author: Alexander, J.

text:
    The People of the State of New York, Appellant, v Peter Coates, Respondent.
    Argued April 28, 1989;
    decided July 13, 1989

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Beth J. Thomas arid Norman Barclay of counsel), for appellant.
    I. The court below was wrong to conclude that the right to counsel, which had attached on an unrelated case because defendant had been transported to a lineup by court order, applied to other viewings of defendant in connection with this case, in which no judicial proceedings had been initiated. (Kirby v Illinois, 406 US 682; People v Coleman, 43 NY2d 222; People v Pickett, 71 AD2d 575, 52 NY2d 892; People v Hawkins, 55 NY2d 474; People v Whitaker, 64 NY2d 347; People v Sugden, 35 NY2d 453; United States v Brown, 699 F2d 585; United States v Estremera, 531 F2d 1103; People v Brown, 124 AD2d 667; People v Kazmarick, 52 NY2d 322.) II. The prosecutor’s conduct during the trial did not prejudice defendant. (People v Galloway, 54 NY2d 396.)

      Edgar G. Walker for respondent.
    I. Once defendant is removed from the custody of the Department of Correction to the custody of the Police Department to be placed in a lineup pursuant to court order, defendant has a right to counsel at all lineups held while he is in police custody pursuant to court order. (People v Coleman, 43 NY2d 222; Matter of Abe A., 56 NY2d 288; Matter of Pidgeon v Rubin, 80 AD2d 568; Matter of Santucci v Andrews, 117 Misc 2d 616.) II. A suspect may not be prevented from contacting his own attorney prior to being placed in a lineup if that would in no way delay or interfere with the conduct of the lineup. (People v Blake, 35 NY2d 331;
      People v Hawkins, 55 NY2d 474; People v Gursey, 22 NY2d 224; Kirby v Illinois, 406 US 682.) III. The blatant misconduct of the prosecutor denied defendant a fair trial. (People v Rosenfeld, 11 NY2d 290; People v Perez, 102 AD2d 797; People v Peterkin, 48 AD2d 843; People v Davis, 53 AD2d 870; People v Hambrick, 122 AD2d 163; People v Damon, 24 NY2d 256.)
   OPINION OF THE COURT

Alexander, J.

The question we confront today is whether a criminal defendant who is represented by counsel and who specifically requests the assistance of his attorney at an investigatory lineup may be subjected to such a lineup by the police without defendant’s lawyer being notified of the impending lineup and afforded an opportunity to appear.

I

On the evening of July 22, 1983, an unknown assailant dressed completely in black and wearing silver sunglasses followed a group of three women and four children into the elevator of an apartment building located at 700 West 176th Street in Manhattan. The assailant robbed the three women at gunpoint and fatally shot one woman in the abdomen. Additionally, as he fled the scene, he fired a shot at one of the victims’ neighbors who attempted to pursue him.

Two days later, after having met with several eyewitnesses and obtaining descriptions of the suspect, a police artist prepared a composite sketch of the perpetrator. Officer McCormick, the investigating officer assigned to the case, showed the sketch to Detective Lehan who was investigating a similar robbery/homicide. Lehan indicated that the sketch resembled defendant who was a prime suspect in the case he was investigating. McCormick then arranged for his witnesses to view a photo array containing defendant’s photograph. Although two witnesses tentatively identified defendant as the perpetrator, McCormick decided not to schedule a lineup at that time because there had been no positive identification. About one week later, however, he learned that defendant was incarcerated at Hikers Island on an unrelated charge in respect to which he was represented by counsel. McCormick further ascertained that defendant was being brought to the 34th Police Precinct pursuant to court order for a lineup in connection with Lehan’s robbery/homicide case and decided that he would have his witnesses view defendant the same day.

Defendant was brought to the 34th Precinct on August 30 and was placed in a lineup arranged by Detective Lehan. After that lineup was concluded, McCormick told defendant that he would be kept at the precinct for an additional lineup in connection with another homicide. Defendant protested and asked that his lawyer be present for any additional lineups. The police took no action to comply with this request, however, although they were fully aware that defendant was then represented by counsel on the matter for which he was incarcerated.

Over the course of the next 12 hours, McCormick conducted two further lineups during which five witnesses in the instant case viewed defendant. Of the three witnesses who viewed the first lineup, one was unable to make an identification and the remaining two made only tentative identifications of defendant. The two witnesses who viewed the second lineup, however, positively identified defendant as the perpetrator. Defendant was subsequently charged by indictment with two counts each of murder in the second degree and attempted robbery in the first degree and one count each of robbery in the first degree and attempted murder in the second degree.

Contending, inter alia, that his right to counsel had been violated at the lineup viewings, defendant moved before trial to suppress all identification testimony. The hearing court concluded, however, that defendant’s right to counsel had not attached at the McCormick lineups since defendant was not placed in those lineups "by any order of [sic] Court nor by any proceeding involved in this case”. That court therefore denied the suppression motion to the extent of permitting evidence of the lineups to be admitted at trial and allowing the two witnesses who had positively identified defendant at the second lineup viewing to make in-court identifications of defendant. Defendant was subsequently convicted, after jury trial, of all counts in the indictment.

The Appellate Division, relying on our decision in People v Coleman (43 NY2d 222), unanimously reversed defendant’s conviction and ordered a new trial, holding that the lineup identifications were obtained in violation of defendant’s right to counsel and should have been suppressed. The court determined that the court order of removal authorizing Detective Lehan’s lineup triggered defendant’s right to counsel and that this right attached to all subsequent lineups to which he was subjected at the police precinct. The court concluded further that defendant had been deprived of a fair trial as a result of numerous instances of prosecutorial misconduct.

Leave to appeal was granted to the People by a Judge of this court. We now affirm but for reasons other than those cited by the Appellate Division.

II

In People v Blake (35 NY2d 331), we held that the presence of counsel at investigatory lineups, though desirable, is not mandated in all circumstances and that identifications made at such lineup viewings in the absence of counsel do not necessarily require suppression. We there noted that in the early stages of a police investigation "[t]here is trenchant need for quick verification of identity, cause for arrest and detention, and the desirability of early or even immediate release of those falsely accused of crime” and that given these concerns "the importance of staging a prompt viewing is paramount to the desirability of counsel’s presence at such identifications, if delay is involved” (People v Blake, 35 NY2d, at 336-337, supra). We warned, however, that "[w]hen an accused, at any stage, before or after arraignment, to the knowledge of the law enforcement agencies, already has counsel, his right or access to counsel may not be denied” (id., at 338). Additionally, we cautioned that "[wjhere the accused has counsel known to the law enforcement authorities or there is insufficiently explained delay which prevents him from obtaining counsel as he would on arraignment, and he has not waived the right to counsel, the circumstances may establish his right to counsel at the viewing, the breach of which should result in exclusion” (People v Blake, 35 NY2d, at 340-341, supra).

Later, in People v Hawkins (55 NY2d 474), we once again declined to interpret our State Constitution so as to provide criminal defendants with a right to counsel at lineups held prior to the commencement of formal adversarial proceedings, stating that "the limited benefits provided by counsel at investigatory lineups are far outweighed by the policy considerations militating against requiring counsel at this stage of the investigatory process” (People v Hawkins, 55 NY2d, at 486-487, supra). Nevertheless, we repeated the warning given in Blake that although the State has no obligation to supply counsel at investigatory lineups, "if a suspect already has counsel, his attorney may not be excluded from the lineup proceedings” (id., at 487). Furthermore, although we acknowledged that the police are not required to suspend an investigatory lineup in anticipation of the arrival of counsel if this would cause unreasonable delay, we stressed that the appropriate course of action would depend on "whether the delay would result in significant inconvenience to the witnesses or would undermine the substantial advantages of a prompt identification confrontation” (id., at 487).

