text:
    Orest V. Maresca et al., Appellants, v Mario Cuomo, as Governor of the State of New York, et al., Respondents.
    Argued December 29, 1984;
    decided December 31, 1984

      POINTS OF COUNSEL

      Joseph O. Giaimo and Peter C. Roth for appellants.
    I. The mandatory retirement provisions violate the due process clause of the United States Constitution. (Cleveland Bd. of Educ. v LaFleur, 414 US 632; Trafelet v Thompson, 594 F2d 623, 444 US 906; Malmed v Thornburgh, 478 F Supp 998, 621 F2d 565, 449 US 955; People ex rel. Davis v Gardner, 45 NY 812; People ex rel. Joyce v Brundage, 78 NY 403; Plessy v Ferguson, 163 US 537; Brown v Board of Educ., 347 US 483; Matter of Marro v Bartlett, 46 NY2d 674; People ex rel. Ray v Martin, 294 NY 61; Hogan v Herald Co., 84 AD2d 470, 58 NY2d 630.) II. The mandatory retirement provisions violate appellants’ right to equal protection. (Massachusetts Bd. of Retirement v Murgia, 427 US 307; Vance v Bradley, 440 US 93; Trafelet v Thompson, 594 F2d 623, 444 US 906; Rubino v Ghezzi, 512 F2d 431, 423 US 891.) III. Plaintiffs will be immediately and irreparably harmed if an injunction is not issued. (Hackett v State of New York, 50 AD2d 80.) IV. The balancing of the equities favors plaintiffs. V. Appellants are not guilty of laches. (Goodfarb v Freedman, 76 AD2d 565.)

      Robert Abrams, Attorney-General (Arnold D. Fleischer, Robert Hermann, O. Peter Sherwood and Howard L. Zwickel of counsel), for Mario Cuomo and others, respondents.
    I. Special Term erred in granting plaintiffs’ motion for preliminary relief because their delay in bringing this action belies their claim of urgency and because they failed to show irreparable injury and a clear legal right to relief. (Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 70 AD2d 1021; Metropolitan Package Store Assn. v Koch, 80 AD2d 940; Camardo v Board of Educ., 50 AD2d 1073; Robin v Village of Hempstead, 66 Misc 2d 482.) II. Special Term erred in denying defendants’ cross motion to dismiss the complaint. (Massachusetts Bd. of Retirement v Murgia, 427 US 307; Vance v Bradley, 440 US 93; Malmed v Thornburgh, 621 F2d 565; Trafelet v Thompson, 594 F2d 623, 444 US 906; Rubino v Ghezzi, 512 F2d 431, 423 US 891; Matter of Marro v Bartlett, 61 AD2d 729, 46 NY2d 674; Montgomery v Daniels, 38 NY2d 41; Dandridge v Williams, 397 US 471; Williamson v Lee Opt. Co., 348 US 483; Palmer v Ticcione, 576 F2d 459.)

      Burton C. Agata for Phyllis Gangel Jacob, respondent.
    I. There will be no irreparable injury to plaintiffs and the patent harm to defendants was not properly considered below. (Hackett v State of New York, 50 AD2d 80.) II. The law of New York makes clear that the terms of plaintiffs’ Judgeships expire on December 31,1984. (People ex rel. Joyce v Brundage, 78 NY 403; Matter of Marro v Bartlett, 46 NY2d 674; Matter of Norton, 152 App Div 628; Matter of Wessendorf v Donohue, 54 Misc 2d 1045, 28 AD2d 1095.) III. Allowing the injunction to stand will set a dangerous and unmanageable precedent. IV. Plaintiffs’ claim for injunctive relief is barred both by the Statute of Limitations and by laches.

      Dudley Gaffin and Morton S. Minsley for Seymour Gerschwer, respondent.
    I. Plaintiffs’ motion for a preliminary injunction should have been denied due to plaintiffs’ laches. (Zaccaro v Congregation Tifereth Israel, 20 NY2d 77; Mikulec v United States, 705 F2d 599; Matter of Ageloff, 161 Misc 388; New York Public Interest Research Group v Levitt, 90 Misc 2d 670, 62 AD2d 1074, 46 NY2d 849; Knox v Milwaukee County Bd. of Elections Comrs., 581 F Supp 399; Barthelmes v Morris, 342 F Supp 153; Matter of Elefante v Hanna, 40 NY2d 908; Matter of Kupferman v Katz, 13 NY2d 932; Matter of Young v Wagner, 13 NY2d 934.) II. Special Term erred in granting plaintiffs’ motion for a preliminary injunction as plaintiffs’ have no likelihood of success on the merits of their action. (Chrysler Corp. v Fedders Corp., 63 AD2d 567; Massachusetts Bd. of Retirement v Murgia, 427 US 307; Vance v Bradley, 440 US 93; Malmed v Thornburgh, 621 F2d 565,449 US 955; Trafelet v Thompson, 594 F2d 623,444 US 906; Rubino v Ghezzi, 512 F2d 431, 423 US 891.)

      Lewis R. Friedman and Nicholas J. Miglino for Charles E. Ramos, respondent.
    I. Judge Ramos-Lopez’s action is barred by the Statute of Limitations and the doctrine of laches. (Matter of Young v Wagner, 41 Misc 2d 230, 19 AD2d 825, 13 NY2d 934; Matter of Kupferman v Katz, 41 Misc 2d 124, 19 AD2d 824, 13 NY2d 932; Matter of Thompson v New York State Bd. of Elections, 54 AD2d 531, 40 NY2d 814; Matter of Mansfield v Epstein, 5 NY2d 70; Matter of Hannington v Coveney, 62 NY2d 640; Morris v Cahill, 96 AD2d 88; Matter of Brown v Sisti, 249 App Div 308.) II. The equities strongly favor the denial of a preliminary injunction which would have the effect of preventing Judge Ramos from commencing to serve the term to which he was elected.

      Michael Colodner, John Eiseman and Barbara Zahler-Gringer for Office of Court Administration, respondent.
   OPINION OF THE COURT

Jasen, J.

On this appeal, plaintiffs challenge the State constitutional and statutory requirements that certain Judges of the State retire at age 70. The challenge is based upon both the equal protection and due process clauses to the Fourteenth Amendment of the United States Constitution.

Plaintiffs Maresca, Rosen, Ramos-Lopez and Wollin are Judges of the Civil Court of the City of New York who have reached the age of 70 in 1984, and pursuant to article VI (§ 25, subd b) of the New York State Constitution and section 23 of the Judiciary Law, are compelled to retire on December 31, 1984. Plaintiff Brennan is a Justice of the Supreme Court who will reach age 70 in 1988, and would be compelled to retire on December 31, 1988.

In their complaint, plaintiffs sought judgment: (a) declaring article VI (§ 25, subd b) of the New York State Constitution and section 23 of the Judiciary Law unconstitutional under the Fourteenth Amendment to the United States Constitution; and (b) enjoining, during the pendency of the action and permanently, defendants Governor Cuomo, Comptroller Regan, New York State Employees’ Retirement System, and the Office of Court Administration, from causing the involuntary retirement by reason of age of any of the plaintiffs or any member of the class. At Special Term, plaintiffs moved for a preliminary injunction and defendants cross-moved pursuant to CPLR 3211 (subd [a], par 7) to dismiss the complaint. Additionally, at Special Term and on appeal before this court, defendants have maintained that the complaint should be dismissed under the doctrine of laches since plaintiffs should have sought relief prior to the election of Judges to fill their vacancies. Inasmuch as vze reach the merits of the case with respect to plaintiff Brennan, as against whom no laches claim can be made, and agree with the determination below, we need not resolve the substantial issue of laches.

By order and judgment entered December 20, 1984, Special Term, New York County, granted plaintiffs’ motion for a preliminary injunction, denied the cross motion to dismiss, enjoined the defendants from compelling the retirement of plaintiffs prior to the expiration of their judicial terms of office, directed plaintiffs to continue their work as Judges and ordered the Office of Court of Administration to continue them in their respective titles on its payroll. Special Term specifically held both article VI (§ 25, subd b) of the State Constitution and section 23 of the Judiciary Law violative of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution.

Defendants, including the Office of Court Administration, immediately took an appeal to the Appellate Division, First Department. The Appellate Division, in a Per Curiam opinion, unanimously reversed the order of Special Term, on the law, denied the motion for a preliminary injunction and granted defendants’ cross motion to dismiss the complaint. Plaintiffs have pursued an expedited appeal to this court. The action, insofar as it sought a declaratory judgment, should not have been dismissed by the Appellate Division, upon its holding that the provisions in question were constitutional. A declaration to that effect should have been made (Lanza v Wagner, 11 NY2d 317, 334). Accordingly, the order of the Appellate Division should be modified by declaring article VI (§ 25, subd b) of the New York Constitution and section 23 of the Judiciary Law constitutional under the Fourteenth Amendment of the United States Constitution and, as so modified, the order of the Appellate Division should be affirmed.

