author: Simons, J.

text:
    Corinno Civetta Construction Corp., Appellant, v City of New York, Respondent. Andrew Catapano Co., Inc., and Naclerio Contracting Co., Inc., a Joint Venture, Appellant, v City of New York, Respondent. Honeywell, Inc., Appellant-Respondent, v City of New York, Respondent-Appellant. Nab-Tern Constructors, Appellant, v City of New York (Yankee Stadium), Respondent. (And Two Third-Party Actions.)
    Argued March 17, 1986;
    decided May 6, 1986

      POINTS OF COUNSEL

      Lester M. A. Gulitz, Michael S. Torre and Jonah C. Grill for appellant in the first above-entitled action.
    I. The court below has misinterpreted and misapplied the law under Kalisch-Jarcho. (Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Peckham Rd. Co. v State of New York, 32 AD2d 139, 28 NY2d 734; Dal Constr. Corp. v City of New York, 108 AD2d 892; Stevenson Corp. v County of Westchester, 113 AD2d 918; Bradley Envtl. Constructors v Village of Sylvan Beach, 98 AD2d 973; Cauldwell-Wingate Co. v State of New York, 276 NY 365; Vanderlinde Elec. Corp. v City of Rochester, 54 AD2d 155; Lundin Co. v Board of Educ., 68 AD2d 881; Shore Bridge Corp. v State of New York, 186 Misc 1005, 271 App Div 811.) II. The court below erroneously resolved numerous and substantial issues of fact regarding the city’s conduct. (Dependable Lists v Malek, 98 AD2d 679; Rowan v Brady, 98 AD2d 638; 175 Check Cashing Corp. v Chubb Pac. Indem. Group, 95 AD2d 701; City Univ. of N. Y. v Finalco, Inc., 93 AD2d 792; Gale v Kessler, 93 AD2d 744; Foundation Co. v State of New York, 233 NY 177; Faber v City of New York, 222 NY 255; Young Fahlhaber Pile Co. v State of New York, 265 App Div 61; Jackson v State of New York, 210 App Div 115, 241 NY 563; Nordone Contr. Co. v City of New York, 269 App Div 1035, 295 NY 985.) III. The court below erroneously applied Kalisch-Jarcho to test the sufficiency of Civetta’s pleadings. (Alvord & Swift v Muller Constr. Co., 46 NY2d 276.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (James P. Griffin and John F. Grubin of counsel), for respondent in the first above-entitled action. I.
    Public policy favors the frank allocation of risk in commercial transactions between sophisticated business entities reflected in the "no-damage” clause. (Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Wood v United States, 258 US 120; United States v Foley Co., 329 US 64; United States v Rice, 317 US 61; Crook Co. v United States, 270 US 4; Chonteau v United States, 95 US 61; Wells Bros. Co. v United States, 254 US 83; Brandt Corp. v City of New York, 14 NY2d 217.) II. Plaintiffs alleged issues of fact are without merit. (Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Teitelbaum Holding v Gold, 48 NY2d 51; Brainard v New York Cent. R. R. Co., 242 NY 125; Slatt v Slatt, 64 NY2d 966, 65 NY2d 785; Levine v Shell Oil Co., 28 NY2d 205; Kurek v Port Chester Hous. Auth., 18 NY2d 450; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Stevenson Corp. v County of Westchester, 113 AD2d 918; Bradley Envtl. Constructors v Village of Sylvan Beach, 98 AD2d 973; Slattery Assoc. v City of New York, 98 AD2d 686.) III. Stare decisis should compel this court to adhere to the correct rule of law set forth in Kalisch-Jarcho. (Matter of Eckart, 39 NY2d 493; People v Hobson, 39 NY2d 479; Simpson v Loehmann, 21 NY2d 305; Matter of Cassiliano v Steisel, 64 NY2d 674; Matter of Rapp v New York City Employees’ Retirement Sys., 42 NY2d 1; Ippolito-Lutz, Inc. v Cohoes Hous. Auth., 22 AD2d 990; Vanderlinde Elec. Corp. v City of Rochester, 54 AD2d 155; Taylor-Fichter Steel Constr. Co. v Niagara Frontier Bridge Commn., 261 App Div 288, 287 NY 669; Mack v State of New York, 122 Misc 86, 211 App Div 825; Cranford v Brooklyn Hgts. R. R. Co., 168 App Div 457, 225 NY 640.)

      Tony Berman, Domenick L. Gabrielli, Robert G. Benisch and William G. Eggers for appellant in the second above-entitled action.
    I. The applicable law, including the majority’s decision in Kalisch-Jarcho, does not provide the city with immunity from liability for its breaches of contract. (Austro v Niagara Mohawk Power Corp., 103 AD2d 903, 66 NY2d 674; Kleartone Transparent Prods. Co. v Dun & Bradstreet, 88 AD2d 353; Lane v New York Tel. Co., 7 AD2d 702; Cauldwell-Wingate Co. v State of New York, 276 NY 365; Wright & Kremers v State of New York, 238 App Div 260, 263 NY 615; Taylor-Fichter Steel Constr. Co. v Niagara Frontier Bridge Commn., 261 App Div 288, 287 NY 669; Norman Co. v County of Nassau, 27 AD2d 936; Ippolito-Lutz, Inc. v Cohoes Hous. Auth., 22 AD2d 990; Stevenson Corp. v County of Westchester, 113 AD2d 918; Dal Constr. Corp. v City of New York, 108 AD2d 892.) II. Summary judgment was completely improper here, regardless of how Kalisch-Jarcho is interpreted. (Dal Constr. Corp. v City of New York, 108 AD2d 892; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Bershaw v Altman, 100 AD2d 642; Phillips v Kantor & Co., 31 NY2d 307; Falk v Goodman, 7 NY2d 87; Myers v Fir Cab Corp., 64 NY2d 806; Onondaga Soil Testing v Barton, Brown, Clyde & Loguidice, 69 AD2d 984; Winegrad v New York Univ. Med. Center, 64 NY2d 806; Walski v Forma, 54 AD2d 776.) III. The court below improperly dismissed a portion of this action that has nothing at all to do with the exculpatory clause. (Green Plumbing & Heating Co. v Turner Constr. Co., 742 F2d 965; Paul Hardeman, Inc. v United States, 406 F2d 1357.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (John F. Grubin, Allen E. Burns and Helene Fromm of counsel), for
    respondent in the second above-entitled action.
    I. Summary judgment was properly granted dismissing plaintiffs’ claim for owner-caused delay, where plaintiffs had expressly agreed to make no claim for owner-caused delay and failed to oppose the motion with any evidence of the kind of misconduct which might relieve them of their agreement. (Taylor-Fichter Steel Constr. Co. v Niagara Frontier Bridge Commn., 261 App Div 288, 287 NY 669; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Olan v Farrell Lines, 64 NY2d 1092; Gaeta v New York News, 62 NY2d 340; Zuckerman v City of New York, 49 NY2d 557; Comptroller of State of N. Y. v Gards Realty Corp., 68 AD2d 186; Getland v Hofstra Univ., 41 AD2d 830; Tuttle v Jaunis, 54 AD2d 589; Weinberg v Johns-Manville Prods. Corp., 67 AD2d 640; Mack v State of New York, 122 Misc 86, 211 App Div 825.) II. Defendant’s motion for summary judgment may not be defeated either by plaintiffs’ extrinsic contemplation when executing the contract or their allegations of negligence in the complaint. (Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Slatt v Slatt, 64 NY2d 966, 65 NY2d 785; Teitelbaum Holdings v Gold, 48 NY2d 51; Sutton v East Riv. Sav. Bank, 55 NY2d 550; West, Weir & Bartel v Carter Paint Co., 25 NY2d 535; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456; Brainard v New York Cent. R. R. Co., 242 NY 125; Portsmouth Baseball Corp. v Frick, 278 F2d 395, 364 US 831; Di Menna & Sons v City of New York, 276 App Div 838, 301 NY 118; Pilkington Co. v City of New York, 211 App Div 558, 243 NY 638.) III. Plaintiffs’ brief trivializes Kalisch-Jarcho. IV. Defendant’s motion to dismiss the complaint pursuant to CPLR 3126 should have been granted where plaintiffs offered no acceptable excuse for their 27-month failure to answer interrogatories, where the failure resulted not from oversight but from a calculated decision, where plaintiffs failed to present facts evincing merit in the lawsuit, and where lesser sanctions would be unjust. (Parochial Bus Sys. v Board of Educ., 60 NY2d 539; Erwin Pearl, Inc. v Burroughs Corp., 98 AD2d 619, 62 NY2d 1031; Canter v Mulnick, 93 AD2d 751, 60 NY2d 689; Barasch v Micucci, 49 NY2d 594; Stolowitz v Mount Sinai Hosp., 90 AD2d 712, 60 NY2d 685; Smith v Lefrak Org., 96 AD2d 859, 60 NY2d 828; Verre v Rosas, 47 NY2d 795; Sortino v Fisher, 20 AD2d 25.)

      Julius L. Schapira, Louis Cantor, Jerome Reiss, Morris Dershowitz and Kalvin Kamien for appellant-respondent in the third above-entitled action.
    I. The court below erroneously reversed on the law and dismissed the complaint; therefore, the order appealed from should be reversed and the verdict reinstated. (Cohen v Hallmark Cards, 45 NY2d 493; O’Boyle v Avis Rent-A-Car Sys., 78 AD2d 431; Lane — Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36; Bernstein v Greenfield, 281 NY 77; Kelly v Watson Elevator Co., 309 NY 49; Amend v Hurley, 293 NY 587; Ciccolini v Vocafilm Corp., 253 NY 588; Grulich v Paine, 231 NY 311; United States v Spearin, 248 US 132; MacKnight Flintic Stone Co. v Mayor of City of N. Y, 160 NY 72.) II. Kalisch-Jarcho is inapplicable or clearly distinguishable from the present case. In any event there is sufficient evidence to support the trial court’s charge in line with Kalisch-Jarcho which is not disputed and there is ample evidence to support the jury’s finding on that score. (Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Wright & Kremers v State of New York, 238 App Div 260, 263 NY 615; People ex rel. Wells & Newton Co. v Craig, 232 NY 125; Whitmyer v State of New York, 63 AD2d 103, 47 NY2d 960; Najjar Indus. v City of New York, 87 AD2d 329; Catapano Co. v City of New York, 107 AD2d 640; Stevenson Corp. v County of Westchester, 113 AD2d 918; Dal Constr. Corp. v City of New York, 108 AD2d 892; Bradley Envtl. Constructors v Village of Sylvan Beach, 98 AD2d 973; Peckham Rd. Co. v State of New York, 32 AD2d 139, 28 NY2d 734; Cauldwell-Wingate v State of New York, 276 NY 365.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (John F. Grubin, Allen E. Burns and Emily Pines of counsel) for respondent-appellant in the third above-entitled action.
    I. The complaint was properly dismissed. (Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377; Cohen v Hallmark Cards, 45 NY2d 493; Valenti Elec. Co. v Board of Educ., 56 AD2d 884; Cameron-Hawn Realty Co. v City of Albany, 207 NY 377; Weston v State of New York, 262 NY 46.) II. Even if the dismissal of the complaint is not affirmed, the judgment may not stand, and a new trial on the claim and counterclaim must be ordered. (Cohen v Hallmark Cards, 45 NY2d 493; Smulczesk v City Center of Music & Drama, 3 NY2d 498; O’Boyle v Avis Rent-A-Car Sys., 78 AD2d 431; Mendez v Manhattan & Bronx Surface Tr. Operating Corp., 57 AD2d 823; Salzano v City of New York, 22 AD2d 656; Lopez v Linden Gen. Hosp., 89 AD2d 1010; Gerichten v Ruiz, 80 AD2d 578; Reehil v Fraas, 129 App Div 563, 197 NY 64; Hayden v New York Rys. Co., 233 NY 34.)

