author: Kaye, J.

text:
    Catherine Gaeta, v New York News Inc., et al., Appellants, et al., Defendants.
    Argued May 3, 1984;
    decided June 12, 1984

      POINTS OF COUNSEL

      Michael B. Mukasey, Harold R. Tyler, Jr., and Eugene M. Gelernter for appellants.
    I. Plaintiff should be required to meet the liability standards articulated in Chapadeau v Utica Observer-Dispatch. (New York Times Co. v Sullivan, 376 US 254; Curtis Pub. Co. v Butts, 388 US 130; St.Amant v Thompson, 390 US 727; Trails West v Wolff, 32 NY2d 207; Rosenbloom v Metromedia, 403 US 29; Gertz v Robert Welch, Inc., 418 US 323; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Cottom v Meredith Corp., 65 AD2d 165; Campo Lindo v New York Post Corp., 65 AD2d 650; Greenberg v CBS Inc., 69 AD2d 693.) II. Defendants’ investigation was sufficient to entitle them to summary judgment dismissing the claim for compensatory damages. (Long Is. Cent. Sta. v New York Tel. Co., 54 AD2d 893; Matter of Coniber v Hults, 15 AD2d 252; Warren v New York Tel. Co., 70 Mise 2d 794; Hong Kong Export Credit Ins. Corp. v Dun & Bradstreet, 414 F Supp 153; Robart v Post-Standard, 74 AD2d 963, 52 NY2d 843; Carlucci v Poughkeepsie Newspapers, 88 AD2d 608, 57 NY2d 883; Campo Lindo v New York Post Corp., 65 AD2d 650; Ithaca Coll, v Yale Daily News Pub. Co., 105 Mise 2d 793, 85 AD2d 817; Trails West u Wolff, 32 NY2d 207; Droner v Schapp, 34 AD2d 823.) III. Because there is no evidence of actual malice, the claim for punitive damages should be dismissed. (Gertz v Robert Welch, Inc., 418 US 323; New York Times Co. v Sullivan, 376 US 254; Ithaca Coll, v Yale Daily News Pub. Co., 105 Mise 2d 793; Buckley v Littell, 539 F2d 882,429 US 1062; Orr v Lynch, 60 AD2d 949,45 NY2d 903; Droner v Schapp, 34 AD2d 823; Roche v Hearst Corp., 72 AD2d 245, 53 NY2d 767; Malerba v Newsday, Inc., 64 AD2d 623.) IV. The article is not reasonably capable of defaming plaintiff. {James v Gannett Co., 40 NY2d 415; Tracy v Newsday, Inc., 5 NY2d 134; Smith v Staten Is. Advance Co., 194 Mise 299; El Meson Español v NYM Corp., 521 F2d 737; Ladany v Morrow & Co., 465 F Supp 870; Korry v International Tel. & Tel. Corp., 444 F Supp 193.) V. Summary judgment is an appropriate remedy in cases like the one in bar. {Fischer v Brockway Co., 14 AD2d 632; Holy Spirit Assn, v Harper & Row, 101 Mise 2d 30; Karaduman v Newsday, Inc., 51 NY2d 531; Guitar v Westinghouse Elec. Corp., 396 F Supp 1042, 538 F2d 309; DeLuca v New York News, 109 Mise 2d 341; Ithaca Coll, v Yale Daily News Pub. Co., 105 Mise 2d 793; Yiamouyiannis v Consumers Union, 619 F2d 932, 449 US 839; Roche v Hearst Corp., 53 NY2d 767; Robart v Post-Standard, 52 NY2d 843.)

      Frank C. McDermott for respondent.
    I. The moving papers are insufficient to warrant the granting of summary judgment. {Executive Securities Corp. v Gray, 67 AD2d 860; Stainless, Inc. v Employers’ Fire Ins. Co., 69 AD2d 27, 49 NY2d 924; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Columbia Programming Unlimited v Colum

      bia Broadcasting Systems, 50 AD2d 351; Greenberg v Man-Ion Realty, 43 AD2d 968.) II. Plaintiff has raised questions of fact which should be determined after trial. (.Hutchinson v Proxmire, 443 US 111; Wolston v Reader’s Digest Assn., 443 US 157; Karaduman v Newsday, Inc., 51 NY2d 531; Hong Kong Export Credit Ins. Corp. v Dun & Bradstreet, 414 F Supp 153; St. Amant v Thompson, 390 US 727; Di Lorenzo v New York News, 81 AD2d 844; Greenberg v CBS Inc., 69 AD2d 693; Russo v Padouano, 84 AD2d 925; Cottom v Meredith Corp., 65 AD2d 165.) III. The published statement is libelous. (Hogan u Herald Co., 84 AD2d 470, 58 NY2d 630; Mencher v Chesley, 297 NY 94; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Julian v American Business Consultants, 2 NY2d 1; James v Gan-nett Co., 40 NY2d 415; Tracy u Newsday, Inc., 5 NY2d 134; Cassidy v Gannett Co., 173 Mise 634; November v Time Inc., 13 NY2d 175; Schermerhorn v Rosenberg, 73 AD2d 276.) IV. The defamatory statements are not protected by a constitutional privilege. (.Rupert v Sellers, 65 AD2d 473; Chaplinsky v New Hampshire, 315 US 568; James v Gan-nett Co., 40 NY2d 415.) V. The rule set forth in Chapadeau v Utica Observer-Dispatch does not apply in this case. 0Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Trails West v Wolff, 32 NY2d 207; Cottom v Meredith Corp., 65 AD2d 165; Karaduman v Newsday, Inc., 51 NY2d 531.) VI. Publication by appellants was negligent. (Gertz v Robert Welch, Inc., 418 US 323; Mink v Keim, 291 NY 300; Andre v Pomeroy, 35 NY2d 361; Hoggard v Otis Elevator Co., 52 Mise 2d 704, 28 AD2d 1207; Morris v Troy Sav. Bank, 32 AD2d 237, 28 NY2d 619; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Havas v Victory Paper Stock Co., 49 NY2d 381; St. Amant v Thompson, 390 US 727.) VII. Respondent is entitled to a judgment for punitive damages based upon appellants reckless disregard for the truth. (Vasquez v O’Brien, 85 AD2d 791; Di Lorenzo v New York News, 81 AD2d 844.) VIII. The facts in the present case differ substantially from those cases cited by appellants.

      JohnB. McCrory and Robert C. Bernius for CBS Inc. and others, amici curiae.

    I. The court below should have applied the Chapadeau gross irresponsibility standard. (Chapa-deau v Utica Observer-Dispatch, 38 NY2d 196; James v

      Gannett Co., 40 NY2d 415; Gertz v Robert Welch, Inc., 418 US 323; Karaduman v Newsday, Inc., 51 NY2d 531; Washington Post Co. v Keogh, 365 F2d 965, 385 US 1011; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Gregoire v Biddle, ill F2d 579; Columbia Broadcasting v Democratic Committee, 412 US 94; Miami Herald Pub. Co. v Tornillo, 418 US 241; Rosenbloom v Metrome-dia, 403 US 29.) II. The punitive damages claim should have been dismissed. (Gertz u Robert Welch, Inc., 418 US 323; New York Times Co. v Sullivan, 376 US 254; Reliance Ins. Co. v Barron’s, 442 F Supp 1341; St. Amant v Thompson, 390 US 727; Carson v Allied News Co., 529 F2d 206; Bruno v New York News, 89 AD2d 260.) III. Summary judgment is the appropriate method of disposition where constitutional privilege applies. {Martin Marietta Corp. v Evening Star Newspaper Co., 417 F Supp 947; Bon Air Hotel v Time, Inc., 426 F2d 858; Trails West v Wolff, 32 NY2d 207; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 434 US 969; Hutchinson v Proxmire, 443 US 111; Yiamouyiannis v Consumers Union, 619 F2d 932, 449 US 839; Schultz v Newsweek, Inc., 668 F2d 911; National Nutritional Foods Assn, v Whelan, 492 F Supp 374; Steaks Unlimited v Deaner, 623 F2d 264; Church of Scientology v Siegelman, 475 F Supp 950, 481 F Supp 866.)
   OPINION OF THE COURT

Kaye, J.

This libel action, brought by a nonpublic figure against a newspaper publisher and reporter, tests the reach of Chapadeau v Utica Observer-Dispatch (38 NY2d 196). In Chapadeau this court held that “where the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition,” a defamed party may recover damages only on a showing of gross irresponsibility (38 NY2d, p 199). Plaintiff asserts that defamatory statements about her, in an article concerning a State program which featured her former husband, fall outside the area defined by Chapadeau, and that a standard of simple negligence should determine defendant’s liability. We conclude both that the challenged statements are within Cha-padeau and that defendants were not grossly irresponsible, and therefore reverse the order denying defendants’ motion for summary judgment and dismiss the complaint.

I

In July, 1977, defendant New York News Inc. published in the Daily News a series of five articles concerning the State’s program for transferring some 50,000 mental patients out of State mental hospitals, for continuing care in nursing homes. The series was written by defendant Marcia Kramer, a staff reporter. The fourth article, “Homing In On Institutions Where The Care Is Careless,” featured George Nies, a patient who had been transferred from a public mental hospital to a nursing home, and described his experiences in the home. The article opened as follows:

“When he was 41, George Nies, a Queens construction worker, suffered a nervous breakdown that psychiatrists said was precipitated by a messy divorce and the fact that his son killed himself because his mother dated other men.

“George was institutionalized, first in a Veteran’s Administration hospital and then in Creedmoor State Hospital for the mentally ill in Queens Village. After two years there, he appeared to be making progress.

“Then, without his family’s knowledge, state mental health officials discharged him and sent him to the Elm-hurst Manor Home for Adults, 100-30 Ditmars Boulevard, Flushing. Approximately half the residents of Elmhurst Manor are sane elderly men and women, the rest are discharged mental patients like George Nies.”

Plaintiff, Catherine Gaeta, the former wife of Nies, claims that the initial paragraph is false and defames her. She asserts that Nies did not suffer a nervous breakdown but that his hospital admission was precipitated by chronic alcoholism; that the divorce was not “messy” but was on consent; that their son did not commit suicide but died as a consequence of drug abuse long after his father’s initial hospitalization; that she did not date other men as alleged; and that none of the statements were made by psychiatrists. In her complaint plaintiff claims in addition that the statements were made with knowledge of their falsity or reckless disregard of the truth, and she seeks compensatory and punitive damages from the publisher and reporter.

