text:
    County of Sullivan et al., Respondents, v Edward L. Nezelek, Inc., Respondent, and Edward Durell Stone and Associates, Appellant.
    Argued June 8, 1977;
    decided July 5, 1977

      Joseph A. Bergadano and Barbara Wesley Thompson for appellant.

      Julius L. Schapira, Max E. Greenberg, David A. Trager and George Toplitz for County of Sullivan and another, respondents.
   Jones, J.

We conclude that Supreme Court, New York County, had authority to direct the consolidation of these two related arbitration proceedings and that it was not an abuse of discretion as a matter of law to do so in this instance.

In 1968 Sullivan County Community College engaged Edward Durell Stone and Associates (Stone) to render architectural services in connection with the construction of college buildings. After Stone had prepared plans and specifications, in 1970 the County of Sullivan, the local sponsor of the college, entered into a contract with Edward L. Nezelek, Inc., for construction of the proposed buildings. Both the contract for architectural services and the construction contract contained broad arbitration clauses calling for arbitration under the "Construction Indústry Arbitration Rules” of the American Arbitration Association.

During and after the performance of the construction work certain disputes arose between Nezelek and the county. While negotiation of these disputes was pending, in March, 1975 the college served on Stone a demand for arbitration of disputes which had arisen between them under the contract for architectural services. Stone promptly applied in Supreme Court, New York County, for a stay of arbitration. Thereafter Nezelek served a demand on the county for arbitration of their differences. The county then moved in Supreme Court, Sullivan County, for a stay of Nezelek’s arbitration. After the county’s motion for a stay was denied, the college and the county made a joint application to Supreme Court, New York County, in September, 1975 for an order directing that the two arbitration proceedings be consolidated. In the same "order-judgment” Stone’s pending application for a stay was denied and the college-county application for consolidation was granted. Stone now appeals from the Appellate Division’s affirmance of the Supreme Court order directing consolidation. Nezelek withdrew its appeal to the Appellate Division from the order of consolidation, and is not a party to the appeal now before us.

Before proceeding to consideration of the principal challenges to the order consolidating the two arbitration proceedings, we address Stone’s procedural contention that Supreme Court, New York County, had no jurisdiction to entertain the application for consolidation because notice of the application was only served on Stone’s attorneys and by ordinary mail. We reject this contention.

After the college served its demand for arbitration on Stone, the latter applied in Supreme Court, New York County, for a stay. Within the contemplation of CPLR 7502 (subd [a]), that application—"the first application arising out of an arbitrable controversy”—served to institute a judicial special proceeding. That proceeding was pending and the application for a stay unresolved when the college and the county made application to Supreme Court, New York County, for consolidation. With respect to an arbitration as to which a special proceeding has been instituted, CPLR 7502 (subd [a]) provides: "All subsequent applications shall be made by motion in * * * the special proceeding”. That is precisely what the college (and the county) did in this instance. It was not fatal that the application for consolidation was denominated a "notice of petition” rather than a "notice of motion” and that the caption was worded differently than was Stone’s application for a stay. Such irregularities in form, which resulted in no prejudice, should be disregarded (CPLR 2001). Consistent with that statutory authorization, the consolidation application was treated by Supreme Court as having been made in the stay proceeding and was determined jointly with the stay application in the same decision and order. For its part the Appellate Division similarly concluded that "the petition [for consolidation] may be viewed as a motion in said pending proceedings”. That the county and Nezelek were also named as parties in the consolidation application would create no jurisdictional infirmity. At worst both were unnecessary parties; the county’s joinder, however, could be treated as an appropriate manifestation of its consent to the requested consolidation.

Viewing the application for consolidation as a motion in the special proceeding pending in New York County, as both lower courts did and we do, service of the papers on the application was properly made by ordinary mail on the attorneys (CPLR 2103, subd [b]).

Addressing the merits, Stone mounts a frontal assault on the order of consolidation, arguing both that the courts have no power to order consolidation of arbitration proceedings and that, even if they do, it was an abuse of discretion to direct consolidation of the two arbitration proceedings in this instance. We consider these contentions seriatim.

It is quite true that we initially based our conclusion that the courts had authority to consolidate arbitration proceedings on the theory that under section 1459 of the then Civil Practice Act an arbitration proceeding was a "special proceeding” and that under section 96 of the Civil Practice Act there was judicial power to consolidate special proceedings "whenever it can be done without prejudice to a substantial right”. (Matter of Symphony Fabrics Corp. [Bernson Silk Mills], 12 NY2d 409.) With the enactment of our pesent Civil Practice Law and Rules in 1962, the classification of arbitration as a special proceeding was intentionally discarded (contrast CPLR 7502 with Civ Prac Act, § 1459). It was then contended that, the basis therefor having been demolished, the courts no longer had authority to consolidate arbitration proceedings. That argument was accepted at the Appellate Division but rejected in our court (Matter of Chariot Textiles Corp. [Wannalancit Textile Co.—Kute Kiddies Coats], 21 AD2d 762, revd 18 NY2d 793). Thereafter, in Matter of Vigo S. S. Corp. (Marship Corp. of Monrovia) (26 NY2d 157), we reinstated a Supreme Court order directing consolidation of arbitration proceedings which had been reversed at the Appellate Division. Thus, it is no longer open to serious dispute that there is judicial power to order consolidation of arbitration proceedings (Mount Sinai Hosp. of Hartford v Wheeler, 45 AD2d 934).

We turn finally, then, to Stone’s contention that it was an abuse of discretion in the circumstances of this case to order consolidation of the two arbitrations. In substance Stone argues that, while in a very broad sense the two sets of disputes arose out of the same construction project, the claims are not identical; the parties are wholly different; Stone may be forced in the consolidated arbitration to deal with claims of the county with which it had no contract in addition to those of the college with which it did have a contract, resulting in confusion and the risk of its being whipsawed; the consolidated proceeding will undoubtedly be much more time consuming and costly; and its participation in the selection of an arbitrator has been significantly diluted.

We recognize the fundamental principle that the resolution of disputes by arbitration is grounded in agreement of the parties. In that perspective, on principle it would have seemed preferable to premise orders directing consolidation in arbitration on express agreements of parties to that effect. That was not, however, the basis for the development of the judicial power to consolidate. In recent times, given the decisions of our court and others, parties signing an agreement to arbitrate must be held to do so in contemplation of the announced authority of the courts in proper cases to direct consolidation. If it is now desired to avoid the possibility of consolidation, appropriate provisions to preclude or limit consolidation can be drafted for inclusion in the particular arbitration agreement.

Absent explicit provision with respect to consolidation, when application is made therefor, the courts should be aware that, as here contended by Stone, consolidation will usually lay the parties open to greater expense, to exposure to additional claims, and to the risks of added complexity. Beyond that, the parties, without their express agreement, will be subjected to the hazards of an additional range of possible errors of fact or law by the arbitrator which will lie outside the reach of judicial examination. The situation is markedly different from the consolidation of judicial actions where the conduct of the consolidated proceeding is subject to scrutiny on appellate review. These and related considerations dictate the sensitive and wise exercise of judicial discretion in ordering consolidation of arbitration proceedings other than in conformity with an express agreement of the parties.

Turning then to the circumstances of the case now before us, we conclude that it was not an abuse of discretion to order consolidation in this instance. Initially we observe that most of the objections advanced by Stone could be advanced in opposition to any consolidation of arbitration proceedings— dilution of power to select the arbitrator, added complexity and greater cost in time and money. No reason appears to conclude that special significance should have been attached to any of these factors here. By similar token the risk of nonreviewable error of fact or law inheres whenever recourse is had to arbitration, and consolidation will always enlarge the range of such risk and probably aggravate the consequences of error. Again, however, there has been no showing here of sufficient enlargement or aggravation to mandate denial of consolidation. Nor can we say that the difference here in party identity, standing alone, is sufficient as a matter of law to preclude consolidation.

In this case there is a commonality of context out of which the two sets of claims arose (Mount Sinai Hosp. of Hartford v Wheeler, 45 AD2d 934, supra [consolidation of contractor-owner-architect claims]). Additionally, as noted at the Appellate Division: "A most important practical consideration impelling the grant of consolidation is the need for consistent awards in the two separate but interrelated disputes (Matter of Vigo S. S. Corp. [Marship Corp. of Monrovia], 26 NY2d 157, 162 [supra])” (54 AD2d 670).

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.

       In passing we observe that Nezelek might have complained because the consolidation application was brought in the New York County special proceeding. The special proceeding instituted by the county’s application for a stay in the Nezelek-county arbitration was laid in Sullivan County and Nezelek could have argued that the consolidation application should therefore have been made to Supreme Court, Sullivan County. This is now irrelevant, however, inasmuch as Nezelek has withdrawn its appeal and is no longer contesting the consolidation. Stone, of course, cannot take advantage of grounds of complaint which might have been available to Nezelek.


source: Caselaw Access Project

author: Jasen, J. Wachtler, J. (concurring).

license: Public Domain

text:
    The People of the State of New York, Respondent, v Melvin Morales, Appellant.
    Submitted April 28, 1977;
    decided June 14, 1977

      Joseph A. Monica for appellant.

      Mario Merola, District Attorney (Daniel J. Sullivan of counsel), for respondent. Fourth Amendment imperatives do not require suppression of defendant’s confessions.
   Jasen, J.