This court is fully cognizant of the arguments that can be made against the wisdom of the challenged provisions; however, for the repeal of such provisions, appeal lies to the ballot and to the legislative processes of democratic government, not to the courts (Noble State Bank v Haskell, 219 US 575, 580 [Holmes, J.]; United States v Butler, 297 US 1, 79 [Stone, J., dissenting]). This constitutes the very core of the democratic process which, under law, proscribes only unconstitutional action (Abraham, The Judicial Process [4th ed], Oxford 1980, pp 396-397; see, also, Cardozo, The Nature of the Judicial Process, Yale University 1921, p 141; Lochner v United States, 198 US 45, 74 [Holmes, J., dissenting]). Hence, we observe at the threshold that as a court of law, our only concern is with plaintiffs’ claims that the mandatory retirement provisions do violence to the equal protection and due process clauses of the Fourteenth Amendment of the Federal Constitution.

On appeal to this court, plaintiffs contend that the mandatory retirement restrictions are violative of the Fourteenth Amendment to the United States Constitution on the grounds that the provisions discriminate between Judges under age 70 and those over age 70, and discriminate against plaintiffs by permitting Justices of the Supreme Court and Judges of the Court of Appeals to receive certification for service, as Justices of the Supreme Court, until the age of 76, in contrast to those membe¡rs of the judiciary who serve upon the Civil Court, Criminal Court, Family Court, County Court, Surrogate’s Court and Court of Claims, none of whom may be so certified. Also, plaintiffs seek to invalidate the mandatory retirement provisions under the due process clause of the Fourteenth Amendment.

Turning to plaintiffs’ first equal protection argument, it is clear that the Judges who have attained the age of 70 do not constitute a suspect class for purposes of equal protection analysis. (See Vance v Bradley, 440 US 93, 96-97; Massachusetts Bd. of Retirement v Murgia, 427 US 307, 313.) Nor do the constitutional and statutory age restrictions impermissibly interfere with the exercise of a fundamental right. (See Vance v Bradley, 440 US 93, supra; Massachusetts Bd. of Retirement v Murgia, supra.) Thus, the challenged provisions are not to be subjected to strict judicial scrutiny, but, rather, to a rational basis standard of review. Pursuant to traditional rational basis analysis, a legislative enactment will pass constitutional muster if the governmental classification is based upon some conceivable and legitimate State interest (People v Drayton, 39 NY2d 580). If any conceivable state of facts will support the classification, said provisions will not be held violative of the equal protection clause (Matter of Catapano Co. v New York City Fin. Admin., 40 NY2d 1074, 1075, app dsmd 431 US 910, citing Carmichael v Southern Coal Co., 301 US 495, 509). As this court said in Wiggins v Town of Somers (4 NY2d 215, 218-219), “The principles which are applicable to this case are familiar indeed. Legislative enactments are presumed to be constitutional, i.e., they are presumed to be supported by facts known to the Legislature * * * While this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt * * * Particularly apropos is the rule that the law may not be arbitrary and it must be reasonably related to some manifest evil * * * which, however, need only be reasonably apprehended * * * And we must be guided by the familiar principle that ‘it is only as a last resort’ that courts strike down legislative enactments on the ground of unconstitutionality.” (Citations omitted.) A fortiori that reasoning applies where, as here, the validity of a State constitutional provision, rather than a mere ordinance or statute, is adjudged under the Federal Constitution.

The legitimate purpose justifying the provision need not be the primary purpose of the provisions (McGinnis v Royster, 410 US 263, 276) and indeed, a court may even hypothesize the motivations of the State Legislature to discern any conceivable legitimate objective promoted by the provision under attack (Weinberger v Salfi, 422 US 749, 780). The mandatory retirement age limitation for State Judges is rationally related to the promotion of any or all of the following State interests: (1) advancement of general considerations of judicial efficiency (Rubino v Ghezzi, 512 F2d 431, 433, cert den 423 US 891); (2) motivation and encouragement of qualified, younger attorneys with judicial aspirations, by this orderly process of attrition (Rubino v Ghezzi, supra; Vance v Bradley, 440 US 93, 100, supra); (3) elimination of the unpleasantness and embarrassment of selectively removing aged and disabled Judges (Malmed v Thornburgh, 621 F2d 565, 572, cert den 449 US 955); (4) prevention of harm by a few disabled Judges which more than offsets loss of Judges who retain full powers past age 70 (Malmed v Thornburgh, supra); (5) elimination of the administrative burden of testing each Judge attaining the age of 70 to assess competency; (6) avoidance of the economic burden of testing and removing incapable Judges; and (7) the fixing of a line at a certain age which attempts to uphold the high competency for judicial posts and which fulfills a societal demand for the highest caliber Judges in the system (O’Neil v Baine, 568 SW2d 761 [Mo]). The challenged provisions mandating retirement at the end of the year in which age 70 is reached manifestly have a rational basis.

The second branch of plaintiffs’ equal protection challenge seeks to invalidate the mandatory retirement provisions upon the ground that an associated provision permits Justices of the Supreme Court and Judges of the Court of Appeals to receive certification for further judicial service until the age of 76, in contrast to those members of the judiciary who serve upon the Civil Court, Criminal Court, Family Court, County Court, Surrogate’s Court and Court of Claims, norte of whom may be so certified. Due to the complexity and diversity of the judicial grist of Supreme Court (NY Const, art VI, § 7), certification of Supreme Court Justices and Court of Appeals Judges for service in the Supreme Court is warranted to retain Judges with experience, and to insure an adequate supply of judicial personnel to meet the press of Supreme Court business. With respect to the broad, general jurisdiction conferred upon the Supreme Court, it has been early noted that the court’s jurisdiction includes “all cases of every description in law and equity, from the most important and complicated to the most simple and insignificant” (De Hart v Hatch, 3 Hun 375, 380). Mindful of the State-wide reach of Supreme Court jurisdiction, the absence of maximum monetary limitations upon invocation of Supreme Court jurisdiction, and the conferral of jurisdiction over certain simple or specialized matters upon other courts (see Siegel, NY Prac, § 12), the complexity of Supreme Court matters may rationally be deemed to require greater experience and manpower than are necessary in other courts. Where, as here, significant reasons of fiscal concern and the proper administration of the courts exist, or could conceivably exist, to justify distinctions between judicial offices, the lack of mathematical symmetry within the unified court system shall be disregarded (Matter of Tolub v Evans, 58 NY2d 1, 8, app dsmd 460 US 1076; see Williamson v Lee Opt. Co., 348 US 483, 489).

Plaintiffs’ argument that mandatory retirement provisions violate the due process clause of the Fourteenth Amendment, by creating an irrebuttable presumption that Judges over the age of 70 are physically or mentally incapable, need not long detain us. The instant case presents neither a classification adopted as an administrative device to serve as evidence of another classification (see Bell v Burson, 402 US 535; Vlandis v Kline, 412 US 441; United States Dept. of Agric. v Murry, 413 US 508) nor the application of a procedure implicating the fundamental interests of affected individuals such as custody of children (Stanley v Illinois, 405 US 645) or the freedom of choice in matters of marriage and family life (Cleveland Bd. of Educ. v LaFleur, 414 US 632) — the traditional contexts in which the irrebuttable presumption doctrine has been employed (Malmed v Thornburgh, 621 F2d 565, 574-575, supra). Under circumstances closely analogous to those herein presented, claims that impermissible irrebuttable presumptions were created were summarily rejected (Weisbrod v Lynn, 383 F Supp 933, affd 420 US 940; Rubino v Ghezzi, 512 F2d 431, supra; McIlvaine v Pennsylvania, 454 Pa 129, app dsmd 415 US 986).

Perhaps recognizing that the irrebuttable presumption doctrine may be viewed as a veiled adoption of a rigorous equal protection scrutiny (United States Dept. of Agric. v Murry, 413 US 508,519 [Marshall, J., concurring], supra; Note, The Irrebuttable Presumption Doctrine in the Supreme Court, 87 Harv L Rev 1534, 1556), the United States Court of Appeals for the Second Circuit has limited application of the doctrine to those cases involving suspect classifications or fundamental interests (Johnson v Lefkowitz, 566 F2d 866, 869, cert den 440 US 945, citing Frontiero v Richardson, 411 US 677), of which age is not one (see, e.g., Weiss v Walsh, 324 F Supp 75, affd 461 F2d 846, cert den 409 US 1129). Since the due process doctrine of irrebuttable presumptions is coextensive with the equal protection clause (Trafelet v Thompson, 594 F2d 623, 630; Johnson v Lefkowitz, supra), and our foregoing equal protection analysis demonstrates a rational basis for the age limitation upon judicial tenure, plaintiffs’ due process claim is without merit.