      George P. Felleman and Mitchell Weitz for County of Suffolk, amicus curiae, in the first, second and third above-entitied actions.
    I. The court below correctly applied Kalisch-Jarcho. (Peckham Rd. Co. v State of New York, 32 AD2d 139, 28 NY2d 734; Cauldwell-Wingate Co. v State of New York, 276 NY 365; Wright & Kremers v State of New York, 263 NY 615; Zuckerman v City of New York, 49 NY2d 557; Trails W. v Wolff, 32 NY2d 207; Indig v Finkelstein, 23 NY2d 728; Andre v Pomeroy, 35 NY2d 361.) II. Kalisch-Jarcho represents sound policy.

      Eli Saul Cohn and Franklin E. Tretter for appellant in the fourth above-entitled action.
    I. The majority opinion in Kalisch-Jarcho did not change the law with respect to the duties imposed upon the city in the performance of its contractual and statutory obligations. (Peckham Rd. Co. v State of New York, 32 AD2d 139, 28 NY2d 734; Simon v Etgen, 213 NY 589; Dal Constr. Corp. v City of New York, 108 AD2d 892; Bradley Envtl. Constructors v Village of Sylvan Beach, 98 AD2d 973; Stevenson Corp. v County of Westchester, 113 AD2d 918; Gottlieb Contr. v City of New York, 58 NY2d 1051.) II. Summary judgment should not have been granted dismissing plaintiff’s cause of action for delay damages. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Callanan Rd. Improvement Co. v Ter-Mel Constr. Corp., 30 AD2d 591; Meiselman v Crown Hgts. Hosp., 285 NY 389.) III. The major portion of NAB’s claim included within its cause of action for delay damages was for inefficiency and acceleration costs which it incurred during the original contract period. The no-damage-for-delay clause is inapplicable. (Green Plumbing & Heating Co. v Turner Constr. Co., 742 F2d 965; Paul Hardeman, Inc. v United States, 406 F2d 1357.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (James P. Griffin and John F. Grubin of counsel), for respondent in the fourth above-entitled action.
    I. Plaintiffs alleged issues of fact are without merit. (Peckham Rd. Co. v State of New York, 32 AD2d 139, 28 NY2d 734; Stevenson Corp. v County of Westchester, 113 AD2d 918; Gottlieb Contr. v City of New York, 58 NY2d 1051; Taylor-Fichter Steel Constr. Co. v Niagara Frontier Bridge Commn., 261 App Div 288, 287 NY 669.) II. Public policy favors a frank allocation of risk in commercial transactions between sophisticated business entities. In government contracts, such an allocation of risk is, in fact, necessary in order to effectuate the purpose of the public bidding statutes. (Pettinelli Elec. Co. v Board of Educ., 43 NY2d 760; Flushing Natl. Bank v Municipal Assistance Corp., 40 NY2d 731; Wells Bros. Co. v United States, 254 US 83.) Ill Stare decisis should compel this court to adhere to the correct rule of law set forth in Kalisch-Jarcho.

   OPINION OF THE COURT

Simons, J.

In Kalisch-Jarcho, Inc. v City of New York (58 NY2d 377), we reaffirmed the rule that contract clauses barring a contractor from recovering damages for delay in the performance of a contract are valid, that they will prevent recovery of damages resulting from a broad range of reasonable and unreasonable conduct by the contractee if the conduct was contemplated by the parties when they entered into the agreement, but that they will not excuse or prevent the recovery of damages resulting from the contractee’s grossly negligent or willful conduct, i.e., conduct which "smacks of intentional wrongdoing” (supra, at p 385). The common legal issue in the four appeals now before us is whether that standard is applicable when the delays caused by the contractee were not contemplated at the time the parties entered into the contract. The Appellate Division, First Department, interpreted the Kalisch-Jarcho decision as holding that the city’s no-damage-for-delay clause barred contractors from recovering damages for all delays, contemplated or uncontemplated, and it dismissed the complaint in each action. Our decision in Kalisch-Jarcho did not decide the issue, however, nor did it change the existing rule which provides that damages resulting from uncontemplated delays caused by the contractee may be recovered despite the existence of a broad exculpatory clause relieving the contractee from liability. We now reaffirm that rule. Thus, although we agree with the Appellate Division’s conclusions that plaintiffs in Corinno Civetta and Honeywell failed to establish a prima facie case of liability against the city and that their causes of action for delay damages should be dismissed, we differ with its reasoning. In Catapano and Nab-Tern, however, the city’s moving papers are insufficient to warrant relief and the motions for summary judgment should have been denied.

I

The claim of Corinno Civetta arises out of a contract by which plaintiff was to reconstruct and install approximately 245 feet of combined sewer beneath the west side of Central Park between West 61st Street and Columbus Circle at a price of $207,061. The contract was executed on September 13, 1979 and by its terms was to be completed within 100 consecutive days. Work began on October 1, 1979 but was not completed until December 1980. Plaintiff brought this action seeking to recover various items of damage including damages of $162,-343 resulting from actions by the city which it alleges delayed the project. Trial Term denied the city’s motion for partial summary judgment dismissing the cause of action for delay damages and granted plaintiff’s cross motion for partial summary judgment on the remaining causes of action. The city appealed only the denial of its motion and the Appellate Division reversed, granted the motion, and dismissed the cause of action for delay damages (107 AD2d 610). The remaining causes of action have been settled, thus presenting a final order for review.

In Catapano plaintiff is seeking damages in the amount of $1,850,000 for delays in completing its contract to construct certain sewers in Queens which allegedly were caused by the city. The parties executed the contract in June 1977 for a total contract price in excess of $3,850,000 and work was to commence on August 8, 1977. Sewer construction was scheduled to be completed by September 21, 1978 and street restoration was to be accomplished within an additional 100 consecutive days. The project was not finished, however, until March 2, 1980. The city’s motion for summary judgment dismissing the complaint, or alternatively to strike the complaint under CPLR 3126 for failure to answer interrogatories, was denied by Special Term. On appeal, the Appellate Division modified by granting the city’s motion for summary judgment to the extent of dismissing the second cause of action for delay damages and otherwise affirmed (107 AD2d 640). The parties have stipulated to discontinue the remaining causes of action with prejudice.

The claim in Honeywell arises out of a contract for the installation and maintenance of a system of instrumentation and data logging equipment at the city’s sewage treatment plants at Rockaway, Jamaica, Bowery Bay, and Tallman’s Island at a price of $1,600,000. The contract was executed in August 1973 and provided that installation of the equipment was to be completed in three and one-half years, by February 1977, and that thereafter plaintiff would maintain the system at each of the four plant locations for an additional two years. Plaintiff terminated work at all plants in February 1979, the date originally scheduled for completion of all its contract obligations, with the installation work unfinished. It instituted this action in 1981 seeking damages on a quantum meruit basis for $1,342,000, which represented the difference between what it claimed was the reasonable value of the work performed and the payments already received. The city counterclaimed for the cost of completing the system and consequential damages, alleging abandonment and breach of contract by plaintiff. Following a trial, the jury returned a verdict in favor of plaintiff and against the city for $1,225,845 and judgment was entered on the verdict. The city’s counterclaims were dismissed. The Appellate Division reversed the judgment, dismissed plaintiff’s complaint and affirmed the order dismissing the city’s counterclaims (108 AD2d 125).

The contract in Nab-Tern required plaintiff to perform services as general contractor for the reconstruction of Yankee Stadium at a price of $22,220,000. By its terms, work was to commence on January 11, 1974 and be completed by February 6, 1976. The project was not finished until April 14, 1976. Plaintiff brought this action in 1978 alleging several causes of action including one for delay damages totaling $5,744,267. Special Term denied the city’s motion for partial summary judgment dismissing the fourth cause of action for delay damages and granted plaintiff’s cross motion to amend its complaint to allege willful misconduct and gross negligence by defendant in the cause of action for delay damages. The Appellate Division reversed, granted the city’s motion and denied plaintiff’s cross motion (111 AD2d 56). The court then granted plaintiff leave to appeal to this court on a certified question.

Plaintiffs present three legal issues.

First, all four plaintiffs contend that the Appellate Division erred in dismissing their claims for delay damages on the basis of the exculpatory clause contained in the contracts. This is so, they claim, (a) because the rule set forth in Kalisch-Jarcho does not apply to uncontemplated delays and the court failed to consider whether the delays in question were contemplated or uncontemplated, and (b) because even if it is contended that the delays were contemplated when the parties entered into the contracts there are factual questions which must be decided to resolve that issue and to resolve whether the city’s conduct in causing the delays amounted to willful misconduct, bad faith or gross negligence. For its part, the city asserts that under the broad exculpatory clause contained in the contracts, all claims for delay damages are barred unless deliberate and intentional misconduct is established. Alternatively, it contends that even if the contemplation of the parties is relevant it is entitled to judgment as a matter of law because there are no questions of fact in any of the actions warranting trials.

A second issue, raised only in Honeywell, is whether the city’s conduct was so unreasonable and the resulting delays so protracted that the city may be charged with abandoning or breaching the contract, conduct which entitles Honeywell to recover damages notwithstanding the contract’s exculpatory clause.

Finally, plaintiffs Catapano and Nab-Tern allege that a substantial portion of the damages they claim are not barred by the exculpatory clause of the contract but were incurred because the city hindered or interfered with the efficient performance of their work during the term of the contract.

