author: Simons, J.

text:
    Renee Tango et al., by Their Parent and Natural Guardian, Charles Tango, et al., Appellants, v Jennie Tulevech, Individually and as an Employee of the Rockland County Department of Probation, et al., Respondents.
    Argued November 22, 1983;
    decided December 20, 1983

      POINTS OF COUNSEL

      Steven Abel and Richard J. Feinberg for appellants.
    I. The civil rights claim herein should not have been dismissed. (Drollinger v Milligan, 552 F2d 1220; Morrison v Jones, 607 F2d 1269, 445 US 962; Monroe v Pape, 365 US 167; Monell v Department of Social Servs., 436 US 658; Scheuer v Rhodes, 416 US 232; Wood v Strickland, 420 US 308; Butz v Economou, 438 US 478; Halperin v Kissinger, 606 F2d 1192, 452 US 713; Fowler v Cross, 635 F2d 476; Lane — Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36.) II. Appellants are entitled to judgment under State tort law. (Rottkamp v Young, 21 AD2d 373, 15 NY2d 831; Pickle v Page, 225 App Div 454; Bernardine v City of New York, 294 NY 361; Poysa v State of New York, 102 Misc 2d 269; Charles O. Desch, Inc. v State of New York, 60 AD2d 678; Burgundy Basin v State of New York, 47 AD2d 692; Gross v State of New York, 33 AD2d 868; Matter of Cooper v Goodman, 65 Misc 2d 939; Matter of Schual v Lindenhurst

      Mem. Lib., 72 AD2d 817; Bernkrant v State of New York, 26 AD2d 964.) III. Defendant Tulevech’s actions went outside of any protected sphere. (Teddy’s Drive In v Cohen, 47 NY2d 79; Drake v City of Rochester, 96 Misc 2d 86.) IV. Plaintiffs are entitled to judgment on account of defendants’ misfeasance. (Poysa v State of New York, 102 Misc 2d 269; Florence v Goldberg, 44 NY2d 189; Murrain v Wilson Line, 270 App Div 372; Matlock v New Hyde Park Fire Dist., 16 AD2d 831; Jones v State of New York, 33 NY2d 275; Tender Trap v Town of Huntington, 100 Misc 2d 108.) V. Malicious actions should give rise to damages. (Rottkamp v Young, 21 AD2d 373; Schwartz v Heffernan, 304 NY 474; Butz v Economou, 438 US 478.) VI. The verdict herein was inadequate. (Waxenberg v Goodes, 58 AD2d 625.) VII. Plaintiffs were entitled to present proof of permanent injury. (Jones v Eimers, 24 AD2d 867.)

      Edward A. Frey for respondents.
    I. Respondents are entitled to immunity from appellants’ State claims. (Rottkamp v Young, 21 AD2d 373, 15 NY2d 831; Movable Homes v City of North Tonawanda, 56 AD2d 718; Charles O. Desch, Inc. v State of New York, 60 AD2d 678; Turcotte v Fell, 84 AD2d 535; Santangelo v State of New York, 103 Misc 2d 578.) II. The court below’s finding of good faith on the part of Mrs. Tulevech should be confirmed. III. Defendants did not assume a special duty towards plaintiffs. (Motyka v City of Amsterdam, 15 NY2d 134; Evers v Westerberg, 38 AD2d 751, 32 NY2d 684; Bass v City of New York, 38 AD2d 407; Falco v City of New York, 34 AD2d 673; Runkel v City of New York, 282 App Div 173.) IV. Appellants failed to establish a prima facie case under section 1983 of title 42 of the United States Code. (Procunier v Navarette, 434 US 555; Wood v Strickland, 420 US 308; Leonhard v United States, 633 F2d 599; Schleiffer v Meyers, 644 F2d 650; Duchesne v Sugarman, 566 F2d 817; Ellis v Hamilton, 669 F2d 510.) V. Respondent is entitled to immunity from appellants’ Federal civil rights claim. (Scheuer v Rhodes, 416 US 232; Pierson v Ray, 386 US 547; Butz v Economou, 438 US 478; Gregoire v Biddle, 177 F2d 579; Moyer v Peabody, 212 US 78.) VI. The verdict was excessive.
   OPINION OF THE COURT

Simons, J.

Plaintiff Charles Tango, individually and as guardian of his two minor daughters, Renee and Ruth Tango, seeks money damages from defendant Jennie Tulevech, a probation officer, and her employer, defendant County of Rockland, alleging that they wrongfully, carelessly and negligently violated plaintiffs’ civil and constitutional rights by depriving Mr. Tango of the custody of his two children. The claims are founded upon an incident which occurred October 31, 1977 in the office of defendant county’s Probation Department when defendant Tulevech permitted Barbara Childs, plaintiff Charles Tango’s former wife and the children’s mother, to take the children with her to South Carolina over his objection and contrary to a custody agreement between the father and mother. Plaintiffs claim that Ms. Childs abused the girls, causing physical injuries to them and emotional injuries to all plaintiffs. After a jury trial, the father recovered a verdict of $10,000 and each daughter recovered a verdict of $20,000. On appeal the Appellate Division reversed and dismissed the complaint. We affirm its order.

When Charles Tango and Barbara Childs were divorced in New Jersey in 1974, the judgment awarded Ms. Childs permanent custody of their daughters. With the aid of the Union County (New Jersey) Probation Service, the parents modified the custody arrangement in February, 1977 by a letter agreement which accorded the father exclusive custody of the children for a period of one year. The children, approximately 8 and 10 years old at the time, were to reside with their father in Rockland County and Ms. Childs was given the right to visit them at least once a month. At the time of this modification, Ms. Childs had a support proceeding pending in the Union County Juvenile and Domestic Relations Court. In dismissing the proceeding, the court noted in its order that the Probation Department had a letter in its possession signed by Ms. Childs which referred to this agreement and that the father was excused from making support payments during the time he had custody.

Shortly thereafter, plaintiff commenced a proceeding in the Supreme Court, Rockland County, seeking permanent custody of the children. At about the same time, Robin Alvarez, a 19-year-old daughter of the Tango-Childs marriage, instituted a separate proceeding in Family Court, Rockland County, seeking an order granting her visitation rights with her younger sisters.

On October 31, 1977 Barbara Childs and Robin Alvarez went to the school attended by Renee and Ruth Tango, removed them from their school bus and drove away with them. The school principal observed the incident and provided identification which enabled the police to intercept the car and take its occupants to the In-take Unit of the Probation Department connected with the Rockland County Family Court where they met defendant Tulevech.

The evidence of what transpired next is conflicting. Defendants claim that Ms. Tulevech acted as a mediator in the dispute; plaintiffs’ claim that she frustrated their efforts to prevent Ms. Childs from unlawfully taking the children to South Carolina. In support of her claim, defendant Tulevech testified that she was informed by Childs that she was entitled to custody and that she intended to take the children to South Carolina. As evidence of the lawfulness of her conduct, the mother showed defendant Tulevech several papers, including the divorce decree awarding her custody of the children, and the letter agreement with the father giving him temporary custody rights for one year. Defendant testified that the letter was not notarized. Defendant examined the children and concluded that they “looked well” and were free of any signs of physical abuse. The father and a law student employed by his attorney claim that when they arrived at the Probation Office shortly thereafter they told Tulevech of the pending Supreme Court custody proceeding as well as the prior support proceeding in New Jersey which was dismissed with Ms. Childs’ consent. Mr. Tango contends, and defendant Tulevech denies, that he repeatedly told her that Childs had physically abused the children. Plaintiffs’ witnesses also testified that defendant Tulevech refused to allow the father to confer with her supervisor or a Judge. Instead, she is alleged to have told him that all the Judges were “too busy” and then ordered a policeman to escort Ms. Childs and the children out of the building.

Plaintiff Tango eventually regained custody of the children in June, 1978 by an order of a South Carolina court.

The complaint contains causes of action alleging that (1) defendant Tulevech negligently performed her official duties, and that because she did so out of malice she lost any immunity she might otherwise enjoy, (2) defendants’ interference with plaintiffs’ custodial rights violated their civil and constitutional rights under section 1983 of title 42 of the United States Code, and (3) defendants breached a special duty owing to plaintiffs. The trial court refused to submit the civil rights claim to the jury but did instruct it on the remaining theories with the explicit instruction that defendants could be found negligent only if the jury also found that defendant Tulevech had acted in bad faith. The jury returned verdicts for each of the plaintiffs and on appeal the Appellate Division reversed, concluding that under no view of the evidence could defendants be held liable. It found that defendant Tulevech acted within the scope of her duties in refusing to restrain Ms. Childs from removing the children and that liability could not be predicated on the decision to so proceed, even if it was erroneous or actuated by bad faith or malice (citing Rottkamp v Young, 21 AD2d 373, affd 15 NY2d 831). The Appellate Division made a factual finding contrary to the jury’s to the effect that defendant Tulevech had indeed acted in good faith. It did not discuss plaintiffs’ civil rights claim.

I

Plaintiffs’ first claim is that defendant Tulevech negligently performed her duties, that she should have referred the matter to a Family Court Judge and that the jury’s finding of bad faith strips her of any official immunity she might otherwise enjoy. Recognizing that current New York law renders Tulevech’s motives irrelevant (see Rottkamp v Young, 21 AD2d 373, affd 15 NY2d 831, supra), plaintiff argues in the alternative for a change in the law which would permit a showing of bad faith or malice to negate the public official’s immunity.