In the instant case, it is undisputed that prior to the first of two additional lineups held after the conclusion of the court-ordered lineup, defendant explicitly requested the assistance of his attorney. Yet, although the police knew full well that defendant was represented by counsel on the charge for which he had been incarcerated, his request was summarily denied. Our decisions in Blake and Hawkins plainly render this police action improper. Though law enforcement authorities ordinarily are not required to notify counsel of an impending investigatory lineup absent a specific request to do so, when the police are aware that a criminal defendant is represented by counsel and the defendant explicitly requests the assistance of his attorney, the police may not proceed with the lineup without at least apprising the defendant’s lawyer of the situation and affording him or her an opportunity to appear. Indeed, to do otherwise in such circumstances would substantially impede the defendant’s access to his attorney and would effectively exclude counsel from the lineup proceedings (People v Hawkins, 55 NY2d, at 487, supra; People v Blake, 35 NY2d, at 338, supra). Significant in this regard is the fact that the lineups were conducted over one month after the crime took place and, therefore, the concerns articulated in Blake and Hawkins relating to the need for prompt identification confrontations are conspicuously absent here. In these circumstances, the failure of the police to make any attempt to notify defendant’s attorney of the impending lineup is inexcusable and a clear violation of the right to counsel.

In this robbery/murder case, where defendant offered an alibi defense at trial and the identification testimony of the People’s witnesses comprised the critical proof against him, the failure to exclude evidence of the pretrial lineup identifications which also served to bolster the two in-court identifications cannot be deemed harmless error (see, People v Jackson, 74 NY2d 787 [decided herewith]; People v Dodt, 61 NY2d 408, 417). In any event, a further hearing must be held, unless waived by defendant, to determine whether the in-court identifications themselves had an independent source or were tainted by the improperly held second lineup and thereby rendered inadmissible (see, People v Jackson, 74 NY2d 787, supra; People v Dodt, 61 NY2d, at 417, supra). Since there must be a new trial, we need not and do not address defendant’s additional claim that prosecutorial misconduct denied him a fair trial.

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

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

Order affirmed.

       At the suppression hearing, Officer McCormick testified that he had assumed that defendant’s counsel previously had been informed about the lineup conducted by Detective Lehan and that since the attorney had not appeared for that lineup there was no need to inform him of the additional lineup viewings. When pressed, however, McCormick conceded that he had no personal knowledge of whether defendant’s counsel had actually been notified about Lehan’s lineup.


source: Caselaw Access Project

author: Alexander, J. Hancock, Jr., J. Bellacosa, J.

license: Public Domain

text:
    Deborah D. Kircher et al., Appellants, v City of Jamestown, Respondent. Deborah D. Kircher et al., Appellants, v Bruce Carlson, Respondent.
    Argued May 31, 1989;
    decided July 13, 1989

      POINTS OF COUNSEL

      Samuel R. Miserendino for appellants.
    I. Officer Carlson’s negligent failure to act can be the basis of an actionable claim for it is conduct beyond the boundaries of the policy-based immunity rule. (Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Crosland v New York City Tr. Auth., 68 NY2d 165; Riss v City of New York, 22 NY2d 579.) II. Defendant assumed a duty to assist plaintiff. (Riss v City of New York, 22 NY2d 579; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Moch Co. v Rensselaer Water Co., 247 NY 160; Florence v Goldberg, 44 NY2d 189; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Thompson v Ange, 83 AD2d 193; Stilo v County of Nassau, 122 AD2d 41; Labriola v City of New York, 129 AD2d 505; Fowler v Town of Ticonderoga, 131 AD2d 919; Haskell v State of New York, 81 AD2d 953.) III. There existed a "special relationship” between plaintiff and the City of Jamestown Police Department. (Cuffy v City of New York, 69 NY2d 255; Sorichetti v City of New York, 65 NY2d 461; Bloom v City of New York, 123 AD2d 594.)

      Daniel A. DeRose for respondents.
    I. An action may not be maintained against a municipality or its agents for negligently failing to provide police protection to a particular individual in the absence of a special duty to that person. (Cuffy v City of New York, 69 NY2d 255; Sorichetti v City of New York, 65 NY2d 461; Riss v City of New York, 22 NY2d 579; Moch Co. v Rensselaer Water Co., 247 NY 160; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Schuster v City of New York, 5 NY2d 75; Baker v City of New York, 25 AD2d 770; Florence v Goldberg, 44 NY2d 189; Evers v Westerberg, 32 NY2d 684; Shinder v State of New York, 62 NY2d 945.) II. Plaintiffs’ reliance on the Crosland case is misplaced. (Crosland v New York City Tr. Auth., 68 NY2d 165; De Long v County of Erie, 60 NY2d 296; Helman v County of Warren, 67 NY2d 799; Bogart v Town of New Paltz, 145 AD2d 110.) III. Defendants did not assume a duty to assist plaintiff. (Moch Co. v Rensselaer Water Co., 247 NY 160.) IV. Defendants cannot be held liable for plaintiff’s injuries because they owed no duty to her. (Thompson v Ange, 83 AD2d 193.)
   OPINION OF THE COURT

Alexander, J.

We have only recently reaffirmed the well-settled rule that in order for liability to be imposed upon a municipality for the failure to provide police protection to a particular individual, there must be proof of a "special relationship” between that person and the municipality (see, Cuffy v City of New York, 69 NY2d 255). This rule is based upon sound policy considerations which justify its existence, explain its evolution and demonstrate its appropriate application to the facts of this case.

I

The following salient facts as revealed by the record are undisputed. On April 20, 1984, as she was entering her car in a drug store parking lot, plaintiff, Deborah Kircher, was accosted by one Brian Blanco, assaulted and pulled into the car by Blanco, who then sped off. These events were witnessed by Karen Allen and Richard Skinner, who heard plaintiff’s screams as they were entering their car which was parked in front of the Kircher vehicle. As that car sped off, Allen and Skinner gave chase. Skinner lost sight of plaintiff’s car a block or so from the parking lot, but in trying to relocate it came upon a Jamestown police officer, Bruce Carlson, who was giving assistance to the driver of a disabled municipal vehicle. Skinner, who was acquainted with Carlson, told him what they had observed, giving him a description of Blanco and the license plate number and description of plaintiffs automobile. Skinner also indicated to Carlson that he wasn’t sure whether it was a "domestic scene or girlfriend/boyfriend scene” but that there was "something really wrong with it”. Skinner and Allen left after Carlson advised them that he would "call it in” and returned to the scene of the assault where they obtained plaintiffs name and address 'from the drug store pharmacist. They then drove by plaintiffs house two or three times "to see if the car was there”, but made no further effort to make any additional report to the police, believing that the report to Carlson would suffice. As it happened, however, Carlson never reported the incident and had taken no further action on the matter.

Meanwhile, Blanco had driven plaintiff to the Town of Gerry, New York, where he repeatedly raped and assaulted her, fracturing her larynx and inflicting numerous other injuries. After brutalizing her, Blanco locked plaintiff in the trunk of her car from which she was rescued some 12 hours later. In her affidavit opposing summary judgment, plaintiff states that she observed Skinner and Allen in the parking lot and during their rescue attempt but that at some point she realized "the automobile being operated by Mr. Skinner was no longer in pursuit of my vehicle”. Additionally, she states that throughout her abduction her assailant operated her automobile "on main thoroughfares in heavy traffic”.