II

A clause which exculpates a contractee from liability to a contractor for damages resulting from delays in the performance of the latter’s work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally (see, Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 384, supra; Peckham Rd. Co. v State of New York, 32 AD2d 139, 141, affd no opn 28 NY2d 734; Norcross v Wills, 198 NY 336, 341; Wright & Kremers v State of New York, 238 App Div 260, 261, mod on other grounds 263 NY 615; Validity and Construction of "No Damage” Clause with Respect to Delay in Building or Construction Contract, Ann., 74 ALR3d 187, 203-206). The rule is not without its exceptions, however, and even exculpatory language which purports to preclude damages for all delays resulting from any cause whatsoever are not read literally (see, Norman Co. v County of Nassau, 27 AD2d 936, 937; see, e.g., Cauldwell-Wingate Co. v State of New York, 276 NY 365; Wright & Kremers v State of New York, 238 App Div 260, mod 263 NY 615, supra; Waples Co. v State of New York, 178 App Div 357). Generally, even with such a clause, damages may be recovered for: (1) delays caused by the contractee’s bad faith or its willful, malicious, or grossly negligent conduct, (2) uncontemplated delays, (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee, and (4) delays resulting from the contractee’s breach of a fundamental obligation of the contract.

We discussed the first of these exceptions at length in Kalisch-Jarcho, Inc. v City of New York (58 NY2d 377, supra) and the parties agree that the rule set forth there forecloses recovery for contemplated delays in the absence of proof of willful or grossly negligent conduct. Their present disputes center on the applicability and scope of the other three exceptions to the general rule.

A. Uncontemplated Delays

It has been settled for some time that exculpatory clauses will not bar claims resulting from delays caused by the contractee if the delays or their causes were not within the contemplation of the parties at the time they entered into the contract (Peckham Rd. Co. v State of New York, 32 AD2d 139, 141, affd no opn 28 NY2d 734, supra; see, Cauldwell-Wingate Co. v State of New York, 276 NY 365, 375, supra; People ex rel. Wells & Newton Co. v Craig, 232 NY 125, 143-144; Wilson & English Constr. Co. v New York Cent. R. R. Co., 240 App Div 479, 482; Waples Co. v State of New York, 178 App Div 357, 360-361, supra). The exception is based on the concept of mutual assent. Having agreed to the exculpatory clause when he entered into the contract, it is presumed that the contractor intended to be bound by its terms. It can hardly be presumed, however, that the contractor bargained away his right to bring a claim for damages resulting from delays which the parties did not contemplate at the time (see, Peckham Rd. Co. v State of New York, supra, at pp 141-142; Johnson v City of New York, 191 App Div 205, 207-208, affd no opn 231 NY 564; Ann., 74 ALR3d 187, 224-225). Thus, even broadly worded exculpatory clauses, such as the one at issue in these actions, are generally held to encompass only those delays which are reasonably foreseeable, arise from the contractor’s work during performance, or which are mentioned in the contract (Peckham Rd. Co. v State of New York, supra, at p 141).

Although the Appellate Division, and at least one commentator, have interpreted our decision in Kalisch-Jarcho otherwise (see, Reiss, Kalisch-Jarcho’ — Its Effect on the Construction Industry, NYLJ, Apr. 13, 1983, pp 1, 28), nothing we said there changed the established law on this subject. Prior to Kalisch-Jarcho, a contractor could recover for contemplated delays resulting from conduct of the contractee characterized by a number of nebulous labels found in the cases, ranging from intentional acts or acts done in bad faith to those loosely described as "unlawful” or even in terms approaching a simple negligence standard. It was largely to avoid the imprecision of these different labels and the confusion which resulted from their use that we held that the effect of the exculpatory clause could be overcome only if the qualitative level of misconduct by the contractee was the equivalent of an intentional wrong (see, Kalisch-Jarcho, Inc. v City of New York, supra, at p 386, n 7). Thus, we held in Kalisch-Jarcho that the city was entitled to a charge that the contractor could not recover delay damages absent a showing of the city’s willful, fraudulent or grossly negligent conduct. In doing so, we specifically noted that the jury, in response to a special interrogatory, had determined that the delays at issue were contemplated by the parties at the time they entered into the contract (see, id., at p 382). It was only with that fact established that the contractor needed to prove, as the city contended, the deliberate nature of the city’s conduct in causing the delays. We did not consider, let alone abolish, the longstanding exception to the general rule, stated in the several cases cited above, that uncontemplated delays are outside the scope of the exculpatory clause and are therefore actionable (see, id., at pp 385, 386, n 7; see also, Stevenson Corp. v County of Westchester, 113 AD2d 918; Dal Constr. Corp. v City of New York, 108 AD2d 892; Bradley Envtl. Constructors v Village of Sylvan Beach, 98 AD2d 973).

This is evident from the Kalisch-Jarcho record. First, we relied on Peckham Rd. Co. v State of New York (32 AD2d 139, affd no opn 28 NY2d 734, supra), a decision which explicitly set forth the exception that uncontemplated delays are actionable notwithstanding the existence of an exculpatory clause (see, Kalisch-Jarcho, Inc. v City of New York, supra, at p 385, citing to pp 141-142 of Peckham Rd. Co. v State of New York, supra). Second, the city itself recognized in Kalisch-Jarcho that whether or not the delays were contemplated was crucial to the outcome of its case. Thus, it requested that the court charge the jury that if it found that the delays involved were foreseeable, i.e., contemplated (see, Peckham Rd. Co. v State of New York, supra, at p 141), and that it did not act with deliberate intent to cause them, then plaintiff could not recover (see, record on appeal, at A3791). In its brief to this court, the city relied on the Peckham Rd. decision. Asserting that the jury had correctly determined that the delays at issue had been contemplated, it urged that the only issue presented was what standard of fault the contractor was required to prove on the part of the city before it could recover delay damages notwithstanding the exculpatory clause (defendant’s brief on appeal, at 39-42).

Finally, in Gottlieb Contr. v City of New York (58 NY2d 1051, affg on mem at 86 AD2d 588), a case argued and decided with Kalisch-Jarcho, the city urged us to adopt the rule of law they now seek to infer from the court’s Kalisch-Jarcho opinion. It contended there, as it does now, that its no-damage-for-delay clause was broad enough to bar claims for any delays, whether contemplated or not, and that it was so intended (see, city’s brief on appeal, at 31-34). We rejected the city’s arguments in Gottlieb Contr. and affirmed a decision of the Appellate Division which found the rule in Peckham Rd. dispositive and which held that the city was not liable because the delays were contemplated. We affirmed on the Appellate Division memorandum and therefore did not address the city’s argument. Manifestly, however, the clause was not intended to bar all delay damage claims because article 42 of the city’s contracts provides a procedure for filing such claims. Neither article 42 nor the contract generally speaks to delays deliberately caused by the city or alerts the contractor to any qualification on his right to claim damages, and the contractor could well presume from the language that the city intended to recognize a procedure for its assertion of any delay claims provable under existing law.

B. Abandonment and Breach of Contract

In Honeywell, plaintiff contends that the exculpatory clause does not insulate the city from liability because it does not seek delay damages but damages for the city’s abandonment or breach of the contract. The city asserts that this is simply a change in labels and that plaintiff may not avoid the effect of the exculpatory clause by calling its claim something it is not. It contends, and the Appellate Division found, that the claim, by whatever name called, is a claim for delay damages and the city is not liable under the Kalisch-Jarcho standard.

Notwithstanding the city’s contention, however, it has been recognized that in certain limited circumstances the exculpatory clause may be avoided if the contractee causes delays which are "so great or so unreasonable that they may fairly be deemed equivalent to [its] abandonment of the contract” (People ex rel. Wells & Newton Co. v Craig, 232 NY 125, 144, supra; American Bridge Co. v State of New York, 245 App Div 535, 541-542; see also, Brady & Co. v Board of Educ., 222 App Div 504, 505-506). We placed an important limitation on this exception in our decision in Kalisch-Jarcho when we recognized that a broad no-damage-for-delay clause would be meaningless unless it encompassed within its scope a range of unreasonable as well as reasonable delays because any other application would permit the exception to swallow up the general rule (58 NY2d 377, 384, supra, citing Mack v State of New York, 122 Misc 86, 88, affd no opn 211 App Div 825). Thus, to avoid the risk of the exculpatory clause and recover on the ground of abandonment, a contractor must establish that the contractee is responsible for delays which are so unreasonable that they connote a relinquishment of the contract by the contractee with the intention of never resuming it (see, Kalisch-Jarcho, Inc. v City of New York, supra, at p 386, & n 8).

A contractee’s breach of contract is also recognized as an exception to the enforceability of exculpatory clauses but, as with abandonment and for the same reason, the exception is applied to an especially narrow range of circumstances. Because the exculpatory clause is specifically designed to protect the contractee from claims for delay damages resulting from its failure of performance in ordinary, garden variety ways, delay damages may be recovered in a breach of contract action only for the breach of a fundamental, affirmative obligation the agreement expressly imposes on the contractee. Typical of such claims are those in which the contractee has failed in its obligation to obtain title to the work site or make it available to the contractor so that it may commence construction of the agreed upon improvements (see, Bianchi & Co. v State of New York, 28 NY2d 536, affd on opn at 17 AD2d 38, 41-42; Cauldwell-Wingate Co. v State of New York, 276 NY 365, 379-380, supra [Lehman, J., dissenting]; Wilson & English Constr. Co. v New York Cent. R. R. Co., 240 App Div 479, 482-483, supra; see also, Ann., 74 ALR3d 187, 221-222).

C. Inefficiencies During Contract Period

Plaintiffs Catapano and Nab-Tern attempt to distinguish their claims for damages resulting from a delay of the project beyond the scheduled completion date from those for increased costs in labor, materials, and equipment occurring prior to the expiration of the contract period. They place in the first category conduct of the city which prevented them from going ahead with the job, the costs of an idle workforce, for example, and they agree that the exculpatory clause could bar such claims. The second category includes conduct of the city during the contract period which made completion more expensive because it made performance of the contract inefficient and disorganized. Plaintiffs assert they are entitled to damages for costs resulting from the latter type of conduct notwithstanding the exculpatory clause (see, Green Plumbing & Heating Co. v Turner Constr. Co., 742 F2d 965, cert denied — US —, 105 S Ct 2328; Paul Hardeman, Inc. v United States, 406 F2d 1357). All delay damage claims seek compensation for increased costs, however, whether the costs result because it takes longer to complete the project or because overtime or additional costs are expended in an effort to complete the work on time. It is of no consequence that the obstruction, whatever its cause, occurs during the term of the contract or afterwards or whether it disrupts the contractor’s anticipated manner of performance or extends his time for completion. The claims are claims for delay and the exculpatory clause was drafted and included in the contract to bar them.