This case is here for the second time. In the early morning hours of October 4, 1964, Addie Brown was viciously stabbed to death in the elevator of her Bronx County apartment building. There were no eyewitnesses to the murder and an extensive police investigation failed to uncover any direct evidence as to the identity of the killer. Yet the police did learn that Melvin Morales, a known narcotics addict, had frequented the building, had been inside the building at the time of the homicide, and had not been seen since the murder. Morales’ mother was a tenant in the building and Morales sojourned with her from time to time. Further, the building was the scene of frequent narcotics activity in which Morales allegedly participated. The police attempted to contact Morales through his mother. On October 13, 1964, nine days after the killing, Mrs. Morales received a telephone call from her son. She informed him that the police desired to question him. Morales agreed to appear at his mother’s beauty parlor, her place of business. The police, who had seen previous efforts to contact Morales through his mother fail, had staked out the premises. When Morales arrived, the police advised him that they desired to speak to him. Morales replied, "Yes, I know.” He was placed in a police car and driven to the precinct house. At the station house, Morales was informed of his constitutional rights and was questioned. Within 15 minutes, he confessed to the murder.

Defendant was convicted, after a jury trial, of murder in the first degree. The Appellate Division affirmed his conviction (27 AD2d 904) and a further appeal was taken to our court. We sustained the conviction. It was conceded that the record would not support a conclusion that the police had probable cause to arrest defendant at the time he was taken into police custody. Further, the record on appeal did not establish that the defendant consented to being detained and questioned by the police. However, in a case of first impression, we held "that a suspect may be detained upon reasonable suspicion for a reasonable and brief period of time for questioning under carefully controlled conditions protecting his Fifth and Sixth Amendment rights.” (People v Morales, 22 NY2d 55, 64.)

This court recognized that interrogation of persons with knowledge of the facts is the principal means of solving crimes and that the public interest in bringing to justice perpetrators of serious crimes required that interrogation not be completely forbidden. It was emphasized that police inquiry must be kept within reasonable limits and that the rights of the suspect must be fully regarded. Yet, brief detention for questioning is essential to criminal investigation and a suspect, detained for questioning only, may not construe such deten? tion as constituting an arrest for, and formal charge of, criminal activity. A suspect, advised of his constitutional rights, has a clear choice. He may elect to co-operate with the inquiry or he may decline to speak. If the suspect chooses to stand on his rights, the police must release him from custody unless they have probable cause to arrest him for a specified crime.

In applying these rules to defendant Morales, we concluded that the police conduct was justified under the exceptional circumstances of the case. A brutal and heinous felony had been committed. All of the indications raised by the "checkerboard square” of police investigation pointed at the defendant. Interrogation of the defendant was the only practical investigative technique open to the police. The period of detention was brief and defendant, experienced in police procedures, was fully advised of his constitutional rights.

Defendant took an appeal from our decision to the United States Supreme Court. That court elected "not to grapple with the question of the legality of custodial questioning on less than probable cause for a fullfledged arrest.” (Morales v New York, 396 US 102, 105-106.) While the court concluded that Morales’ confession was voluntary, it vacated the judgment of conviction and remanded the case for a further evidentiary hearing. "Given an opportunity to develop in an evidentiary hearing the circumstances leading to the detention of Morales and his confessions, the State may be able to show that there was probable cause for an arrest or that Morales’ confrontation with the police was voluntarily undertaken by him or that the confessions were not the product of illegal detention.” (396 US, at p 105.) In compliance with the mandate of the Supreme Court, we remitted the case to Supreme Court, Bronx County, for further proceedings. (26 NY2d 844.)

After conducting a suppression hearing, the court held that the defendant’s confessions were constitutionally admissible. The court concluded that the police did have probable cause to arrest the defendant for the murder of Addie Brown. On the issue of probable cause, the only additional proof introduced at the supplemental hearing that was not contained in the original record was that a young boy had observed the defendant sitting on a park bench in front of the apartment building shortly before the murder was committed. From this vantage point, defendant would have been able to see the deceased enter the building. The court also placed reliance upon Mrs. Morales’ false and evasive responses when questioned by the police as to her son’s whereabouts.

Secondly, the court ruled that the defendant had voluntarily acquiesced to his detention by the police. "I further find from the credible evidence that the defendant voluntarily appeared at his mother’s place of business, expected to see police officers there, and anticipated being questioned by the police about the homicide. Thus, after a conversation with his mother, during which she told him that the police wanted to speak to him, the defendant affirmatively responded that he would come over to see them. And after the defendant did appear, and the police told him they wanted to speak to him, the defendant replied that he knew they wanted to speak to him and voluntarily accompanied the police officers to the station house.”

The hearing court also concluded that the confessions were not related in any way to his detention at the police station, but, rather, "constituted a voluntary unburdening of his guilty conscience.” Finally, it was held that a detention for a brief period of time for investigatory purposes did not violate defendant’s Fourth Amendment rights.

The Appellate Division, by a fractionated court, affirmed the order of the trial court. (52 AD2d 818.) Two Justices agreed fully with the opinion by Trial Term and two Justices agreed with the result but filed concurring opinions. Both of the concurring Justices agreed that the evidence adduced at the supplemental hearing, as well as contained in the entire record, was insufficient to sustain the finding of probable cause. However, one Justice took the view that the defendant had voluntarily confronted the police and, thus, the confessions were not suppressible. (52 AD2d, at pp 818-819 [Lupiano, J., concurring].) The other Justice believed that the evidence was insufficient to establish consent but was for affirmance on the authority of the prior Court of Appeals holding in this case. (52 AD2d, at pp 819-820 [Birns, J., concurring].) One Justice dissented and voted to reverse, taking the view that neither probable cause nor consent had been established and that the Court of Appeals holding on the first appeal had been undercut by Brown v Illinois (422 US 590) and People v Martinez (37 NY2d 662). (52 AD2d, at pp 821-824 [Murphy, J., dissenting].) Defendant was granted leave to appeal to our court.

We begin with the issue of probable cause. Although the hearing court concluded that the police did have probable cause to arrest Morales for the Brown murder, this finding was expressly rejected by three Justices at the Appellate Division. We, therefore, are presented by a finding by the intermediate appellate court that probable cause to arrest was lacking. The question of probable cause is a mixed question of law and fact. Determination of the facts and circumstances bearing on the issue, which hinges primarily on questions of witness credibility, is a question of fact. However, it is a question of law whether the facts found to exist are sufficient to constitute probable cause. (E.g., People v Oden, 36 NY2d 382, 384.) Where more than one inference may be drawn from the facts, the question of probable cause is primarily one of fact over which our court has limited powers of review. (E.g., People v Rizzo, 40 NY2d 425, 430; People v Clements, 37 NY2d 675, 678, cert den 425 US 911; People v Alexander, 37 NY2d 202, 204.)

In this instance, we cannot conclude that the Appellate Division erred as a matter of law. The only additional evidence produced at the supplemental hearing which was not contained in the original record was that the police had been informed, prior to Morales’ detention, by a young boy that he had seen defendant outside the building shortly before the killing. Although defendant was so positioned as to permit him to see the deceased enter the building, there was no evidence that the defendant did actually remain in position, spot the deceased, and follow her into the building. Realistically appraised, the young witness’ testimony did no more than place the defendant in the vicinity of the crime. However, on the original record, his proximity to the location of the homicide had been established. When the police sought to interview the defendant, they already knew that he had been in the building at the time of the murder. Simply put, the observations of the young boy did not add to the quantum of police knowledge; his observations were cumulative of information already possessed by the police. Although there were grounds for reasonable suspicion as to the defendant’s involvement with the crime, there was no reasonably trustworthy information sufficient to warrant a prudent man to believe that defendant had committed the crime. (E.g., Henry v United States, 361 US 98, 102; Draper v United States, 358 US 307, 313; People v Oden, 36 NY2d 382, 384, supra.)

Having concluded that probable cause to arrest was lacking, we adhere fully to the views articulated in our prior opinion in this case. Law enforcement officials may detain an individual upon reasonable suspicion for questioning for a reasonable and brief period of time under carefully controlled conditions which are ample to protect the individual’s Fifth and Sixth Amendment rights. For a full exposition of our views, reference is made to our earlier opinion. (People v Morales, 22 NY2d 55, supra.) At this stage of the case, our attention is directed to the argument of the defendant, accepted by the dissenter at the Appellate Division, that the vitality of the Morales holding has been undercut by Brown v Illinois (422 US 590, supra) and People v Martinez (37 NY2d 662, supra). We disagree.

In the Brown case, police officers investigating a homicide had been informed that the defendant was an acquaintance of the victim. On this information, and this information only, the officers broke into defendant’s apartment, searched it, and arrested the defendant at gunpoint. The Supreme Court concluded that defendant’s subsequent confessions should have been suppressed because the confessions were obtained as a result of an illegal arrest. The court, in language relied upon by this defendant, noted that the officers were aware that they lacked a sufficient predicate for the arrest. The arrest was "investigatory” and was an "expedition for evidence in the hope that something might turn up.” (422 US, at p 605.)