Plaintiff commenced separate actions against the City of Jamestown and Carlson, later consolidated by Supreme Court, charging that Carlson was negligent in failing to render assistance at the time of the incident and that the City was vicariously liable for Carlson’s negligent conduct. Defendants moved to dismiss the complaints for failure to state a cause of action or, alternatively, for summary judgment, contending that plaintiff had not demonstrated the existence of a "special relationship” between herself and the municipality.

Supreme Court denied defendants’ motion. Relying heavily on this court’s decision in Crosland v New York City Tr. Auth. (68 NY2d 165), that court concluded that Carlson owed a duty to plaintiff "to do more than acquiesce upon learning that a crime had just been committed” and that the breach of such duty could constitute negligence making defendants liable for any resulting injuries.

The Appellate Division reversed and granted defendants’ motion for summary judgment. The court concluded that plaintiffs mere status as a potential crime victim did not give rise to a "special relationship” between herself and the municipality such as would permit the imposition of liability against defendants. The court noted further that the evidence did not establish any direct contact between plaintiff and defendants, that she relied to her detriment on assurances provided by defendants, or that defendants’ affirmative conduct created a duty to act in her behalf. Thus, the court held that the requisite "special relationship” had not been established and commented that the "failure to respond to the report of possible criminal activity or to offer assistance in a situation arguably requiring police intervention amounts to a failure to provide police protection to the general public and is within the scope of governmental immunity” (142 AD2d 979, 980). We granted leave to appeal and now affirm.

II

The decisions of this court requiring the existence of a "special relationship” between the claimant and the municipality before the latter may be held liable to the former for the negligent exercise of a governmental function such as providing police protection are legion (see, e.g., Bonner v City of New York, 73 NY2d 930; Marilyn S. v City of New York, 73 NY2d 910, affg for reasons stated below 134 AD2d 583; Cuffy v City of New York, 69 NY2d 255; Sorichetti v City of New York, 65 NY2d 461; Yearwood v Town of Brighton, 64 NY2d 667, affg for reasons stated below 101 AD2d 498; Vitale v City of New York, 60 NY2d 861; De Long v County of Erie, 60 NY2d 296; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; O'Connor v City of New York, 58 NY2d 184; Garrett v Holiday Inns, 58 NY2d 253; Glick v City of New York, 42 NY2d 831, affg on mem below 53 AD2d 528; Florence v Goldberg, 44 NY2d 189; Pinkney v City of New York, 40 NY2d 1004, affg on mem below 50 AD2d 928; Evers v Westerberg, 32 NY2d 684, affg on opn below 38 AD2d 751; Riss v City of New York, 22 NY2d 579; Motyka v City of Amsterdam, 15 NY2d 134; Schuster v City of New York, 5 NY2d 75; Steitz v City of Beacon, 295 NY 51). Our consistent refusal to impose liability in the absence of such a relationship rests primarily upon the commonly recognized principle that a municipality’s duty to provide police protection ordinarily is one owed to the public-at-large and not to a specific person or class (Cuffy v City of New York, 69 NY2d 255, 260, supra; see also, Moch Co. v Rensselaer Water Co., 247 NY 160). Moreover, "a municipality’s provision of police protection to its citizenry has long been regarded as a resource-allocating function that is better left to the discretion of the policy makers” (Cuffy v City of New York, 69 NY2d, at 260, supra). As was recognized in Riss v City of New York (22 NY2d 579, 581-582, supra), "[t]he amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed”.

Nevertheless, where a municipality voluntarily undertakes to act on behalf of a particular citizen who detrimentally relies on an illusory promise of protection offered by the municipality, we have permitted liability because in such cases the municipality has by its conduct determined how its resources are to be allocated in respect to that circumstance and has thereby created a "special relationship” with the individual seeking protection. Correspondingly, it has limited the class of persons to whom it owes a duty of protection. In such circumstances, the municipality’s liability is not that of an insurer for failing to protect from harm a member of the general public, but rather liability is based upon the municipality’s own affirmative conduct which, having induced the citizen’s reasonable reliance, must be considered to have progressed to a point after which the failure to provide the promised protection will result not " 'merely in withholding a benefit, but positively or actively in working an injury’ ” (see, De Long v County of Erie, 60 NY2d 296, 305, supra; Moch Co. v Rensselaer Water Co., 247 NY, at 167, supra).

As articulated by this court in Cuffy v City of New York (69 NY2d, at 260, supra), "[t]he elements of this ’special relationship’ are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking”. On the facts of the instant case, neither the requirement of direct contact nor of justifiable reliance has been satisfied. Plaintiff, by virtue of her unfortunate circumstances, could not communicate with the police and thus obviously could not rely on their assurances of assistance. Notwithstanding the sympathetic circumstances of this case, however, these requirements cannot simply be overlooked in order to permit this particular plaintiff to recover as the dissenters seem to suggest. To the contrary, the reasons for requiring direct contact and reliance by the injured party are rooted in policy considerations that compel the denial of recovery here.

The requirement of direct contact, which is closely related to the element of reliance, serves to rationally limit the class of persons to whom the municipality’s duty of protection runs and exists "as a natural corollary of the need to show a ’special relationship’ between the claimant and the municipality” (Cuffy v City of New York, 69 NY2d, at 261, supra). Generally, this contact must be between the injured party and the municipality. Though we have shown some flexibility in applying this requirement — for example permitting contact between the mother of an injured infant and the police to substitute for contact directly between the police and the infant (see, Sorichetti v City of New York, 65 NY2d 461, supra) —we conclude this requirement is not satisfied here where Skinner and Allen, although admittedly acting solely out of a sense of compassion, were complete strangers to plaintiff and plaintiff, in turn, was completely unaware of the assurances given her would-be rescuers (cf., Cuffy v City of New York, 69 NY2d 255, supra). It must be remembered that in Sorichetti there was an outstanding judicial order of protection signifying the municipality’s prior involvement in the domestic turmoil that ultimately led to the infant’s injuries, thus providing a justification for relaxing the direct contact requirement. No such prior municipal involvement exists on the facts of the instant case. More importantly, the purpose of the special duty rule — to rationally limit the class of citizens to whom the municipality owes a duty of protection — would be significantly undermined by permitting contact between the police and a good Samaritan such as occurred in this case to satisfy the direct contact requirement.

In addressing the reliance element of the four-part test, we have very recently stressed that "the injured party’s reliance is as critical in establishing the existence of a 'special relationship’ as is the municipality’s voluntary affirmative undertaking of a duty to act” because it is that element that "provides the essential causative link between the 'special duty’ assumed by the municipality and the alleged injury” (Cuffy v City of New York, 69 NY2d, at 261, supra). It is readily apparent that this requirement is not satisfied on these facts since the helpless and isolated plaintiff could not even communicate with the police, much less rely on any promise of protection the police might have offered. Yet, although plaintiff’s failure to rely can be directly attributed to her dire circumstances, this does not, as the dissenters urge, provide a justification for ignoring the reliance requirement altogether. While we would agree that no rule should be so unyielding that it is mechanically applied without regard for its underlying purpose, a rule is simply not a rule if it can be summarily dismissed in order to achieve a desired result not in keeping with that purpose. Thus, contrary to the assertion of Judge Bellacosa, proof of the reliance of Skinner and Allen cannot "be transferred to the plaintiff’s benefit” (dissenting opn, at 265) for the obvious reason that proof of their reliance does not satisfy the policy concern underlying the reliance requirement —providing the "essential causative link” between the municipality and the alleged injury (Cuffy v City of New York, 69 NY2d, at 261, supra; see, Helman v County of Warren, 67 NY2d 799, affg for reasons stated below 111 AD2d 560).