We turn now to the application of these rules to the facts presented in each appeal.

Ill

A. Corinno Civetta

Plaintiff cites three causes for its damages: the city’s moratorium on street openings, three subsurface conditions that were not disclosed on the city’s plans, and delay resulting from a dispute with the city over the type of joint pipe to be used on the project.

Prior to the execution of the contract, the city had declared a moratorium on street openings throughout the city. The damages plaintiff claims on this count are costs resulting from the city’s refusal to authorize it to make additional expenditures for overtime work so that it could complete the entire project before the moratorium took effect. Plaintiff claims that because overtime was not authorized it could not complete the project until winter, after the moratorium was lifted, and that it sustained substantial damages as a result. However, addendum No. 2 to the General Conditions of the agreement specifically warned plaintiff that no work would be permitted during the moratorium. The possible delay arising from it was clearly contemplated by the parties and the city’s refusal to authorize overtime raises no question of gross negligence, bad faith or intentional misconduct on the part of the city.

The second basis for plaintiff’s claim, unanticipated subsurface obstructions, clearly addresses delays contemplated by the parties, for by the terms of the contract plaintiff expressly assumed responsibility for any "loss or damages arising out of * * * any unforeseen obstructions or difficulties which may be encountered” during performance of the contract, including damages "caused or occasioned by his relying upon such records, reports or information furnished by any City Department”. That being so, it cannot recover damages for delays it suffered as a result of encountering unknown subsurface conditions (see, Conduit & Found. Corp. v State of New York, 52 NY2d 1064,1066).

Furthermore, plaintiff cannot succeed on this claim because it was responsible for a delay of several months that prevented construction quite independently of any delay resulting from the subsurface conditions. That delay involved an application by plaintiff to change the pipe specifications. Although the contract required mechanical joint pipe, in November 1979 plaintiff attempted to substitute Tyton joint pipe without indicating to the city that the request was for a substitution of materials which differed from the contract requirements. By the time the city learned of the attempted substitution and rejected it, a strike at the plant of plaintiff’s supplier caused further delay in obtaining the joint pipe. By the time proper pipe was delivered, the city had authorized work to proceed on the subsurface conditions.

Accordingly, plaintiff failed to establish the existence of any issue of fact not excused by the no-damage-for-delay clause and summary judgment dismissing the third cause of action for delay damages was properly granted by the Appellate Division.

B. Honeywell

Honeywell’s claims are predicated on the city’s alleged failure to remedy two problems at the Bowery Bay and Tallman’s Island sites two years after the scheduled completion date for all construction work. By the terms of the contract Honeywell undertook to install various sensing devices to measure flow, pressure, and temperature in the city’s four sewage treatment plants. These signals were then transmitted to data loggers, or local computers, and then to a central computer installed at Ward’s Island. Before the signals were transmitted to the computers, they went through central panel boards. Honeywell’s contractual responsibility included supervising the work generally and installation of the instrumentation and the data logging equipment in particular. The wiring to transmit the signals was undertaken by separate electrical contractors at each site and the control panel boards were supplied by another contractor, Fisher & Porter, Inc.

Honeywell's claims are based on (1) the omission of wiring conduits in the city’s design plans and specifications for the Bowery Bay and Tallman’s Island plants and (2) the incompatibility of control panel boards supplied by Fisher & Porter, Inc. with Honeywell’s instrumentation. It sought damages in causes of action based on abandonment, breach of contract and delays caused by the city’s gross negligence.

Insofar as the delay caused by the omitted wiring is concerned, plaintiff concedes that the city did prepare design changes and issue change orders to resolve the problem but charges that despite these extensive change orders all the necessary wiring to connect its equipment was still not in place at Bowery Bay and Tallman’s Island when it left the jobsites in February 1979. It attempted to place responsibility for this problem entirely on the city. The city did try to expedite the wiring installation, however, and Honeywell acknowledged as much in correspondence in which it specifically recognized that the delays were largely attributable to the electrical contractors, not the city, that the city was trying to correct the problem and in which it stated that Honeywell intended to hold the electrical contractors responsible for its increased costs. This was consistent with the provisions of article 12 of the contract which provided: "Contractor shall coordinate the work to be done hereunder with the work of * * * other contractors * * * engaged in performing other work on this project” and that if a contractor sustains damage "through any act or omission of any other contractor * * * the Contractor shall have no claim against the City for such damage, but shall have a right to recover such damage from the other contractor”. Notwithstanding plaintiff’s claims, it is apparent that the efforts exerted by it and by the city to speed up the electrical contractors were successful because by January 1978 plaintiff itself estimated that the necessary wiring at the two plants would be completed "in the near future”.

Considering the statements in plaintiff’s internal correspondence that the city was not ignoring the omitted wiring problem but rather was taking steps to remedy it, plaintiff’s notification to the electrical contractors that it held them responsible for the delay and the recognition in article 12 of possible delays in coordinating work of the various contractors, plaintiff has failed to raise any factual issue that the problem was not contemplated by the parties or that the city’s conduct could be found willful, malicious, in bad faith or grossly negligent. Moreover, viewing the evidence in the light most favorable to plaintiff, as we must, there is no evidence to support plaintiff’s claim that the city’s conduct was so unreasonable that it connoted an abandonment of the contract and Honeywell has failed to indicate, let alone establish, what fundamental, affirmative obligation expressed in the contract the city allegedly failed to perform which would support a cause of action for breach of contract.

With respect to the claimed incompatibility between plaintiffs data logger and the Fisher & Porter panel boards at Tallman’s Island, plaintiff contends that the problem arose upon examination of working drawings in 1975, it still existed in 1979, and that the city’s failure to resolve the incompatibility during this four-year period is prima facie evidence of abandonment or gross negligence. Although plaintiff suggests that this problem was not contemplated by the parties and therefore that it need not prove gross negligence or abandonment to avoid the exculpatory clause, the contract unambiguously proves otherwise. Indicative is a clause in the General Conditions which specifies that all contractors will exchange working drawings, examine them and report "any interferences or objections” to the project engineer "in order to avoid delays in [the] progress of construction”. Thus, the obligation rested on plaintiff to coordinate its work with other contractors generally and also to exchange drawings with Fisher & Porter and pursue and resolve promptly any incompatibility problems. One of the means of resolving these problems was regular monthly meetings with all the contractors. The evidence indicates that Honeywell’s failure to promptly exchange drawings and attend such meetings was a principal cause of the delays.

The city’s activities in attempting to complete this project as soon as possible despite numerous problems and delays and its acceptance of plaintiff’s work at three out of the five sites of this interrelated project refutes any claim of abandonment based upon the panel boards. Nor has plaintiff pointed to any evidence in the record which would support a finding that the city was grossly negligent in failing to remedy the incompatibility problem at Tallman’s Island. There was uncontradicted testimony at trial that there were two incompatibility problems between plaintiffs equipment and the Fisher & Porter panel boards. The first surfaced in 1975 and was resolved within a few months. The second arose in late 1978 or early 1979, just prior to plaintiffs termination of work in February 1979. Plaintiff cannot predicate a claim of gross negligence on the first delay and the fact that a problem still existed with the second at the time of trial in 1983 is irrelevant to plaintiffs claim that it was entitled to treat the contract as abandoned in February 1979 and terminate its performance at that time. As with the wiring, the contract provisions clearly contemplated that incompatibility could present problems and inasmuch as the city’s conduct was not willful or grossly negligent, the claim for delay damages is barred.

In sum, we view the case, as did the Appellate Division, as one seeking damages for delays that were, as a matter of law, contemplated by the parties and plaintiffs evidence at trial failed to establish a prima facie case of the city’s liability. Accordingly, the Appellate Division properly reversed the judgment and dismissed plaintiffs complaint.

C. Catapano and Nab-Tern

The city has failed to make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact in these actions (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Indeed, its moving papers in both actions, which contain little more than conclusory affirmations of counsel reciting portions of our decision in Kalisch-Jarcho, Inc. v City of New York (58 NY2d 377, supra) with a copy of the no-damage-for-delay clause from the contract annexed, amounted to no more than motions to dismiss for failure to plead deliberate intent, bad faith or gross misconduct. Because the city’s moving papers contained no proof that the delays in question were contemplated, plaintiffs were not required to plead the Kalisch factors in order to state a cause of action for delay damages. In Catapano the order granting summary judgment should be reversed, therefore, and defendant’s motion for summary judgment denied, without prejudice to any further motion the city may be advised to make at Special Term on additional papers. In addition, the court did not abuse its discretion as a matter of law in denying defendant’s motion to dismiss the complaint pursuant to CPLR 3126 for failure to answer interrogatories insofar as no showing of prejudice to the city from the delay has been made. Similarly, the Appellate Division should not have granted defendant’s motion for summary judgment in Nab-Tern, and the case should be remitted to that court for the exercise of its discretion on plaintiffs cross motion to amend its complaint.

Accordingly, in Corinno Civetta Constr. Corp. v City of New York, the order of the Appellate Division should be affirmed, with costs; in Catapano Co. v City of New York, the order of the Appellate Division should be reversed, with costs, and defendant’s motion for summary judugment denied; in Honeywell, Inc. v City of New York, the order of the Appellate Division should be affirmed, with costs, and defendant’s cross appeal dismissed upon the ground that the Appellate Division order, while designated a reversal, is, in fact, a modification by which defendant is not aggrieved (see, CPLR former 5601 [a] [iii]); and in Nab-Tern Constructors v City of New York, the order of the Appellate Division should be reversed, with costs, the order of Special Term reinstated, and the case remitted to the Appellate Division for the determination of issues not reached by that court with respect to plaintiffs cross motion to amend the complaint. Question certified answered in the negative.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander, Titone and Hancock, Jr., concur.

In Corinno Civetta Constr. Corp. v City of New York: Order affirmed, with costs.

In Catapano Co. v City of New York: Order reversed, with costs, and defendant’s motion for summary judgment denied.

In Honeywell, Inc. v City of New York: On plaintiffs appeal, order affirmed, with costs. Defendant’s cross appeal dismissed.

In Nab Tern Constructors v City of New York: Order reversed, with costs, order of Supreme Court, New York County, reinstated, and case remitted to the Appellate Division, First Department, for determination of issues not reached by that court with respect to plaintiff’s cross motion to amend the complaint. Question certified answered in the negative.

