It need hardly be said that an action to recover such damages has never been cognizable in our legal system, and runs contrary to the settled principle that a negligent breach of duty does not give rise to liability unless it proximately causes injury (e.g., Prosser, Torts [4th ed], §§ 30, 41-44). Under any analysis, then, the defendants may not recover damages from Walter Nolechek.

On a policy level, moreover, today’s decision may bring untoward consequences to both parents and children. As to minor children, "the net effect of allowing Dole apportionment could well be the parent’s failure to seek legal redress on the child’s behalf against third parties who are more likely than the parent in these cases to have appropriate liability coverage. This is an effect obviously detrimental to the injured child” (Holodook v Spencer, 36 NY2d 35, 46, supra). Thus, where the child is injured but not killed, the spectre of liability might well deter the parents from instituting a lawsuit on behalf of their child. Even if it does not, the interests of the parent and the child will be in direct conflict, since a portion of the child’s recovery will come from the family coffer. We should not abide such an occurrence.

More disturbing, however, is the particular context in which the majority has decided to carve out an exception to the Dole and Holodook principles. It is apparently because the infant was partially blind that the motorcycle became a "dangerous instrumentality” in his hands. A child’s handicap, rather than excusing certain shortcomings, today is being used as the predicate for heretofor unrecognized liability. As has been noted in this regard: "The parent of a blind or crippled or retarded child has burdens enough without being singled out for a special additional monetary liability which the parents blessed with normal children would not confront. * * * A rule which would carve out a special exception for the parent already stricken with the burden of a seriously handicapped child, not to ease that parent’s path but to place yet another obstacle on it, lacks compassion” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3019, p 253). If settled law is to be abruptly reversed, it should not be done where only tort-feasors or insurers can benefit, at the expense of a parent of a handicapped, and now deceased, young boy.

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

Judges Jasen, Jones and Wachtler concur with Chief Judge Breitel; Judges Gabrielli and Fuchsberg concur in result in separate concurring opinions; Judge Cooke dissents and votes to affirm in another opinion.

Order modified, with costs to defendants-appellants against plaintiff-respondent Nolechek, in accordance with the opinion herein and, as so modified, affirmed, with costs on the third-party claim to respondents Neiman against appellant Nolechek. Question certified answered in the negative.

       (See Badigian, 9 NY2d, at pp 476-81; Gelbman, 23 NY2d, at pp 437-439; for an excellent discussion of these concerns see Note, 47 U Col L Rev 795.)


author: Cooke, J. Wachtler, J.

text:
    Henry E. Breed et al., Respondents, v Insurance Company of North America, Appellant.
    Argued November 28,1978;
    decided December 27,1978

      POINTS OF COUNSEL

      John R. Casey for appellant.
    The policy exclusion for theft by a tenant of the described premises is clear and unambiguous. (Trimble-Waterman Assoc. v Certain Underwriters at Lloyd’s, 41 NY2d 934; McLeod & Henry Co. v Employers’ Fire Ins. Co., 46 AD2d 242.)

      F. Richard Decatur, Jr., for respondents.
    The policy provisions are ambiguous and must be construed against the insurance company. (Sperling v Great Amer. Ind. Co., 7 NY2d 442; Lachs v Fidelity & Cas. Co., 306 NY 357; Eagle Star Ins. Co. v International Proteins Corp., 45 AD2d 637, 38 NY2d 861; Greaves v Public Serv. Mut. Ins. Co., 5 NY2d 120; Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356.)
   OPINION OF THE COURT

Cooke, J.

The basic issue here is whether an insurance policy, which excludes from its coverage theft "of property * * * by any tenant of the described premises”, is clear and unambiguous.

Defendant insurer, through an agent related to plaintiffs, issued to the latter a homeowners policy for a continuous period commencing October 11, 1972. It contained section one relating to "Dwelling and Personal Property”, section two in respect to "Comprehensive Personal Liability”, a number of provisos applicable to the entire policy, a face sheet and three endorsement pages. Part I of section one, dealing with "Coverages”, listed four categories of protection: "A, Dwelling”, "B, Private Structure”, "C, Unscheduled Personal Property”, and "D, Additional Living Expense (Expenses Occasioned by Loss).” Thereafter it was provided that "[t]heft” of property described under "Coverage C” was one of the perils insured against, subject to exclusions contained in the policy (section one, part II, item 8). In this respect, the policy read:

"This policy does not insure against loss or damage:

"A. caused by theft:

* * *

"2. of property by any relative of the Insured or by any tenant of the described premises(Emphasis supplied.) In turn, the face sheet stated: "The described premises are located at the above address [R. D. No. 3, Box 245, Troy, New York], and legally described unless otherwise stated herein. Tamarac Road, Town of Brunswick, Rensselaer County, New York”. (Emphasis supplied.)