On plaintiff’s motion, Special Term struck from defendants’ answers the affirmative defense that the statements deal with matters of public concern requiring proof of gross irresponsibility, concluding that the standard of gross negligence is inapplicable because the statements regarding plaintiff had nothing to do with the treatment of nursing home patients; “the relationship between plaintiff and her son was not a matter of public interest, and was neither an integral nor a non integral part of the nursing home news story.” Citing this decision as law of the case, another Special Term Judge after discovery denied defendants’ motion for summary judgment. The court applied a simple negligence standard and concluded that defendants could be found negligent for not having made further inquiry in the circumstances. Moreover, the court allowed plaintiff’s punitive damages claim to stand, applying a standard of reckless disregard for the truth, since the case involves investigative reporting, where more time is available and greater care should be exercised.

The relevant facts regarding defendants’ investigation were drawn largely from the reporter’s deposition testimony. The reporter testified that she had spent approximately two months gathering information for the series. In the course of her research, George Nies was brought to her attention by sources in the office of Nursing Homes Special Prosecutor Charles J. Hynes. They referred Kramer to Dorothy Sorrentino, George Nies’ sister and, she believed, his legal guardian. Kramer was told that Sorrentino had previously proved to be a reliable source of information for the Special Prosecutor’s office. Kramer spoke to Sorrentino on the telephone two or three times, during which Nies’ treatment in the home as well as his psychiatric history were described. Sorrentino told Kramer that a psychiatrist had said that Nies’ nervous breakdown was caused by a messy divorce and the fact that his son had killed himself because his mother was dating other men. As Kramer testified, since her article centered on Nies’ placement and care, and not his divorce, she did not inquire further about these personal details. She twice contacted psychiatrists at Creedmoor State Hospital, where Nies had previously been hospitalized, but they refused on the basis of patient-physician confidentiality to discuss his history, and suggested that she speak with Nies’ family or legal guardian. In an undercover capacity, Kramer visited the Elmhurst Manor Home for Adults, and observed conditions there firsthand, which confirmed the information about the home she had received from Sorrentino.

The Appellate Division, two Justices dissenting, affirmed the denial of defendants’ motion for summary judgment, agreeing that the gross irresponsibility standard of Chapadeau was inapplicable because the statements concerning plaintiff, remote in time and substance from the subject of the series, had no relationship to the balance of the article. The court concluded that the proof as to the investigation conducted and the degree of care exercised requires a weighing and balancing inappropriate for summary judgment, that even if the standard were gross irresponsibility there were factual issues present, and that the deliberate injection into a news story of a defamatory statement about a third party outside the sphere of public interest might rise to a higher level of reckless indifference and thus support an award of punitive damages.

Applicability of Chapadeau is thus called into question in two respects: first, are the challenged statements within the defined area requiring a higher standard of culpability? Second, has plaintiff raised a triable issue as to defendants’ gross irresponsibility? Since we answer the first question in the affirmative and the second in the negative, resulting in dismissal of the complaint, we do not reach the issue whether the statements are indeed defamatory, which defendants dispute, or whether plaintiff’s punitive damages claim should be dismissed for failure to show actual malice.

In striking a balance between the rights of private citizens to be protected against defamation and the constitutional guarantees of free speech and free press, this court in Chapadeau imposed a higher standard of culpability when defamatory statements involve matters of genuine public concern. While there are no mechanical rules for identifying such subjects, matters involving the business of government clearly come within this category “for the rule requiring proof of fault in defamation actions rests upon the premise that the public needs to know those things which enable government to operate successfully.” (Cottom v Meredith Corp., 65 AD2d 165, 170 [Simons, J.].)

The Chapadeau standard, moreover, in describing the editorial content as to which the gross irresponsibility standard applies, recognizes the need for judgment and discretion to be exercised by the journalists, subject only to review by the courts to protect against clear abuses. Determining what editorial content is of legitimate public interest and concern is a function for editors. While not conclusive, “a commercial enterprise’s allocation of its resources to specific matters and its editorial determination of what is ‘newsworthy’, may be powerful evidence of the hold those subjects have on the public’s attention.” (Cottom v Meredith Corp., 65 AD2d 165, 170, supra.) The press, acting responsibly, and not the courts must make the ad hoc decisions as to what are matters of genuine public concern, and while subject to review, editorial judgments as to news content will not be second-guessed so long as they are sustainable. These considerations apply with equal force to the determination of what is “reasonably related to matters warranting public exposition” (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199, supra). Additionally, as with any test that measures the reasonable relationship of one thing to another, offending statements can only be viewed in the context of the writing as a whole, and not as disembodied words, phrases or sentences.

Turning now to the facts before us, it is clear that the series, and the article in question, deal with a subject of public business and concern, itself plainly warranting public exposition. No one seriously disputes that a State program for transfer of some 50,000 patients from public mental hospitals into nursing homes, and the subsequent experience of these individuals alongside the aged and infirm, is a subject of true public importance. Nor does the familiar journalistic technique of featuring the experiences of a single individual, as exemplifying in human terms the plight of many, change the character of the article in issue. George Nies’ experience as a mental patient transferred, as part of a government program, to a nursing home, is a subject of legitimate public concern, reasonably related to matters warranting public exposition. In the context of an article focusing on one mental patient to portray a situation undeniably meriting public exposition, we cannot say that the causes of his initial confinement, and a chronology of his hospitalization, are not at least arguably a matter of legitimate public interest, and reasonably related to the major subject of the article. While perhaps distant in time, background details limited to George Nies’ illness and treatment are hardly remote from the subject of the article. From the face of the article, we find no abuse of editorial discretion and no disputed issue requiring submission to a jury. Since the offending sentence is within the area defined by Chapadeau where plaintiff in order to recover for defamation must prove gross irresponsibility, we next turn to the question whether plaintiff has raised a triable issue of fact as to defendants’ culpability.

Ill

Plaintiff has come forward with no evidence showing facts that would justify a jury in concluding that defendants had acted in a grossly irresponsible manner, and therefore summary judgment dismissing the complaint should have been granted. Before reaching the merits of this issue, we note that neither preliminary argument raised by plaintiff forecloses that result. First, the fact that supporting proof was placed before the court by way of an attorney’s affidavit annexing deposition testimony, rather than affidavits of fact on personal knowledge, does not defeat defendants’ right to summary judgment. (Zuckerman v City of New York, 49 NY2d 557, 563; O’Connor v G & R Packing Co., 53 NY2d 278, 283-284.) Second, while it may be argued that libel suits involving public figures are inappropriate for summary judgment because a plaintiff must demonstrate the subjective state of mind of the defendant, which does not readily lend itself to summary disposition (see, e.g., Hutchinson v Proxmire, 443 US Ill, 120, n 9), here the standard may be satisfied by wholly objective proof. Defendants, like any other litigants, should not be denied summary judgment when an insufficient showing has been made in opposition to their motion. (Karaduman v Newsday, Inc., 51 NY2d 531, 545; see, also, Robart v Post-Standard, 52 NY2d 843; and Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, supra.)

Plaintiff has not raised a triable issue as to whether defendants “acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196,199, supra.) Sorrentino had been described to Kramer as Nies’ legai guardian and a source who had previously furnished accurate information to the Nursing Homes Special Prosecutor. Sorrentino’s facts about her brother had inherent plausibility, and Kramer had no reason to suspect any animus toward the plaintiff. Kramer herself confirmed Sorrentino’s information about the nursing home by a visit there; no information could be secured from the psychiatrists at Creedmoor. Even though this was investigative reporting, free from the pressures and deadlines of live news, defendants cannot be said to have been grossly irresponsible in not making further inquiry. There was no reason to doubt the veracity of the information received from Sorrentino, and indeed good reason to believe it was accurate. (Robart v Post-Standard, 52 NY2d 843, supra; James v Gannett Co., 40 NY2d 415, 424.) Given that the reporter had no reason to suspect her source, and that she herself visited the nursing triable issue is raised as to defendants’ gross irresponsibility.

Accordingly, the order of the Appellate Division should be reversed, with costs, summary judgment for defendants granted, the complaint dismissed, and the certified question answered in the negative.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer and Simons concur.

Order reversed, with costs, appellants’ motion for summary judgment granted, complaint as against appellants dismissed, and question certified answered in the negative.

       The former editor and publisher, also named as defendants, were dismissed from the suit on the ground that they played no affirmative role in the article, and no appeal was taken from that decision.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    In the Matter of Marie B.
    Argued May 8, 1984;
    decided June 12, 1984

      POINTS OF COUNSEL

      V. Michael Liccione for Oneida County Department of Social Services, appellant.
    I. The decision of the court below did not conform to the decision of the Family Court. II. The particular facts, in the case at bar, require a finding that subdivision (e) of section 1039 of the Family Court Act is constitutional. (Matter of Gary A., 60 AD2d 927; Matter of Spieluogel v Ford, 1 NY2d 558; United States v Caroline Prods. Co., 304 US 144; United States v Thompson, 452 F2d 1333, 405 US 998; Childs v Childs, 69 AD2d 406, 446 US 901.)
    under section 71 of the Executive Law, appellant.
    I. Subdivision (e) of section 1039 of the Family Court Act represents a legitimate legislative balance between immediate divisive custodial proceedings (which would otherwise be necessary) and the need to interpose safeguards to prevent recurrent child abuse or neglect. {Matter of Ricky Ralph M., 56 NY2d 77; Santosky v Kramer, 455 US 745; Matter of Dochingozi B., 57 NY2d 641; Matter of Star A., 55 NY2d 560; Parham v J. R., 442 US 584; Matter of Weber v Stony Brook Hosp., 60 NY2d 208; Wisconsin v Yoder, 406 US 205; Pierce v Society of Sisters, 268 US 510; People v Ewer, 141 NY 129; Weinberger u Van Hessen, 236 App Div 14.) II. The parent, represented by counsel, knowingly and intelligently waived whatever due process rights, if any, she possessed. {Johnson v Zerbst, 304 US 458; Boddie v Connecticut, 401 US 371; Brady v United States, 397 US 742; Miranda v Arizona, 384 US 436; Overmyer Co. v Frick Co., 405 US 174; United States v Armour & Co., 402 US 673.)