The Brown case has only limited relevance to the case before us. Of course, if the police conduct here was illegal, then defendant might cogently contend that, under Brown and Wong Sun v United States (371 US 471), the confessions of Morales should be suppressed as fruit of the poisonous tree. However, the basic distinction is that the arrest in Brown was illegal; the limited detention of Morales was not. The defendant in Brown was arrested and charged with the crime simply because he was an acquaintance of the victim. The police made virtually no investigation and had no grounds for even suspecting that the defendant was involved in criminal activity. The situation in this case is far different. Defendant was a suspect. An extensive police investigation established a "checkerboard square” of circumstantial evidence pointing directly at the defendant. (22 NY2d, at p 64.) But all investigative techniques, save interrogation, had been exhausted. Under these exceptional circumstances, given the public interest in solving a brutal and heinous crime, brief detention for questioning was permissible. We specifically noted in our original opinion that such detention would also protect "those who are able to exculpate themselves from being arrested and having formal charges made against them before their explanations are considered * * * The fact that detention is not recorded as an arrest * * * is also important.” (22 NY2d, at p 63 [citation omitted].) In short, Morales involved a brief detention for interrogation based upon reasonable suspicion, where there was no formal accusation filed against defendant, and all other investigatory techniques were fruitless. Brown, on the other hand, involved police conduct never sanctioned by any court. There was no investigation: defendant was arrested, searched and accused of crime without even a scintilla of evidence casting suspicion upon him. After an hour of police custody, he admitted involvement. In essence, Brown involved an investigatory "round-up”, a technique condemned in Morales (22 NY2d, at pp 64-65) and in Davis v Mississippi (394 US 721).

People v Martinez (37 NY2d 662, supra) also involved a situation where the initial police conduct was predicated upon scanty information not even sufficient to establish grounds for suspicion. While we concluded that defendant’s subsequent confession to an unrelated crime was admissible because the confession was not the product of the illegal arrest, we took care to note that statements which are the product of "sham arrests” should be suppressed. (37 NY2d, at p 667.) It is also useful to contrast the facts in this case with those presented in People v Anderson (42 NY2d 35). In that case, defendant was brought into police headquarters as part of a roundup, without grounds for even suspicion, and was held for over 19 hours until he finally confessed. The police conduct, based upon no investigation to speak of, was egregious and well beyond the limited, brief detention for questioning based upon reasonable suspicion permitted in exceptional circumstances by Morales.

To sum up, our original view in Morales remains valid today. No case, in our court or in the United States Supreme Court, has the effect of vitiating the principle we enunciated. Actually, since Morales, our court has noted that the individual’s right "to be free from an official interference by way of inquiry” is not absolute. (People v De Bour, 40 NY2d 210, 217.) Rather, "a policeman’s right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter.” (40 NY2d, at p 219.)

One further issue remains to be discussed. The supplemental hearing did develop the record further on the issue of the defendant’s possible consent to police detention. While the original record did not support a conclusion that defendant did consent (People v Morales, 22 NY2d 55, 58, supra), the hearing court found, on the expanded record, that the defendant did voluntarily accompany the police officers to the station house. This finding of fact was accepted by at least three Justices at the Appellate Division. The record indicates a close question as to whether "consent has been voluntarily given or is only a yielding to overbearing official pressure”. (See People v Gonzalez, 39 NY2d 122, 128.) The issue was, however, considered carefully by the hearing court and its finding of consent was affirmed by the Appellate Division. Although the voluntariness of the consent is open to dispute, our power to review affirmed findings of fact is limited. Since the finding of the trial court is supported by the record, we are precluded from upsetting it. (E.g., People v Paulin, 25 NY2d 445, 449-450; People v Leonti, 18 NY2d 384, 391; see, also, People v Kaye, 25 NY2d 139, 142-143.) Therefore, an alternative basis for our holding in this case is that the defendant consented to the police detention.

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

Wachtler, J. (concurring).

I am to affirm but solely on the ground that the defendant consented to the questioning.

As the majority notes, the Supreme Court chose "not to grapple with the legality of custodial questioning on less than probable cause” (Morales v New York, 396 US 102, 105-106) and thus remanded for further proceedings to determine whether there was probable cause or whether defendant voluntarily consented to be questioned. The majority also notes that upon remand there has been an affirmed finding of consent which is binding upon this court. That should be the end of the case. Once it has been found that the defendant voluntarily consented to speak with the police, any discussion regarding a police officer’s power to involuntarily detain a suspect for questioning, on less than probable cause, is irrelevant speculation and pure dictum.

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

Order affirmed.


author: Wachtler, J. Jasen, J. (concurring). Cooke, J. (dissenting).

text:
    Ilene Donawitz, an Infant, by Herbert Donawitz, Her Father and Natural Guardian, et al., Respondents, v John J. Danek et al., Defendants, and Dudley F. Hawkes, Appellant.
    Argued March 30, 1977;
    decided June 14, 1977

      Thomas R. Newman and Barry G. Saretsky for appellant.

      Morris Rubenstein for respondents.
   Wachtler, J.

We are presented with yet another of the plethora of difficult questions which have arisen out of this court’s holdings in Seider v Roth (17 NY2d 111) and Simpson v Loehmann (21 NY2d 305, mot for rearg den 21 NY2d 990). For the first time this court has been asked to pass upon the propriety of extending this doctrine by allowing a SeiderSimpson jurisdictional attachment in a case involving a nonresident plaintiff and a nonresident defendant arising out of alleged acts of negligence which occurred in another State. In our view the doctrine explicated in Seider v Roth (supra) and Simpson v Loehmann (supra) should not be extended, but rather confined to the limits dictated by stare decisis.

On February 3, 1973, the infant plaintiff, a resident of New Jersey, sustained a leg fracture in a skiing accident in Pennsylvania. On the day of the accident she was treated in the emergency room of the defendant Read Memorial Hospital located in Hancock, New York. Defendant Dr. Danek, on the staff of that hospital and a resident of New York, was the physician who treated the plaintiff at the hospital. Two days later, defendant Dr. Hawkes, a nonresident of New York, treated plaintiff for the same injuries sustained in the accident. Dr. Hawkes, who practices medicine in New Jersey and has no purposeful connection with New York, treated the plaintiff at his office in Princeton, New Jersey.

Plaintiff instituted a single action, naming the hospital and the two doctors as codefendants. In her complaint she alleged that separate and independent acts of medical malpractice were committed by the two physicians and that as a result of their malfeasance a portion of her right leg was caused to be amputated. Each alleged act of malpractice by the respective physicians was the subject of a separate and independent cause of action. She also asserted a cause of action sounding in negligence against the defendant hospital.

Plaintiff commenced her actions against the hospital and Dr. Danek in Supreme Court, Nassau County, by service of a summons and complaint in this State. She also sought to assert quasi in rem jurisdiction over the nonresident doctor by means of the attachment of Dr. Hawkes’ medical malpractice liability insurance pursuant to the principles set forth in our holdings in Seider and Simpson. The insurance carrier on the policy, Federal Insurance Company, is duly licensed to transact insurance business in New York and has offices located in Nassau County.

Dr. Hawkes opposed the application of the Seider-Simpson doctrine. Special Term allowed the attachment and held that Seider-Simpson jurisdiction was appropriate in the instant case. The court reasoned that it was clear that New York had jurisdiction over the other two defendants in the case and cited the potential inconvenience to the plaintiff in having to prosecute multiple actions in the event of a determination that jurisdiction over Dr. Hawkes was lacking. The court also noted that there would be no added congestion or burden on this State’s courts by asserting jurisdiction over this nonresident defendant since the action pending against the codefendants was clearly properly before our courts. A divided Appellate Division affirmed Special Term’s determination.

From its inception, the Seider-Simpson rule, allowing the attachment of a defendant’s liability insurer’s contractual obligation to defend and indemnify, has met with criticism and rejection (see, e.g., Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5201 [Cumulative Annual Pocket Part 1976-1977]; Minichiello v Rosenberg, 410 F2d 106 [esp writings collected at p 108], affd on reh en banc 410 F2d 117, cert den 396 US 844; Javorek v Superior Ct. of Monterey County, 17 Cal 3d 629; De Rentiis v Lewis, 106 RI 240; Ricker v Lajoie, 314 F Supp 401). In addition, grave constitutional doubts were expressed concerning the application of Seider-Simpson attachments in cases where, as here, the plaintiff seeking the attachment was not a resident of New York (Minichiello v Rosenberg, 410 F2d 106, 110, affd on reh en banc 410 F2d 117, and concurring opn of Hays, J., at p 119, cert den 396 US 844, supra; Farrell v Piedmont Aviation, 411 F2d 812, 816; Vaage v Lewis, 29 AD2d 315, 318). Other courts have simply refused to extend the Seider-Simpson rule where the plaintiff was a nonresident (see, e.g., Varady v Margolis, 303 F Supp 23; Adkins v North-field Foundry & Mach. Co., 393 F Supp 1079; but see McHugh v Paley, 63 Misc 2d 1092, allowing a Seider-Simpson attachment by a nonresident plaintiff where there exists "special circumstances”).

We are not unmindful of the continued criticism of our holdings in Seider v Roth (supra) and Simpson v Loehmann (supra). Although several members of the court may believe in the legitimacy of some of this criticism, the majority cannot fail to take into account considerations of institutional stability and the mandates of stare decisis (cf. Helvering v Hallock, 309 US 106, 119). A court should not depart from its prior holdings "unless impelled by 'the most cogent reasons’” (Baker v Lorillard, 4 NY 257, 261 [emphasis in original], cited in Matter of Eckart, 39 NY2d 493, 499).

As recently as July of last year, this court unanimously reaffirmed the Seider-Simpson doctrine (Neuman v Dunham, 39 NY2d 999), and it would be scandalous for us to abandon it at this time (People v Hobson, 39 NY2d 479, 491), particularly in this case where the doctrine need not be applied. Moreover, as the Seider court itself recognized, its holding in effect established, by judicial fiat, a "direct action” against the insurer (Seider v Roth, 17 NY2d 111, 114, supra). Thus, this court did indirectly that which the Legislature could have done, but failed to do, directly (see Watson v Employers Liab. Assur. Corp., 348 US 66; cf. Ray v Marine Midland Grace Trust, 35 NY2d 147). In the absence of any corrective measures taken by the Legislature during the 11-year history of the Seider-Simpson rule, it must be concluded that they are satisfied with it, and we, therefore, should refrain from disavowing it.