We cannot conclude, as does Judge Bellacosa, that the facts of this case demonstrate a "clear, continuous causal link” (dissenting opn, at 265) between the conduct of Officer Carlson and plaintiffs resulting injuries. Absent evidence of reasonable detrimental reliance by the victim, the consequences of the municipality’s failure to act become far too speculative to allow as the basis of liability. In the instant case, for example, Skinner and Allen had lost sight of plaintiffs car before stopping to report the incident to Officer Carlson. There is simply no way of knowing whether they would have relocated the car and rescued plaintiff if they had resumed their rescue attempt instead of ending their pursuit in reliance on Carlson’s promise of assistance. Similarly, there is no way of ascertaining with any degree of certainty whether plaintiffs injuries would have been prevented if Carlson had reported the incident as promised. These speculations would not have arisen, however, if plaintiff — the injured party here — had detrimentally relied on the assurances of the police since such reliance would have transformed the municipality’s failure to act from the mere withholding of a benefit into the affirmative infliction of an injury (see, Moch Co. v Rensselaer Water Co., 247 NY, at 167, supra).

Requiring that there be such reliance is consistent with the purpose of the special duty rule to place controllable limits on the scope of the municipality’s duty of protection and to prevent the exception from swallowing the general rule of governmental immunity (see, Helman v County of Warren, 111 AD2d, at 562, supra). Absent this requirement, a municipality would be exposed to liability every time one of its citizens was victimized by crime and the municipality failed to take appropriate action although notified of the incident — so vast an expansion of the duty of protection should not emanate from the judicial branch. "Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities, there should be a legislative determination that that should be the scope of public responsibility” (Riss v City of New York, 22 NY2d, at 582, supra).

We note that it is not open to doubt that had plaintiff based her negligence action on the failure of the municipality to prevent the crime in the first instance by stationing police officers in the parking lot where she was assaulted, recovery would be precluded as such action would directly challenge the municipality’s allocation of scarce police resources for the protection of the general public (see, Crosland v New York City Tr. Auth., 68 NY2d 165, 169, supra; Weiner v Metropolitan Transp. Auth., 55 NY2d, at 181, supra; Riss v City of New York, 22 NY2d 579, supra). A different result is not indicated here where plaintiff essentially argues that, after the inception of criminal activity, the Jamestown police force negligently failed to come to her rescue. How the police choose to deal with the many requests for assistance they receive daily are aspects of their more general duty of protection owed to the public and cannot be transformed on the facts of this case into a special duty running to the injured plaintiff (see, De Long v County of Erie, 60 NY2d, at 304, supra; cf., Yearwood v Town of Brighton, 64 NY2d 667, supra; Pinkney v City of New York, 40 NY2d 1004, supra; Evers v Westerberg, 32 NY2d 684, supra). Thus, in the absence of facts showing that the City of Jamestown, through its police force, affirmatively undertook to protect plaintiff and plaintiff detrimentally relied on the municipality’s assurances of protection, there is nothing to distinguish this unfortunate plaintiff from the numerous other crime victims for whom, tragically, police assistance has arrived too late.

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

Hancock, Jr., J.

(dissenting). I would reverse and deny summary judgment.

In De Long v County of Erie (60 NY2d 296), the police negligently failed to respond to a 911 call after stating that the call would be answered; as a result, plaintiffs decedent was stabbed to death by an intruder. This court affirmed a judgment in favor of plaintiff. In this case, the police officer stated that he would call in the report of an ongoing crime. He negligently failed to do so; as a result, plaintiffs abductor made his escape and repeatedly raped and beat her. The difference between the two cases, the majority says, is that here there was no direct contact between plaintiff and the police as there was in De Long, and that there was no reliance by plaintiff on the assurances of aid. The majority finds the distinction critical although, concededly, "[pjlaintiff, by virtue of her unfortunate circumstances, could not communicate with the police and thus obviously could not rely on their assurances of assistance.” (Majority opn, at 257.) There is no question that plaintiffs would-be rescuers did contact police and, in reliance on the police officer’s actions, stopped their attempts to help plaintiff. In my opinion, there is no reasoned basis for distinguishing De Long and denying recovery solely because plaintiff did not herself contact police or rely on their assurances; nor do the policy reasons underlying our decisions command this result.

In De Long, as here, the police undertook the duty to act on the report and gave assurances of aid; there was reliance on those assurances; and the reliance on the assurances provided the causal link between the police negligence and the harm to the victim. How can it matter that in De Long it was the injured party, herself, who relied on the police assurances, while here it was those who could have helped and did not? There is no logical reason for the distinction and the majority offers none.

Nor, in my view, can there be a rational policy reason for differentiating this case from De Long. In both cases the police themselves had undertaken the duty to act. Here, as in De Long, the police stated that they would respond to a call. The decision to act was made. Thus, neither required a governmental determination of how police resources should be allocated (see, majority opn, at 256). The sole policy basis for the distinction offered by the majority is that the "requirement of direct contact, which is closely related to the element of reliance, serves to rationally limit the class of persons to whom the municipality’s duty of protection runs” (majority opn, at 257). In short, the reason for the limitation is the limitation itself.

We have, as the majority notes, applied the requirement of direct contact with flexibility (majority opn, at 257). Thus, in Sorichetti v City of New York (65 NY2d 461) we allowed an infant plaintiff to recover for injuries, even though the assurances of police aid were given to her mother and there could have been no reliance by the infant plaintiff as she was in the control of her assailant. Why the majority does not follow Sorichetti here, where the victim was in the hands of her abductor and, "by virtue of her unfortunate circumstances, could not communicate with the police” (majority opn, at 257), is not made clear. Surely, the reason offered — limiting "the class of persons to whom the municipality’s duty of protection runs” (majority opn, at 257) — is not enough. We have repeatedly rejected "[predictions of dire financial consequences to municipalities” (Schuster v City of New York, 5 NY2d 75, 80) as a reason for denying liability (see, Crosland v New York City Tr. Auth., 68 NY2d 165, 170).

Bellacosa, J.

(dissenting). I would reinstate plaintiffs’ law-

suit. Plaintiff Mrs. Kircher, the victim of a broad daylight abduction, a harrowing car ride and kidnapping in the countryside, and brutal beating and rape, should not have her personal injury case and that of her husband thrown out of court without a trial because of the inflexible application of catechetical rules. The court has said only recently and the majority acknowledges that it should not apply these very same rules in an "overly rigid manner”. I believe that approach is particularly wise and fair in a case such as this which does not involve allocation of police resources to prevent future harms or crimes, but rather failure to perform a duty as to a particular ongoing crime and rescue mission.