It is not within the province of the judiciary to balance the advisability of a lawfully implemented public policy against the hardship or illogic it may be said to impose. This is especially true in the instant case where the policy at issue, expressed in a constitutional provision, directly manifests the will of the electorate of the State of New York. Inasmuch as the distinctions embodied in the challenged provisions can be justified as shown above, plaintiffs’ constitutional challenge must fail.

Accordingly, the order of the Appellate Division should be modified, with costs to respondents, by declaring both article VI (§ 25, subd b) of the New York State Constitution and section 23 of the Judiciary Law constitutional under the Fourteenth Amendment of the United States Constitution, and by otherwise dismissing the complaint as to the Office of Court Administration, and, as so modified, the order of the Appellate Division should be affirmed.

Judges Jones, Wachtler, Meyer, Simons and Kaye concur; Chief Judge Cooke taking no part.

Order modified, with costs to respondents, in accordance with the opinion herein and, as so modified, affirmed.

      . [1] That members of this court may be affected by the outcome of this appeal does not call for recusal. In the circumstances, inasmuch as this court has exclusive jurisdiction under the Constitution to hear this appeal (art VI, § 3, subd b, par [1]) and no other judicial body exists to which this appeal could be referred for disposition, the present members of the court are required to hear and dispose of it under the Rule of Necessity (Matter of Morgenthau v Cooke, 56 NY2d 24, 29, n 3). The Chief Judge has recused himself in conformity with his customary practice when, as here, the Office of Court Administration is a party to an appeal.

      . New York State Constitution (art VI, § 25, subd b) provides in pertinent part: “Each judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of the county court, judge of the surrogate’s court, judge of the family court, judge of a court for the city of New York established pursuant to section fifteen of this article and judge of the district court shall retire on the last day of December in the year in which he reaches the age of seventy.”
      Article VI (§ 25, subd b) also provides: “Each such former judge of the court of appeals and justice of the supreme court may thereafter perform the duties of a justice of the supreme court, with power to hear and determine actions and proceedings, provided, however, that it shall be certificated in the manner provided by law that the services of such judge or justice are necessary to expedite the business of the court and that he is mentally and physically able and competent to perform the full duties of such office. Any such certification shall be valid for a term of two years and may be extended as provided by law for additional terms of two years. A retired judge or justice shall serve no longer than until the last day of December in the year in which he reaches the age of seventy-six.”

      . Section 23 of the Judiciary Law provides in pertinent part: “No person shall hold the office of judge, justice or surrogate of any court, whether of record or not of record, except a justice of the peace of a town or police justice of a village, longer than until and including the last day of December next after he shall be seventy years of age”.
      Sections 114 and 115 of the Judiciary Law (both added by L 1962, ch 704, § 2), provide that Court of Appeals Judges (§ 114) and Supreme Court Justices (§ 115) retired pursuant to article VI (§ 25, subd b) of the State Constitution may be certified by the Administrative Board of the Courts for continued service upon findings that they have the requisite mental and physical capacity and that their services are necessary to expedite the business of th e Supreme Court.

        . That the original purpose reflected in the Constitutional Convention may no longer prevail is irrelevant so long as there remains a rational basis.

      . This argument cannot, of course, be raised by plaintiff Brennan who, as a Justice of Supreme Court, is permitted to apply for certification upon attaining age 70.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    In the Matter of William Tobin, Appellant, v Norman Steisel, as Commissioner of the Department of Sanitation of the City of New York, et al., Respondents.
    Argued January 8, 1985;
    decided February 7, 1985

      POINTS OF COUNSEL

      Harold B. Foner and Peter J. Maloney for appellant.
    I. The Medical Board and the Board of Trustees acted unfairly and irresponsibly in determining the question whether petitioner-appellant’s disability was causally related to petitioner’s line-of-duty accident. (Matter of Ahrendt v McGuire, 82 AD2d 787; Matter of Giannino v Lang, 52 AD2d 539.) II. The opinion of the majority of the court below is in conflict with prior holdings under circumstances similar to those in this matter. (Matter of Drayson v Board of Trustees, 37 AD2d 378,32 NY2d 852; Matter of Ahrendt v McGuire, 82 AD2d 787; Matter of Schweitzer v Codd, 63 AD2d 66; Matter of Giannino v Lang, 52 AD2d 539; Matter of Kelly v Board of Trustees, 47 AD2d 892.) III. The determination of respondents was arbitrary and capricious. (Matter of Drayson v Board of Trustees, 37 AD2d 378, 32 NY2d 852.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Helen P. Brown and Fay Leoussis of counsel), for respondents.
    Petitioner did not sustain his burden of proof that the accident caused his psychiatric disability. The Medical Board’s determination that petitioner is entitled to ordinary rather than accident disability retirement is supported by credible evidence, and is therefore not arbitrary or capricious. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Fiore v Board of Educ., 48 AD2d 850, 39 NY2d 1016; Matter of Drayson v Board of Trustees, 37 AD2d 378, 32 NY2d 852; Matter of Mama v Malcolm, 44 AD2d 794; Matter of Thomasson v Valentine, 263 App Div 334; Matter of Canfora v Board of Trustees, 60 NY2d 347; Matter of Scotto v Board of Trustees, 54 NY2d 918; Matter of Bombacie v Board of Trustees, 74 AD2d 530; Matter of Strauss v Hannig, 256 App Div 662, 281 NY 612; Matter of Christiana New York City Employees’Retirement System, 83 AD2d 507, 56 NY2d 841.)
   OPINION OF THE COURT

Meyer, J.

An accident which precipitates the development of a latent condition or aggravates a preexisting condition is a cause of disability within the meaning of Administrative Code of the City of New York § B3-40.0. Because in denying petitioner an accident disability pension the Board of Trustees appears to have applied an incorrect standard of causation, the matter must be sent back to it for reconsideration in accordance with this opinion.

Petitioner was employed as a “stationary fireman” with the New York City Department of Sanitation and tended an incinerator unit in which garbage was burned. On March 16, 1981, while petitioner was working between two incinerators, there was an explosion in one, the concussion from which caused him to strike the right side of his head against a wall. He was treated at a hospital that day for headache, dizziness and ringing in his ears and remained on sick leave thereafter.

Between March 24 and June 30, 1981, petitioner was examined by eight separate doctors, including neurologists and otolaryngologists, some of whom saw him on more than one occasion. All of these doctors found that petitioner had hearing loss, tinnitus, dizziness and headaches that were related to acoustic trauma and postconcussion syndrome resulting from his accident. Petitioner had no history of these problems prior to the incinerator explosion. In his application for accident disability retirement dated June 19, 1981, petitioner described the result of his accident as “concussion, loss of hearing, dizziness.”

Prior to consideration of petitioner’s application by the Medical Board, one of the doctors he had seen referred him to a psychiatrist, Dr. Remo Cerulli, who examined petitioner in October and continued treatment thereafter. Dr. Cerulli’s opinion was that petitioner was suffering from mental illness, described as “traumatic neurosis with depression”, which was “causally related to the accident”, and that petitioner was “totally and permanently disabled on psychiatric cause.” Thereafter, petitioner was examined by two members of the Medical Board, who recognized that petitioner was physically and ps)rchologically well until the accident, but could find no objective evidence that petitioner’s symptoms were the product of physical injury. In light of Dr. Cerulli’s diagnosis, however, the Board members decided to refer petitioner to their psychiatric consultant, Dr. Walter Flegenheimer.

Dr. Flegenheimer reported to the Board that while it was difficult to make a definitive diagnosis, petitioner was not consciously malingering and was “obviously disabled.” Regarding the cause of the disability, Dr. Flegenheimer stated that, “While the symptoms are temporally related to the accident, the accident itself was not sufficient to explain the origins of the symptoms, i.e., in my opinion, the accident was at most a precipitating event, not a causal one.”