      . That clause, article 13 of the contracts involved in these actions, is identical to the clause at issue in Kalisch-Jarcho. It provides: "The Contractor agrees to make no claim for damages for delay in the performance of this contract occasioned by any act or omission to act of the City or any of its representatives, and agrees that any such claim shall be fully compensated for by an extension of time to complete performance of the work as provided herein.”

      . The city had accepted plaintiff’s work at the Jamaica, Rockaway and Ward’s Island sites by December 1978 and in August 1979 plaintiff’s in-house counsel admitted in an interoffice memorandum that "Bowery Bay was and is in a state which would allow Honeywell to come in and complete its work”. That same month electrical contractors at Tallman’s Island completed installation of the omitted wiring and were awaiting plaintiff’s performance of its contractual duty to supervise connection of the wiring to its instrumentation. Unfortunately, plaintiff had walked off the job six months earlier. That most of these wires remained unconnected in May 1983, although only inches away from the termination point, does not establish that the city abandoned the contract but rather indicates that plaintiff failed in its contractual obligation to supervise this final step of connecting the wiring which was essential to the successful completion of the contract.

        . [4] The city has taken a cross appeal from that portion of the resettled order of the Appellate Division which purports to "affirm” the postverdict order dismissing its counterclaims. The Appellate Division order, although denominated a reversal of Supreme Court’s judgment and an affirmance of its order, effects a modification which does not aggrieve the city. Accordingly, the city’s cross appeal should be dismissed (see, CPLR former 5601 [a] [iii]). In view of our disposition of the case, it is not necessary for us to consider the city’s claim, well documented in the record, that plaintiff deliberately attempted to frustrate completion of the project because it had underbid the job and was losing money.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v David B. Ross, Jr., Appellant.
    Decided May 8, 1986

      APPEARANCES OF COUNSEL

      Natasha H. Rose for appellant.

      Patrick Henry, District Attorney (Ronald E. Lipetz of counsel), for respondent.
   OPINION OF THE COURT

Simons, J.

Because Justice Court erroneously denied defendant his statutory right to the assistance of either retained or assigned counsel on the misdemeanor charge (see, CPL 170.10), his conviction of driving with a revoked or suspended license (Vehicle and Traffic Law § 511 [1]) must be reversed.

The case arises from the following facts. Early in the morning of February 16, 1984, Riverhead police officers began an investigation of a Buick automobile parked at a Getty gas station. Vehicles were not usually parked overnight at this particular station, so the officers ran a computer check on the license plates and VIN number. The check revealed that the plates were registered to a different vehicle, and that the Buick was registered to a person other than the owner of the plates. Shortly after this information was obtained, defendant approached the gas station. When questioned by the police, defendant responded that he had come to get his car, which he had parked at the gas station after it broke down. Defendant was thereupon arrested for driving an unregistered vehicle, and was taken to police headquarters. He was subsequently charged with a misdemeanor count of driving with a revoked or suspended license (Vehicle and Traffic Law § 511 [l]), and with four traffic infractions. The Legal Aid Society was initially assigned as defendant’s counsel but, in a letter to the court dated March 26, 1984, it asked to be relieved and that counsel be assigned pursuant to County Law article 18-B because the agency was currently representing defendant’s codefendant in a pending unrelated matter. The Town Justice denied the request for assignment of substitute counsel. Defendant pleaded not guilty on April 2, 1984 and the case was set over for trial on April 16, 1984. When the case was called on April 16, defendant told the Town Justice that he was not prepared to proceed because he was still attempting to raise money to retain a lawyer. He indicated that he did not want to plead guilty, but he did not know how to handle his defense. The following exchange then ensued:

"the court: That’s what you were told, that you either defend yourself or plead guilty to them, that’s exactly what you were told. I said, I had no intention of sentencing you to jail on these charges and therefore I was not granting you Legal Aid.

"mr. ross: This is nonsense, this is crazy. You call this a court of law?

"the court: What do you mean by that? You were not entitled to a free attorney, on Vehicle and Traffic charges, where I have no intention of sending you to jail.

"mr. ross: I’m being charged with a misdemeanor even though it’s Vehicle and Traffic it’s still a misdemeanor, I can’t afford an attorney. I’m in a predicament either I plead guilty or I’m going to be found guilty so, either way I loose [sic] so, let’s see what I can do. I’m ready to go to trial.”

Later, after defendant’s cross-examination of a police officer concerning the legality of the searches that elicited the YIN number and the certificate of title, defendant asked "Is there any way I can postpone this to get a lawyer[?] I don’t think I can represent myself good enough.” The Justice denied the request.

Defendant was convicted of all five counts. He was fined $100 on the misdemeanor conviction for driving while his license was suspended or revoked. He was also fined for the infractions of driving an uninsured vehicle and for improper plates, and he was given a conditional discharge on the other two counts. After the conviction was rendered, defendant asked the Justice whether he had a right to appeal the decision, which lead to the following colloquy:

"the court: Yes, you do. You have thirty days to appeal my decision.

"mr. ross: How do I go about that?

"the court: Check it out, you’ve got plenty of law books to read in the county jail.”

On appeal, the Appellate Term affirmed the conviction and the matter is before us by leave of the Chief Judge.

The common law and the statutory law of this State impose upon Trial Judges the duty to scrupulously safeguard the right of all defendants to the effective assistance of counsel at every stage of a criminal proceeding. Where a defendant who is charged with a felony or misdemeanor is financially unable to obtain counsel, the court must assign counsel if the defendant so requests. This statutory right is codified at CPL 170.10, which provides, in pertinent part:

"3. The defendant has the right to the aid of counsel at the arraignment and at every subsequent stage of the action. If he appears upon such arraignment without counsel, he has the following rights:

"(a) To an adjournment for the purpose of obtaining counsel; and

"(b) To communicate, free of charge, by letter or by telephone, for the purposes of obtaining counsel and informing a relative or friend that he has been charged with an offense; and

"(c) To have counsel assigned by the court if he is financially unable to obtain the same; except that this paragraph does not apply where the accusatory instrument charges a traffic infraction or infractions only.

"4. Except as provided in subdivision five, the court must inform the defendant:

"(a) Of his rights as prescribed in subdivision three; and the court must not only accord him opportunity to exercise such rights but must itself take such affirmative action as is necessary to effectuate them”. (Emphasis added.)

GPL 170.10 (6) further mandates that the trial court may allow a defendant in a felony or misdemeanor case to proceed pro se only when the statute’s prerequisites are met. Thus, it provides: "6. If a defendant charged with a traffic infraction or infractions only desires to proceed without the aid of counsel, the court must permit him to do so. In all other cases, the court must permit the defendant to proceed without the aid of counsel if it is satisfied that he made such decision with knowledge of the significance thereof, but if it is not so satisfied it may not proceed until the defendant is provided with counsel, either of his own choosing or by assignment. Regardless of the kind or nature of the charges, a defendant who proceeds at the arraignment without counsel does not waive his right to counsel, and the court must inform him that he continues to have such right as well as all the rights specified in subdivision three which are necessary to effectuate it, and that he may exercise such rights at any stage of the action.”

Although we have had little occasion to construe these provisions of the Criminal Procedure Law (see, People v Farinaro, 36 NY2d 283, 285 [there is no right to assignment of counsel on appeal of traffic infractions]), an indigent defendant’s right to assigned counsel, except in traffic infraction cases, has long been recognized, both in New York common law and the now-superseded Code of Criminal Procedure (People v Letterio, 16 NY2d 307, 310-311). Indeed, in an opinion 20 years ago we quoted an 1875 Buffalo Superior Court decision which stated that " '[t]he right and duty of our courts to assign counsel for the defense of destitute persons, indicted for crime, has been, by long and uniform practice, as firmly incorporated into the law of the State, as if it were made imperative by express enactment’ ” (People v Witenski, 15 NY2d 392, 397 [quoting People ex rel. Saunders v Board of Supervisors, 1 Sheld 517, 524]). The statute now requires that a defendant’s request for assistance of counsel, or a reasonable adjournment to obtain counsel, must be honored. It should not be met with bullying tactics by the court or obvious expressions of its impatience, resentment or anger. Once this defendant indicated to the Town Justice that he was reluctant to proceed pro se, he was entitled to the court’s "affirmative action” to effectuate his right to counsel on the misdemeanor charge (see, CPL 170.10 [4]). At the very least, the court should have granted defendant an adjournment so that his eligibility for assigned counsel pursuant to County Law article 18-B could be determined.

The People raise two arguments to support their contention that, on the facts of this case, defendant was not entitled to assigned counsel, or an adjournment. First, they claim that CPL 170.10 should be read in light of recent Federal constitutional law holding that a court must appoint assigned counsel for indigent defendants only when the Trial Judge determines that a sentence of imprisonment will be imposed (relying on Argersinger v Hamlin, 407 US 25; Scott v Illinois, 440 US 367; Empy v State, 571 SW2d 526 [Tex Crim App] [construing Texas statute]). Defendant is asserting his statutory right to counsel, however, not a constitutional right and the Criminal Procedure Law clearly provides broad statutory protection to all defendants accused of felonies and misdemeanors without reference to the potential sentence attached to the crime.

Next, the People argue that defendant was not entitled to an adjournment or to assigned counsel because he had a reasonable opportunity to obtain counsel before the trial date (relying on People v Arroyave, 49 NY2d 264; People v Crown, 51 AD2d 588; People v Reynolds, 39 AD2d 812 [all involving requests to replace present counsel]) and his request for a continuance was a delaying tactic. The trial transcript indicates, however, that the Judge ordered the trial to proceed because he believed an 18-B attorney need not be assigned when there was no threat of imprisonment. The record does not support an inference that defendant unreasonably sought to delay the trial, and the Judge made no determination that he, in fact, did.

The Town Justice’s refusal to make an 18-B referral, or to adjourn the proceeding while defendant obtained private counsel clearly violated the prerequisites that the Legislature intended would preserve a defendant’s right to counsel at all stages of a criminal proceeding.

We have considered the remaining issues presented by defendant and find them without merit.

Accordingly, the order of the Appellate Term should be modified by reversing defendant’s conviction for violation of Vehicle and Traffic Law § 511 (1) and ordering a new trial on the misdemeanor charge, and as so modified, the order should be affirmed.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander, Titone and Hancock, Jr., concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified. etc.

      . This offense was recently recodified as a traffic infraction (L 1985, ch 756).