      Deirdre Parke for respondent mother.
    I. Subdivision (e) of section 1039 of the Family Court Act violates the due process clause of both the New York State and the United States Constitutions by deeming neglect to exist when it has neither been proven nor admitted. {Mathews v Eld-ridge, 424 US 319; Vlandis v Kline, 412 US 441; Heiner v Donnan, 285 US 312; Carrington v Rash, 380 US 89; Cleveland Bd. ofEduc. v LaFleur, 414 US 632; Reed v Reed, 404 US 71; Santosky v Kramer, 455 US 745; Meyer v Nebraska, 262 US 390; Skinner v Oklahoma, 316 US 535; May v Anderson, 345 US 528; Stanley v Illinois, 405 US 645; Loving v Virginia, 388 US 1; Wisconsin v Yoder, 406 US 205.) II. Respondent has not waived her right to constitutionally correct procedures by agreeing to an adjournment in contemplation of dismissal. {Goldberg v Kelly, 397 US 254; Arnett v Kennedy, 416 US 134.) III. Subdivision (e) of section 1039 of the Family Court Act cannot deprive a child of the right to be raised by her parents without an appropriate showing of neglect. {Matter of Bennett v Jef-freys, 46 NY2d 543; Matter of Sanjivini K., 47 NY2d 374.)
   OPINION OF THE COURT

Jasen, J.

The critical issue on this appeal is the constitutionality of subdivision (e) of section 1039 of the Family Court Act which authorizes a conclusive finding of parental neglect and the consequent removal of a child, without an actual determination of whether the child has in fact been abused or neglected. Specifically, subdivision (e) of section 1039 provides that parental neglect shall be deemed to exist whenever a court finds that the parent has failed substantially to observe the terms of a previously ordered adjournment in contemplation of dismissal of charges of parental neglect or has failed to cooperate with the supervising child protective agency. Upon such a finding, regardless of whether the parental conduct actually constituted neglect or abuse, the court may proceed directly to a dispositional hearing and order the child removed. Both courts below found the provision to be unconstitutional. We now agree and affirm.

In September, 1979, petitioner Oneida County Department of Social Services (the Agency), originally commenced this proceeding by filing a petition in Family Court alleging the neglect of Marie B., an infant of 18 months at that time. The petition charged respondent mother with chronic intoxication and failure to provide the child with necessities. The court entered a temporary child protective order granting the Agency temporary custody of the child. Subsequently, in December, 1979, at a hearing in which the parent was represented by counsel, the Agency moved for an adjournment in contemplation of dismissal (ACD), pursuant to section 1039 of the Family Court Act. Under the terms of the proposed ACD, custody of the infant was to remain with the Agency for a period of one year, but the child was actually to reside at home with the parent. Moreover, certain conditions were specified, including the parent’s abstention from alcoholic beverages, acceptance of alcoholic treatment and counseling, and cooperation with a social worker to be assigned by the Agency. The court explained to the parent that if she violated any of the conditions at any time during the one-year period, she would be considered automatically to have admitted the allegations of abuse and neglect, would not be entitled to a hearing, and her child could be taken from her. When the parent indicated her understanding and consent, the court granted the motion and ordered the ACD.

Within two months, an agency social worker discovered the parent intoxicated and, with the latter’s consent, removed the child from the household for placement in foster care. In April, 1980, the Agency filed a petition alleging substantial violations of the conditions of the ACD in that the parent had consumed alcoholic beverages and had refused to be treated for alcoholism. The Agency requested that the ACD be revoked and that the child be removed from the parent’s custody pursuant to subdivision (e) of section 1039 of the Family Court Act. In opposition, counsel for the parent moved to dismiss the petition on the ground that those provisions, insofar as they authorize removal upon violation of an ACD, were unconstitutional.

Family Court, holding that the constructive finding of neglect as mandated by the statute was an insufficient predicate upon which to interfere with parental right to custody, granted the parent’s motion and dismissed the petition. The Appellate Division agreed that subdivision (e) of section 1039 was unconstitutional insofar as the last sentence gave the same force and effect to a violation of a condition of an ACD as a factual finding of child abuse or neglect. That court dismissed the subject petition seeking revocation of the ACD and, finding the original neglect petition to have expired, dismissed that one as well.

Section 1039 of the Family Court Act permits the temporary removal of a child from the parent, as well as any other disposition under section 1052, otherwise authorized only after a formal neglect hearing (see §§ 1041-1049), without first requiring a determination whether the child has in fact been either abused or neglected. Under the provisions of this section, upon the filing of a neglect petition, the court may dispense with the normal fact-finding hearing and order that the child protective proceeding be adjourned in contemplation of dismissal. (§ 1039, subds [a], [c].) The court may proceed, either on its own motion or that of the child protective agency, but only with the parent’s consent. Moreover, the court must insure that the parent understands that a substantial violation of the terms of the ACD order would result in an automatic finding of neglect and the possible loss of parental rights. Thereafter, once the order is entered and for the duration of the adjournment period, the specifically disputed provisions of section 1039 take effect. Those provisions are contained in the last sentence of subdivision (e), which provides in its entirety: “(e) Upon application of the petitioner or the child’s attorney or law guardian, or upon the court’s own motion, made at any time during the duration of the order, the court may restore the matter to the calendar, if the court finds after a hearing that the respondent has failed substantially to observe the terms and conditions of the order or to cooperate with the supervising child protective agency. In such event, circumstances of neglect shall be deemed to exist, and the court may thereupon proceed to a dispositional hearing under this article and may, at the conclusion of such hearing, enter an order of disposition authorized pursuant to section one thousand fifty-two with the same force and effect as if a fact-finding hearing had been held and the child had been found to be an abused child or a neglected child” (Emphasis added.) Pursuant to the foregoing provisions, if at any time prior to the expiration of the ACD order, which may be no later than one year following its entry (§ 1039, subd [b]), the court does find after a hearing that the parent has substantially violated one of the terms or conditions, the court may proceed just as though a formal neglect proceeding had been conducted. In short, a violation of the ACD order is equated with parental neglect, thereby obviating a finding of the latter as a requisite to the deprivation of the parental right to care and custody of the child. Such an equation cannot withstand constitutional scrutiny and, consequently, the last sentence of subdivision (e) of section 1039 was correctly declared unconstitutional.

Fundamental constitutional principles of due process and protected privacy prohibit governmental interference with the liberty of a parent to supervise and rear a child except upon a showing of overriding necessity. (See Santosky v Kramer, 455 US 745, 753; Wisconsin v Yoder, 406 US 205, 232; Stanley v Illinois, 405 US 645, 651; Pierce v Society of Sisters, 268 US 510, 534.) Indeed, this court has repeatedly held that the State may not deprive a natural parent of the right to the care and custody of a child absent a demonstration of abandonment, surrender, persisting neglect, unfitness or other like behavior evincing utter indifference and irresponsibility to the child’s well-being. (Matter of Male Infant L., 61 NY2d 420, 427; Matter of Dickson v Lascaris, 53 NY2d 204, 208; Matter of Bennett v Jeffreys, 40 NY2d 543, 544; Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204; People ex rel. Kropp v Shepsky, 305 NY 465, 468.) Legislation which authorizes the removal of a child f -om the parent without the requisite showing of such extraordinary circumstances constitutes an impermissible abridgement of fundamental parental rights.

In this case, as well as in similar situations, section 1039 would authorize the removal of the child upon the mere showing that the parent had failed to obey the terms or conditions of the ACD order, whether or not such failure in fact amounted to neglect, unfitness or any other constitutionally required predicate. Indeed, there is no provision under the statutory scheme for the requisite demonstration and finding of neglect or abuse of the child. Rather, once the court finds that the ACD order has been violated, circumstances of neglect are simply “deemed to exist” without the presentation of any evidence to prove that it is so. Such a constructive finding is a constitutionally inadequate justification for the drastic interference with parental rights permitted under the statute.

Moreover, the mere fact that the statute requires that the court have previously ordered an ACD with the parent’s consent, as was the case here, does not somehow save it from constitutional infirmity. An ACD is emphatically not a determination on the merits. It is not akin to a finding of parental neglect, but, rather, it leaves the question unanswered. (See Hollender v Trump Vil. Coop., 58 NY2d 420; cf. CPL 170.55; People v Rickert, 58 NY2d 122.) Upon the parent’s violation of the conditions of the ACD order within the established time period, the child protective proceedings formerly adjourned may again be commenced. But the violation per se may not summarily be transformed into an adjudication of parental neglect. Rather, there must first be a finding of actual neglect, whether before or after the violation. Indeed, there must be a formal hearing and a clear demonstration that the child in question has in fact been neglected or abused either as a result of the allegations in the neglect petition, the parent’s failure to abide by the conditions of the ACD, or otherwise.

Finally, the Appellate Division did not abuse its discretion in dismissing the original neglect petition or the petition alleging violation of the ACD. Nothing herein precludes the agency from bringing another petition alleging any actual facts of parental neglect which would support a judicial finding thereof.

Accordingly, the order of the Appellate Division holding the last sentence of subdivision (e) of section 1039 of the Family Court Act unconstitutional is affirmed, without costs.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, without costs.

       In fact, the court informed the parent that her “children" could be taken from her. The record shows that respondent is the mother of two other daughters, both of whom have been placed in foster care homes. The ACD motion and order concerned one of those children, as well as Marie B., but this proceeding involves only the latter.


author: Meyer, J.

text:
    Michael Collins, Individually and as President of the Transit Supervisors Organization, et al., Respondents, v Manhattan & Bronx Surface Transit Operating Authority (MABSTOA) et al., Appellants.
    Argued May 9, 1984;
    decided June 12, 1984

      POINTS OF COUNSEL

      Richard Dreyfus, Richard K. Bernard and Carla Lowen-heirn for appellants.
    I. The Manhattan & Bronx Surface Transit Operating Authority, a public benefit corporation, is not a civil division of the State, and, therefore, is not covered by section 6 of article V of the New York Constitution. (People ex rel. Downing u Stout, 23 Barb 338; Markey u County of Queens, 154 NY 675; Gaynor v Marohn, 268 NY 417; Village of Kenmore v County of Erie, 252 NY 437; Holmes v County of Erie, 266 App Div 220; People v Shepard, 36 NY 285; Metropolitan Bd. of Health v Heister, 37 NY 661; People v Pinckney, 32 NY 377; Herman v Board of Educ., 234 NY 196; Union Free School Dist. No. 3 v Town of Rye, 256 App Div 456, 280 NY 469.) II. The issue of whether a term or condition of employment is being violated is either for the Public Employment Relations Board to determine or is subject to contractual arbitration. (Matter of West Irondequoit Teachers Assn, v Helshy, 35 NY2d 46; Matter of Jefferson County Bd. of Supervisors v New York State Public Employment Relations Bd., 36 NY2d 534; Matter of Corbin v County of Suffolk, 54 AD2d 698; Matter of Cooperative Educational Servs. v New York State Public Employment Relations Bd., 50 AD2d 832, 41 NY2d 753; Board of Educ. v Helsby, 37 AD2d 493; De Milia v McGuire, 101 Mise 2d 281; Young Men’s Christian Assn, v Rochester Pure Waters Dist., 37 NY2d 371; Matter of Tanzosh v New York City Civ. Serv. Comm., 58 AD2d 522, 44 NY2d 906; Gleason v Gleason 26 NY2d 28.)