Municipalities surrendered their common-law tort immunity for the misfeasance of their officers and employees long ago (see Bernardine v City of New York, 294 NY 361), but other recognized limitations still govern the tort liability of municipal officers. Relevant here is the rule that when official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice. Conversely, when the action is exclusively ministerial, the officer will be liable if it is otherwise tortious and not justifiable pursuant to statutory command (East Riv. GasLight Co. v Donnelly, 93 NY 557, 559, cited in Rottkamp v Young, supra; see, generally, 2 Harper and James, Torts, . § 29.10). In Rottkamp the Appellate Division held that a building inspector who refused to issue a building permit was immune from suit because his act was discretionary (21 AD2d, at p 376). Marking the distinction between discretionary and ministerial acts, the court noted that: “[e]ach case must be decided on the circumstances involved, the nature of the duty, the degree of responsibility resting on the officer, and his position in the municipality’s table of organization. It must still be true that discretion is indicated if the powers are ‘to be executed or withheld according to his own view of what is necessary and proper’ (Mills v. City of Brooklyn, 32 N. Y. 489, 497; cf. People v. Kuder, 93 Cal. App. 42, 54-55).”

Judicial efforts to distinguish between discretionary and ministerial acts have produced an array of decisions with results that are difficult to harmonize (see, e.g., Charles O. Desch, Inc. v State of New York, 60 AD2d 678, affd 45 NY2d 882 [issuance of burning permits held to be discretionary act]; Burgundy Basin Inn v State of New York, 47 AD2d 692, mot for lv to app den 37 NY2d 706 [issuance of concert permits held to be discretionary act]; Van Buskirk v Bleiler, 46 AD2d 707 [wrongful discharge of civil service employee held to be judicial or quasi-judicial act]; Gross v State of New York, 33 AD2d 868 [filing of certificate of incorporation by Secretary of State’s employees held to be a quasi-judicial act calling for discretion]; but see McCrink v City of New York, 296 NY 99 [failure to terminate employment of alcoholic and dangerous police officer held ministerial omission]; Waterman v State of New York, 35 Misc 2d 954, mod 19 AD2d 264, affd sub nom. Williams v State of New York, 14 NY2d 793 [duties of court stenographer held to be ministerial act]; Puffer v City of Binghamton, 59 Misc 2d 856 [issuance of a marriage license held to be a ministerial act]; Luckie v Goddard, 171 Misc 774 [duty of Judge to certify record held to be ministerial act]). As Prosser has noted, almost any act admits some discretion in the manner of performance, even driving a nail (see Prosser, Torts [4th ed], § 132, p 990). Nevertheless, the rule to be derived from the cases is that discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result. Applying that standard, defendant Tulevech acted in a discretionary capacity when she refused to detain the children and take them before a Judge and therefore defendants are immune from common-law liability.

Defendant Tulevech was the supervisor of the In-take Unit of the Probation Department, which served Family Court. The duties of department personnel included interviewing clients and determining whether or not there was any possibility of adjusting the matters or grievances they presented, whether there was information or assistance that could be given verbally to the prospective client, whether the client possessed a legal cause of action, and whether Family Court would have jurisdiction of the matter if the petition was warranted.

When confronted with the Tango-Childs dispute, defendant Tulevech conferred with the parents and the children, she inspected the documents presented and examined the children for signs of abuse, and she necessarily exercised judgment as to whether the court action was appropriate. Arguably, she was entirely correct in the present circumstances when she recognized the judgment which expressly awarded the mother permanent custody of the girls rather than the equivocal, unnotarized letter of modification. But even if her ultimate determination was incorrect, she is immune from suit because she acted within the scope of her discretionary authority as supervisor of the In-take Department (cf. Teddy’s Drive In v Cohen, 47 NY2d 79). Inasmuch as she was exercising her judgment in determining the proper conduct of her office and given the discretionary nature of her acts, the question of bad faith or malice becomes irrelevant under the rule stated in Rottkamp. Although New York is in a minority position in so holding (see Rottkamp v Young, 15 NY2d 831, 833, supra [Burke, J,, dissenting]), we find no reason to reconsider the rule of that case on this record (see, generally, 2 Harper and James, Torts, § 29.10).

II

Plaintiffs also claim that the trial court erred in dismissing the claim against defendant Tulevech based upon section 1983 of title 42 of the United States Code. The Appellate Division did not expressly address the issue but apparently it agreed with the trial court, affirming its determination sub silentio. We agree that plaintiffs failed to establish a prima facie case under the Federal statute.

In an action brought under section 1983 of title 42 of the United States Code against a public official, such as defendant here, who is arguably entitled to a qualified immunity under Federal law, plaintiff must establish: (1) that some person deprived him of a Federal right, and (2) that such person acted under color of State or territorial law (US Code, tit 42, § 1983; Gomez v Toledo, 446 US 635; see, generally, 2 NY PJI, Cum Supp [Oct., 1983], pp 201-205). Plaintiff need not plead or prove bad faith; it is for the defendant to establish immunity by evidence of good faith (see Gomez v Toledo, supra, at pp 635-636).

A parent’s interest in maintaining custody and care of his or her children has been given constitutional recognition (Stanley v Illinois, 405 US 645) as has the child’s interest in the care provided by the family relationship (see Drollinger v Milligan, 552 F2d 1220, 1225-1226). Both the parent and the child may assert a claim under the statute if deprived of those rights under color of law. However, before plaintiff Tango may prevail on a claim that he has a constitutional interest in the custody of his two infant children, or before his children may prevail on an analogous claim, the custodial right must be clearly established at the time of the alleged deprivation (Procunier v Navarette, 434 US 555, 562-563). Here, at the time the children left the Probation Department with Ms. Childs in October, 1977, the right to lawful custody was debatable — Tango could point only to an equivocal letter agreement to support his claim of custody — whereas his former wife held an award of custody from a court of competent jurisdiction. Although plaintiff’s claim to custody of the children ultimately prevailed in the New York action, it was not clearly established on October 31,1977 and the cause of action was properly dismissed.

Ill

We have considered plaintiff’s remaining claims and have found them to be without merit.

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

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

Order affirmed, with costs.


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Robert Sobotker, Respondent.
    Argued October 21, 1983;
    decided January 12, 1984

      POINTS OF COUNSEL

      Denis Dillon, District Attorney (Samuel E. Rieff and Anthony J. Gírese of counsel), for appellant.
    A defendant who has pleaded guilty does not receive retroactive transactional immunity from prosecution when he testifies in the Grand Jury after the plea is taken. (Kastigar v United States, 406 US 441; Murphy v Waterfront Comm., 378 US 52; Hoffman v United States, 341 US 479; Brown v Walker, 161 US 591; People v De Feo, 308 NY 595; Matter of Doyle, 257 NY 244; People ex rel. Lewisohn v O’Brien, 176 NY 253; Counselman v Hitchcock, 142 US 547; People v Ianniello, 21 NY2d 418, 393 US 827; People v Tomasello, 21 NY2d 143.)

      Michael M. Premisler for respondent.
    Testimony before a Grand Jury bars sentencing on a pending charge. (Matter of Jaime T., 96 Misc 2d 173; People v Williams, 81 AD2d 418; Kastigar v United States, 406 US 441; Matter of Doyle, 257 NY 244; People v Rappaport, 47 NY2d 308; Shargel v Fenton, 459 F Supp 700; People v Wilson, 108 Misc 2d 417.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether a defendant who pleads guilty to an offense and then gives Grand Jury testimony concerning it prior to being sentenced can claim statutory immunity (CPL 190.40) for the offense to which he has pleaded guilty. The trial court held that the defendant did not acquire immunity under the circumstances, but the Appellate Term reversed and dismissed the charge. The People have appealed.

In 1980 three felony complaints were filed against the defendant charging him with promoting gambling in the first degree and possession of gambling records in the first degree. The offenses allegedly occurred on April 17, May 3 and July 23, 1980. On August 28, 1980, the defendant pleaded guilty to three misdemeanor offenses of attempting to promote" gambling, in full satisfaction of the outstanding charges. Pursuant to an agreement with the prosecutor the defendant also made a sworn statement concerning the May 3 offense. This statement related to the activities of a codefendant who had absconded. The court accepted the plea and scheduled the defendant to appear for sentencing on October 23, 1980.

Prior to being sentenced the defendant appeared and testified before the Grand Jury concerning the May 3 transaction. This testimony was given pursuant to a subpoena. The defendant did not assert his right against self incrimination nor did he sign a written waiver of immunity prior to or during his Grand Jury appearance. However, after leaving the Grand Jury the defendant moved to dismiss the charges to which he had previously pleaded guilty, but had not been sentenced, claiming that he had acquired immunity by appearing before the Grand Jury and testifying with respect to these charges.

The defendant relied entirely on the provisions of the Criminal Procedure Law dealing with transactional immunity, particularly CPL 190.40 (subd 2) the relevant portion of which provides that “A witness who gives evidence in a grand jury proceeding receives immunity unless: (a) He has effectively waived such immunity pursuant to section 190.45”. The waiver referred to must be in writing, signed by the witness and sworn to before the Grand Jury (CPL 190.45). The CPL also provides that a person who has acquired immunity cannot “be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction * * * concerning which he gave evidence” (CPL 50.10, subd 1). Noting that he had not executed a waiver the defendant claimed that he had therefore automatically acquired immunity pursuant to the statute and could not be penalized or sentenced for the offenses to which he had pleaded guilty.