Based on Dr. Flegenheimer’s report, the Medical Board concluded that petitioner was not entitled to accident disability benefits, but indicated that an application for ordinary disability retirement should be approved with a diagnosis of “chronic anxiety neurosis.” After the Board of Trustees of the Retirement System approved the Medical Board’s determination, petitioner was given an ordinary disability retirement. He then commenced this proceeding to challenge the denial of his application for accident disability benefits, arguing that he was both physically and psychologically disabled as a result of the incinerator explosion. Petitioner’s claim was rejected both by Special Term and the majority of the Appellate Division. The appeal is before us as of right (CPLR 5601 [a]), the dissent at the Appellate Division having rejected Dr. Flegenheimer’s precipitating-causal distinction as “an exercise in semantics” (98 AD2d, at p 674) and an improper test of causal relationship.

Petitioner’s contention that in considering his accident disability retirement claim the Medical Board gave insufficient consideration to physicians’ reports indicating that his physical, symptoms were caused by the incinerator explosion cannot be sustained. The record indicates that the Board examined all of those reports but chose to rely on the examination conducted by two of its own members, who concluded that there was no objective evidence of a causal relationship between the explosion and those symptoms. The Board of Trustees was entitled to rely on the Medical Board’s opinion. Its decision to reject petitioner’s claim, insofar as it involved a purely physical disability, was, therefore, neither arbitrary nor unsupported by substantial evidence (Matter of Christian v New York City Employees’ Retirement System, 56 NY2d 841; Matter of Scotto v Board of Trustees, 76 AD2d 774, affd 54 NY2d 918).

As to petitioner’s claim of psychological disability resulting from the accident, however, the situation is different. Although agreeing that petitioner is psychologically disabled, the Medical Board concluded that he was not entitled to accident disability retirement because the disability was not caused by the accident. That conclusion was based on the somewhat confusing report of its psychiatric consultant, which, as above noted, stated that “[w]hile the symptoms are temporally related to the accident * * * in my opinion, the accident was at most a precipitating event, not a causal one.” Inasmuch as it is well-established law that an accident which precipitates an injury may be a proximate cause of that injury, and the governing statute requires only that petitioner’s disability be “a natural and proximate result of an accidental injury” (Administrative Code § B3-40.0), the aforementioned report seems contradictory in law.

The causation rule both in tort law and under the workers’ compensation statute is that an accident which produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that injury (Matter of Benware v Benware Creamery, 16 NY2d 966; McCahill v New York Transp. Co., 201 NY 221; Bartolone v Jeckovich, 103 AD2d 632; Matter of Nizich v Robert F. Barreca, Inc., 86 AD2d 917; Matter of Lopez v Hercules Corrugated Box Corp., 50 AD2d 1048; Steinhauser v Hertz Corp., 421 F2d 1169; see, Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505; Fuller v Preis, 35 NY2d 425; Prosser, Torts § 43, p 250 [4th ed]; 1B Larson, Workmen’s Compensation Law §§ 42.22, 42.23[c], pp 7-612 — 7-614, and n 75, 7-640 — 7-642). Moreover, although there is no accident disability retirement case squarely applying that rule, it has been assumed in a number of disability cases that evidence establishing that an accident exacerbated an underlying condition, thereby rendering the employee disabled, would be sufficient, if accepted (Matter of Christian v New York City Employees’ Retirement System, 83 AD2d 507, affd 56 NY2d 841, supra; Matter of Nicotera v Regan, 78 AD2d 932; Matter of Goddeau v Levitt, 56 AD2d 681; Matter of Kelly v Board of Trustees, 47 AD2d 892).

It appears, therefore, that an incorrect standard of causation was used by the Board of Trustees in denying petitioner’s application for accident disability retirement on the basis of his psychological condition. Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Special Term with directions to vacate the determination that petitioner is not entitled to accident disability retirement and remand the matter to respondent Board of Trustees for reconsideration in accordance with this opinion.

Chief Judge Wachtler and Judges Jasen, Simons, Kaye and Alexander concur.

Order reversed, with costs, and matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.


author: Kaye, J. Opinion per Kaye, J.

text:
    Richard Sherrill, Respondent, v Grayco Builders, Inc., et al., Appellants, and Louis E. Yavner et al., Respondents. Richard Sherrill, Respondent, v Riverside Park Community (Stage I), Inc., et al., Respondents, and Daniel L. Gray, Appellant, et al., Defendants.
    Argued January 9, 1985;
    decided February 12, 1985

      POINTS OF COUNSEL

      Sol V. Slotnik for appellants in the first above-entitled action.
    I. Grayco and Gray did not waive their rights to arbitrate the claims asserted in the RPC and Manhattan West arbitrations because of their activity in the first action. (Matter of Calvin Klein Co. [Minnetonka, Inc.], 88 AD2d 503; Balen Developing Corp. v American Home Assur. Co., 54 AD2d 953; Lumnah v Rogers, 33 AD2d 596; Grant Co. v Uneeda Doll Co., 15 NY2d 571; Matter of Tilbury Fabrics v Stillwater, Inc., 56 NY2d 624; Stillman v Stillman, 80 AD2d 356, 55 NY2d 653; New York, Tel. Co. v Speciner, 55 NY2d 1002; Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1; Matter of Schlaifer v Sedlow, 73 AD2d 552, 51 NY2d 181; Preiss/Breismeister Architects v Westin Hotel Co., 86 AD2d 844.) II. The motions to stay the arbitrations were time barred because they were not served within the 20-day period prescribed by CPLR 7503. (Matter of Jonathan Logan, Inc. [Stillwater Worsted Mills], 31 AD2d 208, 24 NY2d 899; Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274.)

      Morrell I. Berkowitz for Richard Sherrill, respondent in the first above-entitled action.
    I. The court below properly exercised its discretion in finding that appellants actively litigated for three years prior to seeking arbitration. (Matter of Calvin Klein Co. [Minnetonka, Inc.], 88 AD2d 503; Sullivan v Kisly, 93 AD2d 783; Rusch Factors v Fairview Mfg. Co., 34 AD2d 635; Matter of United Paper Mach. Corp. [Di Carlo], 14 NY2d 814; Malan Constr. Corp. v Allis-Chalmers Mfg. Co., 35 AD2d 788; De Sapio v Kohlmeyer, 35 NY2d 402; East Ramapo Cent. School Dist. v East Ramapo Teachers Assn., 91 AD2d 969; City of Niagara Falls v Rudolph, 91 AD2d 817; Denihan v Denihan, 34 NY2d 307.) II. Respondent’s motion to stay the pending arbitrations was timely. (Michigan Millers Mut. Ins. Co. v Hilliard, 70 Misc 2d 693, 41 AD2d 603; Matter of Allstate Ins. Co. [Carrillo], 69 Misc 2d 350; Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264.) III. Appellants’ waiver of arbitration and laches in demanding arbitration has been properly brought before and is to be decided in a judicial forum. (Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1; Stillman v Stillman, 80 AD2d 356, 53 NY2d 1056, 55 NY2d 653; Esquire Indus, v East Bay Textiles, 68 AD2d 845.) IV. The order in the Riverside action denying the motion of Gray to compel arbitration of the same issues and parties in this action is collateral estoppel and res judicata on the question of arbitration. (Schuykill Fuel Corp. v B. & C. Nieberg Realty Corp., 250 NY 304; Israel v Wood Dolson Co., 1 NY2d 116; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Potter v Motor Vehicle Acc. Indem. Corp., 73 AD2d 787.) V. Appellants’ actions prejudiced respondents and Yavner. VI. The arbitration should have been stayed because HPD objected to it and HPD’s consent to arbitration of disputes affecting the Riverside Park project is a necessary precondition to arbitration that Gray failed to satisfy.