For purposes of resisting the defendant City’s and defendant police officer’s motion for summary judgment, Mrs. Kircher and her husband presented a more than sufficient basis for being permitted to try to establish a "special relationship” with the municipality and its employee, imposing on them a duty of care and of assistance in the extraordinary circumstances of this incident. There was direct uninterrupted contact between the police officer and the victim’s would-be rescuers, to whom the victim screamed for help at the very moment of her abduction in the shopping parking lot. Those persons reacted, and then acted solely on the victim’s behalf when they gave chase in their own car and when they interrupted their continued efforts to rescue her by reporting the incident in great detail to a police officer in a radio car. The victim not only screamed to those persons but knew they saw and heard her as she saw them giving chase in their own car. She surely relied on their expected imminent help and any they might get for her from appropriate officials whose duty it would be to aid and apprehend in such circumstances.

I dissent, vote to reverse the Appellate Division’s order granting summary judgment to defendants, and would give plaintiffs their day in court at a trial.

Early in the afternoon on April 20, 1984, plaintiff, Deborah Kircher, was grabbed as she left a Jamestown drug store. A man, later identified as Brian Blanco, forced his way into the driver’s seat of her car. She tried to escape on the passenger side, but Blanco punched her and pulled her back into the car by her hair. Aware that two people were standing nearby, she screamed for help. The two bystanders, later identified as Karen Allen and Richard Skinner, ran toward her car, at which point Blanco sped away in the victim’s own car with her as his prisoner. The bystanders immediately returned to their car, which was parked in front of plaintiffs, and they gave chase through the streets of the small upstate City of Jamestown. Plaintiff herself asserts in her affidavit — part of the summary judgment record — that she observed the Skinner vehicle in close pursuit. At some point Skinner even tried to cut off the abduction vehicle and had to turn his vehicle into a side street. At that point, Skinner spotted an official Jamestown City Police radio car occupied by defendant Officer Carlson. The would-be rescuers halted their pursuit — though they had temporarily lost sight of the abduction vehicle — to report the ongoing incident to the officer. They provided the officer with a description of the assailant, the victim and the vehicle. They even gave the officer a slip of paper on which they had written the license plate number of the escaping vehicle. Officer Carlson asked Skinner if he knew who the victim was and Skinner responded that he did not. The officer commented that it was probably a family squabble and then assured Skinner and Allen that he would "call in” the information. Skinner and Allen, relying upon the officer’s representation, ceased pursuing or relocating the vehicle, but they did not cease their efforts on the victim’s behalf or their citizen concern for her. They returned to the drug store — the site of the abduction only minutes before — to obtain the victim’s name and address from the pharmacist. They then drove past her home several times to see if she had returned safely. Observing that she or her car had not yet returned, the witnesses themselves nevertheless went to their own home and "didn’t report anything else to the police because I [Skinner] thought it was already reported after I made the first contact” (record on appeal, Skinner’s affidavit, at 154 [emphasis added]).

The summary judgment record documents that Police Officer Carlson did absolutely nothing with respect to the citizen-reported ongoing crime. Since no official interventive efforts were even tried, and because no other police agencies or officials were notified or summoned into action, the abductor was allowed to mosey along main roads of this small community in broad daylight with a terrorized victim in his sole domination. In fact, the assailant drove for 30-60 minutes until he reached the nearby Town of Gerry, where he then repeatedly assaulted and raped this young woman over a period of several hours. The next day, she was found locked in the trunk of her car, severely beaten and near death. The victim’s assailant was subsequently apprehended and convicted of serious criminal charges and is currently imprisoned.

Mrs. Kircher and her husband commenced this civil action for damages, alleging that Officer Carlson was negligent in failing to save her from the worst part of this unnecessarily prolonged and exacerbated horrifying experience when doing so would have been so simple and so intrinsic to his ordinary, official course duties. The additional consequences to her, within the details and facts of this case, were reasonably foreseeable, not "speculative” as characterized by the majority. Indeed, the aggravation of her additional, more severe injuries are directly and causally related to the inaction of the police officer, or so a jury could find. The City of Jamestown is alleged to be vicariously responsible for the conduct of its employee, Officer Carlson.

The bromide that a municipality cannot be held liable for negligence in the performance of a governmental function, including its failure to provide police protection to individual citizens, unless a special relationship existed between the municipality and the injured party, should not rescue the defendants in this case (see, De Long v County of Erie, 60 NY2d 296, 314; Riss v City of New York, 22 NY2d 579). That irony would be too bitter. There was a special relationship here. To establish one, a plaintiff must prove: (1) an assumption by the municipality, through the promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking (Cuffy v City of New York, 69 NY2d 255, 260). It is unnecessarily rigid on the law and on the facts to apply recent precedents to hold, as a matter of law, that there was no direct contact between plaintiff and Officer Carlson, and that as a result, plaintiff could not and did not rely on the officer’s promise of assistance.

The victim was isolated by the abduction and by the nature of the crimes involved and, thus, could not personally make direct contact with the police. Under these circumstances, to impose an impossible legal duty on her perverts the jural relationship of the parties and the applicable rules. She could initiate the direct contact chain, however, and she did so, surely doing all she could then do. Aware that assistance was right at hand, she screamed to the particular persons for help, making them aware from her direct communication, not just from their own observations of her desperate plight. By making direct contact with these witnesses, she claimed them as her surrogates in coming to or getting her assistance or both. The initiation of an unbroken chain, the propinquity and the contemporaneity of the events may be deemed legally to have fulfilled the direct contact requirement, at least for purposes of allowing factual development and resolution at a trial, either actually or by legal imputation. Correspondingly, when the victim’s would-be rescuers interrupted their chase and forbore any other interceptive communications and actions they may have taken in alerting other law enforcement agencies and giving them their detailed identifying information, based on defendant Carlson’s assurance to them of taking official charge of the matter, they understandably relied for the victim and in her place. (One can only imagine the human reaction of relief and joy these citizens must have felt at coming upon a police officer and radio car at that critical juncture of an emergency chase to stop a criminal abduction in progress.) They, of course, had no personal interest of their own and were acting out of commendable civic duty — not just "compassion” — solely in the interest of a helpless victim who had called out to them and saw them give chase. They were the modern day equivalent of that medieval cavalry called the posse comitatus. The rescuers’ undisputed reliance can, as a matter of fact, be transferred to the plaintiff’s benefit on these facts because she had no one else to rely on and was prevented from seeking any other more direct aid by the actions of her abductor and by the indifference and even cynicism of the officer. There was thus a clear, continuous causal link — no break in the loop — between (a) the victim’s initiating scream for help to the civilians, (b) the officer’s promise to act, (c) the would-be rescuers’ decision to forego further personal civilian pursuit of the vehicle or other interceptive notifications, and (d) the subsequent infliction on the victim plaintiff of horrific and extended physical injuries and emotional trauma. That link is even further strengthened in this case by the would-be rescuers’ decision to return to the scene of the commencement of the ongoing crime to obtain the victim’s name and address and to further check on her safety at her home. This evidence dramatically fortifies the inference that but for defendant Carlson’s assurance of official action, the civilian rescuers would have continued their mission personally or through other official instrumentalities. Detrimental reliance, actually or by appropriate legal imputation, is almost made out as a matter of law, so I cannot understand how the majority can conclude the opposite — that it is lacking as a matter of law on these facts.

Sorichetti v City of New York (65 NY2d 461) and Cuffy v City of New York (69 NY2d 255, supra) support the prudent and fair flexibility of approach to the satisfaction of the "direct contact” requirement. In Sorichetti (supra), the court held that a special relationship existed not only between the defendant City and the plaintiff mother, who had actually contacted the police concerning threats made to her by her estranged husband in violation of an order of protection, but that such relationship also arose between the City and the child-victim on whose behalf the mother had made the police contact, despite the child’s lack of direct contact with law enforcement officials herself. Thus, the court already recognizes an exception in the long litany of precedents cited in favor of black letter law; it then strains to distinguish that precedent, unsuccessfully as far as I can see.