Although stare decisis dictates that we refrain from unnecessarily reaching out to overrule the precedents established by Seider and Simpson, it does not require that we expand the scope of the doctrine. While the insurer’s "duty to defend and indemnify” has been found to be an attachable debt where the plaintiff is a resident, this special type of contract duty, however it may be classified or denominated, is not of sufficient substance to support quasi in rem jurisdiction where the plaintiff is a nonresident. We hold, therefore, the doctrine should not be extended to embrace the present case. Further, as it was not raised by the parties in the courts below, or addressed by those courts, and has not been raised or briefed by the parties on the present appeal, we do not reach or consider the assertion, introduced by the writer of the concurring opinion, that in restricting Seider-Simpson to resident plaintiffs there is a constitutional inhibition grounded on the denial of equal protection.

Accordingly, the order of the Appellate Division should be reversed and the motion for the order of attachment denied.

Jasen, J. (concurring).

I concur in the result only. In my view, proper resolution of this case requires a full-scale reexamination of the conceptual underpinnings of Seider v Roth (17 NY2d 111). The Seider case stands for the proposition that a liability insurer’s obligation to defend and indemnify a nonresident defendant is a sufficient asset to support quasi in rem jurisdiction over the defendant. If the court was right in Seider and an insurer’s obligation to defend and indemnify is an attachable asset of a tort defendant, there is no constitutional difficulty. The law is well established that a State may constitutionally garnish a debt owed to the defendant by another. Constitutional questions appear only if the insurer’s obligation is not really a sufficient asset upon which to predicate an assertion of quasi in rem jurisdiction. As has been noted, the court in Seider "could not have decided the substantive question without assuming a reality in the 'obligation’ being attached that would satisfy constitutional standards.” (Simpson v Loehmann, 21 NY2d 305, 316 [Breitel, J., concurring].) If the Seider court was wrong and the insurer’s obligation is an insufficient asset of the defendant, there still is no constitutional problem for, under this circumstance, the "asset” is simply not attachable. However, I fail to see how the substantiality of an asset of a nonresident turns upon the residence of the attaching plaintiff. Phrased somewhat differently, an asset of a nonresident defendant is made no less substantial by the fact that the plaintiff who would seize that asset is not from New York. Indeed, to deny a nonresident plaintiff the right to attach the same debt upon which a resident could sue in itself poses grave questions of fundamental fairness and constitutionality. No court has peviously suggested, much less held, that the substance of an attachable debt is in any way affected, much less diminished, by the nonresidence of the attaching party. Rather than rely, as the majority does, upon a subtle and unreal distinction of doubtful constitutionality, I respectfully suggest that the time for major reappraisal of the abberational Seider decision has come. I would close the lid on this Pandora’s box.

It is hornbook law that a State may attach the property of a nonresident for the purpose of applying that property to the satisfaction of a claim against the nonresident. Property of a nonresident includes tangible debts owed to the nonresident by others. "If there be a law of the State providing for the attachment of the debt, then if the garnishee be found in that State, and process be personally served upon him therein, we think the court thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of the plaintiff and condemn it, provided the garnishee could himself be sued by his creditor in that State.” (Harris v Balk, 198 US 215, 222.) Thus, in this State, a money judgment may be enforced against any debt, "which is past due or which is yet to become due, certainly or upon demand of the judgment debtor, whether it was incurred within or without the state, to or from a resident or non-resident, unless it is exempt from application to the satisfaction of the judgment.” (CPLR 5201, subd [a].) Similarly, any assignable or transferable property may be applied to the satisfaction of a money judgment. (CPLR 5201, subd [b].) Any debt or property against which a money judgment may be enforced is subject to attachment. (CPLR 6202.)

The attachment of property of or debts owed to a nonresident defendant is a permissible means of acquiring jurisdiction over the nonresident, at least to the extent of the value of the asset attached. Of course, a State could not blanketly refuse to permit nonresidents to use the process of the courts to attach property of their debtors. The right to sue and defend in the courts is "one of the highest and most essential privileges of citizenship, and must be allowed by each State to the citizens of all other States to the precise extent that it is allowed to its own citizens. * * * But any policy the State may choose to adopt must operate in the same way on its own citizens and those of other States. The privileges which it affords to one class it must afford to the other. Any law by which privileges to begin actions in the courts are given to its own citizens and withheld from the citizens of other States is void, because in conflict with the supreme law of the land.” (Chambers v Baltimore & Ohio R. R. Co., 207 US 142, 148-149.) This is no simple equal protection problem. A State may not deprive nonresidents of a privilege of citizenship. (US Const, art IV, §2.) The majority’s silence on the issue speaks for itself.

The majority concludes that nonresidents may not under any set of circumstances attach debts of their debtors which the Seider decision permits New York residents to attach. In other words, the court adopts a policy which precludes nonresidents from using the processes of the courts to the same extent as New York residents. In my view, this is unconstitutional. The issue may be seen more clearly if viewed in terms of a tangible asset, such as a bank account. Certainly it would be unconstitutional to refuse to permit nonresidents to attach monetary assets of debtors located in New York while permitting New York residents to attach the same assets. In effect, this would deny nonresidents full rights to court process. Seider, of course, holds that the insurer’s obligation to defend and indemnify is the functional equivalent of a debt. To deny nonresidents the process of the courts to reach debts reachable by New Yorkers is an unconstitutional discrimination in favor of local residents. Furthermore, such a policy is fundamentally unfair. For example, if this plaintiff has a liability insurance policy issued by an insurer located in New York, under the majority decision, a New Yorker could attach the obligations of that policy and subject this New Jersey plaintiff to quasi in rem jurisdiction in New York. The plaintiff, however, is barred from using the same court process that could be used against her.

This is not to say that a nonresident is entitled to maintain a suit in New York where the cause of action has no substantial connection with this State. (Cf. Minichiello v Rosenberg, 410 F2d 106, 110 and n 6.) Such a suit would be subject to dismissal on the ground of forum non conveniens. (CPLR 327.) But a suit by a New Yorker is subject to dismissal on the same ground. (See Silver v Great Amer. Ins. Co., 29 NY2d 356.) However, the application of forum non conveniens turns upon considerations of justice, fairness and convenience and not solely upon the residence of one of the parties. (29 NY2d, at p 361.) There may well be cases in which there are sufficient special circumstances which warrant retention of jurisdiction over Seider suits commenced by nonresidents. For example, in this case, the courts below have found that the fact that one of the independent tort-feasors is a New Yorker and that one of the tortious acts complained of occurred in New York is a sufficient special circumstance to preclude the application of forum non conveniens. The majority does not claim, nor could it be successfully argued, that such decision was an abuse of discretion as a matter of law. (See Irrigation & Ind. Dev. Corp. v Indag, S. A., 37 NY2d 522, 525.)

Nor should the court choose to limit Seider on a pure policy analysis. As noted in Vaage v Lewis (29 AD2d 315, 316), relied upon by the majority, ”[y]et we must be mindful of the fact that the accident of a plaintiff’s residence does not bear directly on the substance of a court’s jurisdiction and power over a defendant, particularly when an in rem concept is involved. When the res is here in New York, that is the jurisdictional fulcrum.” Indeed, one of the most noted critics of Seider, Professor Siegel, has rejected a similar analysis. "If the debt is in New York it is here whether plaintiff is from New York or the Netherlands. It is here if there is no plaintiff at all, or no litigation at all, or no court system at all. The one thing is a universe removed from the other.” (Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5201 [Cumulative Annual Pocket Part, 1976-1977], p 32.) The policy approach is precluded by sheer logic. Additionally, there should be no fear of a flood of suits by nonresidents since the nonresident with substantial New York contacts sufficient to defeat a forum non conveniens attack is a comparative rarity. If the majority is concerned with the inundation of New York courts by waves of law suits, the problem is created by Seider itself and should be addressed directly.

It is true that the Federal courts have indicated that it might well be unconstitutional to extend Seider to cover nonresident plaintiffs. (See, e.g., Minichiello v Rosenberg, 410 F2d 106, supra; Farrell v Piedmont Aviation, 411 F2d 812; Varady v Margolis, 303 F Supp 23.) However, the reasoning of these courts is predicated upon the view that Seider constitutes a judicial direct action statute and that New York has no interest in permitting direct actions in favor of nonresidents. (Cf. Watson v Employers Liab. Corp., 348 US 66.) The analogy to direct action statutes is inapposite since Seider is based upon traditional quasi in rem jurisdictional analysis which emanates from Harris v Balk (198 US 215). Harris, the pre-eminent American case to date on quasi in rem jurisdiction, involved the attachment of a debt of $180 owed to a nonresident defendant by another nonresident. Jurisdiction over the garnishee was acquired through the service of process upon the garnishee while he was temporarily within the forum State. Although, in modern times, the view has been expressed that due process is denied a defendant who must defend in a foreign State simply because his garnishee happened to be found there, Harris remains, as of today, an authoritative precedent. Until such time as the Supreme Court chooses to overrule it, and that time may not be far off, State courts are bound by it. Assuming that an insurer’s obligation to defend and indemnity is properly determined to be a debt, such debt is just as substantial as the $180 at issue in Harris, a sum of comparative insignificance even in that pre-inflationary era. Critically, if a foreign insurer is made to defend here by the chance that it does business in New York, any due process strain generated by that burden is hardly mitigated by the residence of the plaintiff. The strain is created by the fact that the insurer must defend; to the insurer it hardly matters who it must defend against.