      David L. Berkey and Stewart E. Wurtzel for Louis E. Yavner, respondent in the first above-entitled action.
    I. Gray and Gray-co’s acts prior to their demand for arbitration amounted to a waiver of arbitration. (Oklahoma Pub. Co. v Parsons & Whittemore, 255 App Div 589; Matter of Zimmerman v Cohen, 236 NY 15; Paley Assoc. v Universal Woolens, 446 F Supp 212; Matter of Calvin Klein Co. [Minnetonka, Inc.], 88 AD2d 503; Denihan v Denihan, 34 NY2d 307; De Sapio v Kohlmeyer, 35 NY2d 402; Sullivan v Kisly, 93 AD2d 783; Gabor v Spicyn, 99 AD2d 1000; Nagy v Areas Brass & Iron Co., 242 NY 97.) II. Gray and Grayco’s acts subsequent to their demand for arbitration also amounted to a waiver of arbitration. [De Sapio v Kohlmeyer, 35 NY2d 402; Matter of Ladin [D. & C. Textile Corp.], 20 AD2d 8,14 NY2d 721, 781; Clurman v Clurman, 73 AD2d 576, 52 NY2d 1036; Matter of Young v Crescent Dev. Co., 240 NY 244; Zurich Ins. Co. v Evans, 89 Misc 2d 717; Rusch Factors v Fairview Mfg. Co., 34 AD2d 635; Matter of Sbarro Holdings [Shiaw Tien Yuan], 91 AD2d 613; Matter of United Paper Mach. Corp. [Di Carlo], 19 AD2d 143,14 NY2d 814; Reali v Danklefsen, 88 AD 2d 929; Bell v Herzog, 39 AD2d 813.) III. An application to stay arbitration need not be made in 20 days where arbitration has been waived by a party. (Michigan Millers Mut. Ins. Co. v Hilliard, 70 Misc 2d 693,41 AD2d 603; De Sapio v Kohlmeyer, 35 NY2d 402; Matter of United Paper Mach. Corp. [Di Carlo], 19 AD2d 143; Matter of Zimmerman v Cohen, 236 NY 15; Bell v Herzog, 39 AD2d 813; Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264.) IV. Yavner, Sherrill and RSA are prejudiced by Gray and Grayco’s actions. V. Gray failed to satisfy a condition precedent to the commencement of arbitration. (Matter of Opan Realty Corp. v Pedrone, 36 NY2d 943; Matter of Legislative Conference of City Univ. of N. Y. v Board of Higher Educ., 38 AD2d 478, 31 NY2d 926; Matter of Wertheim & Co. v Halpert, 48 NY2d 681.) VI. The court must decide whether Gray and Grayco waived the right to arbitrate disputes. (Matter of Zimmerman v

      Cohen, 236 NY 15; De Sapio v Kohlmeyer, 35 NY2d 402; Weight Watchers of Quebec v Weight Watchers Intl., 398 F Supp 1057; Zurich Ins. Co. v Evans, 89 Misc 2d 717; Matter of Tilbury Fabrics v Stillwater, Inc., 56 NY2d 624; New York Tel. Co. v Speciner, 56 NY2d 1002; Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1.)

      Sol V. Slotnik for appellant in the second above-entitled action.
    I. Although HPD did not sign the RPC Agreement, HPD should be compelled to arbitrate the issues alleged in the complaint. (Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291; Broten Apparel Corp. v Rutger Fabrics Corp., 35 AD2d 921; Fisser v International Bank, 282 F2d 231; Tanbro Fabrics Corp. v Deering Milliken, 35 AD2d 469, 29 NY2d 690; Chilean Nitrate Sales Corp. v Nortuna, 128 F Supp 938; Berkey v Third Ave. Ry. Co., 244 NY 84; Cy & Ry Corp. v Wagner, 80 AD2d 840; Menaker v Padover, 75 AD2d 807; Matter of Deering Milliken [Fab Indus.], 50 AD2d 515; Matter of Levin-Townsend Computer Corp. [Holland], 29 AD2d 925.) II. The RPC partners who signed the RPC Agreement should be compelled to arbitrate the issues raised in the complaint. (Hamilton Life Ins. Co. v Republic Natl. Life Ins. Co., 408 F2d 606; Hilti, Inc. v Oldach, 392 F2d 368; Lawson Fabrics v Akzona, Inc., 355 F Supp 1146; Matter of Kayfield Constr. Corp. [Brompton Serv. Corp.], 87 AD2d 554; Dot’s Blvd. Corp. v Rosenfeld, 285 App Div 425; Flash v Goldman, 278 App Div 829; Epstein v Grover, 21 Misc 2d 948; Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1.) III. Respondents revived Gray’s right to compel arbitration when they began this action.

      Morrell I. Berkowitz for Richard Sherrill, respondent in the second above-entitled action.
    I. The lack of consent given by HPD to the arbitration clause of the RPC limited partnership agreement, as required by said agreement, vitiates that clause. (Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291; Braten Apparel Corp. v Rutger Fabrics Corp., 35 AD2d 921; Fisser v International Bank, 282 F2d 231; Tanbro Fabrics Corp. v Deering Milliken, 35 AD2d 469, 29 NY2d 690; Lowendahl v Baltimore & Ohio R.R. Co., 247 App Div 144, 272 NY 360; Berkey v Third Ave. Ry. Co., 244 NY 84; Matter of Deering Milliken [Fab Indus.], 50 AD2d 515; Matter of Levin-Townsend Computer Corp. [Holland], 29 AD2d 925; Menaker v Padover, 75 AD2d 807; Cy & Ry Corp. v Wagner, 80 AD2d 840.) II. Gray continues to overlook the fact that HPD is a necessary party with a substantial interest and since it cannot be forced to arbitrate and objects to arbitration, this dispute must be resolved in one (judicial) forum. (Schubtex, Inc. v Allen Snyder,

      Inc., 49 NY2d 1; Matter of Eager Constr. Corp. v Ward Foundation Corp., 255 App Div 291; Matter of Kayfield Constr. Corp. [Brompton Serv. Corp.], 87 AD2d 554; Dot’s Blvd. Corp. v Rosenfeld, 285 App Div 425.) III. As a matter of public policy, the enforcement of a State agency’s powers and of major State policies which involve much public financing as well, cannot be left to arbitration. (Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621; Cadplaz Sponsors v Cadman Towers, 84 Misc 2d 961; Matter of Legislative Conference of City Univ. of N. Y. v Board of Higher Educ., 38 AD2d 478, 31 NY2d 926; Matter of Wertheim & Co. v Halpert, 48 NY2d 681; Matter of Schwartz [American Swim Pools], 74 AD2d 638; Weiner v Weiner, 88 Misc 2d 920; Matter of Greenblatt [Ottley], 106 Misc 2d 169; Matter of Knickerbocker Agency [Holz], 4 NY2d 245.)

      David L. Berkey for Louis E. Yavner and another, respondents in the. second above-entitled action.
    I. Enforcement of the State’s low-cost housing and slum-clearance programs, mandated by both State Constitution and statute, involves such vital public policy considerations both in protecting the public fisc and in operating the programs, that such enforcement cannot be left to commercial arbitration. (Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621; Cadplaz Sponsors v Cadman Towers, 84 Misc 2d 961; Matter of Legislative Conference of City Univ. of N. Y. v Board of Higher Educ., 38 AD2d 478, 31 NY2d 926; Matter of Wertheim & Co. v Halpert, 48 NY2d 681; Matter of Knickerbocker Agency [Holz], 4 NY2d 245; Matter of Schwartz [American Swim Pools], 74 AD2d 638; Weiner v Weiner, 88 Misc 2d 920; Matter of Greenblatt [Ottley], 106 Misc 2d 169.) II. It would be an exercise in futility to arbitrate the issues in a proceeding where HPD, whose vital interests are involved, would not be a participant and would not be bound by the arbitrator’s finding. (Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1; Matter of Opan Realty Corp. v Pedrone, 36 NY2d 943; Matter of American Silk Mills Corp. [Meinhard-Commercial Corp.], 35 AD2d 197.)
   OPINION OF THE COURT

Kaye, J.

The issue before us is whether the parties’ disputes should be resolved by arbitration or litigation. Appellants, seeking arbitration, urge that respondents are bound by written agreements to arbitrate, while respondents contend that any right appellants may have had to arbitrate has been lost by extensive courthouse proceedings, and in any event would be defeated by the fact that one of the parties — a public agency — never agreed to arbitrate and opposes arbitration. Concluding that appellants have elected to litigate their dispute, and thereby forfeited any right to arbitration, we affirm the order below permanently staying arbitration.

At the hub of the controversy is a December 1972 limited partnership agreement (the RPC Agreement) for the development of a housing project near Riverside Park in New York City. The partnership, organized pursuant to the Private Housing Finance Law, is known as RPC Associates. Richard Sherrill, Louis Yavner and Daniel Gray served as the managing general partners; Riverside Park Community (Stage I), Inc., a limited-profit housing company (or Mitchell-Lama company) under article II of the Private Housing Finance Law, became a general partner; and several private investors were limited partners. The partnership, as well as the project, were subject to oversight by the City of New York Housing Preservation and Development Department (HPD), the agency charged by law with supervisory responsibility for limited-profit housing companies in New York City. While HPD was not itself a partner or even a signatory to the partnership agreement, the agreement provided that so long as the project was encumbered by a mortgage held by the City or by HPD it could only be changed by a writing executed by all partners, with the consent of HPD. The partnership agreement expressly forbade disposition of the general partners’ interests except as provided in the agreement, and restricted any act by them directly or indirectly affecting the project unless required or approved by HPD. The agreement further provided that any dispute or controversy between the partners arising out of, or in connection with, the partnership would be determined by arbitration. A second agreement was executed in January 1975 concerning another Manhattan housing project (the “60th Street Agreement”). That agreement required arbitration of all disputes “based upon or arising out of this Agreement or its performance.”