In Cuffy (supra), plaintiffs alleged that the police had a special duty to protect them because the police promised the husband and father protection for his family, after he alerted the police of threats made by plaintiffs’ downstairs tenants. The case was allowed to go to trial. On appeal from the jury verdict in favor of plaintiffs, we held that although it was Mr. Cuffy, and not Mrs. Cuffy or her son Cyril, who had direct contact with the police, the police promise to act was deemed to run to them because it was their safety that prompted Mr. Cuffy to solicit the aid of the police, and it was their safety the officer had in mind when he promised to provide assistance (Cuffy v City of New York, 69 NY2d, at 262, supra).

Using language that could have anticipated the instant case, we expressed our reluctance to apply the direct contact requirement "in an overly rigid manner”, and noted that its proper application should depend on the particular circumstances of each case. That fair approach makes good sense in the equation of the generally unfavored immunization granted by the "special duty” rule itself. Thus, we stated as long as there is a means of showing "a 'special relationship’ between the claimant and the municipality, beyond the relationship with government that all citizens share in common” (id., at 261), and there is "a basis for rationally limiting the class of citizens to whom the municipality’s 'special duty’ extends” (id., at 261), the direct contact requirement can be satisfied.

In the instant case, the policy concerns which gave rise to the direct contact requirement are not undermined or implicated. Plaintiffs are not seeking to hold defendants liable for failing to protect a member of the general public from a future unknown criminal act (Weiner v Metropolitan Transp. Auth., 55 NY2d 175). Nor are plaintiffs claiming that there should have been police assigned to a place where a crime was likely to occur or even that the police were obligated to prevent the abduction itself (Steitz v City of Beacon, 295 NY 51). In this case, the victim made direct contact with the only persons she had access to, who in turn made direct contemporaneous contact with the police about a vicious crime in progress. The hopes of the victim and her surrogate rescuers to stop the crime and prevent further harm to this particular person were dashed by the nonfeasance of the public employee, not by failure to allocate and deploy scarce municipal resources for the general public. The victim plaintiff here was indisputably set apart from the at-large community of Jamestown. She was not a possible in futuro victim of a crime. She was already in the throes of ferocious ongoing crimes. No one of the other cases has that quality or element. Thus, there can be no "rational basis” for immunizing the City’s duty — and that of its officer — to act here, by mechanical application of catechetical rules — without in the process distorting the reasons for which those rules exist in the first place.

Indeed, the policy impulses favor plaintiffs’ position in this case. The law of torts has traditionally recognized these interwoven goals: spreading the risk of loss, deterring bad conduct and encouraging good conduct (Prosser and Keeton, Torts § 1, at 6-7 [5th ed]). The latter goal is undermined by the solidification of a rule of municipal immunity from liability erected on a new privity doctrine of undeviating personal detrimental reliance. The relentless injustice of a rule so rigidly adhered to is further exemplified by another tragic case involving the identical issue in which the Appellate Division granted summary judgment in favor of municipal defendants where a citizen reported a car on an ice pond, only to be told not to worry, the matter was well in hand (Bogart v Town of New Paltz, 145 AD2d 110, lv denied 74 NY2d 608 [decided today]). Two infants and their mother in that car eventually drowned as the car slowly submerged under the ice into the pond, no help ever having been sent. Thus, instead of fostering civic-mindedness and a caring attitude about one another, cases like Bogart v Town of New Paltz and the instant one discourage people away from the natural human impulse towards those high ideals. In its stead, there is bred a cynicism — a "Why bother?” attitude — borne of the seeming uselessness of importuning government help in such dire circumstances. Good Samaritans, after all, are not oblivious to the implications of affording immunity for cold municipal indifference. Finally, in this regard, I think it makes a very great difference whether we as a court craft and apply tort rules with these underlying purposes in mind. It has long been in the historic, great tradition of this common-law court to do so, especially in this area, and not to shy away from the responsibility by deferring to the Legislature (majority opn, at 259; see, e.g., Bing v Thunig, 2 NY2d 656, 667).

On a different approach, the cramped approach in this case should be contrasted to the corresponding course marked in our criminal jurisprudence recently, relaxing an overly restrictive black letter rule in order to reflect a more realistic understanding and application of the underlying reason for a rule’s existence (see, People v Blasich, 73 NY2d 673, 680-681; see also, Wood v Duff-Gordon, 222 NY 88, 91). Moreover, wooden application of checklist-type criteria is a throwback to the reign of a resuscitated privity doctrine, which we have struggled so long and so hard to deflate in recognition of the concededly more difficult, but far fairer, path to decision— hard, individualized analysis (see, e.g., MacPherson v Buick Motor Co., 217 NY 382; Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 422-424).

Defendants argue also that, even if plaintiff could satisfy the direct contact requirement, the element of the rule for plaintiff victim herself to have relied on the officer’s assurance of assistance is lacking because she was not aware of the officer’s promise to act. This argument is equally unpersuasive and inapplicable.

In Sorichetti, the victim’s unawareness of the promise of protection was not fatal to the existence of a special relationship. In that case, we recognized the victim had not been the one who actually relied on the promise of assistance. We held that reliance by the person seeking protection on behalf of the victim would suffice (Sorichetti v City of New York, 65 NY2d 461, supra).

This case presents an even stronger case of imputed reliance in that context than in Sorichetti. Here, the victim herself specifically alerted Skinner and Allen to her desperate circumstance. Humanly, she could do nothing more than rely on them to come to her aid as civilians and to get official help; her real reliance was fortified by her own observation of them giving chase through the streets of Jamestown.

Sorichetti’s realistic and fair relaxation of the reliance requirement in an appropriate case was in no way displaced by Cuffy but, rather, fortified. In Cuffy, the court held that, notwithstanding the satisfaction of the direct contact requirement, Eleanor and Cyril’s recovery was barred because their injuries did not result from a justifiable reliance on the promise of police protection. The police had promised to act "first thing in the morning”. The trial testimony established that plaintiffs remained in the house of their own free will all day, even after they knew the police had failed to arrest the tenants. The difference from this victim’s circumstance is like night and day. Mrs. Kircher was unabatedly relying on her rescuers in all respects during a continuing, contemporaneous abduction. She knew they were trying to save her with or without official help. This victim, unlike the Cuffys, was a captive who could not escape the clear, present, continuing, and reported danger without outside intervention. The Cuffy decision was even after trial, not on summary judgment as here.

A few comments about Helman v County of Warren (67 NY2d 799, affg 111 AD2d 560) are necessary. It does not compel a result contrary to that which I urge because, on careful examination and understanding of that case, it instead supports the victim’s position here. In Helman, plaintiff, whose business was destroyed by fire, alleged that the damage was caused by the County’s failure to respond to a neighbor’s self-initiated fire distress call to 911. Plaintiff argued that a special relationship existed between himself and the municipality by virtue of his implied agency relationship with his neighbor, who had direct contact with 911 and who relied upon the 911 operator’s assurance of assistance. The Appellate Division, in a memorandum adopted by this court, acknowledged that an implied agency situation could satisfy the direct contact and reliance requirements of the special duty rule, but nonetheless concluded that on that record no implied agency could be discerned between plaintiff and the neighbor caller (111 AD2d 560, 561-562). Here the record indisputably supports implied agency, or at least suffices to allow the issue to be developed at a trial — within Hetman’s dictum and not contrary to its holding.