      . Defendant was detained at the Suffolk County Jail at this time on pending unrelated charges.


text:
    Philip Sawyer, Respondent, v Dreis & Krump Manufacturing Co., Appellant and Third-Party Plaintiff-Appellant. Cambridge Filter Corporation, Third-Party Defendant-Appellant.
    Argued March 20, 1986;
    decided May 8, 1986

      POINTS OF COUNSEL

      Thomas F. Gleason and Salvatore D. Ferlazzo for appellant and third-party plaintiff-appellant.
    I. It was improper in the absence of credible medical proof, for the trial court to charge the jury in a manner lessening plaintiff’s burden of proof based on a claimed loss of memory. (Voss v Black & Decker Mfg. Co., 59 NY2d 102; Codling v Paglia, 32 NY2d 330; Campo v Scofield, 301 NY 468; Schechter v Klanfer, 28 NY2d 228; Vance Metal Fabricators v Widel & Son, 50 AD2d 1063; Costa v Hicks, 98 AD2d 137; Jennings v State of New York, 55 AD2d 745; Licari v Elliott, 57 NY2d 230.) II. The trial court improperly permitted the introduction by plaintiff of complaints against defendant which were instituted subsequent to the accident in the instant case. (Cover v Cohen, 61 NY2d 261.)

      Nancy L. Pontius for third-party defendant-appellant.
    I. The court below erred in failing to reverse the amended judgment below based upon the trial court’s failure to properly charge the jury on the ANSI standards. (Trimarco v Klein, 56 NY2d 98; Shannahan v Empire Eng. Corp., 204 NY 543; Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55.) II. The court below erred in failing to reverse the amended judgment below based upon the trial court’s treatment of plaintiff’s claim of amnesia. (Schechter v Klanfer, 28 NY2d 228; Noseworthy v City of New York, 298 NY 76; Jennings v State of New York, 55 AD2d 745; Costa v Hicks, 98 AD2d 137; Horn v State of New York, 31 AD2d 364.)

      Irwin Birnbaum and Carrie Lynn Richardson for respondent.
    I. The trial court’s refusal to charge the jury regarding the ANSI standards was harmless error. (Trimarco v Klein, 56 NY2d 98; Shannahan v Empire Eng. Corp., 204 NY 543; The T. J. Hooper, 60 F2d 737, cert denied sub nom. Eastern Transp. Co. v Northern Barge Corp., 287 US 662; Jiminez v Dreis & Krump Mfg. Co., 736 F2d 51.) II. The trial court properly charged the jury regarding amnesia, and even if the amnesia charge was improper, it was harmless error. (Peterson v Ballantine & Sons, 205 NY 29; Jarrett v Madifari, 67 AD2d 396; Schechter v Klanfer, 28 NY2d 228; Wank v Ambrosino, 307 NY 321.) III. The trial court properly allowed evidence of subsequent lawsuits against Dreis & Krump. (Howard v McDonough, 77 NY 592; Brown v Western Union Tel. Co., 26 AD2d 316; People v Wise, 46 NY2d 321; Larkin v Nassau Elec. R. R. Co., 205 NY 267.)
   OPINION OF THE COURT

Simons, J.

Plaintiff brought this action against the manufacturer of a press brake used to shape sheet metal, defendant Dreis & Krump Manufacturing Company, seeking to recover for injuries he sustained when his hand was crushed in it. Defendant in turn impleaded plaintiff’s employer, third-party defendant Cambridge Filter Corporation. Although plaintiff cannot remember the events just prior to the accident and there were no witnesses, he contended at trial that he was injured when he reached under the ram reflexively to secure a piece of slipping sheet metal on the bed of the press. He claimed that as he did so he accidentally stepped on the foot pedal and activated the ram causing it to descend and crush his hand. Defendant contended plaintiff was injured while he was operating the press when his hands, which were holding the metal as the operation requires, were pulled under the ram because plaintiff had not properly secured the metal on the bed of the press. The case was submitted to the jury on theories of negligence and products liability. Under those theories it was plaintiff’s burden to establish that the negligent failure of defendant to warn him of the dangers in using the machine caused him injury or that the defendant improperly designed the machine and that his injury was not the result of his misuse of it (Voss v Black & Decker Mfg., 59 NY2d 102, 106-107; Codling v Paglia, 32 NY2d 330, 342). The critical question for the jury to determine was what caused the metal to slip, defendant’s failure to properly design the machine or warn users of its dangers or plaintiff’s failure to properly set it up. Answering that question, the jury found no fault on plaintiff’s part and awarded him a substantial verdict, apportioned equally between defendant and the third-party defendant. The Appellate Division affirmed the judgment and we granted leave to appeal.

The principal issue before us is whether the trial court committed error in submitting the question of plaintiff’s amnesia to the jury in the absence of expert testimony supporting his claim or causally relating the amnesia to the accident (see, Schechter v Klanfer, 28 NY2d 228), and in permitting plaintiff’s engineering expert to testify how the accident happened. Other issues concern plaintiff’s cross-examination of defendant’s witnesses about other accidents with the press and the court’s failure to charge the weight to be accorded industry safety standards. We find errors with respect to all these issues and therefore reverse.

I

The press brake is a mechanical device which bends sheet metal used in the manufacture of Cambridge’s filtration products. When the operator of the machine depresses a foot pedal, located 10 inches off the floor, power is transferred to a ram which then descends 14 inches to the bed of the machine. Metal placed on the bed is pressed to the desired shape by means of various dies inserted in the ram and the bed.

When properly done, the set-up procedure requires that dies be inserted in the ram and the bed first. The ram is then inched to within one-quarter inch of the bed, a marked scrap piece is inserted and the ram is lowered to grab the scrap piece on the mark. L-shaped stops located at the back of the bed are then set and locked in place to ensure that the metal is held in the proper position when the machine forces the dies together to bend it. During bending the operator must use both hands to hold the metal against the stops. When the stops are properly set, the metal pushes against them and remains in place while the machine is in operation.

Plaintiff had worked on press brakes for five years. At trial, he testified that he could not remember how the accident happened but he did remember going around to the back of the machine and locking the stops before using it. He said that his normal set-up practice was to scribe a piece of scrap metal, set it on the bed of the machine and then inch the ram down until it just touched the scrap metal. When the ram engaged the metal at the scribe line, he stopped the ram and went around to the back of the machine and set the stops by butting them up against the metal and tightening them down with a wrench. However, at an examination before trial plaintiff testified that prior to the accident he had set the stops without a piece of scrap metal in the machine. Defendants thus contended that the accident was a result of the plaintiff’s negligent set-up procedure because he set the stops by eye without measuring them with a scrap piece.

Plaintiff’s foreman testified that he did not see the accident but that he heard metal fall and after the accident he saw a piece of metal hanging out the back of the press. The foreman raised the ram and removed plaintiff’s hand. Plaintiff was conscious but quiet, and said to him "I finally done it.”

Plaintiff called an engineer as an expert witness to testify about defects in the design of the machine because of the absence of guards and about defendant’s failure to adequately warn users of the dangers of the machine. Over objection, he also speculated that the accident happened when plaintiff accidentally hit the foot pedal while trying to retrieve the metal as it fell off the bed.

II

A plaintiff who suffers amnesia as the result of a defendant’s acts is not held to as high a degree of proof in establishing his right to recover for injury as is a plaintiff who can describe the events (Schechter v Klanfer, 28 NY2d 228, supra). The rule is intended to avoid unfairness to a plaintiff who has suffered amnesia as a result of the accident and who, because he cannot testify to the event, might otherwise be prejudiced by an instruction to the jury that it may draw the strongest inferences against a party who fails to testify or who withholds evidence (see, Noce v Kaufman, 2 NY2d 347, 353; Matter of Randel, 158 NY 216, 219). It is also based, at least in part, on the belief that since the plaintiff is not able to testify, it is unfair to permit defendant to stand mute and defeat the claim (see, Noseworthy v City of New York, 298 NY 76). The rule does not entitle the jury to presume plaintiff exercised due care at the time of the accident nor does it shift the burden of proof: plaintiff must still establish a prima facie case. It merely describes a method or approach to weighing evidence and permits the jury greater latitude in drawing inferences favorable to plaintiff (Schechter v Klanfer, supra; Townley v Bagby Transfer Co., 19 AD2d 757; Cary v Short, 16 AD2d 309; and cf. Amnesiac as Entitled to Presumption of Due Care, Ann., 88 ALR3d 622). A plaintiff entitled to an amnesia charge may prevail on a lighter burden of persuasion but he must make some showing of defendant’s fault (see, Jarrett v Madifari, 67 AD2d 396, 404) and his burden is not satisfied if the inferences are equally balanced (see, Cole v Swagler, 308 NY 325). In New York, contrasted with some other States, the rule may come into play even if there are eyewitnesses (Schechter v Klanfer, supra). Because loss of memory is easily feigned, before plaintiff may receive the benefit of the rule, he must prove by clear and convincing evidence that defendant’s acts were a substantial factor in causing his condition (Schechter v Klanfer, supra; see, PJI 1:62, 1:64 & 1986 Cum Supp).

All of this is familiar law. The new issue before us is whether plaintiff must introduce expert evidence to satisfy that burden. In earlier cases involving loss of memory, such evidence was presented and thus the courts had no occasion to decide whether it was required to entitle plaintiff to the benefit of the instruction (see, e.g., Schechter v Klanfer, supra; Townley v Bagby Transfer Co., supra; Cary v Short, supra). In this case, plaintiff relied solely upon his own statement that he had no memory of the event and of the circumstances surrounding it. He contends that evidence of the nature of the trauma, his lack of outcry at the time and other acts suggestive of a mind not comprehending or understanding the gravity of the accident were enough to have the jury pass on the issue. We hold it was not.

Amnesia, like most medical conditions, is beyond the understanding of laymen and expert evidence on the matter is not only helpful, it is required if plaintiff is to prove the condition by clear and convincing evidence (see, Koehler v Schwartz, 48 NY2d 807; Benson v Dean, 232 NY 52; Keane v Sloan-Kettering Inst, for Cancer Research, 96 AD2d 505; cf. Hammer v Rosen, 7 NY2d 376; Shaw v Tague, 257 NY 193; Rivera v State of New York, 115 Misc 2d 523). It is undoubtedly true that trauma may cause amnesia and the gravity of the trauma and the nature of the accident are all factors the jury is entitled to consider when deciding whether to apply the rule. But without the aid of experts, a jury of laymen is not capable of evaluating the effects of a trauma or the symptoms which may verify the loss of memory and indicate that it is real and not feigned. In the absence of expert evidence establishing a loss of memory and its causal relationship to defendant’s fault, the jury may not consider the question or apply a lesser degree of proof in evaluating plaintiff’s claim (see, Costa v Hicks, 98 AD2d 137, 146; Jennings v State of New York, 55 AD2d 745).