      Ronald H. Shechtman, Richard M. Betheil, Asher Schwartz, Malcolm A. Goldstein, Murray A. Gordon and Kenneth E. Gordon for respondents.
    I. The Manhattan & Bronx Surface Transit Operating Authority is subject to section 6 of article V of the New York State Constitution. CMatter of Mena v D’Ambrose, 44 NY2d 428; Matter of Corwin v Farrell, 303 NY 61; Matter of Subway-Surface Supervisors Assn, v New York City Tr. Auth., 56 AD2d 53, 44 NY2d 101; Matter of Westchester County Civ. Serv. Employees Assn, v Cimino, 58 AD2d 869, 44 NY2d 985; Easley v New York State Thruway Auth., 1 NY2d 374; Tillot v New York State Thruway Auth., 107 Mise 2d 229; Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn, v New York State Thruway Auth., 5 NY2d 420; Matter of Dormitory Auth. [Span Elec. Corp.], 18 NY2d 114; Grace & Co. v State Univ. Constr. Fund, 44 NY2d 84; Matter ofWipfler v Klebes, 284 NY 248.) II. The courts have jurisdiction to hear plaintiffs’ claim of estoppel. (Brennan v New York City Housing Auth., 72 AD2d 410; Matter of Board ofEduc. v Yonkers Federation of Teachers, 40 NY2d 268.)

      Robert Abrams, Attorney-General {Michael S. Buskus and Peter H. Schiff of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. The Legislature has broad power to fashion public authorities so that they are neither “the State” nor “civil divisions thereof” within the meaning of section 6 of article V of the State Constitution. {Union Free School Dist. No. 3 v Town of Rye, 280 NY 469; Village of Kenmore v County of Erie, 252 NY 437; Matter of Miller v State of New York, 279 NY 74; Matter of Holt v Jansen, 26 Mise 2d 247, 283 App Div 796; Matter of Andresen v Rice, 277 NY 271; Palmer v Board ofEduc., 276 NY 222; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Darlington v City of New York, 31 NY 164; Worcester v State Ry. Co., 196 US 539; Black Riv. Regulating Dist. v Adirondack League Club, 307 NY 475.) II. The courts should first resolve the continued applicability of section 1203-a (subd 3, par [b]) of the Public Authorities Law in view of the temporary purpose of that provision when enacted in 1962. {Matter of Lorelli v Manhattan & Bronx Surface Tr. Operating Auth., 48 Mise 2d 944; Murphy v American Home Prods. Corp., 58 NY2d 293; Weiner v McGraw-Hill, Inc., 57 NY2d 458; National Broiler Marketing Assn, v United States, 436 US 816; East N. Y. Sav. Bank v Hahn, 293 NY 622, 326 US 230.)
   OPINION OF THE COURT

Meyer, J.

Appointments and promotions by a public authority are not appointments and promotions in the civil service of the State or a civil division thereof within the meaning of section 6 of article V of the State Constitution. Such appointments and promotions are not governed by the Civil Service Law, therefore, unless the Legislature in establishing the particular authority so provides, or unless the only purpose of entrusting the function to be performed to an authority is evasion of the constitutional requirement applicable to the State and its civil divisions. Nor does the fact that an authority exempted from civil service requirements by the Legislature has promoted on the basis of competitive examination estop it from abandoning that practice. The order of the Appellate Division insofar as appealed from should, therefore, be reversed, with costs, the first and third causes of action of the complaint dismissed, and the certified question answered in the negative.

I

The Manhattan and Bronx Surface Transit Operating Authority (hereafter MABSTOA or the Authority) was created by the Legislature in 1962, as a subsidiary of the New York City Transit Authority, to operate bus lines, formerly privately owned and operated, which had been acquired by the City of New York through condemnation proceedings (Public Authorities Law, § 1203-a). The statute creating MABSTOA specifically provides that its officers and employees “shall not become, for any purpose, employees of the city or of the transit authority and shall not acquire civil service status” (Public Authorities Law, § 1203-a, subd 3, par [b]).

Notwithstanding that provision, the present action seeks to enjoin the Authority from making appointments and promotions except from eligible lists promulgated on the basis of competitive examinations and to require that it comply with section 6 of article V of the State Constitution and specified sections of the Civil Service Law. Plaintiffs are the collective bargaining representatives of employees in certain supervisory and white-collar positions and the presidents of those organizations. The Authority and its officers are defendants.

The complaint sets forth four causes of action; the first alleging violation of the Constitution and the Civil Service Law; the second, violation of sections 45, 75 and 80 of the Civil Service Law; the third predicated upon estoppel based upon the Authority’s practice, discontinued in June, 1980, of making appointments and promotions from eligibility lists based upon competitive examinations, upon which, it is alleged, the employees have relied as “one of the terms and conditions of their employment”; and the fourth based upon section 1983 of title 42 of the United States Code and claimed violations of due process and equal protection. On defendant’s motion to dismiss, Special Term dismissed the second and fourth causes of action but otherwise denied the motion, holding as to the first cause of action that the Authority is a civil division of the State and thus within the constitutional mandate, and as to the third, that there was jurisdiction to resolve the estoppel claim in light of the public policy involved. On appeal by both sides to the Appellate Division, that court affirmed on the opinion of Special Term but granted the Authority leave to appeal and certified to us the question whether so much of its order as denied the motion to dismiss the first and third causes of action was proper.

II

Section 6 of article V of the State Constitution mandates that and promotions in the civil service of the State and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive”. Based upon review of the constitutional history of the provision and its construction by the courts, we conclude that a public authority is not a “civil division” of the State within its meaning.

A

The provision was first adopted as part of the Constitution of 1894. As originally proposed it would have covered only the State and cities. The words “all of the civil divisions thereof, including cities and villages” were added, as the Convention debates establish, to expand the reach of the provision beyond urban regions to the “country districts,” including rural counties, towns and villages, as well (4 Revised Record of Constitutional Convention of State of New York, 1894 [1900 Steele rev], pp 1021-1024, 1034 [hereafter Constitutional Convention]; see Chittenden v Wurster, 152 NY 345, 354). Clear from the debates is the fact that “civil divisions” also included all “departments” and “offices” of the State, wherever located, without regard to their particular nature or size (Constitutional Convention, at pp 1030-1034, 1039-1046).

The phrase comprehended, additionally, districts established to perform a particular governmental function in a given territory. At the time the 1894 Constitution was adopted these included police districts (see, e.g., People ex rel. McCune v Board of Police, 19 NY 188), sanitary districts (Metropolitan Bd. of Health v Heister, 37 NY 661) and fire districts (People v Pinckney, 32 NY 377), and after its adoption, school districts (Palmer v Board of Educ., 276 NY 222, 228; Herman v Board of Educ., 234 NY 196) and public welfare districts (Matter of Kraus v Singstad, 275 NY 302) were also held to be civil divisions within the provision. Each, however, as had the earlier counterparts, exercised a particular governmental function — education, energy, welfare — within a limited and defined territory.

B

There were no public authorities in existence when the 1894 Constitution was adopted, the first in New York apparently being the 1921 creation of the Port of New York Authority (see Gaynor v Marohn, 268 NY 417, 424, n). The question whether such an authority was covered by section 6 of article V appears not to have been raised prior to 1929, when the Attorney-General was asked whether employees of the Niagara Frontier Bridge Commission were in “the civil service of the state.” Noting that the Commission “represented] a peculiar legislative development of recent years, a corporation having some of the characteristics of a private corporation and some of a state instrumentality”, the Attorney-General reasoned that a prime purpose for creating such corporations was to separate their administrative and fiscal functions from the State and its subdivisions and concluded that “this separation of function takes the commission and its employees beyond the present scope of the civil service” (1929 Opns Gen 223, 224). His conclusion was fortified by reference to the practice followed by two major authorities then functioning, the Port of New York Authority and the Albany Port District Commission (id.).

That opinion is of particular significance in light of the inclusion of the merit and fitness provision in the 1938 Constitution without change., notwithstanding that the operation of public authorities was a topic of major concern at the 1938 Convention (Quirk & Wein, A Short Constitutional History of Entities Commonly Known As Authorities, 56 Cornell L Rev 521, 561-579). Significant also in light of the failure to modify the constitutional mandate is the Report of the Convention Committee which described public authorities as intended “to resemble in many respects a private business corporation * * * They operate on a business basis, and have complete control over the hiring and firing of employees and over their own organization and methods of operation” (11 Report of Constitutional Convention Committee, 1938, Problems Relating to Home Rule & Local Government, p 238 [emphasis supplied]).

The italicized language in that report must be understood as referring to authorities created by statute that did not expressly make the Civil Service Law applicable to the particular authority involved, for the Legislature had prior to 1938 directed that certain public authorities be governed by the provisions of that law (Temporary State Commission On Coordination of State Activities, Staff Report on Public Authorities Under New York State, NY Legis Doc, 1956, No. 46, p 158 [hereafter Temporary State Commission Report]). That practice has been followed by the Legislature ever since, the statute creating each authority usually stating that the Civil Service Law shall apply, but in a number of cases expressly providing otherwise, and in some cases containing no expression one way or the other.

c

There is no question that within the scope of its coverage, section 6 of article V, when adopted as part of the 1894 Constitution, was intended to extend civil service protections and reforms to a large number of government employees who had not been covered by prior civil service legislation (see Hale v Worstell, 185 NY 247; People ex rel. McClelland v Roberts, 148 NY 360; Constitutional Convention, at pp 836, 1030). That intent alone does not, however, suffice to include in its embrace agencies not properly classifiable as civil divisions of the State. Not only the practice detailed above, but also the characteristics of public authorities, establish their dissimilarity from civil divisions. Although all civil divisions are territorial subdivisions of the State, a public authority is not, and although a public authority may provide governmental service often provided by the State or a civil division, it is intended to operate with greater autonomy than permitted by the legal and procedural barriers to which civil divisions are subject (Temporary State Commission Report, at p 554). As we held in Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth. (5 NY2d 420, 423): “Although created by the State and subject to dissolution by the State, these public corporations are independent and autonomous, deliberately designed to be able to function with a freedom and flexibility not permitted to an ordinary State board, department or commission” (accord Matter of Dormitory Auth. [Span Elec. Corp.], 18 NY2d 114, 117; Matter of New York Post Corp. v Moses, 10 NY2d 199, 203-204).