In opposition to the motion the People argued that the defendant’s rights under the statute were coextensive with his right against self incrimination which, it was urged, “terminates” or “expires” when the defendant formally admits his guilt by pleading guilty. The prosecutor also contended that the immunity statute was meant to protect a person against prosecution or conviction in the future and was not “intended as a loophole to avoid the consequences of a plea of guilty already entered”. The prosecutor further observed that the defendant’s Grand Jury testimony only related to the May 3 transaction and thus could provide no basis for dismissing the other charges, even if the defendant’s claim of immunity were accepted.

The trial court denied the motion concluding that the defendant could not claim the benefits of the immunity statute because he relinquished his right against self incrimination when he pleaded guilty. After sentence was imposed the defendant appealed to the Appellate Term. That court reversed the conviction and dismissed the accusatory instrument relating to the May 3 offense but affirmed the other convictions. The court stated: “Having testified before a Grand Jury with regard to the May 3, 1980 offense prior to being sentenced therefor defendant was entitled to immunity and could not be subjected to any penalty on account of that transaction”. (117 Misc 2d 394.)

Both sides cross-applied for leave to appeal to this court from those portions of the Appellate Term’s order which were adverse to them. The People’s application was granted; the defendant’s application was denied. Thus we are only concerned with that portion of the Appellate Term’s order which reversed and dismissed the accusatory instrument relating to the May 3, 1980 transaction.

At the outset a distinction should be drawn between the defendant’s Fifth Amendment right against self incrimination and the broader protection afforded by the immunity statute. The Fifth Amendment simply precludes the People from using statements obtained from the defendant under legal compulsion (Kastigar v United States, 406 US 441). The immunity statute on the other hand grants the defendant full dispensation from criminal liability for an act once he has been compelled to testify concerning the crime (CPL 190.40, 50.10; People v Rappaport, 47 NY2d 308, 313). In this respect the immunity statute is analogous to the speedy trial statutes enacted in this State which, although inspired by a constitutional right, provide greater protection than the Constitution requires (see CPL 30.30).

There are good reasons for holding that a defendant who pleads guilty does not automatically waive the constitutional right against self incrimination in all subsequent proceedings. Statements made in such proceedings may be used against the defendant if the conviction based on the plea is set aside on appeal (People v Evans, 58 NY2d 14). Even if the plea is not set aside, the statements may be used by the People at the time of sentence (People ex rel. Hunt v Lane, 132 App Div 406, affd 196 NY 520). As long as these possibilities exist, it may be said that the defendant has a legitimate interest in preserving and asserting his Fifth Amendment rights with respect to an offense for some time following a plea of guilty. Most States which have considered the issue have reached a similar conclusion (see, generally, Ann., 9 ALR3d 990).

However, there is no reason to hold that the broader statutory right to immunity is also available to a defendant following his plea of guilty. In cases where a constitutional right survives a plea, we have held that a related statutory right is forfeited by the plea when the statute would confer on the defendant greater rights than the Constitution demands (see, e.g., People v Thill, 52 NY2d 1020; People v Friscia, 51 NY2d 845; People v Howe, 56 NY2d 622). The same rule should apply to the statutory right of immunity.

A defendant can have no legitimate expectation of obtaining complete immunity from prosecution or punishment for an offense once he has pleaded guilty to the crime. Thus the statutory right to full immunity is fundamentally inconsistent with a plea of guilty and should be deemed forfeited at the time the defendant enters the guilty plea (cf. People v Thomas, 53 NY2d 338). The fact that the statute prescribes a formal method for waiving the right is irrelevant because the question is not whether the defendant made a knowing and intelligent waiver, but whether a forfeiture of the statutory right was, as a matter of policy, a necessary consequence of the guilty plea (see, e.g., People v Thomas, supra, at p 342, n 2; People v Howe, supra; cf. People v Parker, 57 NY2d 136).

In- our view logic would seem to compel the conclusion that a defendant who has admitted his guilt in open court and has agreed to accept the sentence of the court has necessarily relinquished any statutory right he might otherwise have to obtain immunity from prosecution and punishment related to that particular offense (cf. People v Thomas, supra). To permit a defendant who has previously been convicted of an offense as a result of a guilty plea to obtain immunity, when a Grand Jury subsequently calls him to testify concerning that same crime, introduces an element of chance and gamesmanship which is inconsistent with the ends of justice, is not warranted by any legitimate interests of the defendant, and cannot reasonably be said to have been intended by the Legislature.

It should be emphasized that this case poses a very narrow issue resulting from a peculiar set of facts. There is no need to consider whether a defendant who has been convicted at trial would acquire immunity if he were to give Grand Jury testimony prior to being sentenced, or whether the rule precluding a defendant from retroactively acquiring immunity after sentence (People ex rel. Hunt v Lane, supra) would also apply if the judgment imposing sentence was being appealed or otherwise being challenged at the time the testimony is given. We simply hold that a defendant who pleads guilty and then happens to give Grand Jury testimony concerning the offense before sentence is imposed cannot claim to have acquired statutory immunity from prosecution or punishment for the offense to which he has pleaded guilty.

Accordingly, the order of the Appellate Term should be reversed and the case remitted to that court to consider the facts and any unresolved questions of law.

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

Order reversed and case remitted to the Appellate Term, 9th and 10th Judicial Districts, for further proceedings in accordance with the opinion therein.


text:
    In the Matter of Nelida Capizzi, Claimant, v Southern District Reporters, Inc., et al., Respondents. Workers’ Compensation Board, Appellant.
    Decided January 17, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General {Peter H. Schiff, Carlin Meyer, Reed Brody and Michele M. Woodard of counsel), for appellant.

      Raymond C. Green and Louis Busell for respondents.
   OPINION OF THE COURT

Wachtler, J.

The question presented for our review on this workers’ compensation claim is whether claimant’s injury, resulting from a slip and fall in a hotel bathtub, arose out of and in the course of her employment. The Workers’ Compensation Board determined that the accident, notice and causal relationship were established. The Appellate Division reversed on the ground that showering is a purely personal act, holding claimant’s injury noncompensable as a matter of law. The Workers’ Compensation Board now appeals to the court.

Claimant Nelida Capizzi was employed as a transcriber-typist by respondent Southern District Reporters, Inc., a court reporting firm located in New York City. On December 30, 1980 respondent employer sent claimant and four other coemployees on a business trip to Toronto, Canada, to transcribe notes of the minutes of depositions being held there. Later that evening, the hearings were suspended in anticipation of the New Year’s holiday. At approximately 7:00 a.m. the following morning, claimant slipped and fell as she was stepping into the hotel bathtub to take a shower in preparation for her return trip to New York.

As a consequence of the injuries sustained as a result of the fall, claimant filed a claim for compensation benefits. Following a hearing, the workers’ compensation law judge found that accident, notice and causal relationship were established for the injuries sustained. On review, the Workers’ Compensation Board affirmed, finding that claimant was required to travel to Toronto on the business of her employer, that she was directed to remain at that place for a specified length of time, and that her status as an employee continued during the entire trip. The board further found that claimant was in the hotel room for the employer’s benefit and that the environment in which claimant was placed by the employment contributed to the accident. The board concluded that claimant’s accident arose out of and in the course of her employment.

The Appellate Division reversed, holding that injuries sustained by an out-of-town employee due to a slip and fall while showering in a motel room are ordinarily noncompensable because they are attributable solely to the personal acts of the employee unless the claimant’s employment first causes him or her to become physically dirty and then requires a neat appearance. The court reasoned that the uncontested facts of the present case fall within the general rule, and that showering is a purely personal act, making claimant’s injury noncompensable as a matter of law. The court was also of the view that the board’s finding that the environment in which claimant was placed by the employment contributed to the accident was unsupported by the evidence in the record. We now reverse and reinstate the decision of the board.

Traditionally, injuries sustained by an employee while traveling in the business of his employer were compensable if they occurred while the employee was actually acting in furtherance of his employer’s business (Matter of Davis v Newsweek Mag., 305 NY 20). This theory of compensability has been expanded in recognition of the fact that a change in environment creates a greater risk of injury to the employee so that injuries to a traveling employee may be compensable even if the employee at the time of the accident was not engaged in the duties of his employment (see Matter of Markoholz v General Elec. Co., 13 NY2d 163 [decedent attending international conference at employer’s request killed in airplane accident at the end of a week’s vacation following the conference]; Matter of McKay v Republic Vanguard Ins. Co., 27 AD2d 607, affd 20 NY2d 884 [district manager killed in a hotel fire]; Matter of Regan v Food Store Demonstrators, 12 AD2d 852 [claimant slipped and fell on a “waxy” motel floor after she arose from a chair where she had been reading a magazine]; Matter of Schreiber v Revlon Prods. Corp., 5 AD2d 207 [claimant slipped and fell on icy sidewalk while returning to hotel after dinner]). In cases where an employee is injured while traveling on behalf of his employer the general principle of compensability also applies. Thus, if an employee is “directed, as part of his duties, to remain in a particular place or locality * * * for a specified length of time * * * the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment” (Matter of Davis v Newsweek Mag., 305 NY 20, 27-28, supra; see, also, Matter of Kaplan v Zodiac Watch Co., 20 NY2d 537).

In the past this principle has not been applied as liberally to cases where traveling employees sustain injuries while dressing or bathing in preparation for work. The courts have viewed the injuries resulting from such activities as noncompensable, characterizing them as purely personal acts (see Matter of Walsh v Sucrest Corp., 37 AD2d 321, affd 31 NY2d 751; Matter of Paduano v New York State Workmen’s Compensation Bd., 30 AD2d 1009, affd 25 NY2d 669; Matter of Friedwald v New York State Ins. Dept., 17 AD2d 670). In addition, injuries caused by such activities have been determined to be unrelated to an environmental factor having some causal connection with the accident suffered by the employee (Matter of Kaplan v Zodiac Watch Co., supra).