Plaintiff contends, and the Appellate Division found, that the error was harmless because the two expert witnesses produced by the parties agreed on causation. The testimony indicates a sharp dispute on the issue, however. Defendant contended that plaintiff failed to secure the stops and lock them into place and that his failure to do so permitted the sheet metal to slip off the back of the bed after he activated the ram. It argues that it was plaintiff’s failure to secure the metal properly that pulled his hand into the press. Plaintiff’s expert was permitted to testify, over objection, that the machine was properly set up but that the metal slipped and plaintiff reached for it reflexively, stepping on the pedal accidentally when he did so. Thus, contrary to plaintiff’s claim, not only did the expert witnesses disagree on causation, but the opinion of plaintiff’s expert was based upon facts which were not established by the evidence and it should not have been considered by the jury (see, Tarlowe v Metropolitan Ski Slopes, 28 NY2d 410; Matter of Aetna Cas. & Sur. Co. v Barile, 86 AD2d 362; Horn v State of New York, 31 AD2d 364).

Plaintiff also contends that the judgment may stand because the jury specifically found in his favor on the products liability claim and the amnesia charge related only to the negligence cause of action. The court did not limit the amnesia charge to the negligence cause of action, but more importantly, it was plaintiff’s burden to prove how the accident happened in both causes of action. Specifically, he was required to prove in the products liability claim that the machine was being used at the time " ‘for the purpose and in the manner normally intended’ ” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106, supra; Bolm v Triumph Corp., 71 AD2d 429, 433). His obligation to do so was substantially lessened by the court’s erroneous charge and by the speculation of his expert.

Ill

Appellants cite two other errors.

During the cross-examination of one of defendant’s officers, plaintiffs counsel asked the witness if, before plaintiffs accident, he had heard of other accidents with this press. The witness denied knowledge of any accidents at first but after being shown documents to refresh his recollection he admitted that he had. The questions about prior accidents were originally permitted over objection to establish that the condition was dangerous and that defendant had notice of it before plaintiffs injury. That evidence could have been admissible for such purposes if plaintiff established that the prior accidents were similar to his (see, Hyde v County of Rensselaer, 51 NY2d 927; cf. Flansburg v Town of Elbridge, 205 NY 423, 430-431; Vega v Jacobs, 84 AD2d 813; Price v Alfieri Concrete, 70 AD2d 932). He failed to do so, but nevertheless the court permitted the questioning to continue and eventually, over objection, it allowed counsel to inquire about accidents subsequent to plaintiffs. It later changed its ruling and allowed the line of questioning solely for purposes of credibility. The questions were not proper, however, and they could not be made so by the use of documents to impeach the credibility of defendant’s witness or refresh his recollection on matters which were not properly before the jury in the first place.

The other point concerns the jury’s consideration of the so-called ANSI standards. Before the accident defendant had delivered to the third-party defendant a publication of the American National Standards Institute, Inc., entitled the Institute’s "Safety Requirements for the Construction, Care and Use of Power Press Brakes.” Defendant’s counsel introduced this publication into evidence at the trial and questioned several witnesses extensively about matters contained in it, contending that they established the custom and usage in the industry and placed certain responsibilities on the employer to provide guards to the machine and safety tools to be used by the employee during operation of the press brake. Counsel for the third-party defendant requested the court, both at the conclusion of the charge and again after the jury requested delivery of the publication for its examination in the jury room, to charge that the requirements set forth in the ANSI booklet were only some evidence of negligence. The court denied the request and failed to give any instruction at all on the subject.

The ANSI requirements were properly admitted and could be considered by the jury as some evidence of negligence if it first found that the standards set forth in the booklet represented the general custom or usage in the industry. But even if the jury so found, the standards were not conclusive on the subject of negligence and the jury should have been instructed that they were not conclusive but were to be considered with all the other facts and circumstances of the case in determining whether third-party defendant’s conduct was reasonable (see, Trimarco v Klein, 56 NY2d 98; Shannahan v Empire Eng. Corp., 204 NY 543; see also, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522-523; 1 NY PJI2d 142-143; Richardson, Evidence § 187, at 158-161 [10th ed]).

Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial granted.

Judges Meyer, Kaye, Alexander and Titone concur; Chief Judge Wachtler and Judge Hancock, Jr., taking no part.

Order reversed, etc.


author: Alexander, J.

text:
    The People of the State of New York, Respondent, v Joseph Burger, Appellant.
    Argued March 19, 1986;
    decided May 8, 1986

      POINTS OF COUNSEL

      Stephen R. Mahler for appellant.
    I. New York City Charter § 436 and Vehicle and Traffic Law § 415-a (5) (a) are facially unconstitutional and, regardless, were implemented in this case in a manner violative of appellant’s constitutional rights. (People v Cusumano, 108 AD2d 752; People v Pace, 101 AD2d 336, 65 NY2d 684; Bionic Auto Parts & Sales v Fahner, 721 F2d 1072; Flacke v Onondaga Landfill Sys., 127 Misc 2d 984; Donovan v Dewey, 452 US 594; Matter of Glenwood TV v Ratner, 65 NY2d 642; People v Rizzo, 40 NY2d 425; People v Sciacca, 45 NY2d 122; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647; United States v Chicago R. R. Co., 282 US 311.) II. Assuming, arguendo, that the police lawfully entered the junkyard in the first instance, they nevertheless had no legal justification for seizing any property found therein without first securing a search warrant. (People v Lee, 58 NY2d 771; People v Langen, 60 NY2d 170; People v Gokey, 60 NY2d 309; People v Smith, 59 NY2d 454; People v Arnau, 58 NY2d 27.)

      Elizabeth Holtzman, District Attorney (Leonard Joblove and Barbara D. Underwood of counsel), for respondent.
    I. The administrative inspection of defendant’s junkyard was constitutionally permissible. (Donovan v Dewey, 452 US 594; People v Rizzo, 40 NY2d 425; United States v Biswell, 406 US 311; Marshall v Barlow’s, Inc., 436 US 307; Matter of Glenwood TV v Ratner, 103 AD2d 322, 65 NY2d 642; Broadrick v Oklahoma, 413 US 601; People v Drayton, 39 NY2d 580; People v Merolla, 9 NY2d 62, 365 US 872; O’Kane v State of New York, 283 NY 439; Peterman v Coleman, 764 F2d 1416.) II. The warrantless seizure of the stolen property was necessary to avoid risking its disappearance. (People v Ciaccio, 45 NY2d 626; People v Farenga, 42 NY2d 1092; Illinois v Andreas, 463 US 765; People v Brosnan, 32 NY2d 254; Chambers v Maroney, 399 US 42; People v Basilicato, 64 NY2d 103; Texas v Brown, 460 US 730; People v Pace, 65 NY2d 684; People v Spinelli, 35 NY2d 77.)
   OPINION OF THE COURT

Alexander, J.

We hold today that Vehicle and Traffic Law § 415-a (5) (a), which authorizes warrantless inspections of vehicle dismantling businesses, and New York City Charter § 436, which authorizes warrantless searches of junkyards and other businesses storing used, discarded or secondhand merchandise, violate the constitutional proscription against unreasonable searches and seizures.

Defendant Joseph Burger is the owner of a junkyard in Brooklyn. Part of his business consists of dismantling automobiles and selling their parts. At about 12:00 noon on November 17, 1982, five plain-clothes New York City police officers assigned to the Auto Crimes Division entered defendant’s junkyard, which was enclosed by a metal fence. According to the testimony of one of the officers, there were no buildings in the yard and it contained numerous vehicles and parts of vehicles. Defendant was present at the time, and the officers inquired as to whether he was licensed to dismantle vehicles. Defendant replied that he was not and informed the officers in response to their questions that he did not have a "police book”. The police told defendant that they were going to perform a warrantless inspection pursuant to Vehicle and Traffic Law § 415-a.

In the course of the inspection, the officers copied down the vehicle identification numbers (VINs) of several vehicles and parts of vehicles. The police also recorded the serial numbers from a wheelchair and a handicapped person’s walker that were found alongside a dumpster. After checking the VINs and the serial numbers, the officers determined that two of the automobiles had been reported stolen, and that a wheelchair and a walker had been in one of them. The property was seized and defendant was charged with two counts of criminal possession of stolen property in the second degree (Penal Law § 165.45 [1] [3]), three counts of criminal possession of stolen property in the third degree (Penal Law § 165.40) and unregistered operation as a vehicle dismantler (Vehicle and Traffic Law § 415-a [1]). Following denial of defendant’s motion to suppress the physical evidence and statements made by him to the arresting officer, defendant pleaded guilty to criminal possession of stolen property in the second degree.

At the hearing on defendant’s motion to suppress, one of the officers, John Vega, testified that the function of the Auto Crimes Division was to make daily inspections of vehicle dismantlers’ yards and that his unit typically conducted about 5 to 10 inspections a day. Officer Vega did not know how defendant’s yard was chosen for inspection that day. He stated that when a police book is not available to check against a yard’s inventory, it is normal procedure to record a random sample of VINs and to determine if any of the vehicles had been reported stolen.

The hearing court denied the motion to suppress, holding that the auto junkyard industry is "pervasively regulated” (see, United States v Biswell, 406 US 311; Colonnade Catering Corp. v United States, 397 US 72) and that Vehicle and Traffic Law § 415-a is constitutional inasmuch as it is sufficiently limited in time, place and scope. Thereafter, reargument of the motion was granted in light of an Appellate Division decision in People v Pace (101 AD2d 336, affd 65 NY2d 684) that implied in a footnote that section 415-a requires the police to obtain a search warrant in instances where the junkyard owner cannot produce a police book (101 AD2d, at p 339, n 1). Upon reargument, the court adhered to its previous determination, holding that the statute’s language authorizes the warrantless inspection of vehicles and parts that are the subject of its record-keeping requirements and that, unlike the situation in Pace, the search in this case was undertaken pursuant to an administrative scheme and not simply as a quest for evidence prompted by police suspicion of criminal activity.

The Appellate Division affirmed, holding that "[i]n the instant case, the police were seeking to administer the regulatory schemes set forth in Vehicle and Traffic Law § 415-a and New York City Charter § 436.[] The constitutionality of these statutory provisions has recently been upheld by this court in People v Cusumano (108 AD2d 752).” (112 AD2d 1046.)

On this appeal, defendant argues that Vehicle and Traffic Law § 415-a and New York City Charter § 436 are facially unconstitutional in that, regardless of the auto junkyard business’ status as a closely regulated industry; they authorize warrantless searches that are not designed to further any administrative objective. The People respond that the statutes further the substantial State interest in controlling automobile theft by establishing an administrative scheme requiring automobile dismantlers to be licensed and registered and to maintain detailed records of their inventory showing proof of ownership. The People further argue that by permitting unannounced warrantless searches the statutes allow the police to carry out the State’s objective while adequately protecting a junkyard owner’s diminished privacy interest.