Not surprisingly, therefore, not only has the Temporary State Commission concluded that public authorities are not subject to section 6 of article V of the Constitution (Report, pp 157-166), but also the Attorney-General having carefully reconsidered the matter has found no reason to modify his earlier opinion (1951 Opns Atty Gen 152) to the same effect. Moreover, courts passing upon the question have ruled likewise (see Papa v Rovo, 70 AD2d 59, 65-66; Hyde Park Fire & Water Dist. v County of Dutchess, 97 Misc 2d 104, 106; Russell v Nassau Regional Off-Track Betting Corp., 94 Misc 2d 774, affd 70 AD2d 790; Matter of Agesen v Catherwood, 55 Misc 2d 744, 750, revd on other grounds 32 AD2d 416; Matter of Lorelli v Manhattan & Bronx Surface Tr. Operating Auth., 48 Misc 2d 944; Meadows v Moses, 44 NYS2d 697), and with but one exception have construed the term “civil division” to cover only territorial subdivisions of the State created for the more convenient administration of government and empowered to exercise within their territorial boundaries powers which would otherwise be exercised by the State (Markey v County of Queens, 154 NY 675, 680; see Gaynor v Marohn, 268 NY 417, 422, supra; Herman v Board of Educ., 234 NY 196, 202, supra). We conclude, on the basis of the consistent history and precedent above outlined, that public authorities are not civil divisions within the meaning of the constitutional provision.

D

That conclusion does not mean, as plaintiffs’ in terrorem argument suggests, that the State will be able through use of public authorities to emasculate the constitutional provision. The command of section 6 of article V of the Constitution “is addressed to conventional and stable duties of the functionaries of civil government” and it aims “to supplant by a merit system a spoils system of office holding” (Matter of Social Investigator Eligibles Assn. v Taylor, 268 NY 233, 237). Such duties cannot be delegated by the Legislature to a public authority which is excluded from the civil service system. For example, the State police could not be reconstituted as a public authority with power to hire officers and employees in disregard of the constitutional mandate (cf. Matter of Andresen v Rice, 277 NY 271). But for the most part public authorities have been created as a means of expanding government operations into areas generally carried on by private enterprise, areas not traditionally regarded as “conventional and stable duties * * * of civil government.”

Nor can the Legislature evade the requirement of section 6 of article V by creating a public authority which is completely controlled by the State or a civil division. The courts have been vigilant in scrutinizing arrangements under which the work formerly performed by employees within the constitutional provision is contracted out to private companies. And where the contractor’s employees are not independent of, but rather are controlled and supervised by government officials, such arrangements have been invalidated (see Matter of Conlin v Aiello, 49 NY2d 713, affg 64 AD2d 921; Matter of Westchester County Civ. Serv. Employees Assn. v Cimino, 44 NY2d 985, affg 58 AD2d 869; Matter of Turel v Delaney, 285 NY 16).

Ill

Examined in the light of the foregoing criteria, the Authority is not within the scope of the constitutional provision. It operates bus lines formerly owned by two private companies, which were acquired by New York City immediately before being transferred to the Authority (see Public Authorities Law, § 1203-a, subds 2, 3, par [a]; see, also, Fifth Ave. Coach Lines v City of New York, 11 NY2d 342; Matter of Lorelli v Manhattan & Bronx Surface Tr. Operating Auth., 48 Misc 2d 944, supra). The work performed by the employees represented by plaintiffs is, thus, more within the conventional duties of employees of private companies than it is of employees of the State or one of its civil divisions. The Authority is, moreover, clearly independent of the State and of New York City, for it appoints its own officers and employees, who are neither employees of the city nor members of the city employees’ retirement system (Public Authorities Law, § 1203-a, subd 3, par [b]), and whose work is in no way controlled by the city.

Nor is it sufficient to bring the Authority within the scope of section 6 of article V that its employees are covered by the Public Employees’ Fair Employment Act (Civil Service Law, § 201, subd 6, par [a], cl [v]; subd 7, par [a]) and subject to its restraints on strikes and similar activities. That the Legislature included public authority employees within the Taylor Law’s ameliorative purposes does not require the conclusion that they are also employees of the State or “a civil division thereof” within the more restricted scope of the constitutional provision. That public authorities perform functions in furtherance of governmental interests does not mean, as already discussed, that all public authority employees are within the scope of section 6 of article V (cf. Grace & Co. v State Univ. Constr. Fund, 44 NY2d 84, 88; Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420, 423-425, supra).

IV

There remains for discussion the claim alleged in the third cause of action. Although the complaint speaks in terms of competitive examinations being “one of the terms and conditions of their employment with MABSTOA,” it does so not in terms of a provision of the employment contract (cf. Weiner v McGraw-Hill, Inc., 57 NY2d 458), but solely on the basis of estoppel. Only in most unusual circumstances, however, not present in this case, does estoppel apply to require governmental action (see Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30; Matter of City of New York v City Civ. Serv. Comm., 60 NY2d 436, 439).

Nothing in the third cause, of action or elsewhere in the complaint suggests that plaintiffs seek to implicate the Taylor Law’s requirement that a public employer bargain with its employees before making a unilateral change in the terms and conditions of their employment (Civil Service Law, § 204, subd 2; § 209-a, subd 1, par [d]). We need do no more with respect to the discussion of the Taylor Law in the opinion below and the briefs submitted to us than note that such a claim would be committed to the “exclusive nondelegable jurisdiction” of the Public Employment Relations Board (Civil Service Law, § 205, subd 5, par [d]; Matter of Jefferson County Bd. of Supervisors v New York State Public Employment Relations Bd., 36 NY2d 534, 538; Matter of Corbin v County of Suffolk, 54 AD2d 698), and that any impediment to its considering the claim based upon the involvement of section 6 of article V of the Constitution is now resolved by this decision.

For the foregoing reasons, the order of the Appellate Division insofar as appealed from should be reversed, with costs, the first and third causes of action in the complaint should be dismissed and the question certified should be answered in the negative.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Simons and Kaye concur.

Order, insofar as appealed from, reversed, etc.

      . The appendix to the supplemental brief submitted by plaintiffs on reargument lists 104 public authorities and public benefit corporations created by provisions of the Public Authorities Law or the Unconsolidated Laws, of which 72 are said specifically ■to provide that the Civil Service Law shall apply, seven, including that creating MABSTOA, are said specifically to exclude the entity from the civil service system, and 25, to make no provision one way or the other.

      . (Matter of Mena v D‘Ambrose, 44 NY2d 428.) That case involved the New York City Transit Authority, which by statute (Public Authorities Law, § 1210, subd 2; see, also, § 1204, subd 6), is governed by the Civil Service Law. At issue was the four-year limitation established by section 56 of the Civil Service Law on the life of an eligibility list. The paramountcy of “constitutional concerns” was assumed without discussion (44 NY2d, at p 434). Matter of Corwin v Farrell (303 NY 61), also relied on by plaintiffs, may likewise be distinguished. Although the applicability of section 6 of article V to the New York City Housing Authority was involved and, therefore, the motion to dismiss the appeal was denied (303 NY, at p 69), the holding of the case was that neither constitutional mandate nor statutory enactment was violated by the contracting out of work formerly done by Authority employees. Whether the constitutional provision in fact applied does not appear to have been litigated (see 303 NY, at p 63; Palmer v Board of Educ., 276 NY 222, 228-229).

      . The statute provides that the Authority is to operate the bus lines “for a temporary period” until they are “sold or otherwise disposed of to private or public operation” (Public Authorities Law, 8 1203-a, subd 2). When the Authority was created in 1962, the plan for temporary operation may well have been a factor in the Legislature’s decision to exclude Authority employees from the civil service system (see Matter of Lorelli v Manhattan & Bronx Surface Tr. Operating Auth., 48 Misc 2d 944, 948-949). As recently as 1981, however, the Legislature amended the statute to provide that the Authority “shall continue until terminated by law” (Public Authorities Law, § 1203-a, subd 11). In light of that amendment, without correlative change as to civil service status of Authority employees, we would exceed our function were we to conclude, as the Attorney-General suggests, that the “temporary” exclusion has outlived its purpose and should no longer be given effect. In our view the “temporary period” referred to in the original statute is irrelevant to our present determination.

      . That the city’s Board of Estimate must approve the Authority’s bus routes (Public Authorities Law, § 1203-a, subd 3, par [f J) does not establish control of the employees. Indeed, every private franchisee operating within the city requires similar approval (Transportation Law, 8 80, subd 4; Administrative Code of City of New York, 8 362-1.0), and the Authority’s original mandate was to operate over the same routes previously approved for the private companies that it superseded.


author: Per Curiam.

text:
    The People of the State of New York, Appellant, v Leon Victor, Respondent.
    Argued April 30, 1984;
    decided June 12, 1984

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Debra S. Reiser and Peter D. Coddington of counsel), for appellant.
    I. Defendant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. (.People v Johnson, 57 NY2d 969.) II. The court below erred as a matter of law when it reversed defendant’s conviction and ordered a new trial based upon its disapproval of the lower court’s alibi instructions; the charge, as given, properly informed the jury of the People’s burden of proof with regard to alibi. (.People v Victor, 94 AD2d 289; People v Barbato, 254 NY 170; People v Elmore, 277 NY 397; People v Whalen, 59 NY2d 273; People v O’Neill, 79 AD2d 429; People v Bacon, 84 AD2d 680; People v Canty, 60 NY2d 830; People v Getch, 50 NY2d 456; People v Russell, 266 NY 147.) III. In light of the overwhelming proof adduced as to defendant’s guilt for the December 15, 1978 robbery, and the weak alibi presented, error, if any, in the court’s instructions with regard to alibi must be deemed harmless. (People v Johnson, 57 NY2d 969; People v Crimmins, 36 NY2d 230; People v Schaeffer, 56 NY2d 448.)

      Robert S. Dean and William E. Hellerstein for respondent.
    I. This court has no jurisdiction to review the decision of the court below since, although the order states that the reversal was “on the law,” the opinion itself indicates that it was partially based in the interests of justice. {People v Johnson, 47 NY2d 124; People v Montesano, 58 NY2d 736; People v Chessman, 54 NY2d 1016; People v Le Mieux, 51 NY2d 981; People v Robinson, 36 NY2d 224.) II. The court below correctly held that the trial court’s refusal to charge that the People had the burden of disproving the alibi defense beyond a reasonable doubt was error. {Matter of Winship, 397 US 358; Mullaney v Wilbur, 421 US 684;
      People v Riordan, 117 NY 71; Adkins v Bordenkircher, 674 F2d 279; United States v Booz, 451 F2d 719, 414 US 820; People v Lediard, 80 AD2d 237; People v Vaccaro, 288 NY 170; People v Landor, 92 AD2d 625; United States v Hoke, 610 F2d 678; Wright v Smith, 569 F2d 1188.)
   OPINION OF THE COURT

Per Curiam.