Given the expanded theory of compensability with respect to injuries sustained by traveling employees involving incidents other than dressing or bathing, it is difficult to reconcile a compensation award to an employee who, when returning to her hotel after dinner, slipped and fell on a sidewalk (Matter of Schreiber v Revlon Prods. Corp., supra) with the denial of an award to claimant in the present matter, who slipped and fell in a hotel bathtub in preparation for her return to her place of employment in New York City. Both employees sent by their employers on a business trip were removed from their normal environments, thereby increasing the risk of injury; and, as a result, were injured while engaged in “personal acts” attendant to their employment, although not participating in the actual duties of their employment.

Moreover, it is difficult to reconcile these cases denying compensation with those in which awards have been made to employees who are injured while dressing or bathing on their employer’s premises, an environment with which they are presumably familiar, and as a result less likely to be injured. For example, in Matter of Behan v County of Onondaga (26 AD2d 609, mot for lv to app den 18 NY2d 579), claimant, who resided on her employer’s premises and was injured when she slipped and fell in a bathroom located on the premises, was awarded compensation (see, also, Matter of Martin v Plaut, 293 NY 627 [claimant, a domestic worker who resided in her employer’s home, was compensated for injuries when she fell while dressing]; Matter of Marco v News Syndicate Co., 257 App Div 887 [claimant injured while bathing on employer’s premises was awarded compensation]).

We see no reason to continue to make a distinction in those cases in which traveling employees sustain injuries while bathing or showering. We therefore apply the expanded view of compensation which was accepted by respondent board in assessing whether, in the present matter, the board’s determination that claimant’s injuries arose out of and in the course of her employment is supported by substantial evidence.

In view of the foregoing, a finding of fact made by the Workers’ Compensation Board is considered conclusive in the courts if supported by substantial evidence (Matter of Gates v McBride Transp., 60 AD2d 670). In this matter, the record demonstrates that claimant was required to travel to Toronto on her employer’s business, was directed to remain in Toronto for a specified length of time, and. was injured when she slipped and fell in her hotel bathtub in preparation for her return trip to her place of employment in New York City to “finish typing up depositions”. Thus, inasmuch as claimant was required to work and stay at a place distant from home, placed in a new environment thereby creating a greater risk of injury, and was engaged in a reasonable activity (i.e., showering) attendant to, although not directly related to her employment duties, the Appellate Division should not have disturbed the determination of the board awarding claimant compensation.

Accordingly, the order of the Appellate Division should be reversed and the decision of the Workers’ Compensation Board reinstated.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the decision of the Workers’ Compensation Board reinstated.


author:
      Per Curiam.
     Jones, J.

text:
    In the Matter of New York State Commission on Judicial Conduct, Appellant, v John Doe, Respondent.
    Argued November 22, 1983;
    decided January 17, 1984

      POINTS OF COUNSEL

      Gerald Stern and Stephen F. Downs for appellant.
    A commission subpoena seeking material related to a commission-authorized investigation is proper. (United States v Morton Salt Co., 338 US 632; Oklahoma Press Pub. Co. v Walling, 327 US 186; United States v Bisceglia, 420 US 141; United States v Powell, 379 US 48; Federal Trade Comm, v Texaco, Inc., 555 F2d 862; Adams v Federal Trade Comm., 296 F2d 861; Matter of Hynes v Moskowitz, 44 NY2d 383; Matter of Friedman v Hi-Li Manor Home for Adults, 42 NY2d 408; Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243; Matter of La Belle Creole Int., S.A. v Attorney-General of State of N. Y., 10 NY2d 192.)

      William L. Allen, Jr., for respondent.
    The statute was amended to put some limitations on the commission’s probing into the conduct of Judges and to curb the commission’s repeated attempts, by subpoena and examinations, to expand a single complaint into an unfettered probe seeking out other instances of misconduct. (Matter of Nicholson v State Comm. on Judicial Conduct, 50 NY2d 597; Matter of Darrigo v State Comm. on Judicial Conduct, 74 AD2d 801; Matter of Richter v State Comm. on Judicial Conduct, 106 Misc 2d 22; Matter of New York State Comm. on Judicial Conduct v Doe, 96 AD2d 638.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, New York State Commission on Judicial Conduct, commenced an investigation of respondent, a Family Court Judge, after receiving a complaint from Leon and Maude Mead that he had borrowed $32,000 at 10% interest from them and had failed to repay it in one year as promised. The complainants also alleged that respondent failed to honor his promise to give a mortgage on certain property to secure the loan and that respondent gave them a check for accrued interest which they were unable to cash.

On the basis of this letter and its own investigation, petitioner filed an administrator’s complaint against respondent, pursuant to subdivision 2 of section 44 of the Judiciary Law, alleging that during his tenure as a Judge respondent had formed and actively participated in Fort Ann Properties, a profit-making business; that he had borrowed $11,000 from Marjorie Baker which ultimately resulted in a judgment being entered against him for an unpaid balance of $1,643.07; and that he was named and acted as executor of the estate of Han Spiesen.

Pursuant to its decision to further investigate the Mead’s allegations and those contained in its own complaint, petitioner served respondent with a subpoena duces tecum. Respondent complied with the first two demands, but refused to comply with demands Nos. 3 through 7.* Petitioner then moved to compel respondent to comply with the subpoena duces tecum and respondent cross-moved to quash on the grounds that it was overbroad, indefinite and sought material which was beyond the scope of the investigation. Special Term granted petitioner’s motion to compel and denied respondent’s cross motion to quash. The Appellate Division modified, on the law, by granting respondent’s cross motion to quash demands Nos. 3 through 7 of the subpoena, stating, inter alia, that the scope of investigation must be based on the specific allegations of the complaint; that the information requested in the subpoena appears to be too broad and indefinite and is not limited to the production of information regarding matters specifically alleged in the complaint.

Our State Constitution specifically authorizes the Commission on Judicial Conduct to “receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice of the unified court system”. (NY Const, art VI, § 22, subd a.) Recognizing the importance of maintaining the quality of our judiciary, the Legislature has provided the commission with broad investigatory and enforcement powers. (See Judiciary Law, §§ 41, 42, 44; Matter of Nicholson v State Comm. on Judicial Conduct, 50 NY2d 597, 611.) Specifically, the commission is empowered to, inter alia, conduct hearings and investigations, examine witnesses under oath and “require the production of any books, records, documents or other evidence that it may deem relevant or material to an investigation”. (Judiciary Law, § 42, subd 1.)

The Legislature, in enacting these statutes, was also mindful of the principle that “no agency of government may conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction solely on the prospect of possible violations of law being discovered, especially with respect to subpoenas duces tecum”. (Matter of A’Hearn v Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 NY2d 916, 918.) Hence, the materiality and relevancy requirements were included in section 42 of the Judiciary Law to prevent investigatory fishing expeditions. The Legislature further circumscribed the investigatory powers of the commission by requiring, as a prerequisite to initiating an investigation, that it either receive a complaint from a citizen (Judiciary Law, § 44, subd 1) or file a complaint on its own motion (Judiciary Law, § 44, subd 2). Thus, it is the receipt or filing of a complaint which triggers the commission’s authority to commence an investigation into the alleged improprieties.

While the commission’s power to subpoena documents is not absolute, this court has held that it possesses broad power in this respect. “Quite simply, so long as the commission, in good faith, is investigating the conduct of a Judge, the commission is acting within the scope of its authority and a subpoena issued pursuant thereto is not subject to challenge.” “To sustain the subpoenas, the commission need only make a preliminary showing that the information sought is reasonably related to a proper subject of inquiry”. (Matter of Nicholson v State Comm. on Judicial Conduct, 50 NY2d 597, 611,. supra, citing Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 231; Matter of La Belle Creole Int., S.A. v Attorney-General of State of N. Y., 10 NY2d 192.) The commission need only exercise its subpoena power “within bounds circumscribed by a reasonable relation to the subject-matter under investigation”. (Carlisle v Bennett, 268 NY 212, 217 [emphasis supplied]; see, also, Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250, 256-258; Matter of La Belle Creole Int., S.A. v Attorney-General of State of N. Y., 10 NY2d 192, 196, supra.)

Respondent’s sole contention on this appeal is that the subpoena duces tecum seeks information which is not directly related to the specific allegations contained in the complaints, to wit: the indebtedness or payments to the Meads or to the estate of Maijorie Baker or the business activities in conjunction with Fort Ann Properties. He claims that the commission is not empowered to issue a subpoena that seeks documents of transactions not specifically identified in the complaints and that his cross motion to quash was properly granted. For reasons that follow, and to the extent indicated, we modify the demands of the subpoena duces tecum.

We note at the outset that both the Meads’ letter complaint and the administrator’s complaint represent only the initiation of an investigation of judicial impropriety and not the institution of formal proceedings. (See Judiciary Law, § 44, subds 1,2.) Thus, the commission need not proffer facts in its complaint which would support formal charges. (Matter of Nicholson v State Comm. on Judicial Conduct, 50 NY2d 597, 612, supra.) Nor must it tailor its request for information to relate precisely to specific allegations contained in the complaints. All that need be shown is that the information sought is reasonably related to the subject matter under investigation. (Matter of Nicholson v State Comm. on Judicial Conduct, supra; Myerson v Lentini Bros. Moving & Stor. Co., supra; Carlisle v Bennett, supra.) To hold otherwise would sharply curtail the commission’s investigatory capabilities and render it ineffective as the instrument through which the State seeks to insure the integrity of its judiciary.