Contrary to the implication in the majority opinion, we have never said that Seider was, in fact, a judicially created direct action statute. The statements to which the majority alludes were made in response to arguments that Seider represented an arrogation of legislative responsibility. We specifically noted in Seider that the direct action analogy was a limited one and that jurisdiction was obtained because the policy obligation to defend and indemnify should be considered a debt owed to the insured by the insurer. (Seider v Roth, 17 NY2d 111, 114, supra; see, also, Simpson v Loehmann, 21 NY2d 305, 311, supra.) Judicial creation of a direct action statute is a contradiction in terms. Courts do not, or at least should not, legislate. Moreover, Seider is at best an indirect direct, action doctrine since the insured is at least a nominal defendant. In fact, if the insured fails to co-operate with the insurer in maintaining a defense, the insurer has the option of disclaiming coverage. Furthermore, even a direct action statute would permit suit by a nonresident, provided the underlying tort occurred in New York. (See Simpson v Loehmann, 21 NY2d 305, 317-318, supra [dissenting opn].) To term Seider a direct action statute does not progress analysis, nor does it justify the result reached by the majority.

Thus, the ultimate issue is reached; if Seider is a viable decision, plaintiff’s nonresidence should not preclude its application. Only if Seider is overruled, may jurisdiction be appropriately disclaimed.

I believe that Seider should be overruled. Doubtless the obligation to defend and indemnify is a valuable right but the "debt” of the insurer it represents is inchoate and conditional and attachment is thereby precluded. (See CPLR 5201, subd [a].) The law prior to Seider was clear that contractual rights which were not yet translatable into a present duty were too inchoate to be attached. (E.g., Sheehy v Madison Sq. Garden Corp., 266 NY 44.) After Seider, in all other spheres, the law was equally adamant: absent a present duty, there is no debt. (Glassman v Hyder, 23 NY2d 354, 359.) The obligation to defend and indemnify is an important right. The duty to defend may even be more important than the duty to indemnify, at least where the action is for more than the policy limits. However, neither duty is severable from the insurance policy which creates it. The obligation to defend and indemnify remains inchoate until jurisdiction has been duly acquired over the insured. (Matter of Riggle, 11 NY2d 73.)

Nor is the obligation attachable as an interest in property (see CPLR 5201, subd [b]) since it is a property interest without any realistic independent economic value. Although an economic value has been assigned more or less arbitrarily (see Simpson v Loehmann, 21 NY2d 305, 310, supra), the obligation, until it has ripened, has no real economic significance. (ABKCO Inds. v Apple Films, 39 NY2d 670, 675-676.) It is unassignable and unmarketable and execution upon it would be most impracticable.

Seider, thus, is out of line with the major precedents on attachment in this court. At least nine States and two Federal courts have rejected it. (See, e.g., Javorek v Superior Ct. of Monterey County, 17 Cal 3d 629.) The only highest court of a sister State to apply the Seider rule limits its effect only to where a local resident commences an action against a New York resident. (Forbes v Boynton, 113 NH 617; see Robitaille v Orciuch, 382 F Supp 977.) Critical commentary has been unfavorable.

The majority does not defend Seider; the court places its reliance solely upon stare decisis. Indeed, the court’s apparent policy decision to preclude nonresidents from employing Seider reflects the court’s discomforture with the case. Yet where a court is convinced of the error of a prior decision, it should be forthright enough to depart from it, rather than to resort to subtle and unreal distinctions. (See, e.g., Von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv L Rev 409, 411-412.) This is especially true where, as here, the purported distinction is of doubtful constitutional validity. While, without doubt, prior decisions are entitled to great weight, stare decisis does not require blind deference to flagrant error. In view of Seider’s own deviation from prior precedent, the virtually unanimous negative reception from neutral courts and commentators, and the unending list of practical difficulties which flow from the decision, there are "the most cogent reasons” for reconsideration. (Rumsey v New York & New Eng. R. R. Co., 133 NY 79, 85.)

We have recently said that "if a recent holding interpreting a statute is out of harmony with a long line of well-reasoned opinions, the courts need not wait for the Legislature to repair the damage”. (Matter of Eckart, 39 NY2d 493, 499.) There is no suggestion here that Seider involves a long-standing rule governing the transfer of a property interest, a circumstance which would compel invariable adherence to precedent however wrong. (Matter of Eckart, supra; People v Hobson, 39 NY2d 479, 489.) Seider is simply an interpretation of a procedural statute and procedure admits a greater flexibility than does substantive rules of law. As Chief Judge Fuld stated in Silver v Great Amer. Ins. Co. (29 NY2d 356, 363, supra) "stare decisis does not compel us to follow blindly a court-created rule—particularly one, as here, relating to a procedural matter—once we are persuaded that reason and a right sense of justice recommend its change.”

Particularly in the past few years, our court has shown no reluctance to dispose of prior precedents when necessary to achieve a proper disposition. (E.g., Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; People v Hobson, 39 NY2d 479, supra; Micallef v Miehle Co., 39 NY2d 376; People v Miller, 39 NY2d 543; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Kalechman v Drew Auto Rental, 33 NY2d 397.) In each of these decisions, and this list is by no means exhaustive, we have overturned established precedent even though the Legislature had not acted to controvert the rules established in the earlier decisions. It has long been my view that the courts may reform their own rulings on law without the need to await salvation from the Legislature. (See Codling v Paglia, 32 NY2d 330, 345-348 [concurring opn].) The Legislature did attempt to enact a "direct action” statute, in lieu of Seider, but the proposed enactment was vetoed by the Governor. (See Governor’s veto message, NY Legis Ann, 1973, p 349.) Since the Legislature would have repealed Seider, but for the Governor’s veto (which was based on a drafting deficiency and not upon the merits of the legislation), the majority’s conclusion that the Legislature is "satisfied with it” (p 142) is simply untenable. But, in any case, it is my view that a court may, and should, rectify prior error in statutory interpretation and should not place the burden upon the Legislature to redraft the statute.

The majority makes much of the fact that we recently "reaffirmed” the Seider case in Neuman v Dunham (39 NY2d 999). However, that case did not present the same challenge as does the present one. In Neuman, the plaintiff was a resident of New York. Here, the plaintiff is a nonresident and the fact of nonresidence raises a different issue. The majority would leave Seider intact but not extend it. I see no valid basis upon which the refusal to extend may be predicated. Thus, the issue becomes whether Seider itself is a viable decision. The fact that we have recently relied upon a precedent does not preclude us from overruling that precedent in a case presenting even slightly different circumstances. (Compare Meyer v Gehl Co., 36 NY2d 760 [March 24, 1975], with Micallef v Miehle Co., 39 NY2d 376, supra [April 8, 1976].)

Shortly after Seider was decided, it was stated that a major reappraisal by the court, as an entity, would justify the overruling of Seider. (Simpson v Loehmann, 21 NY2d 305, 314, supra [Breitel, J., concurring].) The Simpson case was decided within two years of Seider when Seider "was all but mint-new”. (People v Hobson, 39 NY2d 479, 491.) An important precedent, clearly, should not be disavowed simply because, as a matter of happenstance, the composition of the court had changed. (See, also, Simpson v Loehmann, 21 NY2d 990, supra.) However, we are now nearly 10 years down the road and the precedent, once mint-new, is severely tarnished. Overruling Seider at this stage would not result from an accident of composition but from an institutional reassessment. There is no danger that the precedent would be abandoned simply because one Judge, and later a second, in the majority had been replaced by another Judge who would have preferred a different result.

There are those who would argue that Seider is much ado about nothing; a case of insufficient importance to warrant further scrutiny. A second contention arises from concern for adverse Statute of Limitations effect upon cases brought in reliance upon Seider. To answer the first argument, it is obvious that all members of the court deem the issue to be one of importance. If the majority felt the issue to be unimportant, it would be unnecessary for them to fear the effects of extending Seider to nonresidents. Cases, such as the present one, with substantial New York contacts precluding the use of forum non conveniens would be rare. To bar the odd nonresident plaintiff, with significant New York contacts, from the New York courts, based upon a constitutionally doubtful distinction, would be unduly harsh if the issue is of only slight concern. The second consideration is more substantial. A full and retrospective abandonment of Seider might, indeed, have adverse Statute of Limitations impact upon plaintiffs who relied upon Seider. The present case poses no such difficulty. Plaintiff was aware, or should have been, that the benefits of Seider might not be available to her and, thus, any reliance placed upon Seider was unreasonable. At least as to her, there is no difficulty in abandoning Seider. Under the majority’s analysis, the limitations result is no different.

To conclude, Seider is an odd case which rode overshod over stare decisis. The majority would accord it stare decisis effect, but would not extend it, even though the soundness of its doctrine has been seriously questioned. The issue, quite similar to that posed in People v Hobson (39 NY2d 479, 487, supra) is whether stare decisis should be accorded to the odd case, heavily criticized and unanimously rejected, or the stable line of development never criticized and never rejected. The answer should be obvious. I would orverrule Seider v Roth. A court should have the wisdom and the institutional fortitude to both explore new fields when necessary and to retract when experience and mature reflection establish, beyond doubt, the weakness of a prior approach.

Cooke, J. (dissenting).

The order of the Appellate Division, upholding the attachment of the nonresident defendant’s liability insurance carrier’s contractual obligation to defend and indemnify so as to obtain quasi in rem jurisdiction over said defendant, should be affirmed.

The operative facts are simple.