On January 26, 1973 a sizable number of articles of personal property belonging to plaintiffs were stolen from their dwelling on their said premises in the Town of Brunswick. There is no dispute but that the theft was committed by a tenant, Anthony Matarazzo, who at the time was renting an apartment in the carriage house, located on the parcel, some 80 feet distant from the dwelling. This action was instituted to recover the value of the personal property taken. Special Term granted summary judgment to defendant, and the Appellate Division, by a divided court, reversed, granted summary judgment to plaintiffs and remitted to Special Term for assessment of damages. Defendant now appeals, pursuant to CPLR 5601 (subd [d]), from the final judgment of Supreme Court, Rensselaer County, in favor of plaintiffs and against defendant in a stated sum, bringing up for review the interlocutory order of the Appellate Division.

Well recognized is the general rule that ambiguities in an insurance policy are to be construed against the insurer, particularly when found in an exclusionary clause (see Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361). But, in attempting to reach a conclusion embracing recovery under this policy, plaintiffs would have this court find as a minor premise that there is actually such an ambigúity here. The obvious flaw in such reasoning is that there is no uncertainty in the germane terms of the policy. Rather, if a tenant of the "described premises” steals property, the loss is not covered; the "described premises”, as outlined in the policy, equal the entire property of plaintiffs at the location listed; and, therefore, since the theft at issue was committed by a tenant residing on plaintiffs’ property, the theft is not covered.

The majority at the Appellate Division conceded that "it is clear that the general provisions of section I of the policy covers all structures on the 'described premises’ (coverage A and B of section one)” (57 AD2d, p 33). This being so and without more, the theft is excluded from the policy coverage under the express language of paragraph A (2) of part IV of section one: "This policy does not insure against loss or damage: A. caused by theft: * * * 2. of property by any relative of the Insured or by any tenant of the described premises.” Since Matarazzo, who pleaded quilty to the crime, was a tenant of the apartment in the carriage house, a structure on the described premises, the theft is excluded and plaintiffs may not recover.

Plaintiffs urge, however, that it is unclear whether said exclusionary language of the policy exempts from coverage a theft by a tenant of the residence only or a tenant of either the residence or an appurtenant structure on the described premises. It is argued that the doubt is caused by the policy definition of "residence premises”, which includes appurtenant structures, and the claimed absence of any policy definition of described premises. The simple answer is that the term "residence premises” does not appear in the exclusion, and that therefore the phrase bears no relevance to our inquiry. The definition would be applicable to other policy provisions where the expression appears, which provisions, incidentally, do not call for exclusion (see, e.g., section one, part I, par C [12]; section one, part VIII, par A [4], [a], [a], [b], [c], [d]). Furthermore, the "described premises”, although not appearing under a definitional heading, are in reality and for all purposes defined by the characterization and demarcation contained on the face sheet.

"It is axiomatic that a contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed” (Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16, 19). Obviously, before the rules governing the construction of ambiguous contracts are triggered, the court must first find ambiguity in the policy (Hartigan v Casualty Co. of Amer., 227 NY 175, 180). But here there is no ambiguity since the words in the paragraphs of the policy under examination have a definite and precise meaning, unattended by danger of misconception in the purport of the policy itself, and concerning which there is no reasonable basis for a difference of opinion (see Loch Sheldrake Assoc. v Evans, 306 NY 297, 305; Midkiff v Castle & Cooke, 45 Hawaii 409; London & Lancashire Ind. Co. of Amer. v Barron Fuel Co., 31 F Supp 599, 600; see, also, 30 Am Jur 2d, Evidence, § 1069). This court may not make or vary the contract of insurance to accomplish its notions of abstract justice or moral obligation, since "[e]quitable considerations will not allow an extension of the coverage beyond its fair intent and meaning in order to do raw equity and to obviate objections which might have been foreseen and guarded against” (Weinberg & Holman v Providence Washington Ins. Co., 254 NY 387, 391; see 1 Couch, Insurance [1929], § 184, p 376).