One of the matters under investigation by the commission is respondent’s improper participation in personal loans. Thus, demand No. 4 requiring production of various documents relating to loans received by respondent during his tenure as a Judge must be sustained as it directly relates to a specific subject matter of investigation. Similarly, demands Nos. 6 and 7 must be complied with because they relate to another matter currently under investigation — respondent’s business-for-profit activities. Additionally, there is, and can be no serious dispute that respondent’s records relating to any business-for-profit activities (demand No. 5), financial statements submitted by Fort Ann Properties for the purpose of obtaining bank loans (demand No. 6) and other records relating to loan accounts of Fort Ann Properties (demand No. 7) bear a reasonable relationship to the subject matters under investigation.

However, the same cannot be said as to part of demands Nos. 3 and 5. By seeking, in demand No. 3, all writings relating to respondent’s past and present indebtedness, the subpoena duces tecum goes beyond the scope of the commission’s investigation. Indeed, to compel compliance with this demand would require respondent to produce virtually all of his financial records since 1974, including those relating to transactions having no relation to the matters presently under investigation. Similarly, that part of demand No. 5 which requires production of canceled checks, stub books, bank statements and deposit slips for all checking accounts reflecting any and all respondent’s indebtedness is impermissibly overbroad.

We do not, however, agree with respondent that the subpoena must be quashed. Instead, we believe the more appropriate action to take under the particular circumstances of this case is to modify the subpoena to eliminate those portions which request information unrelated to the subject matters under investigation. Therefore, we hold that demand No. 3 can be sustained only insofar as it requires production of materials relating to loans and other debts from clients, litigants and attorneys since January 1,1974 and respondent’s business-for-profit activities during said period. Demand No. 5 is sustained insofar as the documents requested relate to respondent’s loans or their repayment, business-for-profit activities and such other debts as bear a reasonable relation to his loan and business activities.

Accordingly, the order of the Appellate Division should be modified and the respondent directed to comply with the requirements of the subpoena duces tecum as modified in accordance with this opinion, and, except as modified, affirmed.

Jones, J.

(dissenting). In my view the scope of investigation (and thus the permissible reach of subpoenas issued by the administrator in aid thereof) should be determined by reference to the allegations of the complaint issued by the commission. Measured by that standard, the subpoena in this case should be quashed (except as to items 1 and 2) — without prejudice, of course, to the issuance of a new subpoena either limited to the complaint which was issued in this case on July 1,1982, or appropriate to the scope of a new complaint should the commission determine to issue one.

The complaint against appellant, the issuance of which was authorized by the commission at the meeting of June 28-29, 1982 to provide “a basis to commence an investigation”, was specifically focused on three described transactions in which it was alleged that appellant had participated:

“1. It is alleged that on July 28,1977, [John Doe] formed a corporation, Fort Ann Properties, which leased land to the R. Jennings Manufacturing Company, Inc. at a monthly rental which by September 1980 equaled $800. In addition, [John Doe], as President of the corporation, secured a $75,000 loan from the Glens Falls National Bank using the property and the lease with the R. Jennings Manufacturing Co., Inc. as security.

“2. It is further alleged that [John Doe] borrowed $11,000 from Marjorie Baker on December 15, 1967, and that in 1976 the estate of Ms. Baker brought suit to recover the unpaid balance. On November 14, 1978, a judgment was. entered against [John Doe] for the remaining unpaid balance, $1,643.07.

“3. It is further alleged that on April 11, 1979, [John Doe] was named as the executor of the will of Han Spiesen. After Mr. Spiesen died on July 6, 1979, [John Doe] acting as executor of the estate, sold certain property on behalf of the estate on August 11, 1981.”

It is expressly provided in the statute authorizing investigation of the conduct of a Judge by the commission that the “complaint shall serve as the basis for such investigation” (Judiciary Law, § 44, subd 2). Linked to that prescription is the authorization for the issuance of subpoenas deemed “relevant or material to an investigation” (Judiciary Law, § 42, subd 1). Accordingly, the permissible scope of a subpoena must be determined by reference to the subject matter of the complaint issued by the commission — here three specific transactions.

The complaint in this instance being so limited, the permissible scope of the subpoena was restricted to evidence relevant or material to one or more of those three transactions. The subpoena now under review called for documents and records far beyond the sphere of any of those transactions. For this reason I would affirm the order of the Appellate Division which quashed the subpoena except as to those items which related to the transactions identified in the complaint.

It is suggested that to limit the reach of the subpoena authority to the allegations of the complaint would seriously frustrate the investigative activities of the commission staff. To the extent that such a rule would call for a closer and more direct participation on the part of the commission itself, it would be sound and healthy; to the extent that there are fears that it would inhibit the activities of the commission, such fears are ephemeral.

If in the course of investigation of a particular identified transaction (which may have served to trigger the inquiry) reasonable suspicion is aroused as to possible judicial misconduct on other occasions or with reference to other matters (as was the case in this instance), a new or revised complaint could readily be issued, drawn to reflect the area of the Judge’s activities that the commission then determines should be investigated. It would not then, or indeed at any time, be necessary to limit the complaint to specific transactions or episodes (with the consequent restriction on the scope of subpoena authority); it would suffice to describe the area of suspected misconduct or the category of activities to be investigated, of which an identified transaction was illustrative, as for instance, “loans made to the judge by his clients, by litigants in his court, or by attorneys appearing before him, including [particular identified transaction or transactions]”, or “business enterprises organized for profit in which the judge was an active participant, including [again, specified instances]”. It would then be the commission and not the administrator that would determine whether the investigation was to be of specified transactions only or of categories of conduct as well.

If it be asserted that recognition of such a requirement would be to exalt form over substance (on the ground that the administrator and the staff are always subject to the continuing supervision and control of the commission), the assertion misapprehends the respective roles of the commission and the administrator. Its acceptance would permit the scope of investigation to be determined by the administrator, subject only to monitoring by the commission — a situation conceptually and practically quite different from requiring commission authorization to conduct the investigation. Initial authorization of an investigation of judicial conduct, as well as the disposition of formal charges of misconduct, is the sole responsibility of the commission. I perceive no sound reason why in every case the scope of the investigation should not be determined by the commission itself in the exercise of its collegial judgment when it authorizes issuance of the enabling complaint. Whether and to what extent an investigation is to be conducted, with resort to compulsory process, is a matter of enormous portent for the individual who is to be the target of the investigation, and the propriety of undertaking the investigation has far-reaching implications for the public as well as for the judiciary. I am not persuaded, by what I would characterize as arguments of practical expediency, to the view that, once a complaint — any complaint — has been issued by the commission, the staff may then investigate all areas of the Judge’s conduct which fall within the broad category of misconduct of which the identified transaction is illustrative. A broad categorial investigation might well be appropriate, but that determination should be made by the commission. The predicate and warrant for launching an investigation of a course of conduct extending over several years of judicial service is of a different order than that which would justify inquiry as to a specific transaction with respect to which the commission has received a complaint. Determination of the scope of investigation is too important to be fobbed off with appeals to efficiency or expediency. Such determination is fundamental, a responsibility to be assumed and discharged by the commission itself.

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer and Simons concur in Per Curiam opinion; Judge Jones dissents and votes to affirm in a separate opinion in which Judge Kaye concurs.

Order modified, with costs to petitioner, and respondent directed to comply with the subpoena duces tecum in accordance with the opinion herein and, as so modified, order affirmed.

      . The administrator’s complaint, in pertinent part, alleges the following:
      “1. It is alleged that on July 28, Í977, [John Doe] formed a corporation, Fort Ann Properties, which leased land to the R. Jennings Manufacturing Company, Inc. at a monthly rental which by September 1980 equaled $800. In addition, [John Doe], as President of the corporation, secured a $75,000 loan from the Glens Falls National Bank using the property and the lease with R. Jennings Manufacturing Co., Inc. as security.
      “2. It is further alleged that [John Doe] borrowed $11,000 from Marjorie Baker on December 15,1967, and that in 1976 the estate of Ms. Baker brought suit to recover the unpaid balance. On November 14,1978, a judgment was entered against [John Doe] for the remaining unpaid balance, $1,643.07.”

      . The subpoena demanded production of the following documents:
      “1. The wills executed by Leon and Maude Mead in 1978.
      “2. The minute book for Fort Ann Properties, Inc.
      “3. All notations from your diary books, calendars, and other writings from 1974 to the present, reflecting present and past indebtedness or loans.
      “4. All promissory notes, memoranda, correspondence, financial statements, receipts, canceled checks, bank statements or writings of any kind relating to loans received by you from any person, corporation or organization since January 1, 1974.
      “5. All canceled checks, stub books, bank statements and deposit slips for all your checking accounts since January 1,1974, reflecting loans or their repayment, business-for-profit activity, indebtedness, and checks returned for insufficient funds.
      “6. Applications and financial statements submitted by you or Fort Ann Properties, Inc. for the purpose of obtaining bank loans from 1974 to the present.
      “7. Bank records, files, correspondence, bank statements and writing of any kind relating to loan accounts in your name or Fort Ann Properties, Inc. from 1974 to the present.”

      . Although not alleged or argued by respondent, the dissent implies that the administrator unilaterally determined the scope of the subject investigation. However, there is nothing in the record before us to indicate that the members of the commission did not fully participate in that determination. Nor is there any indication that the full commission did not approve the issuance of the challenged subpoena duces tecum and seek compliance therewith. Indeed, in an affidavit submitted by Stephen F. Downs, chief attorney for the Albany office of the commission, it is specifically stated that the subpoena was “issued by the Commission” in the course of its investigation. Furthermore, it is alleged in the same affidavit that “the Commission commenced a proceeding to enforce its subpoena.” The statement in the dissent that the record “contains no evidence that the members of the commission were aware of the issuance of the subpoena or its scope prior to or at the time of its issuance” is, therefore, incorrect.