This appeal concerns the appropriate treatment a trial court must give to alibi evidence in its charge to the jury. The People have the burden of disproving an alibi beyond a reasonable doubt and, therefore, a charge regarding an alibi must unequivocally convey that burden to the jury.

Defendant was charged in two separate indictments with robberies at a Bronx luncheonette on October 30,1978, and on December 15, 1978. These indictments were consolidated and, at trial, defendant presented evidence that he was in Manhattan when both crimes occurred. The jury acquitted defendant of the first robbery but convicted him of the second. The Appellate Division reversed the conviction and ordered a new trial on the ground that the charge given impermissibly shifted the People’s burden of proof relating to the alibi evidence. On this appeal, the People contend that the Trial Judge’s express refusal to charge the jury as requested, that “the People have the burden of disproving the alibi defense beyond a reasonable doubt”, was not error and that the charge, taken as a whole, was correct.

The instruction on the alibi evidence, stated in pertinent part:

“In all criminal cases the defendant never has the burden of proof. In all criminal cases the prosecution, at all times, has the burden of proof and the prosecution must prove a defendant’s guilt beyond a reasonable doubt. If the evidence as to the alibi raises a reasonable doubt in your minds as to whether or not the defendant was present at the time and place, or times and place, singular, either situation, which are alleged in the indictments as times when crimes were committed, or that he aided and abetted and participated in the commission of the December crime charged in the second indictment, the defendant is entitled to have that testimony fairly treated like any other testimony in the case, although he is not obligated to establish that it was impossible for him to have committed, aided or participated in the commission of the crimes charged in the indictments.

“If, under the evidence tending, if true, to prove that alibi it may be possible for the * * defendant to have committed the crimes, it is still for the jury to determine whether, if that evidence is true, he availed himself of the possibilities afforded. If the proof as to alibi, when taken into consideration with all of the other evidence in the case, raises a reasonable doubt as to the defendant’s guilt of any of the four crimes with which we are concerned, he is entitled to an acquital of that crime that you are considering.”

An alibi is not an affirmative or exculpatory defense which the defendant has the burden of proving (see People v Russell, 266 NY 147, 152; People v O’Neill, 79 AD2d 429, 431; Penal Law, § 25.00, subd 2). Any charge that leads a jury to believe or suggests that a defendant has such a burden, unconstitutionally relieves the People of their burden of proving guilt beyond a reasonable doubt (see People v Whalen, 59 NY2d 273, 279; People v Vaccaro, 288 NY 170, 173; People v Riordan, 117 NY 71, 73; People v Lediard, 80 AD2d 237, 241-242; see, generally, Matter of Winship, 397 US 358, 364).

While not an affirmative defense, neither is alibi expressly included in the Penal Law as a “defense” which the People must disprove beyond a reasonable doubt (see People v O’Neill, 79 AD2d 429, 431, supra; Penal Law, § 25.00, subd 1; Fisch, New York Evidence [2d ed], § 239). Rather, it is simply evidence that will require an acquittal, if, when all the evidence is considered, a reasonable doubt is raised as to defendant’s guilt (see People v Elmore, 277 NY 397, 405-406; People v Barbato, 254 NY 170, 178-179). Nevertheless, in order to avoid confusion and ensure that the jury understands that the People must always meet their burden of proving that the accused áctually committed the crime, an alibi is treated for practical purposes the same as a statutory “defense” under subdivision 1 of section 25.00 of the Penal Law (see People v Vaccaro, 288 NY 170, 173, supra; People v Landor, 92 AD2d 625, 626; People v Daniels, 88 AD2d 392, 403; People v Lediard, 80 AD2d 237, 241-242, supra; People v O’Neill, 79 AD2d 429, 431-433, supra; Wright v Smith, 569 F2d 1188, 1189, n 1). Thus, the People have the burden of disproving an alibi beyond a reasonable doubt, and a Judge must unequivocally state that burden in the jury charge (see People v Landor, 92 AD2d 625, 626, supra; People v Grant, 84 AD2d 793, 793-794; People v O’Neill, 79 AD2d 429, 433, supra; People v Jones, 74 AD2d 515; 1 NY CJI 12.10).

Here, the language regarding alibi evidence, that “under the evidence tending, if true, to prove [an] alibi” and “if [the] evidence is true,” while not erroneous on its face (see People v Barbato, 254 NY 170, 178-179, supra), may have conveyed to the jury, not accustomed to digesting rules of law, that the defendant must prove the truth of the alibi (see People v Jones, 74 AD2d 515, supra). Similarly, the charge that defendant was “not obligated to establish that it was impossible for him to have committed * * * the crimes charged” (emphasis added), may have erroneously indicated that defendant bore at least some burden with respect to “establishing” the alibi. Thus, viewed in its entirety, the charge was not satisfactory without the additional requested warning that the People had the entire burden of disproving the alibi beyond a reasonable doubt.

In light of this disposition, we do not reach defendant’s other arguments.

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

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order affirmed.


author: Jones, J.

text:
    Samuel Weinberg, Appellant, v Transamerica Insurance Company, Respondent.
    Argued May 9, 1984;
    decided June 14, 1984

      POINTS OF COUNSEL

      Robert A. Scher and Michael G. Rosenberg for appellant.
    I. The execution of a general release does not extinguish Transamerica Insurance Company’s right of subrogation. 0Safeco Ins. Co. v Jamaica Water Supply Co., 83 AD2d 427; Cahill v Regan, 5 NY2d 292; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37; Simon v Simon, 274 App Div 447; Farnham v Farnham, 204 App Div 573; Record v Royal Globe Ins. Co., 83 AD2d 154; Camden Fire Ins. Assn, v Bleem, 132 Mise 22; Rives v Bartlett, 215 NY 33.) II. Defendant-respondent’s subrogation rights were not impaired. (Matter of Celona v Royal Globe Ins. Co., 85 AD2d 635; Royal Globe Ins. Co. v Connolly, 54 AD2d 1117; Montgomery v Daniels, 38 NY2d 41; Government Employees Ins. Co. v Halfpenny, 103 Mise 2d 128; Scinta v Kaz-mierezak, 59 AD2d 313; Record v Royal Globe Ins. Co., 83 AD2d 154; Safeco Ins. Co. v Jamaica Water Supply Co., 83 AD2d 427; Hyde v North Riv. Ins. Co., 92 AD2d 1001; United States Fid. & Guar. Co. v Stuyvesant Ins. Co., 61 AD2d 1122.) III. Execution of a general release by the insured does not bar this insurer’s recovery for first-party benefits since the insurer has a separate cause of action for first-party benefits independent of subrogation rights retained by a subrogor. (Safeco Ins. Co. v Jamaica Water Supply Co., 83 AD2d 427.) IV. The subrogation clause at bar is vague and ambiguous and, as a matter of law, must be construed against defendant-respondent Transamerica Insurance Company. v Kazmierczak, 59 AD2d 313; Janneck v Metropolitan Life Ins. Co., 162 NY 574•, Dwight v Germania Life Ins. Co., 103 NY 341; Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247; Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169; Stainless, Inc. v Employers’ Fire Ins. Co., 69 AD2d 27, 49 NY2d 924; Johnson v Travelers Ins. Co., 269 NY 401; Perth Amboy Drydock Co. v New Jersey Mfrs. Ins. Co., 26 AD2d 517; State Farm Mut. Auto. Ins. Co. v Bush, 46 AD2d 958; Lewis v Ocean Acc. & Guar. Corp., 224 NY 18.) V. The courts below erred in not granting plaintiff-appellant’s motion for summary judgment. (Yates v Cohoes Mem. Hosp., 64 AD2d 726; Central School Dist. No. 2 v Cohen, 60 Mise 2d 337.)

      Barry Jacobs for respondent.
    I. No rights accrue to Transamerica by virtue of subdivision 2 of section 673 of the Insurance Law. {Country-Wide Ins. Co. v 3-M Prod. Sales, 96 AD2d 569; Royal Globe Ins. Co. v Connolly, 54 AD2d 1117; Safeco Co. v Jamaica Water Supply Co., 83 AD2d 427; Mitchell v New York Hosp., 61 NY2d 208.) II. Appellant has breached his contract with Transamerica. {Davies v Nationwide Mut. Ins. Co., 99 Mise 2d 899; Narus v Pixley, 88 Mise 2d 885; Loucks v Standard Oil Co., 224 NY 99; Intercontinental Hotels Corp. v Golden, 15 NY2d 9; Phillips v Transamerica Ins. Co., 107 Mise 2d 162; Security Mut. Ins. Co. v Acker-Fitzsimons Cprp., 31 NY2d 436; Aetna Cas. & Sur. Co. v Schulman, 70 AD2d 792, 48 NY2d 608; Record v Royal Globe Ins. Co., 83 AD2d 154; Matter of Price v State Farm Mut. Ins. Co., 91 AD2d 1084.)
   OPINION OF THE COURT

Jones, J.

In effecting a settlement of personal injury claims against a third-party tort-feasor arising out of a motor vehicle accident, an insured will be held to have prejudiced the subrogation rights of his insurer unless he establishes by express provision in the release executed to the third party or by necessary implication arising from the circumstances of the execution of the release that the settling parties reserved the rights of the insurer against the third-party tort-feasor or otherwise limited the extent of their settlement to achieve that result.

Plaintiff was injured in an automobile accident while a passenger in a motor vehicle owned and operated by James Felder. Felder was insured by Government Employees Insurance Company (GEICO) for coverage of basic no-fault benefits for both medical payments and lost earnings. Plaintiff was insured by Transamerica Insurance Co., inter alia, for additional personal injury coverage, i.e., coverage for economic loss above the statutorily required $50,000 coverage.

Plaintiff claimed, and was paid, the maximum amount available under Felder’s no-fault policy with GEICO and also made a claim for extended economic loss under his own policy with Transamerica. At the same time plaintiff brought an action in negligence against Felder. When this action was settled for $17,500 and plaintiff gave Felder a general release, Transamerica denied liability under its policy with plaintiff on the ground that by releasing Felder plaintiff had breached his obligation under that policy not to prejudice the subrogation rights of the insurer. Plaintiff thereupon instituted the present action against Trans-america to recover benefits to which he claimed he was entitled under the policy that had been issued to him.