In any event, the Helman plaintiff was physically able to call 911 of his own accord. He was not in a position where he was forced to rely solely on others for help; he did not expressly request his neighbor’s help; and he was completely unaware, at the time, of her attempted assistance. In the instant case, plaintiff’s desperate situation deprived her of any chance or opportunity to request police assistance for herself. She personally communicated in the only way she could to and through Skinner and Allen, and as best she could in the terror of the moment. They saw, they heard, they gave chase; and she screamed, she saw and, no doubt, she hoped, prayed and relied that they would succeed in their rescue attempt. To say as a matter of law that they were not her agents within our special duty, municipal-immunity-from-liability rules and within the reasons which gave birth to those rules just makes no common human sense and no good law.

Frankly, as to Helman, though I believe it unnecessary to do so, I would, to the extent the adopted writing of the Appellate Division may be read or applied overly broadly and inflexibly, prune it back and confine it to its precise factual boundaries and ratio decidendi.

In sum, there is no legal or policy justification to snatch from these plaintiffs their day in court with an opportunity to prove that these defendants should not be shielded from liability for failing to do their official duty, no less to offer the decent human helping hand that Skinner and Allen extended (Crosland v New York City Tr. Auth., 68 NY2d 165, 170). In another day and in a not unrelated human drama, Judge Cardozo uttered this unforgettable paragraph for a unanimous court: "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.” (Wagner v International Ry. Co., 232 NY 176, 180.) Extending potential liability in favor of a rescuer against an original wrongdoer, the court concluded that a jury should determine the quality of the acts in such situations.

No less relief should be given in the instant case where the court — not a jury — grants absolution to gross municipal malfeasance. While the facts of this case are horrifying enough, the law principles can be applied coldly and analytically to reach the correct and just result — reversal and denial of summary judgment to defendants.

Chief Judge Wachtler and Judges Simons, Kaye and Ti-tone concur with Judge Alexander; Judges Hancock, Jr., and Bellacosa dissent and vote to reverse in separate opinions.

Order affirmed, with costs.

      . Plaintiff similarly relies heavily upon Crosland in her argument to us.
        Crosland, however, is inapposite. There, we addressed the standard of care owed by a publicly owned common carrier to its passengers and concluded that although the Transit Authority owed no "special duty” to the passenger to provide police protection, it was still statutorily responsible "for the negligence of its employees in the operation of the subway system” (Crosland v New York City Tr. Auth., 68 NY2d 165, 169-170; see, Public Authorities Law § 1212 [3]). Thus, we held that the Authority could be held liable for the negligent failure of its employees to summon aid while the passenger was fatally assaulted. Crosland has no application here, where it is undisputed that plaintiff seeks to hold defendants liable for the negligent exercise of a governmental function requiring the existence of a "special relationship” between plaintiff and the municipality.

      . Another factor explaining our decision in Sorichetti was the police department’s specific "knowledge of Frank Sorichetti’s violent history, gained through and verified both by its actual dealings with him, the existence of the order of protection, and its knowledge of the specific situation in which the infant had been placed” (Sorichetti v City of New York, 65 NY2d 461, 469).

      . The majority asserts that there is insufficient evidence of a causal link because it can never be known whether absent the negligence plaintiff would not have been injured (see, majority opn, at 259). Obviously, in a case of failure to act we can never definitively answer this causation question (see, e.g., De Long v County of Erie, 60 NY2d 296). There is, I believe, sufficient evidence to raise a factual question of causation.

      . The majority states there is a "general rule of governmental immunity” (majority opn, at 259) and that it is up to the Legislature to act if there is to be liability (see, id., at 259). The "special duty” rule is, however, a court-made rule limiting the legislative determination that there generally should be governmental liability (see, Court of Claims Act § 8). It is up to the court to alter its own rules if the policy justifications underlying them are not furthered.


author: Per Curiam.

text:
    In the Matter of Jerome D. Cohen, a Justice of the Supreme Court, Second Judicial District, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued May 31, 1989;
    decided June 30, 1989

      POINTS OF COUNSEL

      Nathan R. Sobel and Jerome Karp for petitioner.
    I. Upon this de novo review, petitioner respectfully requests that this court affirm the Commission’s determination that charge 1 be dismissed. II. Respondent Commission has failed to prove by a preponderance of the evidence that Judge Cohen was aware that he was not paying interest on his loans. (Holloran v Virginia Chems., 41 NY2d 386; People v Cleague, 22 NY2d 363; Matter of Gelfand, 70 NY2d 211; Matter of Murray v Murphy, 24 NY2d 150; Matter of Seiffert, 65 NY2d 278; In re Ruffalo, 390 US 544; Theard v United States, 354 US 278; Mullane v Central Hanover Trust Co., 339 US 306; Sarisohn v Appellate Div., Second Dept., 265 F Supp 455.) III. Petitioner does not contest the Commission’s determination with respect to charge 3. IV. The sanction imposed by the Commission was arbitrary and capricious and should be modified. (Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Field Delivery Serv. [Roberts], 66 NY2d 516; Matter of Howard Johnson Co. v State Tax Commn., 65 NY2d 726; Matter of New York Tel. Co. v Public Serv. Commn., 62 NY2d 57; Matter of Lefrak Forest Hills Corp. v Galvin, 40 AD2d 211, 31 NY2d 974, 32 NY2d 796, cert denied sub nom. Baum v Lefrak Forest Hills Corp., 414 US 1004; Matter of Fitzgerald v State Div. of Dept. of Pub. Serv., 262 App Div 393; Matter of Dresher [Lubin], 286 App Div 591.)

      Gerald Stem, Alan W. Friedberg and Jean M. Savanyu for respondent.
    I. Petitioner engaged in serious misconduct by receiving a substantial financial benefit from HYFIN Credit Union while designating HYFIN as a depository for infants’ funds. (Matter of Shilling, 51 NY2d 397.) II. The sanction of removal is appropriate. (Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465.)

      Thomas Torto for Andrew S. Fisher and others, amici curiae.

    Removal is inappropriate since Justice Cohen’s alleged misconduct amounts at worst to poor judgment, and he was not derelict in any manner in discharging his judicial obligations. (Matter of Sims, 61 NY2d 349; Matter of Cunningham,
      57 NY2d 270; Matter of Shilling, 51 NY2d 397; Matter of Steinberg, 51 NY2d 74; Matter of Kelso, 61 NY2d 82; Matter of Reeves, 63 NY2d 105; Matter of Waltemade, 37 NY2d [a]; Matter of Gelfand, 70 NY2d 211; Matter of Lonschein, 50 NY2d 569; Matter of Myers, 67 NY2d 550.)
   OPINION OF THE COURT

Per Curiam.

Petitioner commenced this proceeding to review a determination of the Commission on Judicial Conduct that he be removed from his judicial office for ordering that settlements awarded to infants, totaling nearly a quarter of a million dollars, be deposited in a credit union where he was receiving favorable treatment on personal loans, resulting in a benefit to him of at least $15,000. He contends that one of the two charges sustained by the Commission is not supported by the record and that removal is an unduly harsh sanction. After reviewing the record we have concluded that the evidence supports the Commission’s findings with respect to the charges and its determination that petitioner be removed.