      . The inference is available from the record in this case that the issuance of the sweeping subpoena dated October 22,1982 was prompted by the suspiciously noninformative and even possibly evasive answers given by appellant when he was examined by the commission staff.

      . To require the scope of the investigation to be set out in the complaint would serve the salutary purpose, too, of affording the Judge under investigation notice, at the time of service of the complaint (Judiciary Law, § 44, subd 3; 22 NYCRR 7000.3 [e]), of the nature and extent of the investigation being conducted.

      . The record before us contains no evidence that the members of the commission were aware of the issuance of the subpoena or of its scope prior to or at the time of its issuance in the name of the commission by the administrator on October 22,1982, nor does the commission now advance any such contention in support of its position. By some contrast, the complaint bears the explicit indorsement that it was “[a]uthorized at the meeting of June 28, 29, 1982.”


text:
    Martin J. Giblin, Appellant, v Nassau County Medical Center et al., Respondents. Glen Davis, Appellant, v New York City Transit Authority, Respondent.
    Decided January 17, 1984

      APPEARANCES OF COUNSEL

      Leonard M. McEvoy for appellant in the first above-entitled action.

      Edward G. McCabe, County Attorney (Kathryn Driscoll Hopkins of counsel), for respondents in the first above-entitled action.

      Melvin Block for appellant in the second above-entitled action.

      Kenneth H. Schiffrin and Richard K. Bernard for respondent in the second above-entitled action.
   OPINION OF THE COURT

Wachtler, J.

The common question on these two appeals is whether the Statute of Limitations for municipal tort liability is tolled when the plaintiff applies for permission to file a late notice of claim. In each case Special Term held the statute was tolled, and denied a motion to dismiss, relying on our decision in Barchet v New York City Tr. Auth. (20 NY2d 1). However, in each instance the Appellate Division, Second Department, reversed and dismissed the complaint holding that the Barchet decision was no longer applicable in light of a 1976 amendment to section 50-e of the General Municipal Law.

The Giblin Case

On November 16, 1980 the plaintiff, Martin Giblin, was treated at the Nassau Medical Center for an injury to his left wrist and forearm. On August 13, 1981 he applied for permission to file a late notice of claim against the county and the Medical Center. In support of the motion he alleged that the county had treated his injury as a sprain, but in June of 1981 he discovered that he had in fact suffered a fracture. On September 15,1981 the motion was granted, and a few days later the notice of claim was filed. The summons and complaint, however, were not served until March 4, 1982.

The defendants moved to dismiss on the ground the action had not been commenced within one year and 90 days as required by section 50-i of the General Municipal Law., The Supreme Court, Nassau County, denied the motion stating: “The statute of limitations is tolled during the pendency of an application for leave to file a late notice of claim (Barchet v New York City Tr. Auth., 20 NY2d 1; Colantuono v Valley School District, 90 Misc 2d 918).”

The Appellate Division, Second Department, unanimously reversed and dismissed the complaint. The court recognized that CPLR 204 (subd [a]) tolls the running of the Statute of Limitations whenever there is a . stay or statutory prohibition to suit, and that in the Barchet decision this statute was held to apply when an application to file a late notice of claim is pending. The court also noted that the Barchet decision was based on a statutory scheme which precluded or stayed a party from commencing an action until the notice of claim had been filed, but concluded that this decision “no longer applies” because a 1976 amendment to subdivision 5 of section 50-e of the General Municipal Law permits the plaintiff to make the application to file a late notice after the commencement of the action (L1976, ch 745, § 2). In support of this result, the court cited Corey v County of Rensselaer (88 AD2d 1104, mot for lv to app den 57 NY2d 602).

Plaintiff has appealed as of right on the basis of the reversal.

The Davis Case

On May 17, 1980 plaintiff, Glen Davis, allegedly was seriously injured when he fell between two moving subway cars. On December 29, 1980 he applied for leave to file a late notice of claim upon the New York City Transit Authority. On March 25,1981 the motion was granted, and plaintiff’s proposed notice of claim was deemed served. Plaintiff, however, did not commence the action by serving the summons and complaint until October 1, 1981.

The defendant moved to dismiss claiming that the plaintiff had not commenced the action within one year and 120 days as required by the applicable statute (Public Authorities Law, § 1212; see, also, Serravillo v New York City Tr. Auth., 51 AD2d 1027, affd on mem below 42 NY2d 918). The defendant, therefore, contended that the Statute of Limitations had expired on September 14, 1981, approximately two weeks prior to commencement of the action. Plaintiff cross-moved to strike the affirmative defense, claiming that the Statute of Limitations was tolled from December 29, 1980 to March 25, 1981, while the application to file a late notice of claim was pending.

The Supreme Court, Kings County, denied the motion to dismiss, and granted the cross motion relying on Barchet.

The Appellate Division, Second Department, reversed, finding its prior decision in Giblin to be dispositive. Justice O’Connor concurred on constraint of Giblin but urged that the history of the 1976 amendment showed no legislative intent to abolish the Barchet rule. He also argued that the amendment did not alter the basic requirement that a notice of claim is a condition precedent to suit; that a party is still stayed or precluded from commencing an action until the notice is filed, and that the Statute of Limitations should therefore continue to be tolled (pursuant to CPLR 204, subd [a]) while an application to file a late notice of claim is pending.

This plaintiff has also appealed as of right on the basis of the reversal.

Analysis

In the Barchet case the plaintiff had failed to give the 90-day notice of claim required by the statute, but applied for permission to file a late notice before the expiration of the Statute of Limitations. The motion was granted, after the statutory period had run. At that point the notice of claim and complaint were served on the defendant. In opposition to the defendant’s motion to dismiss, the plaintiff claimed she was barred by statute from commencing the action until the court granted permission to file a late notice of claim and the running of the statute should therefore be tolled pursuant to CPLR 204 (subd [a]). That statute states: “Where the commencement of an action has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced.”

We held that the Statute of Limitations was tolled from the time the plaintiff commenced the proceeding to obtain leave to file a late notice of claim until the order granting that relief went into effect. We noted (at p 6) that once the application was made, her right to commence the action “was no longer solely within her control but was dependent upon obtaining leave of the court. She was, in effect, prohibited from commencing the action until that consent was obtained. Indeed, the statute provides that the application for leave of the court ‘shall be made prior to the commencement of an action’ [General Municipal Law, § 50-e, former subd 5]. This requirement is quite similar to that which requires the plaintiff to allege that 30 days have elapsed since the notice of claim was served [Public Authorities Law, § 1212]. In neither case do the statutes specifically proscribe the prosecution of the action but in both cases they prescribe procedures which have the same effect.”

The 1976 amendment, relied on by the Appellate Division, only changed one of those statutes in one respect. The Legislature revised subdivision 5 of section 50-e of the General Municipal Law by deleting the requirement that the application to file a late notice “shall be made prior to the commencement of an action”, and added the following sentence at the end of the subdivision: “An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the public corporation”.

No alteration was made in the other statute cited in the Barchet decision, section 1212 of the Public Authorities Law, which still requires that the complaint allege that more than 30 days have elapsed since service of the notice of claim. (This statute is applicable in the Davis case which, like the Barchet case, involves a suit against the New York City Transit Authority.) Neither did the Legislature amend the comparable provision found in subdivision 1 of section 50-i of the General Municipal Law which in suits against a county, as in the Giblin case, provides that “[n]o action or special proceeding shall be prosecuted or maintained against a * * * county * * * for personal injury * * * unless, (a) a notice of claim shall have been made and served upon the * * * county * * * in compliance with section fifty-e of this chapter, (b) it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such , notice and that adjustment or payment thereof has been neglected or refused”.

The 1976 amendment illustrates that the Legislature was aware of the fact that complaints were sometimes served before the notice of claim, and that the lawmakers were inclined to grant some relief to the plaintiff under those circumstances. However, on its face the amendment does not, as the Appellate Division concluded, expressly authorize the practice or completely eliminate the problems encountered by a plaintiff who has filed a premature complaint, so as to also dispense with the need for the Barchet rule.

By its terms, the 1976 amendment simply eliminates the obstacle which prevented a plaintiff from applying for leave to file a late notice of claim once he had commenced the action. It does not go further and dispense with the requirement that the complaint allege that the notice has been served and that more than 30 days have elapsed since the service. Thus, under the current statutes, service of the notice and allegation or proof to this effect are still conditions precedent to suit. Although, as noted in Barchet, these requirements do not “specifically proscribe the prosecution of the action * * * they prescribe procedures which have the same effect” (20 NY2d, at p 6). In short, the 1976 amendment removed the statutory obstacle to the granting of a motion to serve a late notice of claim, but did not remove the statutory impediments to suit which still prevent a plaintiff from properly commencing the action until permission to file a late notice of claim is granted by the court. Because the statutory prohibition to commencing the action was not altered by the 1976 amendment, the rationale of the Barchet decision still applies and CPLR 204 (subd. [a]) should serve to toll the running of the Statute of Limitations while a motion to file a late notice of claim is pending.

Because the statute is clear on its face it is probably unnecessary to consider the legislative history of the amendment (compare Matter of Barton v Lavine, 38 NY2d 785, with New York State Bankers Assn. v Albright, 38 NY2d 430,436-437). It is interesting to note, however, that this history supports the conclusion that the amendment was not intended to abolish the Barchet rule, but was simply designed to have the limited effect indicated above.