Supreme Court granted Transamerica’s motion for summary judgment and the Appellate Division affirmed, without opinion. We granted leave to resolve what were perceived as conflicting decisions in the lower courts as to the legal significance to be attached to releases given by insured persons in circumstances such as the present.

It is the burden of the insured to establish by virtue of an express limitation in the release or of a necessary implication arising from the circumstances of its execution that the release did not operate to prejudice the subrogation rights of the insurer. This flows reasonably from the express obligation of the insured under his policy of insurance not to prejudice the subrogation rights of the insurer because it is the insured who participates in and can control the fashioning of the terms of the settlement of the insured’s action against the third-party tort-feasor, a procedure in which the insurer has no part.

We recognize that it is usually the burden of the party seeking to be excused from performance of a contract obligation on the ground that the other party has failed to perform his reciprocal obligations, to establish such failure. Thus, in the customary formulation it could be said that, in cases such as the present, to establish justification for refusal to pay benefits due under its policy of insurance on the ground that the insured breached its agreement not to prejudice the subrogation rights of the insurer, it would be incumbent on the insurer to establish the fact of such breach by the insured. The normal allocation of the burden of proof must give way in this instance, however, to the practicalities of the situation and to a realistic evaluation of the relative positions of the insured and the insurer. As stated, the insurer has no opportunity to participate in the negotiation or the determination of the terms of settlement between the insured and the third-party tort-feasor. By contrast, of course, the insured has every opportunity to do so, and has it in his power to obviate all controversy as to the scope of the release. In these circumstances, once the insurer has established the existence of a release, alleged to have constituted a breach of the insured’s agreement not to prejudice the insurer’s subrogation rights, we conclude that it is fair and fitting and no undue imposition on the insured to place on him the burden of persuasion that there was no such breach.

Clearly, the preferable manner for the discharge of the obligation of the insured not to prejudice the subrogation rights of the insurer would be to include in the release to the third party a provision explicitly reserving the right of the insurer or expressly limiting the scope of the release to achieve the same result. Wé recognize, however, that there may be instances in which, even in the absence of an explicit provision in the release, it is clear that it was the intention of the parties to the settlement to limit the scope of the release or otherwise not to prejudice the rights of the insurer to subrogation. In any event, the determination in this regard is of direct concern to the insured and to the third-party tort-feasor, and it is their responsibility, if they do conclude to settle their differences, to make clear the scope of their agreement of settlement.

In the present case plaintiff failed to protect the subrogation rights of Transamerica. The general release that he executed and delivered to Felder was on a standard form, and released, in the familiar boiler plate terms, all claims which he had or might have against Felder “for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this release”, without any accompanying words of reservation or limitation. No reference was, included in the release form to the pending action against Felder, but even had there been such a reference the result would have been no different inasmuch as the complaint in the action against Felder neither specified the elements of damage for which he was seeking recovery nor limited his claims for recovery to exclude claims as to which the insurer would have had a right of subrogation. Obviously there was no express provision of the general release reserving the rights of the insurer or limiting the scope of the release, and it does not otherwise appear that the parties to the settlement intended any such reservation or limitation.

There is no merit to plaintiff’s assertion that Trans-america has a direct cause of action against Felder under subdivision 2 of section 673 of the Insurance Law; that subdivision relates only to actions against a “noncovered” person, which Felder was not.

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

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs.

      . (E.g., Appellate Division, First Department: Aetna Cas. & Sur. Co. v Schulman, 70 AD2d 792, mot for Iv to app den 48 NY2d 608; Second Department: Record v Royal Globe Ins. Co., 83 AD2d 154; and Silinsky v State-Wide Ins. Co., 30 AD2d 1; Fourth Department: United States Fid. & Guar. Co. v Stuyvesant Ins. Co., 61 AD2d 1122; and Scinta v Kazmierczak, 59 AD2d 313.)

      . The Transamerica policy issued to plaintiff contained the following provision: “In the event of any payment for extended economic loss the Company is subrogated to the extent of such payments to the rights of the person to whom, or for whose benefit, such payments were made. Such person must execute and deliver instruments and papers and do whatever else is necessary to secure such rights. Such person shall do nothing to prejudice such rights.”

      . The inclusion in paragraph 10 of the complaint of the recital mandated by CPLR 3016 (subd [g]) was required to enable plaintiff to bring the third-party action and accordingly must be taken to be nonindicative as to the extent of the elements of damages sought to be recovered. Compare CPLR 3043 (subd [a], par 6) as to particulars which may be required to be stated in a bill of particulars in a personal injury action under subdivision 1 of section 673 of the Insurance Law.

      . Inasmuch as no argument is made and our attention is invited to no evidence in the record that, at the time of Weinberg’s execution of the release to him, Felder knew or possessed information which if reasonably pursued would have given it knowledge that Transamerica would have subrogation rights under the policy it had issued to Weinberg, we have no occasion to consider what significance, if any, such knowledge or the possession of such information might have with respect to the burden of persuasion which rests on an insured, in the absence of an express reservation or limitation in the release, to establish by necessary implication arising from the circumstances of the execution of the release that it did not operate to prejudice the subrogation rights of an insurer (see Hamilton Fire Ins. Co. v Greger, 246 NY 162, 167-168; Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37, 46, 48).


author: Simons, J. Wachtler, J.

text:
    The People of the State of New York, Respondent, v Miguel Gonzalez, Appellant.
    Argued May 10, 1984;
    decided June 14, 1984

      POINTS OF COUNSEL

      Bertrand J. Kahn and William E. Hellerstein for appellant.
    The warrantless search of a closed bag found in appellant’s car, conducted without any cause to believe the car or bag contained contraband, violated appellant’s State constitutional right to be free from unreasonable searches and seizures since it exceeded the scope of a proper inventory search. (People v Roman, 53 NY2d 39; South Dakota v Opperman, 428 US 364; People v Belton, 55 NY2d 49; People v Farrell, 89 AD2d 987; United States v Ross, 456 US 798; Almeida-Sanchez v United States, 413 US 266; Coolidge v New Hampshire, 403 US 443; People v Etoll, 51 NY2d 840; People v Fitzpatrick, 32 NY2d 499; People v Sciacca, 57 AD2d 846, 45 NY2d 122.)

      Mario Merola, District Attorney (Roger L. Stavis and Peter D. Coddington of counsel), for respondent.
    I. Appellant was proven guilty beyond a reasonable doubt. (People v Benzinger, 36 NY2d 29.) II. The examination of a paper bag found dangling from a wire under the dashboard of appellant’s automobile during a valid inventory search was reasonable and therefore proper. (People v Sullivan, 29 NY2d 69; People v Tutt, 38 NY2d 1011; People v Cedeno, 52 NY2d 847; People v Farrell, 59 NY2d 686; People v Butler,
      58 NY2d 1056; People v Harrison, 57 NY2d 470; People v Perel, 34 NY2d 462; South Dakota v Opperman, 428 US 364; People v Roman, 53 NY2d 39; Arkansas v Sanders, 442 US 753.)
   OPINION OF THE COURT

Simons, J.

Defendant appeals from an order of the Appellate Division affirming a judgment of Supreme Court, bringing up for review a prior order denying suppression, which convicted him of criminal possession of a controlled substance in the fifth degree (cocaine). The issue is whether the police lawfully searched a closed container found in defendant’s car, without a warrant, as part of an inventory search. The Appellate Division majority, finding that “[cjoncededly the police had the right to make an inventory search of the car”, approved the seizure. Two Justices dissented believing the scope of the search exceeded lawful bounds because it included opening the closed paper bag. There should be an affirmance.

The discovery was made after defendant was stopped by two police officers who had observed him turning left without signaling and driving his automobile without a taillight. When he was questioned defendant was unable to produce his driver’s license and admitted that it had been suspended. He was placed under arrest for driving with a suspended license (Vehicle and Traffic Law, § 511) and driven to the police station in the squad car by one of the arresting officers. The other officer followed in defendant’s car. While driving it, he noticed a brown bag suspended on a wire from under the dashboard. At the station house the police conducted an inventory search of the car and vouch-ered its contents. In the course of that search, they opened the paper bag and discovered the cocaine which supports the charge before us. Defendant moved before trial to suppress the evidence on both State and Federal grounds as the product of an unlawful warrantless search. The courts below denied the motion.

It is settled law that the police may search an impounded vehicle to inventory its contents (South Dakota v Opperman, 428 US 364). Such searches, conducted as routine procedures, are permitted to protect an owner’s property while it remains in police custody, to protect the police against false claims for missing property and to protect the police from potential danger (id., at p 369; see Cady v Dombrowski, 413 US 433). In Opperman and subsequent decisions, the Supreme Court has distinguished the “probable cause” standard applied to investigative searches from the standard of “reasonableness” applied to routine administrative acts such as noninvestigative police inventories of vehicles lawfully in governmental custody and held that once a court determines that the purpose of a search by the police was to inventory the effects of a person under lawful arrest, rather than to discover evidence of a crime, the “salutary functions of a warrant” no longer apply (id., at pp 370-371, n 5; United States v Chadwick, 433 US 1, 10, n 5). Constitutionality is established upon proof that the search was reasonable. Until the Supreme Court decided Illinois v LaFayette (462 US 640, 103 S Ct 2605), however, the parameters of the “reasonableness” standard applied to inventory searches, as they applied to the search of individual items, were left to a review of the facts and circumstances of each case (South Dakota v Opperman, supra, at p 375).

Thus it was that when we considered the inventory search of a closed cigarette case in People v Roman (53 NY2d 39), we believed ourselves constrained by the recent Supreme Court cases involving closed containers and held the inventory search unreasonable. We did so notwithstanding that some of our prior decisions had approved the examination of closed containers as part of an inventory search (see People v Perel, 34 NY2d 462; People v Sullivan, 29 NY2d 69, 72). We particularly noted the Supreme Court’s statement in Arkansas v Sanders (442 US 753) that its prior decisions upholding warrantless searches of automobiles had involved “searches of some integral part of the automobile” (id., at p 763; but cf. United States v Chadwick, supra, at p 10, n 5). Accordingly, we held that the rationale supporting the right of the police to conduct inventory searches did not include a right to open a closed and partially opaque cigarette case found on the floor of an impounded automobile. We deem it desirable to keep the law of this State consistent with the Supreme Court’s rulings on inventory searches, however, and since the court has now unanimously approved the inventory search of closed containers, we affirm.