In 1979, petitioner was elected as a Civil Court Judge in the City of New York. He served in that position from January 1, 1980 to December 31, 1984. In 1984 he was elected to the Supreme Court and has served as a Justice of that court since January 1, 1985. As a Civil Court Judge, petitioner approved settlements involving infants and specified the place where the funds were to be deposited until the infant reached adulthood. In numerous cases during his term as a Civil Court Judge petitioner ordered that settlements recovered by infants be deposited in the HYFIN Credit Union where petitioner had obtained several personal loans.

In 1987 the Commission on Judicial Conduct served petitioner with a complaint charging him with misconduct in connection with the HYFIN transactions. The complaint alleges that he obtained substantial loans from HYFIN at favorable rates not available to other borrowers; that all payments on the loans were, in fact, credited to the principal; that he knew he was receiving interest-free loans and that his orders, directing that infants’ funds be deposited in HYFIN, were made pursuant to an "understanding” with the credit union that he would thereby continue to receive favorable treatment on his loans or, at least, created the appearance that such an understanding existed.

At a hearing held before a Referee, the Commission submitted documentary evidence that the petitioner obtained the following loans from HYFIN:

Date Amount Interest Rate July 1979 $ 5,000 12% August 1979 15,000 12% August 1979 25,000 12% November 1981 17,000 12% January 1983 18,000 6% April 1984 15,000 6% February 1985 50,000 10% February 1985 25,000 10%

In each instance the current loan, or a subsequent one, was used to "refinance” existing loans by paying off the outstanding principal. In 1979 all payments were credited to both interest and principal. However, from the day petitioner became a Judge on January 1, 1980 until September 30, 1985, all payments were credited to principal alone. It is conceded that this saved petitioner $14,889.50 in "waived interest”, beyond the lower interest rates granted to him in the loan agreements.

There was also uncontradicted documentary evidence that from February 1980, his second month in office, through May of 1984, petitioner, as a Civil Court Judge, ordered in 56 cases that settlements awarded to infants be deposited in the HY-FIN Credit Union and that the total amount deposited pursuant to these orders was $244,503.14. Edmund Lee, the former treasurer and chief executive of HYFIN, testified that he had an understanding with the petitioner that HYFIN would waive interest payments on the loans if petitioner designated HYFIN as the depository for infants’ settlements. Lee also admitted that he had been charged with Federal offenses as a result of his actions at HYFIN, had reached an agreement with Federal prosecutors and had pleaded guilty to certain crimes but had not yet been sentenced.

Petitioner testified at the hearing and denied that there was an understanding between him and Lee with respect to the loans and the infants’ deposits. Although he conceded that he knew that the interest rates he was offered were lower than those available to other borrowers, he stated that he believed Lee was doing this for him because they were friends and considered petitioner a "good customer”. He also testified that he believed that the payments he made were being credited to interest and principal and had no knowledge of the fact that he was receiving not only less-than-market interest but also interest-free loans.

The Referee reported that the charge alleging an “understanding” (charge 1) had not been established but recommended that the other charges be sustained. He stated that he had found that petitioner had obtained loans at rates not available to other borrowers (charge 3) and that all payments on the loans were credited to principal and that petitioner knew he was receiving interest-free loans (charge 2).

A majority of the Commission confirmed the report and determined that the petitioner should be removed from his judicial office. The decision notes that by ordering that infants’ funds be deposited in the institution where he was receiving such favorable treatment on his personal loans, petitioner created the impression that his actions as a Judge were influenced by personal monetary concerns and that this called into question his own integrity and the integrity of the judiciary. All of the members agreed that the last two charges had been sustained. Four members would have gone further and sustained the first charge, that the petitioner acted pursuant to an understanding with the credit union. Only one member felt that removal was unwarranted and voted for a censure.

In seeking review by this court, petitioner initially concedes that charge 3 was properly sustained. There is ample evidence in the record that the petitioner knowingly obtained loans at favorable rates not available to other borrowers in violation of the express provisions of section 100.5 (c) (3) of the Rules Governing Judicial Conduct (22 NYCRR). He also concedes, with respect to charge 2, that all payments were credited to principal during the relevant period, but claims that he did not know he was receiving interest-free loans and urges that the Commission’s contrary finding is not supported by a preponderance of the evidence.

The record shows that petitioner sent all loan payments to Mr. Lee marked “personal and confidential.” Lee’s intervention was necessary to override the computer which would otherwise automatically credit a payment to both principal and interest. When, on occasion, a payment was credited to interest in whole or in part, it was later “corrected” to reflect a payment to principal alone. Sometimes this was done after petitioner complained, often in writing, that the balance on his statement was inaccurate. On his Federal income tax return, petitioner accurately claimed interest deductions for 1979 and 1985 when he actually did pay interest to HYFIN, but not for 1980 through 1984, when interest payments were waived.

Petitioner contends, as he did before the Referee and the Commission, that he did not understand that the balance on his statement reflected only the outstanding principal. He concedes that the breakdown of interest and principal was recorded in his passbook but claims that HYFIN kept the passbook in 1980 and never sent it back to him. With respect to the accuracy of his income tax deductions for interest, he contends that was purely fortuitous. In 1979 he prepared his own return and was able to compute the interest from the passbook. In 1980 the passbook was lost, the credit union sent no statements regarding interest and petitioner had his returns prepared by an accountant who was not familiar with the HYFIN loans. In 1985 he employed a different accountant, and received a more informative statement from the credit union.

The Referee and the Commission found these excuses unconvincing, as do we. We also agree with the Commission that removal is the appropriate sanction.

There is no question that petitioner violated the rule which expressly prohibits a Judge from accepting loans at rates not available to others (22 NYCRR 100.5 [c] [3]). But contrary to petitioner’s argument, this is not his only dereliction. Here he not only received preferential treatment on interest, but received interest-free loans. He did this over and over again for almost five years, lining his pockets with $15,000 of "waived” interest and more considering the initial benefit of the lower rates, and then incredibly claimed, as he still does, that he was completely ignorant at the time that he was obtaining this windfall. As the Commission held, this clearly created the impression that he was exploiting his judicial office for personal benefit in violation of ethical canons (22 NYCRR 100.5 [c] [1]; 100.2). When, in addition, he used his office as a Judge to confer a benefit on the credit union, by directing that nearly a quarter of a million dollars in infants’ funds be deposited there, he created the further, and far more damaging impression, that his judicial decisions were influenced by personal profit motives in violation of the most basic ethical standards (Matter of Sims, 61 NY2d 349). These appearances could only be reinforced by the fact that the interest-free loans first became available to the petitioner after he became a Judge.

Removal of a Judge is a drastic sanction which should only be employed in the most egregious circumstances (Matter of Steinberg, 51 NY2d 74). In cases involving the appearance of impropriety it is rarely warranted, although it may be appropriate when the circumstances indicate a lack of judicial temperament, even in the absence of proof of venal motives (Matter of Shilling, 51 NY2d 397). Impartiality and integrity are among the most essential attributes for members of the judiciary. When as here a Judge, for a number of years, has acted as if his decisions could be influenced by personal gain, removal of the individual may be necessary to remove the stain from the judiciary. In this case the Commission noted, and we agree, "[s]uch an appearance diminishes public confidence in the integrity of the judiciary and destroys [petitioner’s] usefulness on the bench”.

Accordingly, the determination of the Commission should be accepted, and the petitioner should be removed from his judicial office.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Determined sanction accepted, without costs, and Honorable Jerome D. Cohen removed from his office of Justice of the Supreme Court, Second Judicial District.