The amendment was proposed in the Twenty-First Annual Report of the Judicial Conference. In its report, the Judicial Conference noted that the harshness of the law then current was relieved to some extent by the provisions which authorized a court to permit a late filing of the notice of claim (Twenty-First Ann Report of NY Judicial Conference, 1976, p 286). Citing the Barchet case, the report (at p 303) also observed that “the statute of limitations is tolled under the provisions of CPLR 204(a) during the pendency of a proceeding to obtain leave to file a late notice”. The report, however, criticized the additional requirement that the plaintiff make the application prior to the commencement of the action to enforce the claim. The relevant portion of the report, authored by Professor Paul S. Graziano, states (at p 401): “It can lead to unfair results. Assume that timely service of a notice of claim under section 50-e is a condition precedent to the commencement of an action to enforce the claim and that plaintiff has commenced an action but served an untimely or no notice. Dismissal of that action upon motion of the defendant seems to afford a sufficient remedy for the noncompliance. If, however, plaintiff realizes his mistake, why should he not be permitted immediately to apply for leave to serve a late notice if a basis for so doing is available? Compelling him to discontinue the pending action, with the attending delay, can exacerbate an already precarious situation”.

The report concludes (at p 403) that the purpose of proposed amendment “is to give a claimant the opportunity immediately to correct his nonperformance of the condition precedent if he possibly can. Nonperformance may result in dismissal of the pending action, but its pendency will not be a ground for denying an application for leave to serve a late notice”.

-There is, therefore, no basis for the conclusion reached in the case relied upon by the Appellate Division (Corey v County of Rensselaer, 88 AD2d 1104, 1105, supra) that “The requirement of section 50-i (subd 1, par [b]) of the General Municipal Law that the complaint must allege that 30 days have elapsed since service of the notice of claim * * * is modified by subdivision 5 of section 50-e of the General Municipal Law (as amd by L 1976, ch 745, § 2) which provides that ‘An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action’ ”. In the Corey decision the Appellate Division also observed that “plaintiff could have timely commenced the action by service of a summons with notice either before or at the time she applied for leave to serve a late notice of claim”. The court recognized that the plaintiff could not also allege compliance with the prior notice statute but suggested that she could surmount this obstacle by later including the statement in her complaint.

These options, of course, are only available in the sense that a party may always commence an action despite a statutory bar. The Barchet decision, however, assumes that the plaintiff will respect, or at least not intentionally disregard, the statutory prohibition in which case he is entitled to the benefit of the tolling provisions of CPLR 204 (subd [a]). This was not noted in the Corey memorandum, which in.fact made no reference to the Barchet decision.

Accordingly, in each case the order of the Appellate Division should be reversed and the order of the Supreme Court reinstated.

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

In Giblin v Nassau County Med. Center: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the order of Supreme Court, Nassau County, reinstated.

In Davis v New York City Tr. Auth.: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the order of Supreme Court, Kings County, reinstated.

       Although we denied leave to appeal in Corey v County of Rensselaer (57 NY2d 602), that is “not equivalent to an affirmance and has no precedential value” (Panico v Young, 46 NY2d 847; Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]).


author: Per Curiam.

text:
    In the Matter of Damon A. Commissioner of Social Services of the City of New York et al., Respondents. Marcia R. Lowry, Guardian ad Litem, Appellant.
    Argued November 23, 1983;
    decided December 20, 1983

      POINTS OF COUNSEL

      Michael Starr and Rochelle Feder Hansen for appellant.
    I. The sweeping limitation imposed by the court below on Family Court authority in section 358-a proceedings is wholly unsupportable. (Matter of Edward M., 76 Misc 2d 781, affd sub nom. Matter of Murcray, 45 AD2d 906; Matter of Samantha S., 80 Misc 2d 217; People v Lovell, 21 Misc 570; Matter of Kurtis v Ballou, 33 AD2d 1034; Matter of Sanjivini K., 40 NY2d 1025; Matter of Barbara P., 71 Misc 2d 965; Matter of Lydia H., 77 Misc 2d 807; Matter of Gravina, 89 AD2d 534; Matter of John M., 71 AD2d 144, 51 NY2d 999.) II. The Family Court’s informational and custodial orders were within its power and must be upheld. (Matter of John M., 71 AD2d 144.) III. The Family Court’s order appointing a guardian ad litem was within its power and must be upheld. (Matter of Lascaris v Carioti, 105 Misc 2d 728; Matter of Hirsch v Hirsch, 53 Misc 2d 938; Barry E. v Ingraham, 43 NY2d 87; Matter of Marilyn H., 100 Misc 2d 402; Matter of P v Department of Health, 200 Misc 1090; Matter of Melis v Department of Health, 260 App Div 772; Goss v Lopez, 419 US 565; Matter of Winship, 397 US 358; Tinker v Des Moines School Dist., 393 US 503; Matter of Gault, 387 US 1.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel {June A. Witterschein and Leonard Koerner of counsel), for Commissioner of Social Services, respondent.
    I. This court has held that the jurisdiction of the Family Court in a section 358-a proceeding is limited to approving or disapproving the voluntary placement instrument and to determining whether the instrument was signed knowingly and voluntarily and whether it serves the best interests of the child to be removed from the home. The Legislature did not give the Family Court the power in section 358-a to direct the course of foster care for a child who has been voluntarily and temporarily placed with the Commissioner of Social Services or to direct the commissioner not to return a child to the placing party for the purpose of determining whether the child should be placed for adoption. (Matter of John M., 71 AD2d 144, 51 NY2d 999; Matter of Leon RR, 48 NY2d 117; Matter of James B., 96 AD2d 730; People ex rel. Ninesling v Nassau County Dept. of Social Servs., 46 NY2d 382; Matter of Lorie C., 49 NY2d 161; Matter of Ruth J, 55 AD2d 52; Matter of Emily R., 112 Misc 2d 71; Matter of Trida Lashawnda M., 113 Misc 2d 287.) II. As a matter of law, it was improper for the Family Court to appoint a stranger as a guardian ad litem for Damon A. solely for the purpose of the appeal. (Matter of Anonymous [Betty Lynn] v Anonymous [Michael], 70 Misc 2d 584; Matter of Orlando F., 40 NY2d 103; Matter of Holland, 75 AD2d 1005; Matter of Carmen G. F., 63 AD2d 651; Matter of Tracy B., 80 AD2d 792; Matter of Donna H., 70 AD2d 521; Kossar v State of New York, 13 Misc 2d 941; Matter of Ford, 79 AD2d 403; Matter of Mark V., 80 Misc 2d 986; Matter of Apel, 96 Misc 2d 839.)

      Daniel L. Greenberg, Norman Siegel and Louise Gruner Gans for Adéle C., respondent.
    I. The jurisdiction of the Family Court in a section 358-a proceeding is limitéd to approval or disapproval of the voluntary placement instrument. Neither section 358-a of the Social Services Law nor section 255 of the Family Court Act nor any general powers of the Family Court authorize the Family Court order in this case. (Matter of John M., 71 AD2d 144, 51 NY2d 999; Matter of Kurds v Ballou, 33 AD2d 1034; Matter of Mehl, 114 Misc 2d 55; Matter of Ruth J, 55 AD2d 52; Matter of Ulster County Dept. of Social Servs. v Irva XX, 57 AD2d 1009; Schampier v Office of Gen. Servs., 73 AD2d 1011, 52 NY2d 746; Matter of Ella B., 30 NY2d 352; Matter of Roland F. v Brezenoff, 108 Misc 2d 133; Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; Matter of

      George O., 115 Misc 2d 782.) II. The Family Court’s orders and proceedings violated Ms. C.’s right to due process of law. (Stanley v Illinois, 405 US 645; Santosky v Kramer, 455 US 745; Smith v Organization of Foster Families, 431 US 816; Meyer v Nebraska, 262 US 390; Matter of Leon RR, 48 NY2d 117; Matter of Sanjivini K., 47 NY2d 374; People ex rel. Ninesling v Nassau County Dept. of Social Servs., 46 NY2d 382; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185.) III. The appointment of the guardian ad item was improper. The Family Court Act mandates the appointment of a Law Guardian. (Matter of Anonymous [Betty Lynn] v Anonymous [Michael], 70 Misc 2d 584.) IV. Appellant’s interpretation of section 358-a is contrary to current State legislative policy. Appellant’s proposals for statutory change should be addressed to the Legislature.
   OPINION OF THE COURT

Per Curiam.

This appeal arises out of a petition for approval of a voluntary transfer of custody of Damon A. from his maternal grandmother to petitioner Commissioner of Social Services of the City of New York. The proceeding was instituted in Family Court pursuant to section 358-a of the Social Services Law. The petition was approved. In doing so, however, Family Court included in the order a directive that the Department of Social Services submit a written report so that the court could evaluate Damon’s adjustment to foster care and whether he should be placed for adoption.. In addition, the agency was prohibited from releasing Damon from its custody before the reports were made. The agency was to submit its report within two months of the order approving the transfer of custody.