Plaintiffs, father and daughter, are residents of New Jersey. The infant plaintiff, following a skiing accident in Pennsylvania, was treated for her injuries in the emergency room of defendant Read Memorial Hospital, a domestic corporation, at Hancock, New York, and by defendant Dr. Danek, a resident of New York. Two days later she was treated by defendant Dr. Hawkes, a New Jersey resident.

The instant action is based upon the alleged separate acts of malpractice of each defendant which plaintiffs claim required amputation of a portion of the infant’s leg. Defendant Hawkes’ liability insurance carrier is the Federal Insurance Company, licensed to transact insurance business in New York and with offices herein. Special Term granted plaintiffs’ application to direct the attachment of said insurance carrier’s contractual obligation to defend and indemnify defendant Hawkes so as to obtain quasi in rem jurisdiction over said defendant. The Appellate Division, two Justices dissenting, affirmed.

In Seider v Roth (17 NY2d 111), it was held at page 113: "The whole question, therefore, is whether Hartford’s [the carrier’s] contractual obligation to defendant is a debt or cause of action such as may be attached. The Hartford policy is in customary form. It requires Hartford, among other things, to defend Lemiux in any automobile negligence action and, if judgment be rendered against Lemiux, to indemnify him therefor. Thus, as soon as the accident occurred there was imposed on Hartford a contractual obligation which should be considered a 'debt’ within the meaning of CPLR 5201 and 6202.” Thus, under Seider, the insurer’s obligation to defend and indemnify supports quasi in rem jurisdiction over a defendant regardless of the residence of the plaintiff. To affirm here and to permit attachment of Hawkes’ carriers’ obligation so as to obtain such jurisdiction over Hawkes is conceptually consistent with Seider and, therefore, not an extension of the Seider doctrine at all. It is merely an application of the same jurisdictional test to a different set of facts with the same fundamental result.

It is difficult to accept the majority’s reasoning (p 142) that "[w]hile the insurer’s 'duty to defend and indemnify’ has been found to be an attachable debt where the plaintiff is a resident, this special type of contract duty * * * is not of sufficient substance to support quasi in rem jurisdiction where the plaintiff is a nonresident.” It is the debt within the State owed to the nonresident defendant, when the insurer is present within the State and is regulated by the State, which supplies the quasi in rem jurisdiction, not the plaintiff’s residence (see Simpson v Loehmann, 21 NY2d 305, 309, 310). It cannot be said that the quasi in rem jurisdiction postulated in Seider is an inconsequential response of law to the reality and pervasiveness of insurance in our mobile society.

Further, as indicated in the concurring opinion, Seider does not constitute a judicially created direct action statute since it is based on traditional quasi in rem jurisdictional analysis emanating from Harris v Balk (198 US 215; see Morton v Maryland Cas. Co., 4 NY2d 488). But even if Seider was so viewed, under the facts presented here, there is a sufficient State interest and nexus to exercise jurisdiction over this nonresident defendant (cf. Watson v Employers Liab. Corp., 348 US 66, 72). Since two defendants are residents of the forum State, the insurer of the third defendant is present in and regulated by it, and at least one of the resident defendants will undoubtedly cross-claim against the nonresident defendant, this State has a "substantial and continuing relation with the controversy” and "[f]or jurisdictional purposes, in assessing fairness under the due process clause and in determining the public policy of New York, such factors loom large” (Simpson v Loehmann, 21 NY2d 305, 311, supra).

There is ample basis for the majority’s position that Seider should not be overruled, it has been recently reaffirmed in Neuman v Dunham (39 NY2d 999). In any event, there is no justification for the limitation placed on Seider in this case. Aside from any constitutional questions, it is manifestly unfair to allow resident plaintiffs to use Seider to bring nonresident defendants into New York while at the same time, not through the application of forum non conveniens but simply by way of a blanket prohibition, to deny nonresident plaintiffs the use of Seider.

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

Order reversed, with costs, and the motion for the order of attachment denied. Question certified answered in the negative.

       Where the particular property is of sufficient substance, it provides a basis for quasi in rem jurisdiction in favor of a nonresident plaintiff (e.g., Katz v Liston, 22 AD2d 205 [moneys owed by New York City obligors]).


author: Fuchsberg, J.

text:
    Martha Hogeland et al., Plaintiffs, v Sibley, Lindsay & Curr Co., Respondent, and The Berenson Corporation, Appellant.
    Argued March 31, 1977;
    decided June 16, 1977

      William D. Eggers and John B. McCrory for appellant.

      Michael J. Tobin for respondent.
   Fuchsberg, J.

The main issue on this appeal is whether the defendant-appellant The Berenson Corporation is entitled to recover on its cross claim for contractual indemnity against its lessee, the codefendant Sibley, Lindsay & Curr Co., pursuant to certain clauses of the lease between these parties. Since they were landlord and tenant, a subsidiary issue involves in the effect, if any, of section 5-321 of the General Obligations Law on the enforceability of the lease’s indemnity provisions.

Berenson owns the Irondequoit Shopping Center; Sibley, which operates a large department store in the center, is the major tenant. The underlying actions, in which both Berenson and Sibley were named as defendants, arose out of personal injuries sustained by the plaintiff Martha Hogeland, a customer of Sibley, when, in the course of leaving the store, she fell over a low-lying concrete planter box whose presence was obscured by unremoved snow and slush. The box was located about 20 feet from a Sibley entrance on a canopied sidewalk which ran along one side of the Sibley store.

While the sidewalk was not part of the leased premises, it and the planter box had been constructed by Berenson’s contractors pursuant to plans and specifications drawn by Sibley’s architects. There was also evidence at trial that, under their mutual arrangements for snow removal, employees of each defendant were separately charged with that task during certain intervals of the time period during which it had accumulated on this occasion and that both would see to the care of the shrubs and plants grown in the box in question.

The jury having found both defendants negligent and jointly liable to Mrs. Hogeland and her husband, it thereafter, in accordance with the practice emanating from Dole v Dow Chem. Co. (30 NY2d 143), proceeded to allocate proportionate responsibility as between the two defendants at 60% for Berenson and 40% for Sibley. Berenson’s contractual cross claim having been submitted by stipulation of the defendants for determination by the court alone, the trial court then granted judgment over for indemnification in favor of Berenson against Sibley for $16,440.80, the sum which it was agreed represented 60% of the Hogeland judgment plus the expenses incurred by Berenson in its defense of the negligence action. However, on Sibley’s appeal from that determination, the Appellate Division reversed and dismissed the cross claim (51 AD2d 886). The present appeal to us by Berenson followed.

The lease, insofar as pertinent here, provided:

"article ix.
"Indemnity and Public Liability Insurance
"Section 1. The Tenant agrees to indemnify and save harmless the Landlord from and against all claims of whatever nature arising from any act, omission or negligence of the Tenant, or Tenant’s contractors, licensees, agents, servants or employees, or rising from any accident * * * whatsoever caused to any person * * * in or about the Tenant’s demised premises, or * * * occurring outside of the demised premises but within the Shopping Center development * * * where such accident * * * results * * * from an act or omission on the part of Tenant * * * This * * * agreement shall include indemnity against all costs, expenses and liabilities incurred in or in connection with any such claim or proceeding brought thereon, and the defense thereof.
"Section 2. The Tenant agrees upon written request of the Landlord * * * to maintain * * * a policy of public liability and property damage insurance under which the Landlord * * * and the Tenants are named as insureds, and under which the insurer agrees to indemnify and hold the Landlord * * * harmless from and against all cost, expense and/or liability arising out of or based upon any and all claims, accidents, injuries and damages mentioned in Section 1 of this article ix * * * The minimum limits of liability of such insurance shall be one hundred thousand dollars ($100,000) for injury (or death) to any one person * * * [T]he Landlord will reimburse the Tenant for any extra premium paid by the Tenant on account thereof. In any event the Tenant will without cost to the Landlord maintain during the term hereof such a policy in effect wherein it will be named as the insured * * *
"Section 5. Anything in this article to the contrary notwithstanding, nothing in this lease shall be construed to relieve the Landlord from responsibility to the Tenant for any loss or damage caused the Tenant wholly or in part by the negligent acts or omissions of the Landlord; except, however, that the Landlord shall not be responsible for such portion of such loss or damage which is recovered or recoverable by the Tenant from insurance covering such loss or damage or for such portion of such loss or damage against which the Tenant is indemnified or insured”.

Analysis of section 1 of the foregoing provisions readily discloses that it contemplates three sets of circumstances: (a) claims against Berenson arising from the negligence of Sibley, its contractors or licensees, (b) claims against Berenson arising from any accident occurring "in or about” the Sibley premises and (c) claims arising out of negligence of Sibley anywhere in the shopping center.

To sustain the Appellate Division’s dismissal, Sibley, while agreeing that the second eventuality, (b), could be interpreted as intended to indemnify Berenson against its own negligence, here contends that the clause nevertheless does not apply because the Hogeland accident did not occur "in or about” its premises. Insofar as the other two eventualities, (a) and (c), are concerned, it argues that they are not to be deemed to include indemnification for injuries caused, as they were here, in part by reason of Berenson’s own negligence. Further, it takes the position, as had the Appellate Division, that indemnity is also to be denied to Berenson because of section 5 of article IX’s language that the landlord was not to be relieved from "responsibility to the Tenant for any loss or damage caused the Tenant wholly or in part by the negligent acts or omissions of the Landlord.”

Berenson, on the other hand, urges that the provisions in question manifest an unmistakable intent to indemnify under all three parts of section 1 of article IX, irrespective of Berenson’s own negligence, that Sibley’s exemption from liability to Berenson under section 5 was not applicable to claims arising out of injuries to third parties such as Mr. and Mrs. Hogeland and that section 5-321 of the General Obligations Law does not bar indemnity in this case.