As a result of acrimony between Sherrill and Gray, the RPC managing general partners attempted to modify these arrangements. On December 29,1976, by a series of four brief, informal documents allegedly prepared and even typed by Gray, none of them mentioning arbitration, Sherrill undertook to withdraw as a managing general partner of the Riverside Park venture, cancel profit-sharing arrangements on the 60th Street project, and settle financial matters. The agreement purporting to terminate Sherrill’s interest in the Riverside Park project took the form of a letter to Sherrill, beginning with reference to the RPC Agreement: “We acknowledge the agreement dated in December 1972 among the parties concerning the site of Riverside Park. It is hereby terminated as to you, subject to the provisions herein-below.” A second letter, pertaining to the 60th Street project, also began with an acknowledgment of the underlying agreement.

Opinion per Kaye, J.

Whether Sherrill indeed withdrew is the subject of vigorous controversy on the merits, with Sherrill and Yavner aligned on one side, contending that his relationship never actually terminated because neither HPD nor the limited partners consented to his withdrawal from RPC Associates, and Gray, contending that Sherrill’s “retirement” needed no consent, on the other. Whether this issue, and consequential issues, must be resolved by arbitration or litigation is the subject of this appeal.

The first move was Sherrill’s: in 1978 he brought suit to rescind one of the December 29,1976 agreements regarding the 60th Street project and recover his payments. The sole theory of recovery is that the package of December 1976 agreements rested on a mistaken belief then held by all three RPC general managing partners that Sherrill could withdraw as a general partner of RPC when in fact he could not obtain the necessary consents of HPD and the limited partners. For nearly three years this litigation proceeded, with no mention of arbitration. Gray filed a general denial, initiated his own action in May 1980 for an accounting and injunction against Sherrill and Yavner, which was dismissed for failure to prosecute, conducted a deposition of Sherrill during which he inquired into the RPC Agreement, pursued document discovery, and then secured both am order to take discovery of Yavner and his joinder as an additional defendant.

In November 1981, Gray served two arbitration demands — one on Sherrill and Yavner as managing general partners of RPC Associates annexing the RPC Agreement, and a second on Sherrill annexing the 60th Street Agreement. The RPC demand is premised on Sherrill’s alleged retirement in December 1976, repudiated by him in 1978, and wrongful distributions to him thereafter, and it seeks an accounting, repayment of distributions, a declaration that he is no longer a managing general partner, and other relief. The 60th Street demand seeks an accounting and other relief with respect to that project. Gray then amended his answer in the pending suit, asserting 15 cross claims and counterclaims against Sherrill and Yavner, thus placing before the court all of the claims asserted in his arbitration demands. The pleading was couched “hypothetically,” to the extent that such claims are not resolved by arbitration.

On the very day the arbitration demand relating to the 60th Street project was served, Gray subpoenaed Yavner for examination in the pending litigation. Gray completed the deposition of Sherrill, conducted the deposition of Yavner, and the parties exchanged approximately 100,000 documents. Complete discovery of all issues raised by the pleadings was the stated objective. At least five Judges, in response to Gray’s motions in part premised on the contention that the various agreements were interrelated and thus material, directed that examinations be given, or documents produced, or other relief afforded.

To complete the procedural mosaic, in October 1982 Sherrill commenced a second action, this time seeking a declaratory judgment that he remains a managing general partner as well as limited partner of RPC Associates, and that his attempt to withdraw was ineffective because of a failure to obtain necessary consents. As Gray’s counsel himself later pointed out in a motion to compel arbitration, Sherrill’s 1982 litigation has “a companion action seeking the same result, which has been pending in this Court since 1979.”

The court below on its own motion consolidated Sherrill’s two suits, perceiving that a “unity of discovery and procedure can effect an efficient resolution of the confusion over Sherrill’s status in RPC and all of the issues which have been born of that confusion.” (99 AD2d, at p 967.) The propriety of the consolidation is not before us. Also not before us is the propriety of an earlier order joining HPD as a party defendant in the litigation, the combined result of consolidation and joinder being that there will now be a single litigation joining all interested parties — assuming the courthouse is the appropriate forum. The court below, further, permanently stayed arbitration, concluding that either directly or indirectly the parties had all chosen the courtroom for resolution of their dispute. On that issue, which is before us for review, we affirm.

Like contract rights generally, a right to arbitration may be modified, waived or abandoned (see, Matter of City of Yonkers v Cassidy, 44 NY2d 784, 785; Matter of Zimmerman v Cohen, 236 NY 15, 19). Here, Sherrill urges that Gray lost his right to arbitration by aggressive participation in litigation involving the same claims, and by laches. Since we conclude that Gray by his litigation activity manifested a preference “clearly inconsistent with [his] later claim that the parties were obligated to settle their differences by arbitration” (Matter of Zimmerman v Cohen, 236 NY 15, 19, supra), and thereby elected to litigate rather than arbitrate, we need not reach the question of waiver by laches. The claim being that Gray’s courthouse conduct constituted the election — a claim which involves neither the merits of the dispute nor conditions incidental to conduct of the arbitration — it is entirely appropriate that the court and not the arbitrators should determine this threshold issue (see, Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 8; see also, De Sapio v Kohlmeyer, 35 NY2d 402).

Gray contends that the activity in Sherrill’s initial suit is without consequence because that action sought only rescission of a two-page profit-sharing agreement which did not provide for arbitration, and issues concerning the right to remain as an RPC managing general partner and participate in the 60th Street venture were raised only in his arbitration demands. To be sure, not every difference between the parties was subject to arbitration, but only those arising under the agreements providing for arbitration (Matter of Priore [Schermerhorn], 237 NY 16, 17). There can be no doubt on this record that the pivotal issue in the litigations as well as the arbitrations — made all the mor e evident upon consolidation — is the purported modification of the underlying agreements by Sherrill’s attempted termination, resignation or retirement, an issue arising out of or in connection with the partnerships and therefore under the agreements subject to arbitration (see, Matter of Hosiery Mfrs. Corp. v Goldston, 238 NY 22, 27-28; see also, Matter of Schlaifer v Sedlow, 51 NY2d 181). This issue was pointedly presented by Sherrill’s initial complaint alleging that the 1976 agreement he sought to rescind was premised on mutual mistake regarding his withdrawal from RPC Associates, and that his attempt to resign was a nullity, all of which Gray put in issue by his general denial.

Even if there were no basis for assertion of Gray’s right to arbitration by way of immediate response to Sherrill’s first action, still that right emerged as Gray litigated, well before his arbitration demands were filed. This is not a case where two agreements with different signatories, though related in overall subject matter, impose independent obligations, so that provision for arbitration in the first may not, without incorporation, carry into the second (see, e.g., Matter of Calvin Klein Co. [Minnetonka, Inc.], 88 AD2d 503). Here, the same parties were signatories, the later agreements referred back to and modified the earlier ones, and the focal issue of the litigation was a question fundamental to the partnership and thus under the earlier agreements subject to arbitration. If Gray had meant to preserve for arbitration the issue of Sherrill’s status in the two ventures, it was incumbent on him to do so instead of singly pursuing the litigation over an extended period.

Not every foray into the courthouse effects a waiver of the right to arbitrate. Where claims are entirely separate, though arising from a common agreement, no waiver of arbitration may be implied from the fact that resort has been made to the courts on other claims (Denihan v Denihan, 34 NY2d 307, 310). Moreover, where urgent need to preserve the status quo requires some immediate action which cannot await the appointment of arbitrators, waiver will not occur where plaintiff “moves in court for protective relief in order to preserve the status quo while at the same time exercising its right under the contract to demand arbitration” (Preiss/Breismeister Architects v Westin Hotel Co., 56 NY2d 787, 789; but see, Hadjioannou v Avramides, 40 NY2d 929). But this is not such a case. The same issue lies at the heart of the litigations and proposed arbitrations, and no reason is even suggested to permit prosecutions in both forums.