It was error for Family Court to order the agency to return to the court with a progress report. The purpose of a section 358-a proceeding is to approve or disapprove a petition to transfer custody. Once the petition is granted or denied, the court’s jurisdiction over the matter generally ends (Matter of D. Children, 60 NY2d 838, affg on opn below 90 AD2d 348). When the transfer is approved, responsibility for caring for the child’s best interests vests in the agency (Matter of D. Children, 90 AD2d, at p 351, supra). This obligation is to be discharged without interference by the court unless 18 months have elapsed and the child is still in foster care (see Social Services Law, § 392). Only when a new proceeding is initiated, may Family Court intrude earlier than is authorized by section 392. In the present case, the Family Court’s order was unjustified. Once the petition was approved, the proceeding terminated and Family Court was without power to oversee the agency’s efforts (see id.; Matter of John M., 51 NY2d 999, revg on dissenting opn of Herlihy, J., 71 AD2d 144,148). By the same token, there was no authority to appoint a guardian ad litem after the proceeding ended, in the absence of extraordinary circumstances (see Matter of D. Children, supra).

The order of the Appellate Division should be affirmed, without costs.

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

Order affirmed, without costs.


author:
      Per Curiam.
     Jasen, J.

text:
    In the Matter of Robert W. Kelso, a Justice of the Montgomery Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued December 12, 1983;
    decided January 17, 1984

      POINTS OF COUNSEL

      George R. Bartlett, Jr., for petitioner.
    The sanction of removal from office should not be administered. The appropriate sanction is censure. (Matter of Quinn v State Comm. on Judicial Conduct, 54 NY2d 386; Matter of Cunningham, 57 NY2d 270.)

      Gerald Stern, Jean M. Savanyu and Robert Straus for respondent.
    Petitioner’s misconduct is properly subject to discipline and amply demonstrates his lack of fitness for judicial office. (Matter of Aldrich v State Comm. on Judicial Conduct, 58 NY2d 279; Matter of Pfingst, 33 NY2d [a]; Matter of Waltemade, 37 NY2d [a]; Matter of Kane, 50 NY2d 360; Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465.)
   OPINION OF THE COURT

Per Curiam.

Petitioner has been charged with engaging in behavior that violated certain canons of the Code of Judicial Conduct. While it is apparent that petitioner’s conduct was improper, we do not find that it was so egregious as to warrant removing him from the Bench. The commission’s recommendation, therefore, is rejected and petitioner is hereby censured.

Petitioner is an attorney who has served as an Acting Village Justice in Walden since 1963 and as a Justice in the Montgomery Town Court since 1973. The events that concern this court, however, are unrelated, either directly or peripherally, to petitioner’s judicial position.

In 1972, petitioner was retained by Charles Duryea to represent him in connection with a work-related injury. Duryea’s workers’ compensation claim was settled for $2,000 in 1975. Petitioner waived any fee for his services in the matter.

Having received the settlement, Duryea asked petitioner to commence a personal-injury action against the employer. Although he knew that such an action was barred by the exclusive remedy provisions of the Workers’ Compensation Law, petitioner nevertheless acceded to Duryea’s request. Petitioner did not tell Duryea that the lawsuit could not be maintained.

Over the next four years, petitioner made repeated misrepresentations to Duryea to mislead him into believing that a civil action had been commenced and was progressing toward trial. In fact, no papers had been filed at all. Finally, on January 4,1980, petitioner began a civil action on Duryea’s behalf. By this time, the action was barred not only by the Workers’ Compensation Law, but by the Statute of Limitations as well. Again, petitioner did not advise Duryea of these legal obstacles. After Duryea retained another attorney and filed a grievance against petitioner, the complaint in the civil action was withdrawn. Petitioner received no fees or any other sums from Duryea during this period.

On February 20, 1980, petitioner made an oral offer to pay Duryea $10,000 if he would not file a grievance for professional misconduct. This offer was confirmed in writing. As Duryea proceeded to file a grievance, the money was never paid as promised. On the basis of this grievance, petitioner was suspended from the practice of law for one year beginning July 1, 1982.

Duryea commenced an action for malpractice against petitioner. This was ultimately settled for $1,500.

A formal written complaint was served on petitioner by the commission in October 1982. Three charges were preferred. Charge I pertained to the events leading up to the serving of the civil action complaint in January 1980. Charge II focused on petitioner’s attempt to induce Duryea not to file a grievance by offering to pay $10,000 to him. Charge III arose from petitioner’s suspension from practice by the Appellate Division. On each charge, petitioner was alleged to have violated Canons 1 and 2 (A) of the Code of Judicial Conduct, as well as the corresponding Rules of the Chief Administrator of the Courts Governing Judicial Conduct (22 NYCRR 100.1, 100.2 [a]). In addition, on the first two charges, petitioner was accused of violating Canon 3 (A) (1) and its parallel rule (22 NYCRR 100.3 [a] [1]).

Petitioner concedes that the events occurred as described. He seeks to explain his misbehavior by referring to a mental condition of depression, claiming that it interfered with his exercising sound judgment and prevented him from confronting Duryea with the reality of his legal situation. Petitioner received treatment for this in 1968, but received no further aid until he began consulting a psychiatrist in February 1981. By affidavit, his doctor has certified that petitioner is mentally competent and is capable of discharging his judicial duties. In further mitigation, petitioner notes that his handling of the Duryea matter was his only misconduct, and that his performance in both private practice and as a Judge was otherwise blameless.

Before assessing the misconduct and petitioner’s explanation, we must preliminarily dismiss one of the charged violations outright. The commission found that petitioner’s conduct was contrary to the provisions of Canon 3 (A) (1). Canon 3 is concerned primarily with the performance of judicial duties. Indeed, virtually every provision in that canon relates directly to the manner in which a Judge should exercise his or her powers and manage his or her courtroom. There is no contention that petitioner here was derelict in any manner in discharging his obligations to the public in his judicial capacity. Consequently, there was no basis for charging petitioner with violating Canon 3 (A) (1).

Attention now turns to the merits of the other charges of the proceeding. In explaining his behavior, petitioner undermines his own position by noting that this episode was his only lapse over a period of many years. That petitioner failed only once belies his claim of severe depression. He argues that this circumstance only manifests that he was able to overcome his psychological problems in all other instances, but was unable to handle the Duryea matter. Although petitioner may have been somewhat debilitated by his mental state, we do not believe that his conduct is excused by this.

In passing on the sanction to be imposed against a Judge found to have engaged in misconduct, this court is presented with one of the rare occasions when it may review findings of fact and determine of its own accord what penalty shall be imposed against a party (Judiciary Law, § 44, subd 9). We consider how and to what extent the wrongful behavior erodes the important interest of protecting the esteemed position which the judiciary must hold before society in order to carry out its duties effectively.

We do not find that the events warrant Judge Kelso’s removal. Petitioner’s misrepresentations to his client were improper and completely unjustified. Critically, though, Duryea suffered no prejudice by these acts. The civil action desired by Duryea unquestionably was barred by the exclusivity of the workers’ compensation remedy. No right of action was lost by any failure on petitioner’s part to commence a suit against Duryea’s employer. Insofar as we might look askance at petitioner’s method of practice in commencing the action in 1980, the obstacles of the Workers’ Compensation Law and the Statute of Limitations are matters that may be waived by a defendant so that it would not be a complete abuse of professional standards to initiate a suit precluded by either or both of these defenses. It must also be noted that petitioner never received any fees from Duryea nor did he ever retain any funds that were to be paid over to Duryea.

Petitioner’s offer to pay Duryea not to file a grievance was improper, to say the least; it is to be condemned. However, it was tendered openly, in writing, and witnessed. Basically, it was a clumsy effort to assuage an angry former client who also pressed a malpractice claim without apparent foundation and for which he eventually received a settlement from petitioner. Petitioner’s conduct fell short of proper professional conduct as an attorney and he has been punished therefor. He has not concealed the wrongdoing or obstructed the commission’s investigation.

It is concluded that these events compel petitioner’s censure, but that removal is unnecessary. Petitioner has been candid and co-operative. He did not profit by his misconduct and he did not injure nor destroy anyone’s rights or property. There is no evidence of any other professional improprieties. He has been punished for his behavior by being suspended from private practice for one year; thus, there is no reason to fear that the public will perceive that petitioner is going unpunished or that the matter is being suppressed. Petitioner’s problems with depression, now ended, also should be taken into account in fashioning the sanction. Last, and perhaps most important, petitioner has faithfully carried out his judicial duties and has never entangled his public office with this incident of his private practice. In short, petitioner’s conduct marred the integrity of the Bench, but it does not rise to a level where it must be concluded that petitioner can no longer serve effectively or that his continued services will be contrary to the best interests of the judiciary.

Accordingly, the determined sanction should be rejected, without costs, and the sanction of censure imposed.

Jasen, J.

(dissenting). Petitioner’s concededly repeated and intentional misconduct, which he knew at the time to have been wrong, can hardly be characterized as merely “improper”, as the majority does. Apart from deceiving and “stalling” his client over a period of years, petitioner’s attempt to dissuade his client from filing a grievance complaint by offering to pay him $10,000 evinces an utter lack of sensitivity to his obligation, as a Judge, to avoid impropriety and the appearance of impropriety and to observe the high standards of conduct essential to insure public confidence in the integrity of the judiciary. Since I do not believe such a person should continue as a member of the judiciary, I would accept the determination of the Judicial Conduct Commission and order petitioner removed from office.

Chief Judge Cooke and Judges Jones, Wachtler and Kaye concur in Per Curiam opinion; Judge Jasen dissents and votes to accept the determined sanction in a separate opinion in which Judges Meyer and Simons concur.

Determined sanction rejected, etc.

       In pertinent part, the canons provide:
      Canon 1:
      “A Judge Should Uphold the Integrity and Independence of the Judiciary
      “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”
      Canon 2 (A):
      “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
      “A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
      Canon 3 (A) (1):
      “A Judge Should Perform the Duties of His Office Impartially and Diligently
      “The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:
      “A. Adjudicative Responsibilities.
      “(1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.”