We previously have had occasion, in People v Pace (101 AD2d 336, affd 65 NY2d 685, supra), to pass on the validity of a junkyard search purportedly undertaken by the police pursuant to the authority of New York City Charter § 436. There, the Appellate Division held, and we agreed, that the search had been undertaken in order to gather evidence of crime, which the police already had reason to believe had been or was taking place. Thus, the warrantless search could not be validated by reference to the statute and it was, therefore, unnecessary to examine the statute’s constitutionality (see also, People v Brigante, 115 AD2d 547; People v Sullivan, 129 Misc 2d 747). Here, by contrast, the constitutional question is squarely presented since we have before us the type of search contemplated by the statutes.

It is well settled that the Fourth Amendment prohibition against unreasonable searches and seizures is applicable to commercial premises (e.g, Donovan v Dewey, 452 US 594, 598, supra; Marshall v Barlow’s, Inc., 436 US 307, 311-313; Michigan v Tyler, 436 US 499, 504-505; See v City of Seattle, 387 US 541, 545-546; Sokolov v Village of Freeport, 52 NY2d 341; Matter of Glenwood TV v Ratner, 103 AD2d 322, 327, affd 65 NY2d 642, appeal dismissed— US —, 106 S Ct 241). With respect to "certain carefully defined classes of cases” (Michigan v Clifford, 464 US 287, 292, & n 2) involving industries that are deemed "pervasively regulated”, administrative searches are excepted from the general rule requiring warrants. In order to validate a warrantless administrative search, however, the commercial premises must be part of a pervasively regulated industry and the search itself must be part of a regulatory scheme designed to further an urgent State interest (e.g., Donovan v Dewey, 452 US 594, 599-600, supra; United States v Biswell, 406 US 311, supra; Colonnade Catering Corp. v United States, 387 US 72, supra). Also, the State’s ability to conduct warrantless inspections must be essential to the effectuation of an administrative scheme (Donovan v Dewey, 452 US, at pp 600, 602-603, supra; United States v Biswell, 406 US, at p 316, supra; Bionic Auto Parts & Sales v Fahner, 721 F2d 1072, 1077). Finally, the inspection must be authorized by a valid statute that is carefully limited in time, place and scope (e.g., Donovan v Dewey, 452 US, at pp 603-604; United States v Biswell, 406 US, at pp 315-316).

The Supreme Court has distinguished valid administrative inspections from searches that are used to obtain evidence of criminality (see, e.g., Donovan v Dewey, 452 US 594, 598, & n 6, supra; Camara v Municipal Ct., 387 US 523, 530, 535; see also, Michigan v Tyler, 436 US 499, 504-506, supra). In short, an administrative search must serve an administrative purpose; when designed instead to uncover evidence of a crime the traditional requirements of the Fourth Amendment apply (see, e.g., Donovan v Dewey, 452 US, at p 598, n 6; Michigan v Tyler, 436 US, at p 512).

The fundamental defect in the statutes before us is that they authorize searches undertaken solely to uncover evidence of criminality and not to enforce a comprehensive regulatory scheme. The asserted "administrative schemes” here are, in reality, designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property. Furthermore, an otherwise invalid search of private property is not rendered reasonable merely because it is authorized by a statute, for to so hold would allow legislative bodies to override the constitutional protections against unlawful searches.

Examination of the statutory schemes authorizing warrant-less searches upheld by the Supreme Court reveals the shortcomings of the statutes under consideration. In Donovan v Dewey (supra), the court upheld warrantless inspections of mines authorized by the Federal Mine Safety and Health Act of 1977 (91 US Stat 1290, 30 USC § 801 et seq.) to determine compliance with health and safety standards promulgated by the Secretary of Labor pursuant to the Act. In United States v Biswell (406 US 311, supra), the court upheld warrantless searches of the premises of firearms dealers authorized by the Gun Control Act of 1968 (82 US Stat 1213, 18 USC et seq.) to determine compliance with the licensing, record-keeping and occupational tax requirements of that statute. Significantly, in both instances the administrative statutes authorize warrant-less inspections to be conducted by agents of the regulatory agency, not police officers.

By contrast, New York City Charter § 436 and Vehicle and Traffic Law § 415-a do little more than authorize general searches, including those conducted by the police, of certain commercial premises. In conducting a search pursuant to section 436 the police clearly are not determining compliance with any administrative or regulatory scheme. Indeed, this provision contains no record-keeping requirements. Rather, it explicitly authorizes searches to be undertaken "in connection with the performance of any police duties” (emphasis added). Vehicle and Traffic Law § 415-a does contain some suggestion of an administrative scheme by imposing licensing and record-keeping requirements, and it authorizes inspectors to make unannounced visits to regulated premises to examine required books and records, as it may properly do (see, e.g., Matter of Glenwood TV v Ratner, 65 NY2d 642, affg on opn of Titone, J., at 103 AD2d 322, appeal dismissed — US —, 106 S Ct 241, supra). It fails to satisfy the constitutional requirements for a valid, comprehensive regulatory scheme, however, inasmuch as it permits searches, such as conducted here, of vehicles and vehicle parts notwithstanding the absence of any records against which the findings of such a search could be compared. Defendant admitted prior to the search that he did not have a police book. Thus, as Officer Vega admitted, the ensuing search was undertaken solely to discover whether defendant was storing stolen property on his premises. Indeed, the People concede in their brief (at 22) that "[t]he immediate purpose of inspecting a vehicle dismantler’s junkyard is to determine whether the dismantler’s inventory includes stolen property.” Because New York City Charter § 436 and Vehicle and Traffic Law § 415-a (5) (a) permit such warrantless searches, they are facially unconstitutional.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress granted, defendant’s guilty plea vacated, the counts of the indictment charging criminal possession of stolen property dismissed, and the case remitted to Supreme Court, Kings County, for further proceedings pursuant to CPL 470.55 (2).

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

Order reversed, etc.

      . A "police book” refers to the record of all vehicles and parts in the possession of a vehicle dismantler required to be kept by Vehicle and Traffic Law § 415-a (5) (a).

      . Vehicle and Traffic Law § 415-a provides in part: "5. Records and identification, (a) * * * Every person required to be registered pursuant to this section shall maintain a record of all motor vehicles, trailers, and major component parts thereof, coming into his possession together with a record of the disposition of any such motor vehicle, trailer or part thereof and shall maintain proof of ownership for any motor vehicle, trailer or major component part thereof while in his possession. Such records shall be maintained in a manner and form prescribed by the commissioner. * * * Upon request of an agent of the commissioner or of any police officer and during his regular and usual business hours, a vehicle dismantler shall produce such records and permit said agent or police officer to examine them and any vehicles or parts of vehicles which are subject to the record keeping requirements of this section and which are on the premises * * * The failure to produce such records or permit such inspection on the part of any person required to be registered pursuant to this section as required by this paragraph shall be a class A misdemeanor.”

      . New York City Charter § 436 provides that: "The [police] commissioner shall possess powers of general supervision and inspection over all licensed or unlicensed pawnbrokers, vendors, junkshop keepers, junk boatmen, cartmen, dealers in second-hand merchandise and auctioneers within the city; and in connection with the performance of any police duties he shall have power to examine such persons, their clerks and employees and their books, business premises, and any articles of merchandise in their possession”.


author: Per Curiam.

text:
    Longley-Jones Associates, Inc., Appellant, v Ircon Realty Co., Respondent.
    Decided May 8, 1986

      APPEARANCES OF COUNSEL

      Timothy J. Perry for appellant.

      Ronald C. Berger for respondent.
   OPINION OF THE COURT

Per Curiam.

Where property is conveyed "subject to” a lease providing that the owner will pay brokerage commissions in the event the lease is extended or renewed, the purchaser of the property does not, without an affirmative assumption, undertake the contractual obligation of its predecessor in interest for the commissions.

In 1975, plaintiff successfully negotiated a lease for the then-owner of a commercial property in Salina, New York. The lease contained a clause obligating the owner to pay plaintiff a commission in the event that the lease was extended or renewed. Prior to the expiration of the original lease term, however, the property was conveyed to defendant, "subject to” the lease. The lease with the tenant was subsequently renewed by defendant without plaintiff’s assistance, and plaintiff brought this action to recover a commission. Plaintiff won a judgment after a nonjury trial, but the Appellate Division reversed and ordered a new trial on the issue whether defendant had affirmatively assumed the obligation of its predecessor in interest. Plaintiff has appealed to this court by stipulation for judgment absolute (CPLR 5601 [c]).

A grantee such as defendant is not personally liable for the performance of each and every covenant in a lease entered into by its grantor merely by taking the conveyance "subject to”, and with notice of, the terms of the lease (Hart v Socony Vacuum, Oil Co., 291 NY 13, 17; Gurney, Becker & Bourne v Bradley, 101 AD2d 1012, 1013). Absent an affirmative assumption, a grantee is only liable for those covenants that run with land (Bank of N. Y, Albany v Hirschfeld, 37 NY2d 501, 506; Spivak v Madison — 54th Realty Co., 60 Misc 2d 483, 487). A covenant in a lease to pay a broker’s commission upon renewal of the lease does not run with the land (see, Orange & Rockland Utils, v Philwold Estates, 52 NY2d 253, 263; Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank, 278 NY 248, 257-258, rearg denied 278 NY 704). Moreover, because the plaintiff real estate broker and the former owner of the property were not in privity of estate, the covenant could not run with the land conveyed to defendant even if the clause touched and concerned the land (see, Neponsit Prop. Owners’ Assn. v Emigrant Indus. Sav. Bank, supra, pp 260-261).

Bank of N. Y, Albany v Hirschfeld (supra) is not to the contrary. In that case, we held that the grantee had affirmatively assumed a lease covenant by taking title "subject to” the lease, and with notice of its contents, but there the lease additionally provided that it should be deemed " 'without further agreement between the parties or their successors in interest * * * that the purchaser * * * of the building has assumed * * * all covenants and obligations of the Landlord hereunder’ ” (id., p 506).

Accordingly, the order of the Appellate Division should be affirmed and, pursuant to plaintiffs stipulation, judgment absolute in favor of defendant is granted.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur in Per Curiam opinion; Judge Hancock, Jr., 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 affirmed, with costs, and pursuant to plaintiffs stipulation, judgment absolute granted in favor of defendant.