The court below declined to fix the precise act constituting Gray’s election to pursue litigation, as do we: “it is enough that the totality presented here is so conclusively waiver that it ‘may not be unilaterally recalled.’ ” (99 AD2d 965,968 [quoting Rusch Factors v Fairview Mfg. Co., 34 AD2d 635].) Both prior to and after the arbitration demands in November 1981, Gray affirmatively sought the benefits of litigation, by actions inconsistent with a claim that the dispute must be resolved only by arbitration. Parties electing the benefits of arbitration, including freedom from disclosure in accordance with the CPLR, from strict application of substantive principles of law and evidentiary rules, and from judicial review for errors of law and fact (see, Matter of Silverman [.Benmor Coats], 61 NY2d 299, 308) cannot also draw on the judicial process for a particular advantage, such as pretrial disclosure not generally available in arbitration. “The courtroom may not be used as a convenient vestibule to the arbitration hall so as to allow a party to create his own unique structure combining litigation and arbitration.” (De Sapio v Kohlmeyer, 35 NY2d 402, 406, supra.) Having been lost, Gray’s right to arbitration could not be regained, either by Sherrill’s failure to seek a stay under CPLR 7503 (c), or by Sherrill’s commencement of a second action in 1982, or by the hypothetical pleading of counterclaims and cross claims, or by Sherrill’s participation in the litigation after Gray had asserted a right to arbitration and that issue was sub judice. While measures taken by a defendant during litigation to assert a right to arbitrate, such as an affirmative defense or counterclaim setting up the arbitration contract (Nagy v Areas Brass & Iron Co., 242 NY 97), might preserve the right before it is forfeited and while arbitration is promptly sought, they cannot resuscitate an expired right. Once the right to arbitrate a particular dispute has been lost by an election to litigate it cannot be recaptured.

Finally, Sherrill urges that the absence of an express agreement to arbitrate by HPD, a party with a very substantial financial interest, as well as public policy considerations deriving from the nature of the venture defeat any right the partners may have to privately arbitrate disputes fundamentally affecting governance of the partnership. Since we conclude that appellants have by their course of conduct lost any right they may have had to arbitrate their existing disputes, it is unnecessary to reach these proffered alternative grounds for staying arbitration.

Accordingly, the order below permanently staying arbitration should be affirmed.

Chief Judge Wachtler and Judges Jasen, Meyer and Simons concur; Judge Alexander taking no part.

On each appeal: Order affirmed, with costs.

      . As part of a program to provide housing and induce private investment through tax incentives, the Private Housing Finance Law contemplates the organization of limited-profit housing companies, which may serve as general partners in limited partnerships with private investors. Consistent with this statutory scheme, Riverside Park Community (Stage I), Inc., the legal owner of the housing project, became a general partner in RPC Associates, which owns the equitable interest.

      . For simplicity, the parties will be referred to as Gray, representing appellants, and Sherrill, representing respondents. Gray and certain companies and individuals associated with him are appellants; Sherrill and his associated companies, as well as Yavner, HPD, Riverside Park Community (Stage I), Inc., and the limited partners share respondents’ position.

      . By the same token, a party seeking to stay arbitration, in favor of litigation, cannot participate in the arbitration on the merits. (CPLR 7503 [b]; see also, Matter of Beagle [MVAIC], 19 NY2d 834, 835.)


author: Kaye, J.

text:
    Ileana Szigyarto, Appellant, v Sam Szigyarto, Respondent.
    Argued January 8, 1985;
    decided February 14, 1985

      POINTS OF COUNSEL

      Lee H. Jacobs and Louis P. Jacobs for appellant.
    I. Respondent’s employer was his agent. (Matter of Connors v Connors, 103 Misc 2d 288.) II. It was reversible error to hold, in effect, that appellant, on behalf of the children, should make good the embezzlement of respondent’s wages. (Matter of Wanamaker v Wanamaker, 93 Misc 2d 784; Matter of Chusid, 60 Misc 2d 462, 35 AD2d 655.) III. Laches was not submitted to the trial court and its consideration was prejudicial. (Da Via v St. Denis, 107 Misc 2d 750.) IV. Contrary to the Family Court’s opinion laches cannot be invoked against the children’s right to support. (Matter of Shinouda v Shinouda, 96 Misc 2d 290.)

      Phil Brown for respondent.
    I. The Family Court correctly held that respondent, whose wages were involuntarily assigned pursuant to court order, was not responsible for over six months of payments lost due to appellant’s failure to complain about her nonreceipt of deducted funds subsequently determined to have been embezzled. II. The doctrine of laches may be applied against appellant in this case. (Zaccaro v Congregation Tifereth Israel of Forest Hills, 20 NY2d 77; Renkoff v Renkoff, 285 App Div 876; Matter of Connors v Connors, 103 Misc 2d 288.)
   OPINION OF THE COURT

Kaye, J.

In the appeal before us, support payments deducted weekly from respondent father’s wages pursuant to a payroll deduction order were apparently embezzled by the office manager and cannot be recovered from the employer. We are asked to determine, as between two parties not involved in the misappropriation, who must bear the loss — respondent, from whose salary weekly deductions were made, or his family, who did not receive this money. We conclude that respondent’s support obligation was not discharged when the weekly deductions were made by his employer, and that his responsibility to contribute to the support of his family requires that he, and not the family, suffer the consequence of such a loss.

Respondent, Sam Szigyarto, failed to comply with an order of support in favor of appellant, Ileana Szigyarto, and their two minor children. After respondent defaulted on three consecutive support payments, the court in September 1980 entered a payroll deduction order pursuant to Personal Property Law § 49-b, requiring respondent’s employer to withhold $70 from his weekly wages and transmit that sum to the court. In January 1982, believing he had more than satisfied his obligation for arrears, respondent sought reduction of the weekly withholding. Only in the course of the ensuing proceedings did the parties learn that, while deductions had been made from respondent’s paychecks, no money had in fact been transmitted to the court for approximately six months. Those amounts — totaling some $1,750 — had apparently been converted by the office manager. Respondent’s efforts to recover against his former employer, by then out of business, proved unsuccessful.

Before the Family Court on respondent’s application to modify, both sides centered their arguments on the legal issue of whether the employer’s withholding discharged the support obligation. Respondent urged, first, that by obtaining a payroll deduction order and thereby divesting him of control over these funds appellant in effect made his employer her agent and, second, that under statutory and case law the deductions terminated his obligation, citing CPLR 5231, Matter of Franklin Natl. Bank v Lynch (29 Misc 2d 1039) and Schwartz Tire Corp. v Gershon (160 Misc 439). While rejecting these legal arguments, Family Court nonetheless held in respondent’s favor, on the basis that the deductions, once made, were no longer money owed to the wage earner, and that “the equities lie with the respondent in that the payroll deduction on which he relied in good faith was made week after week * * * [Appellant’s] proper remedy is to seek to recover illegally held funds from the employer and the errant office manager” (116 Misc 2d 742, 746). The court further noted the fact of appellant’s inaction and observed that if the defense of laches had been raised, that alone would bar appellant’s recovery. The court reduced respondent’s obligation by the disputed amount, and the Appellate Division affirmed, one Justice dissenting (100 AD2d 848). We now reverse.

Recognizing the substantial public, as well as private, interest in enforcing compliance with support orders, the Legislature in 1958. supplemented available enforcement procedures (see, e.g., 12 Zett-Edmonds-Buttrey-Kaufman, NY Civ Prac, Family Ct Proceedings H 15.12, p 15-106; Family Ct Act §§ 454, 457, 471; Domestic Relations Law §§ 243-244) with a streamlined mechanism for securing delinquent payments directly from a support debtor’s employer through automatic salary deductions (see, Personal Property Law § 49-b, L 1958, ch 659, § 1). By subsequent amendments, the Legislature added further force to this provision (see, L 1975, ch 147, § 1; L 1977, ch 516, § 27; L 1978, ch 456, § 17) as part of a comprehensive strengthening of the State’s child support program (see, e.g., L 1977, ch 516; L 1978, ch 456). The payroll deduction order allowed under section 49-b is plainly an additional — not exclusive — remedy for the beneficiary of a support order (see, Lo Cascio v Lo Cascio, 101 Misc 2d 679, 682); a petitioner need not first exhaust other remedies against the debtor (see, Villano v Villano, 98 Misc 2d 774, 782).

Personal Property Law § 49-b permits a court which entered a support order, upon a showing of good cause and without the need again to serve process on the support debtor, to order an employer to withhold from wages — even including pension funds — those amounts the court finds necessary for compliance with its order, as well as arrears. A prima facie case is established by proof that the party charged with support is delinquent in three payments, and unless the presumption is overcome through proof of the debtor’s inability to make the payments the court must order an appropriate payroll deduction (Personal Property Law § 49-b [1] [a]; see generally, Involuntary Wage Assignments: A New Approach for Effective Enforcement of Support Obligations, 11 Buffalo L Rev 396). The debtor’s employer is then obligated to withhold the designated sums from its employee’s salary and to transmit the deducted amounts directly to the agency designated by the court (see, Personal Property Law § 49-b [1] [b]). The Legislature has further underscored the primacy of family support orders by specifying that a wage assignment under section 49-b takes priority over other assignment or garnishment of moneys due or payable, except those mandated by law (Personal Property Law § 49-b [2]; see also, Comment, Wage Garnishment in New York State: Practical Problems of the Employer, 34 Alb L Rev 395, 415-18).