We hold that Berenson was entitled to indemnification. Our reasons follow:

At the very outset, we remark on the fact that the lengthy lease before us obviously was one negotiated at arm’s length between the representatives of two sophisticated business entities, one a large department store company and the other the real estate corporation which organized, owned, constructed and managed the shopping center. The tenant had tailored the contruction to its special needs. And the mutual nature of the arrangements for the maintainance of appurtenances such as those involved in this very case is tell-tale evidence that the lease was not one whose making dominated by either party.

A lease or other contract entered into under such circumstances by parties so situated is no longer to be construed as not intending indemnification of a party for its own negligence unless that intention is set forth in specific and "unequivocal terms” (see Thompson-Starrett Co. v Otis Elevator Co., 271 NY 36, 41). Instead, in such cases we now look to the "unmistakable intent of the parties” rather than the semantic stereotypes with which an agreement may be phrased (Levine v Shell Oil Co., 28 NY2d 205, 212). It suffices that the agreement between the parties connotes an "intention to indemnify [which] can be clearly implied from the language and purposes of the entire agreement”. (Margolin v New York Life Ins. Co., 32 NY2d 149, 153.)

Applying that standard to the present case, and turning initially to the first and third parts of section 1 of the indemnification clauses, we note that, though those two subsections speak only of Sibley’s negligence, neither expressly exempts Sibley from its obligation to indemnify in the event that its negligence is shared with that of Berenson. However, it is unnecessary here for us to decide whether an obligation to indemnify Berenson can be implied from that language. For, even assuming, arguendo, that it does not, the second part of section 1 in any event clearly supports Berenson’s right to indemnification.

It is significant that that part makes no reference to negligence of Sibley or of Berenson. Its broad inclusion of "any accident * * * whatsoever * * * to any person” is qualified only by the words "in or about the Tenant’s demised premises”. It is not to be read as limited in its spatial description to "in the demised premises” for then "or about” would have no meaning.

Moreover, the phrase "in or about” is one of art. Defined as "a phrase having reference to an area and expressing the idea of physical proximity” (Ballantine’s Law Dictionary, [3d ed], p 631), it frequently is used synonymously to mean "around” or "on the outside of’ (Thompson v Banks, 43 NH 540, 541). It signifies locality (cf. Wise v Central Dairy Co., 121 Kan 258, 259, where a workman injured 200 feet from the factory was unjured "in, on or about the factory”). Consequently, in the context of the facts of this case, it must be held to include the sidewalk area where the accident happened. Mrs. Hogeland was then actually in the process of departing the Sibley premises. She was still on the sidewalk which served it alone and was still under the canopy it had erected either to attract or shelter its customers. Indeed, the undisputed evidence was that at times Sibley would actually close off a portion of the sidewalk and use it as an additional sales area. As the jury apparently found, it joined in its maintenance.

It is evident too that section 5 of article IX does not vitiate Berenson’s right to indemnification. That section, an exculpatory rather than indemnitory clause, relates only to loss or damage Berenson might occasion directly to Sibley and then only to the extent that Sibley has not otherwise been paid for its loss by insurance or other forms of indemnity. By no means does it affect any right to indemnity from Sibley to which Berenson may be entitled under section 1 in order to recoup for payments made to compensate for losses of third parties.

Further support for this interpretation is to be found in the provisions for insurance found in section 2 of article IX of the lease. In limits far exceeding the judgment at stake here, the insurance described is to protect not only against liability claims against both defendants but expressly provides for any indemnity claims which Berenson might bring against Sibley under section 1. In the realities of today’s world of business, section 2’s concern with the avoidance of duplicate insurance and the absorption of any additional premium therefor by the landlord almost indisputably proclaims a mutuality of intent to insure rather than to negate its payment if the occasion for indemnification under section 1 should arise. Public policy is certainly not undermined by a frank recognition of such a perfectly common and acceptable business practice by which an entrepreneur may provide protection against its own fault.

Nor does section 5-321 of the General Obligations Law interdict Berenson’s right to recover. Enacted originally in 1937 to overcome the decision in Kirshenbaum v General Outdoor Adv. Co. (258 NY 489), section 5-321 was, at least in part, a response to "the widespread use in New York City of such contracts, resulting in unequal bargaining power between lessor and lessee” (1949 Report of NY Law Rev Comm, p 815; see Billie Knitwear v New York Life Ins. Co., 262 App Div 714, 715 [dissenting opn], affd 288 NY 682). The legislative history and the statute’s express invalidation of any agreement "exempting the lessor from liability for damages for injuries * * * resulting from the negligence of the lessor” (emphasis added) strongly suggests that is was directed primarily to exculpatory clauses in leases whereby lessors are excused from direct liability for otherwise valid claims which might be brought against them by others. It and several parallel provisions (see General Obligations Law, §§ 5-322, 5-322.1, 5-323, 5-325) prohibit agreements which free landlords' (or others in comparable relationships) from all responsibility to a tenant (or others) for negligence; the former are thus compelled at their own peril to retain the incentive to act prudently. ,

It is against this background of declared purpose that the indemnification clauses before us must be considered. So analyzed, Berenson is not exempting itself from liability to the victim for its own negligence. Rather, the parties are allocating the risk of liability to third parties between themselves, essentially through the employment of insurance. Courts do not, as a general matter, look unfavorably on agreements which, by requiring parties to carry insurance, afford protection to the public (cf. St. Vincent’s Med. Center of Richmond v Vincent E. Iorio, Inc., 78 Misc 2d 968; but see Board of Educ. v Delle Cese, 65 Misc 2d 473). Thus, in Brentano’s v Charter Mgt. Corp. (46 AD2d 861), an indemnification provision was held not to violate section 5-321 of the General Obligations Law since it required that the landlord and the tenant carry their own insurance.

Significantly, it was thought noteworthy in Levine v Shell Oil Co. (28 NY2d 205, 213, supra), that there was no evidence there of "fraud or overreaching conduct”, that it was an "arm’s length transaction” and that "there has been no showing that the agreement involved * * * either a contract of adhesion or an unconscionable agreement”. This is not to say that adhesion principles may not be applicable to an agreement entered into in a commercial lease, but rather that they do not apply here where the landlord contracted for no direct exculpation from negligence towards his indemnitor, where insurance was provided as a form of continued responsibility and where the paties were so equal in their relative bargaining positions (see Love, Landlord’s Liability for Defective Premises: Caveat Lessee, Negligence, or Strict Liability, 1975 Wis L Rev 19, 85).

Accordingly, the order of the Appellate Division should be reversed and the order and judgment of Supreme Court, Monroe County, reinstated.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Order reversed, with costs, and the order and the judgment of Supreme Court, Monroe County, reinstated.

      . "Every convenant, agreement .or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.”

      . Berenson’s cross claim for common-law indemnity was dismissed by the court once the jury found both parties in pari passu as to the nature of each one’s negligence (Tipaldi v Riverside Mem. Chapel, 273 App Div 414, 418, affd 298 NY 686).

      . The Hogelands’ judgment was satisfied and therefore was not the subject of any of the appeals in this action as such.


author: Cooke, J. Fuchsberg, J. (dissenting).

text:
    Irving Gerber, Appellant, v New York City Housing Authority, Respondent.
    Argued May 6, 1977;
    decided July 5, 1977

      Morris Weissberg and Robert J. Krengel for appellant.

      Raphael Samuel and Abram Rothfeld for respondent.
   Cooke, J.

This case involves a claim for unpaid salary by a former public employee for the period running from his suspension from his position with the housing authority until his dismissal on the grounds of misconduct.

On May 2, 1972, the housing authority suspended plaintiff from his position as senior demolition inspector pending determination of bribery charges preferred against him. A hearing on these charges was scheduled for June 21, 1972, but the hearing did not take place on that date because of the inability of the housing authority to effect personal service of the charges on plaintiff. The housing authority utilized New York City policemen who made repeated unsuccessful attempts to serve plaintiff who was either not at home or not responding to their efforts to effect service. Eventually plaintiff was served, a hearing was held, and he was dismissed on September 2, 1975.

It is noted that by the time plaintiff was dismissed for misconduct in September, 1975, based on the same misconduct, he had also pleaded guilty in New York County to a charge of official misconduct and was convicted in Kings County, after a jury trial, of the crime of receiving unlawful gratuities. The issue presented here does not, however, involve plaintiff’s guilt or innocence of the charges, but only whether he is entitled to be paid for the period of his suspension until his ultimate dismissal—a period of some three years and four months.

Special Term granted the housing authority’s motion to dismiss pursuant to CPLR 3211 (subd [a], pars 5, 7), commenting that plaintiff’s claim is "factually and legally improper and invalid.” The Appellate Division affirmed, with two Judges dissenting. The majority was of the view that the inordinate delay in holding the disciplinary hearing was caused by plaintiff, that it would be most unfair to compel the housing authority to pay him substantial sums of money by way of claimed accrued salary without having received services in return, and that he should not be permitted to profit by his proven misconduct and his tactics in successfully delaying the disciplinary proceeding resulting in his discharge. The dissenters took the position that a plenary hearing was necessary to determine whether the delay in holding the hearing was occasioned by plaintiff and whether he was entitled to recover any portion of his salary during the period of his suspension. We agree with the majority, thóugh for somewhat different reasons, and accordingly approve the determination dismissing the complaint.