Lastly, plaintiffs point to the "split” in Judges and in courts and even to the combined judicial and legal experience of those who have reviewed this matter and arrived at different results. They conclude from these statistics that the instant exclusionary clause must perforce be ambiguous. Such an approach was rejected long ago in Hartigan v Casualty Co. of Amer. (227 NY 175, supra) wherein this court observed at pages 179-180: "The fact that the courts below have read the policy otherwise and found it susceptible of another meaning is urged as establishing the fact that reasonable and intelligent men may honestly differ as to its meaning and that it must, therefore, be construed against the insurer. It is, however, for this court to say, as matter of law, whether reasonable men may reasonably differ as to such meaning, or whether the indulgence of the lower courts has not written a new contract for the parties and extended the defendant’s liability beyond the plain and unambiguous language of the policy.”

Accordingly, the judgment of Supreme Court appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the order of Special Term granting summary judgment to defendant reinstated.

Wachtler, J.

(dissenting). I cannot agree with the majority that the term "described premises” is unambiguous as it appears in the policy provision in question.

The property owner, whose home was looted, seeks to recover from his insurance carrier. The insurance company claims that since the culprit was a tenant of the carriage house located on the insured’s property, coverage is excluded under the policy. The exclusion clause relied on by the carrier reads:

"This policy does not insure against loss or damage:

"A. caused by theft:

* * *

"2. of property by any relative of the Insured or by any tenant of the described premises.” (Section one, part IV, par A [2].)

The question presented is whether this clause is free from ambiguity. Surely the phrase "described premises”, without express definition, does not import a clear meaning. Concededly it could mean the entire premises, including the main dwelling and the carriage house as the insurance company argues. However, it could just as easily be construed to refer only to the main dwelling. One cannot be sure. Yet, although numerous other terms are clarified such as "insured premises” and "residence premises” in the policy’s definitional section (section one, part VIII, par A [2], [3]), inexplicably no definition is provided for "described premises”.

A reading of the entire insurance policy, rather than supporting the insurance company’s construction of the term, engenders additional confusion. Notably the policy defines "residence premises” as "a one or two family dwelling building, appurtenant structures, grounds and private approaches thereto”. Thus "residence premises” means exactly what the carrier contends "described premises” should mean. It is puzzling why the carrier neglected to use the unambiguous term "residence premises” if that is what it meant to express.

Another provision of the policy which casts doubt upon the insurance company’s position, Coverage B, insures "appurtenant structures owned by the Insured and which are located on the described premises” (section one, part I, par B). For purposes of this provision, appurtenant structures are not subsumed by the term "described premises”, but are rather located on and distinct from the "described premises”. It would be unreasonable to conclude, absent any contextual difference, that the same term has a more inclusive meaning as it appears in the provision in question.

Attempting to clarify the ambiguity, the majority relies most heavily on the face sheet of the policy which states: "The described premises are located at the above address [R. D. No. 3, Box 245, Troy, New York], and legally described unless otherwise stated herein, Tamarac Road, Town of Brunswick, Rensselaer County, New York.” This statement, however, does little to dispel the ambiguity indicating merely where the "described premises” are located, without defining whether that term embraces appurtenant structures.

Ambiguities in an insurance policy must be construed in favor of the insured (Sperling v Great Amer. Ind. Co., 7 NY2d 442, 450; Greaves v Public Serv. Mut. Ins. Co., 5 NY2d 120, 125). This rule is especially applicable where, as here, the ambiguity appears in a clause excluding coverage (Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356; Sincoff v Liberty Mut. Fire Ins. Co., 11 NY2d 386, 390-391). Since the policy was drafted by the insurer it would be unfair to deprive an insured of coverage which in view of the language of the policy was reasonably anticipated.

It should be noted also that of the 13 Judges who have grappled with this issue, six, including three from this court, have found ambiguity. Although Hartigan v Casualty Co. of Amer. (227 NY 175, 179-180), instructs that a finding of ambiguity by the lower courts does not necessitate that this court reach a similar result, one must wonder how a layman will comprehend the terms of an insurance policy, when the purportedly clear meaning has eluded so many Judges.

The order of the Appellate Division granting summary judgment to the insured property owner should be affirmed.

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

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

       Paragraph A of section "ONE” of the policy in pertinent part reads: "A. Coverage A, Dwelling. Coverage A insures, subject to the Exclusions and limitations stated herein, the described residence owned and occupied by the Insured exclusively for residential purposes.”
      Paragraph B of said section reads: "B. Coverage B, Private Structure. Coverage B insures, subject to the Exclusions stated herein, appurtenant structures owned by the Insured and which are located on the described premises or within five hundred feet thereof and not used for business, professional or farming purposes.”