Given this background and the absence of any authority so requiring, we must reject the conclusion reached below that respondent’s support obligation was extinguished when the payroll deductions were made. While, as the Family Court concluded, it may be that funds subject to a payroll deduction order, once withheld, are not considered wages belonging to respondent, they are not thereby rendered support money belonging to appellant so as to discharge respondent, until payment is made. Contrary to respondent’s assertion, Personal Property Law § 49-fa does not constitute the employer appellant’s “agent” so as to bind her and discharge him; and it creates no express trust for her in the withheld funds (see, e.g., Tax Law § 675; Social Services Law § 111-h [4]). Cases decided under income execution statutes, such as Matter of Franklin Natl. Bank v Lynch (29 Misc 2d 1039, supra) and Schwartz Tire Corp. v Gershon (160 Misc 439, supra) — neither decision limiting a creditor’s remedies against a debtor — in no way restrict rights under Personal Property Law § 49-b. Most significant, however, is the purpose and intent of section 49-b to augment — not substitute or diminish — the methods by which support orders might be enforced, to the end that family members and not the public welfare rolls bear the burden of support of their children. Even if other remedies may be available against a third party to recover the payments, including suit against the defaulting employer for violation of the court order or against the errant office manager for misappropriation, the fact remains that the family has not received the court-ordered payments. The existence of alternative means of pursuing the misappropriated funds, which may be available both to appellant and to respondent, does not defeat the debtor’s responsibility for support of his family.

While resting its decision on the legal issue, Family Court added as a final point that, were respondent to invoke the defense of estoppel or laches, recovery would be barred by appellant’s inaction and resultant prejudice to respondent. Appellant urges that respondent’s failure to raise any such defense at trial deprived her of the opportunity to demonstrate its inapplicability. Since respondent did not raise estoppel or laches as a defense before the trial court, where the facts pertinent to such a defense might have been established, he cannot press it on appeal. We therefore do not reach the issue of whether such defenses, if properly raised, would have defeated appellant’s right to receive the payments.

Accordingly, the order of the Appellate Division should be reversed and respondent’s application to modify the support order to exclude the disputed payments denied.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Alexander concur.

Order reversed, with costs, and respondent’s application to modify the support order to exclude the disputed payments denied.

       The relative financial needs and abilities of the parties — factors relevant to fixing the amount of the support payments respondent was ordered to pay — are not in issue on this appeal.


author: Per Curiam.

text:
    In the Matter of Judith Rippe, Appellant, v Board of Education of the Comsewogue-Brookhaven School District, Respondent.
    Argued January 4, 1985;
    decided February 5, 1985

      POINTS OF COUNSEL

      James R. Sandner, Noel D. Cohen and Stephen Mendelsohn for appellant.
    I. Part 30 of the Rules of the Regents, as amended, has only prospective application so that pre-part 30 appointees do not possess bumping rights. (Steele v Board of Educ., 40 NY2d 456; Matter of Baer v Nyquist, 34 NY2d 291; Matter of Cole v Board of Educ., 90 AD2d 419, 60 NY2d 941.) II. The courts below erred in holding that Mr. Huprich, a pre-part 30 physical education appointee, may bump back to that tenure area and thereby displace Ms. Rippe, a post-part 30 physical education appointee, from two fifths of her position.

      Frederic Block for respondent.
    I. Assuming that Huprich was given a new probationary appointment as a health teacher subsequent to the effective date of part 30, he would thereby be entitled to all of the bumping rights afforded by section 30.13 (c) and (d) of part 30 even though he was initially employed by the school district prior to part 30. (Matter of Nagel v Board of Educ., 83 AD2d 852.) II. Section 30.13 (c) should be construed to prefer the employment of Huprich over Rippe since he has greater seniority in the same tenure area at issue. (Matter of Glowacki v Ambach, 53 AD2d 260,40 NY2d 806; Matter of Mitchell v Board of Educ., 40 NY2d 904; Matter of Bruso v Board of Educ., 53 AD2d 692; Matter of Cole v Board of Educ., 90 AD2d 419.)
   OPINION OF THE COURT

Per Curiam.

The right granted by the Rules of the Board of Regents (8 NYCRR 30.13) to a person whose tenured professional education position is abolished to be transferred to and retained in another tenure area if there is a professional educator with less seniority in that other area applies only to persons who receive a probationary appointment after August 1, 1975 and only as to a tenure area created by those Rules. The order of the Appellate Division should, therefore, be reversed, with costs, and the matter remitted to Supreme Court, Suffolk County, for determination of the back pay and other benefits, if any, to which petitioner is entitled.

Petitioner was given a probationary appointment as a physical education teacher on September 1,1977 and acquired tenure in 1980. In April 1981 she was notified that she would be excessed on June 30,1981, but on September 5,1981 was offered and accepted a three-fifths physical education position. She contends that she was entitled to the full-time position because Paul Huprich, who was given the two-fifths physical education position at the same time as her three-fifths appointment, had no right to “bump” her under part 30 of the Regents’ Rules.

Huprich became a physical education teacher in the District in 1959 and served as such until 1974, when he became Acting Director of Physical Education, Health and Recreation. He returned to his physical education position on September 1, 1975 and served in it until September 1,1977, when he was assigned to a health education position for one year. During the 1978-1979 school year he served as a physical education teacher. During the 1979-1980 and 1980-1981 school years, however, he served as a health education teacher, but after a two-fifths health education position was abolished in June 1981, was assigned the two-fifths physical education position to which petitioner claimed she was entitled. On November 16, 1981, petitioner was offered and accepted an additional two-fifths physical education position, but she seeks back pay for the period September 5, 1981 through November 16, 1981 and the determination of other economic benefits to which she may be entitled.

“Bumping” rights with respect to an area in which a teacher, excessed from his or her present tenure area, previously held tenure did not exist prior to the adoption by the Board of Regents, effective August 1,1975, of part 30 of its Rules. Section 30.2 (a) (8 NYCRR) makes the provisions of the part applicable only to probationary appointments made on or after August 1, 1975 and to appointments on tenure based on such probationary appointments, and section 30.13 provides that when a professional education position is abolished, the individual having the least seniority in the tenure area affected shall lose his or her position but “[sjhould the individual so identified have tenure or be in probationary status in additional tenure areas created by this Part, he shall be transferred to such other tenure area in which he has greatest seniority and shall be retained in such area if there is a professional educator having less seniority than he in such other tenure area” (emphasis supplied). Thus, “bumping” rights are given only to those persons who receive a probationary appointment after August 1,1975 and only as to a tenure area created by part 30.

The parties agree that physical education and health education were separate tenure areas in the school district prior to part 30 and have continued to be under section 30.8 (a) (8), (12). Huprich’s health education appointment dates from September 1, 1977, but his tenure as a physical education teacher is not in an area created by part 30 and predates the effective date of part 30 by many years. Despite the fact that he has greater seniority as a physical education teacher than petitioner, section 30.13 does not give him the right to “bump” her because the physical education tenure area was not “created” by part 30.

Respondent suggests that Huprich’s September 1, 1975 return to his former physical education position is a post-August 1, 1975 appointment entitling him to bumping rights in that area. But that would only be true if he had been appointed after August 1, 1975 to probationary status (Matter of Cesaratto, 17 Ed Dept Rep 23, 27-28) and it is clear that Huprich, having previously acquired tenure in the physical education area, could not be given a later probationary appointment to that area because doing so would denigrate his prior acquired tenure (Waiters v Board of Educ., 46 NY2d 885, 887; Matter of Smyton, 19 Ed Dept Rep 281).

Respondent’s further contention that the result is inconsistent with the seniority provisions of Education Law § 2510 is one that should be addressed to the Board of Regents rather than this court. Prior to adoption of part 30, seniority did not include the right to “bump” (Matter of Cole v Board of Educ., 60 NY2d 941, affg 90 AD2d 419, 427-428, n 6), and by limiting those rights to tenure areas “created by this Part” the Board of Regents has, for reasons best known to it, specifically excluded those in preexisting tenure areas.

Finally, respondent’s suggestion that a factual issue exists concerning Huprich’s knowledge that he was being moved to a different tenure area is misplaced. Huprich is not a party to this action, respondent’s answer does not put in issue knowledge on his part and, in any event, it is conceded that health education and physical education were existing and separate tenure areas prior to the adoption of part 30.

For the foregoing reasons, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in Per Curiam opinion.

Order reversed, with costs, and matter remitted to Supreme Court, Suffolk County, for further proceedings in accordance with the opinion herein.