Pending a hearing and determination of charges, a permanent civil service employee against whom charges of misconduct have been preferred may be suspended without pay for a period not exceeding 30 days (Civil Service Law, § 75, subd 3). Even though he or she is eventually discharged for misconduct, an employee suspended for a period in excess of 30 days may recover wages for the excess period, provided that the delay in disposition of charges was not occasioned by the employee’s fault (Matter of Amkraut v Hults, 21 AD2d 260, affd 15 NY2d 627; Matter of Lytle v Christian, 47 AD2d 824). The claim for accrued salary may be made by way of an action at law, and it is not necessary to commence an article 78 proceeding (see Hussey v Town of Oyster Bay, 24 AD2d 570; cf. Toscano v McGoldrick, 300 NY 156).

Where the delay is not occasioned by the employee’s fault, allowing pay for the period of suspension in excess of 30 days is justified on the grounds that "[a]s a practical matter one accused frequently has all income cut off during a period of suspension—not merely the income from the job vacated” and that "[h]e is reluctant to seek other employment especially if he has acquired some form of tenure or substantial pension rights in the job from which he is suspended” (Matter of Amkraut v Hults, supra, at p 263). On the other hand, "[i]f a delay in proceeding is occasioned by the conduct of the accused he cannot justly be heard to complain nor be allowed a recompense for the period involved” (id).

Although the record supports a finding that plaintiff evaded personal service of the notice of charges, it does not support a determination that the entire period of delay in holding the hearing resulted from his dilatory tactics. For this reason, it is not possible to conclude that plaintiff is not entitled to back pay simply on the ground that the delay was occasioned by him. Nevertheless, the record manifests an effort on the part of plaintiff to impede the resolution of the question of his entitlement to continue at his position and this effort should be determinative of his claim for salary during the period of suspension.

It cannot seriously be denied that plaintiff was evading personal service of the disciplinary charges. Moreover, that the New York City Civil Service Commission Rules may have permitted service of the notice by certified mail should not be considered as shifting the responsibility for the delay to the housing authority. It was plaintiff who took advantage of the housing authority’s possibly mistaken understanding that personal service was required and he should not benefit by such a mistake.

By contrast, it cannot be doubted that the housing authority sought to resolve the matter. After plaintiffs dismissal in May of 1972, it promptly scheduled a June hearing which he sought to avoid by evading service. When he was eventually served, again a hearing was scheduled, this time for November 29, 1973. When plaintiff did not appear at the hearing, he was tried in absentia. Nevertheless, the housing authority vacated that determination at the request of plaintiffs attorney, who had requested an adjournment but whose letter was not received until after the hearing. From that point, however, a period of more than 18 months passed before a hearing was held on June 9, 1975. While it is not alleged that plaintiff pressed for a hearing, there is also no explanation from the housing authority regarding the cause of the delay for this interval. In short, the housing authority’s actions, though hardly a model of efficiency, manifest an honest effort to determine plaintiffs rights.

Taking the above circumstances into consideration, it is reasonable to conclude that plaintiff abandoned his claim for pay during the period of suspension. In a given case, by his conduct in frustrating the administrative process to the end that the matter is not promptly disposed of, a suspended employee may be considered to have waived or simply abandoned both his position and any claim to back pay (cf. Matter of Fay v Lyons, 282 App Div 90; Matter of Schmidt v Macedonio, 47 Misc 2d 889). This principle is, of course, circumscribed in nature and should be limited to circumstances of gravity such as those presented here. In the ordinary situation there should be no burden upon a suspended employee to press for a hearing. However, where it is apparent that the employee is avoiding the opportunity to determine his rights, the employee should not be able to prolong the inevitable for an unreasonable period, and then benefit from any subsequent shortcomings of his adversary in concluding the matter. A hearing is, of course, required for purposes of determining the right to continue in the position. Nevertheless, even where it is not established that the entire delay was occasioned through the fault of the employee, for purposes of a claim to back pay during a period of suspension, an attempt to impede the administrative process for any significant period, as a result of which a prompt determination as statutorily intended has been prevented, should be deemed to be an abandonment of any claim to back pay.

It is asserted that a hearing is necessary to determine whether plaintiff abandoned his claim to back pay. This assertion should be rejected. Of course, plaintiff denies having evaded service of the disciplinary charges, but there has been ample demonstration of his dilatory tactics and his denials are not of sufficient strength to justify further expenditure of judicial effort. This is not to suggest that a determination of this sort should always or even generally be made in this manner. Rather, it is to recognize that this record is such as to yield no other conclusion than that plaintiff has failed to make out a cause of action.

To summarize, under these circumstances plaintiff may be charged with knowledge of the' availability of a hearing to determine his entitlement to his position. Having manifested by his conduct a desire to avoid that determination for an unwarranted period under all the circumstances and so as to thwart a prompt hearing and disposition, plaintiff should be deemed to have abandoned his claim to back pay.

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

Fuchsberg, J. (dissenting).

The order of the Appellate Division should be reversed and the case remitted for a plenary hearing to determine whether the delay in the departmental hearing was occasioned by either the plaintiff or the defendant and, on the basis of that finding, whether the plaintiff is entitled to recover his salary for any or all of the period of his suspension. A contrary determination flies in the face of the record in this case and, perhaps more important, of the protections subdivision 3 of section 75 of the Civil Service Law intends for all permanent, competitive civil service employees. That the particular plaintiff here may be morally undeserving is, of course, besides the point, since, as the majority agrees, his entitlement to salary, if any, for the excess period of his suspension beyond the statutorily permissible 30 days is not affected by the fact that the charges against him ultimately were sustained (Matter of Amkraut v Hults, 21 AD2d 260, affd 15 NY2d 627).

This is all the more so since the dismissal of the action here was under CPLR 3211, which requires defendant to "conclusively establish that [plaintiff] has no cause of action” (Rovello v Orofino Realty Co., 40 NY2d 633, 636). Here, certainly on the present state of the record, no such showing was made. To the contrary, there is much from which it can be found that all or part of the delay was acquiesced in or caused by the defendant.

The plaintiff, a 54-year-old inspector of demolition, who had then been employed by the defendant for about 20 years, was suspended without pay on May 2, 1972 pending charges that he had unlawfully accepted gratuities on two occasions. However, the defendant did not get around to drawing its hearing notice until nearly a month later. That notice, dated June 1, called for a hearing on June 21. Defendant claims it was unsuccessful in effecting personal service at plaintiff’s home during the eight-day interval between June 6, 1972 through June 14, 1972; plaintiff denies knowledge of these efforts.

In any event, defendant made no further attempt to serve a notice until October when five months had elapsed. It offers no explanation for its failure to have done so, though, since it depended on New York City Housing Authority police officers to serve its hearing notices, personnel was readily available around the clock for that purpose.

Nor is it irrelevant to this picture that the Rules of the New York City Civil Service Commission provide for service of charges in disciplinary proceedings by registered mail when they cannot be made by personal service (rule 6.4.3). The defendant never essayed the simple and foolproof mail route at all.

Interestingly, when in October, it finally renewed its efforts to serve the plaintiff, it effected personal service within 15 days. Claims that there was evasion during any of these relatively brief periods are controverted under oath in the affidavits submitted by the plaintiff.

Upon receiving the notice, plaintiff’s counsel promptly wrote defendant requesting specific documents and asked for an adjournment of one month for preparation. It was the only adjournment plaintiff ever requested. The request, sent on November 22, 1973, appears to have miscarried and did not arrive until December 3, 1973. Upon learning that in the interim a hearing had been held in absentia, plaintiff applied at once to vacate it; the application was granted, presumably on its merits.

Thereafter, defendant again did nothing to prosecute the charges for the next year and a half, to be exact from December, 1973 until May 7, 1975, when the defendant notified him it intended to substitute the fact of defendant’s Criminal Court conviction several months earlier, of the crime of receiving unlawful gratuities, which arose out of the same events on which the original charges had been based. Again defendant offers no explanation whatsoever for this delay. Plaintiff had never requested that the defendant’s charges be postponed because of the pendency of criminal charges. Therefore, if, perchance, it suited the convenience of the defendant to await the outcome of the latter so as to avoid the need, in the event of a conviction, for a full departmental trial, or to assure it two alternative paths for success at the departmental trial, one based on the possible criminal conviction and the other, since an acquittal would not bind it, on the underlying charges, these would not be considerations which would justify charging any consequential delay to the plaintiff.

In sum, since the departmental charges were disposed of on June 9, 1975, the time lapse which the defendant, who bore the burden of prosecuting the departmental charges, seeks to impose on the plaintiff covers a passage of three years and one month from the suspension in May, 1973. Nevertheless, because it pursued its efforts to serve the plaintiff during two brief and concentrated periods, one covering a span of only 8 days right after the hearing notice was first issued and the other, which was successful, of but 15, both under circumstances that are in factual dispute, defendant would saddle the plaintiff, ipso facto, with its own failure to proceed through the rest of the time during all these years.

Consequently, I find it difficult to see how it can be said, as does the majority, that, as a matter of law the plaintiff "impede[d] the resolution of the question of his entitlement to continue at his position”. It is also strange to find the importation here of the doctrine of abandonment, which we have heretofore never applied to circumstances where a civil service employee is under involuntary suspension, but only to cases involving employees who refuse or neglect to perform the duties of their positions, as when a public officer’s "nonuser [of his office] by voluntary relinquishmen or by election to another office” has created a vacancy (Matter of Dawson v Knox, 231 App Div 490, 494 [concurring opn], affd without opn 267 NY 565).

Accordingly, the order should be reversed and the case heard on the merits.

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

Order affirmed.