In Illinois v LaFayette (462 US 640, 103 S Ct 2605, supra), the court noted that inventory searches are “not an independent legal concept but rather an incidental administrative step following arrest and preceding incarceration” (id., at p_, p 2608). Because they are an exception to the warrant requirement, the justification for them does not rest upon probable cause but is determined by the reasonableness of the police procedure in conducting an inventory search. The standard of reasonableness to be applied to such administrative searches is that found in the court’s decision in Delaware v Prouse (440 US 648) which requires that the courts balance the intrusion of the search on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests (id., at p 654). Applying that test to the search of the defendant’s cigarette case in LaFayette, the Supreme Court held that “[ejxamining all the items removed from the arrestee’s person or possession and listing or inventorying them is an entirely reasonable administrative procedure” (Illinois v LaFayette, supra, at p _, p 2610). The court specifically noted that it was immaterial whether the protection of governmental interests could have been achieved in a less intrusive manner, such as securing the defendant’s shoulder bag in a box or a locker, or whether the police had reason to perceive danger or injury from the container. Holding that the Fourth Amendment standard of “reasonableness” does not require that the least intrusive means for administering neutral and routine procedures be applied to protect governmental interests, the court stated that “it is not ‘unreasonable’ for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures” (Illinois v LaFayette, 462 US 640, _, 103 S Ct 2605, 2610, 2611, supra [emphasis added; n omitted]).

The search conducted here is not distinguishable from the search conducted in LaFayette, although it involved the inventory search of an impounded automobile while in LaFayette the search concerned a shoulder bag taken from the arrestee’s person. The same governmental interests involved in the inventory search of items found on an arrestee’s person are involved in the inventory search of an impounded vehicle except for the need to remove dangerous articles and thereby protect arrestees and others from injuries caused by items on the arrestee’s person while being detained (Illinois v LaFayette, supra, at p _, p 2609; see People v Troiano, 35 NY2d 476).

There is nothing in the record to suggest that this search was a pretext investigative search rather than routine police procedure. Given the unusual location of the bag, the manner in which it was affixed to the car and the apparent effort to conceal it under the dashboard, there is support in the record for the finding of the Appellate Division that the police might reasonably conclude that the bag contained items requiring discovery and inventory and their conduct in opening and securing it was reasonable.

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

Wachtler, J.

(dissenting). I would reverse the order of the Appellate Division and suppress the evidence seized from the vehicle.

In People v Roman (53 NY2d 39) we noted that the Supreme Court had never said that the right of the police to conduct an inventory of a seized vehicle included the right to open closed containers found in the vehicle. The People contend that the Supreme Court’s recent decision in Illinois v LaFayette (462 US 640, 103 S Ct 2605) now permits such a search.

The LaFayette case, however, dealt with an item taken from the defendant’s person after his arrest which was inventoried upon his arrival at the jail. Although the rationale — i.e., elimination of false claims concerning “lost” items, protection of the police from possibly dangerous items, etc. — would seem to apply equally to auto inventories, it would also seem to apply to any item lawfully in police possession, such as the luggage seized but improperly searched in United States v Chadwick (433 US 1; see, also, Arkansas v Sanders, 442 US 753).

In short it appears at the present time that categories are more important than rationales and there is still no case in which the Supreme Court has authorized the opening of items found during a vehicle inventory. Thus I would reverse solely on the basis of our existing precedent (People v Roman, supra). It is often difficult enough to follow the Supreme Court’s decisions in the Fourth Amendment area without also trying to anticipate them.

Chief Judge Cooke and Judges Jasen, Jones and Kaye concur with Judge Simons; Judge Waghtler dissents and votes to reverse in a separate opinion in which Judge Meyer concurs.

Order affirmed.


author: Simons, J.

text:
    The People of the State of New York, Respondent, v Keith Ellis, Appellant.
    Argued May 10, 1984;
    decided June 14, 1984

      POINTS OF COUNSEL

      Hillard Wiese, William E. Hellerstein and Blanca Rodriguez Cruz for appellant.
    The reversal of the suppression order by the court below was incorrect since there was no justification for either frisking appellant or breaking into his locked glove compartment. (.People u McRay, 51 NY2d 594; People v Smith, 59 NY2d 454; People v Marsh, 20 NY2d 98; People v Troiano, 35 NY2d 476; United States v Robinson, 414 US 218; People v Belton, 55 NY2d 49; People v De Bour, 40 NY2d 210; People v Perel, 34 NY2d 462; Preston v United States, 376 US 364.)

      Robert M. Morgenthau, District Attorney {Jane Sachs and Norman Barclay of counsel), for respondent.
    The police properly frisked defendant in placing him in custody and seized two bullets from his pocket. The discovery of the bullets under these circumstances, in turn, justified the officer’s search of the car, including the locked glove compartment. {People v Harrison, 57 NY2d 470; People v Wharton, 46 NY2d 924, 444 US 880; People v McRay,, 51 NY2d 594; People u Middleton, 50 AD2d 1040, 43 NY2d 703; People v Pollaci, 68 AD2d 71; People v Copeland, 39 NY2d 986; People v De Bour, 40 NY2d 210; People v Perel, 34 NY2d 462; People v Coleman, 24 NY2d 1005; People v Troiano, 35 NY2d 476.)
   OPINION OF THE COURT

Simons, J.

Defendant has been charged with criminal possession of a weapon in the third degree (Penal Law, § 265.02). He appeals from an order of the Appellate Division reversing an order of Supreme Court which suppressed the weapon, a .38 caliber two-shot Derringer pistol, seized by the police after they broke open the locked glove compartment of his rented car. The courts below agreed that the police had probable cause to arrest defendant and to search the interior of the vehicle. The Appellate Division, with two Judges dissenting, disagreed with the suppression court, however, and held that the police also had probable cause to search the car’s glove compartment.

The order should be affirmed. The police, having lawfully arrested defendant and having reason to believe that his car contained a weapon, were not obliged to stop short of searching the secured areas of the car and risk their own safety when the whereabouts of the gun remained unknown. They could, acting within the requirements of both the State and Federal Constitutions, search the car and any locked containers in it (see People v Langen, 60 NY2d 170; United States v Ross, 456 US 798).

Defendant was arrested shortly after 4:00 a.m. on May 20, 1981, when two New York police officers on motor patrol observed him driving toward them in the dark without headlights. When the police turned around to follow him, defendant pulled over to the curb, got out of the car and met the officers on the sidewalk after they parked their patrol car. The police asked him for his driver’s license and, because the license plate indicated the car was rented, for the rental agreement for the car. Without producing the documents defendant asked what he had done wrong and was told that he was driving without headlights. He responded that he had forgotten to put them on. The police again asked defendant for his license and the rental agreement, and he stated that he did not have them. When asked for some form of identification, he mentioned that he had recently been issued a summons for driving without a license but he could not produce that either. The officers then determined to take him to the station house so that he could be identified and served with a summons. Before doing so, they patted him down and during the pat down, Officer Dellacona felt the outline of two bullets in defendant’s rear right pants pocket. He reached into the pocket and removed two .38 caliber bullets and some clear plastic envelopes containing marihuana. At that point Dellacona ordered the two female passengers out of the car, patted them down and then looked through the passenger compartment of the car for the gun. Finding none, he tried the door of the glove compartment but it was locked and could not be opened with a key found in the ignition. Dellacona asked defendant for the key but defendant claimed that the ignition key was the only key to the car. Dellacona then forced the glove compartment door open and found the loaded gun. The officers handcuffed defendant, formally arrested him and took him to the police station.

The police officers, observing a traffic infraction, properly followed and stopped defendant and asked him for his driver’s license and the rental agreement for the car (People v Belton, 55 NY2d 49; People v Middleton, 50 AD2d 1040, affd 43 NY2d 703). Once it became evident that defendant could not be issued a summons on the spot because of his inability to produce any identification, the officers were warranted in arresting him to remove him to the police station and in frisking him before doing so (People v Copeland, 39 NY2d 986; People v Troiano, 35 NY2d 476). Finally, although defendant contends otherwise, discovery of the bullets during the frisk permitted the inference that defendant had a gun on his person or in the area and provided the police with probable cause to search the car.

Defendant asserts that this case is controlled by our decisions holding that discovery of certain lawful items associated with guns, such as holsters or practice targets, is not “ ‘sufficient evidence of criminality to permit more than an inquiry’ ” by police (see People v Johnson, 54 NY2d 958, 959; People v Elwell, 50 NY2d 231, 235, n 9; cf. People v Samuels, 50 NY2d 1035). Bullets, however, are more immediately associated with the presence of a deadly weapon than other incidentally related items such as holsters and practice targets (see People v McLaughlin, 48 AD2d 722). Indeed, bullets have no other practical use than as ammunition for a deadly weapon. Thus, as we held in People v Belton (55 NY2d 49, 54-55, supra): “a valid arrest for a crime authorizes a warrantless search * * * of a vehicle and of a closed container visible in the passenger compartment of the vehicle which the arrested person is driving * * * when the circumstances give reason to believe that the vehicle or its visible contents may be related to the crime for which the arrest is being made * * * or there is reason to believe that a weapon may be discovered” (emphasis added; n omitted).

Nor is there any distinction, as defendant claims, because he was initially arrested so that he could be taken to the police station and given a summons for a traffic violation, whereas the defendant in Belton was arrested for the crime of possession of marihuana. The basis for the automobile exception to the warrant requirement is the reduced expectation of privacy associated with automobiles and the inherent mobility of such vehicles. That supplies the justification for the search and when it appears that the police have probable cause to find contraband of the crime, as in Belton, or to find a weapon in the car, as here, a warrantless search is permissible. Thus, it is irrelevant that defendant was arrested for a traffic infraction. It was the probable cause to believe a gun was in the car that gave the police officers grounds for the search of the car. Moreover, the reduced expectation of privacy associated with the passenger compartment of an automobile logically extends to containers within the compartment, and we so held in Belton (55 NY2d, at p 54).

In Belton, we reserved decision on “whether a container which is not only closed but locked or a container within a vehicle’s trunk or baggage compartment comes within the exception” (55 NY2d, at p 54, n 3). That question was answered by the Supreme Court in United States v Ross (456 US 798, supra) and by this court in People v Langen (60 NY2d 170, supra; see, also, People v Kreichman, 37 NY2d 693). In Ross the Supreme Court approved the search of a locked trunk and a closed bag found in the trunk, stating that “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search” (United States v Ross, at p 825). In Langen, decided after Ross, the police, having probable cause to search the car, searched a locked traveling bag found in it after forcing it open with a screwdriver. We held the search valid under the Fourth Amendment to the United States Constitution and also under the “narrow” automobile exception to the warrant requirement of section 12 of article I of the State Constitution set forth in People v Belton (55 NY2d 49, 54, supra). The reasoning of those decisions applies with equal force to the search of the locked glove compartment in this case.

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

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer and Kaye concur.

Order affirmed.