author: Chief Judge Wachtler. Hancock, Jr., J.

text:
    Karen Enright, an Infant, by Patricia Enright, Her Parent and Natural Guardian, et al., Respondents, v Eli Lilly & Company et al., Appellants.
    Argued January 9, 1991;
    decided February 19, 1991

      POINTS OF COUNSEL

      John L. McGoldrick, Russel H Beatie, Jr., Charna L. Gerstenhaber and Charles Jefferson Biederman for Eli Lilly & Company, appellant.

      Alexander C. Cordes, Paul K. Stecker, Tamar P. Halpern, David J. Fleming, Marc S. Klein, Karl E. Seib, Jr., Robert D. Wilson, Jr., A. Edward Grashof, Sheila Moeller Fessler, David M. Covey and Jack Gross for E. R. Squibb & Sons, Inc., and others, appellants.

      Theodore V. H. Mayer, W. Burlette Carter, John J. Dee and Jonathan B. Fellows for Merck & Co., Inc., appellant.

      Leonard L. Finz, Steven DiJoseph and Stuart L. Finz for respondent.

      Arthur H. Bryana, Priscilla Budeiri, Isabel Marcus and Lucinda M. Finley for Trial Lawyers for Public Justice, amicus curiae.

   OPINION OF THE COURT

Chief Judge Wachtler.

The question in this case is whether the liability of manufacturers of the drug diethylstilbestrol (DES) should extend to a so-called "third generation” plaintiff, the granddaughter of a woman who ingested the drug. According to the allegations of the complaint, the infant plaintiff’s injuries were caused by her premature birth, which in turn resulted from damage to her mother’s reproductive system caused by the mother’s in útero exposure to DES. We hold, in accord with our decision in Albala v City of New York (54 NY2d 269), that in these circumstances no cause of action accrues in favor of the infant plaintiff against the drug manufacturers.

I.

The plaintiffs in this case are Karen Enright, born August 9,1981, and her parents, Patricia and Earl Enright. According to their complaint, the events underlying this action began more than 30 years ago, when Karen Enright’s maternal grandmother ingested DES during a pregnancy which resulted in the birth of plaintiff Patricia Enright on January 29, 1960. Plaintiffs allege that because of her in útero exposure to DES, Patricia Enright developed a variety of abnormalities and deformities in her reproductive system. As a result, several of her pregnancies terminated in spontaneous abortions and another resulted in the premature birth of Karen Enright. Karen suffers from cerebral palsy and other disabilities that plaintiffs attribute to her premature birth and, ultimately, to her grandmother’s ingestion of DES.

This action was commenced by Patricia and Earl Enright individually and on behalf of their daughter against several manufacturers of DES. After issue was joined, the defendants sought summary judgment dismissing the complaint. Defendants contended that the actions were barred by the Statute of Limitations and by plaintiffs’ inability to identify the manufacturer of the drug ingested by Karen’s grandmother. In addition, defendants argued that Karen’s claims of a preconception tort presented no cognizable cause of action.

Supreme Court, relying principally on Albala v City of New York (54 NY2d 269, supra), agreed with defendants that those claims stemming from Karen’s injuries were not legally cognizable and dismissed all four causes of action brought on her behalf and those asserted by her parents for their emotional injuries resulting from Karen’s birth. Defendants’ motions were otherwise denied, however, leaving intact Patricia En-right’s claims relating to her own physical injuries and Earl Enright’s derivative claim based upon his wife’s injuries.

On cross appeals, the Appellate Division modified by reinstating the third cause of action in the complaint — that cause of action brought on behalf of Karen Enright based upon strict products liability. The Appellate Division agreed with Supreme Court that Albala foreclosed preconception tort liability based upon negligence, but held that public policy in favor of providing a remedy for DES victims justified recognizing a strict products liability cause of action.

Defendants sought leave to appeal to this Court, which the Appellate Division granted, certifying to us the question: "Did this court err, as a matter of law, by reversing so much of the Supreme Court order as granted defendants’ motions dismissing the third cause of action in the complaint and, as so modified, affirming the order?” That question must be answered in the affirmative.

We note that no issues are raised on this appeal regarding the still pending claims of Patricia and Earl Enright based on the injuries allegedly sustained by Patricia Enright due to her own in útero exposure to DES. Most of defendants’ attacks on those claims were defused by our recent decision in Hymowitz v Lilly & Co. (73 NY2d 487, cert denied — US —, 110 S Ct 350). Nor do plaintiffs challenge the Appellate Division order to the extent that it affirmed the dismissal of those causes of action brought on behalf of Karen Enright sounding in negligence, breach of warranty and fraud.

Thus, the only issue before us is the propriety of the Appellate Division’s reinstatement of the strict products liability cause of action on behalf of Karen Enright, this so-called "third generation” plaintiff.

II.

The tragic DES tale is well documented in this Court’s decisions and need not be recounted here (see, e.g., Hymowitz v Lilly & Co., supra; Bichler v Lilly & Co., 55 NY2d 571). It is sufficient to note that between 1947 and 1971, the drug, a synthetic estrogen-like substance produced by approximately 300 manufacturers, was prescribed for use and ingested by millions of pregnant women to prevent miscarriages. In 1971, the Food and Drug Administration banned the drug’s use for the treatment of problems of pregnancy after studies established a link between in útero exposure to DES and the occurrence in teen-age women of a rare form of vaginal and cervical cancer. Plaintiffs allege that in útero exposure to DES has since been linked to other genital tract aberrations in DES daughters, including malformations or immaturity of the uterus, cervical abnormalities, misshapen Fallopian tubes and abnormal cell and tissue growth, all of which has caused in this population a marked increase in the incidence of infertility, miscarriages, premature births and ectopic pregnancies.

The Legislature and this Court have both expressed concern for the victims of this tragedy by removing legal barriers to their tort recovery — barriers which may have had their place in other contexts, but which in DES litigation worked a peculiar injustice because of the ways in which DES was developed, marketed and sold and because of the insidious nature of its harm.

For example, prior to 1986, the long-standing rule in this State was that a cause of action for personal injuries caused by a toxic substance accrued and the limitations period began to run upon exposure to the substance (see, Fleishman v Lilly & Co., 62 NY2d 888, cert denied 469 US 1192). The Legislature, recognizing that under this rule claims for injuries caused by exposure to DES and other toxic substances were often time barred before the harmful effects of the exposure could be discovered, changed the law to provide that the limitations period in exposure cases begins to run upon discovery of the injury (see, CPLR 214-c; L 1986, ch 682, § 2). At the same time, the Legislature revived for one year previously time-barred causes of action based on exposure to DES and four other toxic substances (L 1986, ch 682, § 4).

More recently, this Court responded to thé fact that — for a variety of reasons unique to the DES litigation context — a DES plaintiff generally finds it impossible to identify the manufacturer of the drug that caused her injuries. We held that liability could be imposed upon DES manufacturers in accordance with their share of the national DES market, notwithstanding the plaintiffs inability to identify the manufacturer particularly at fault for her injuries (see, Hymowitz v Lilly & Co., supra).

III.

In the present case, we are asked to do something significantly different. We are asked, not to remove some barrier to recovery that presents unique problems in DES cases, but to recognize a cause of action not available in other contexts simply (or at least largely) because this is a DES case.

In Albala v City of New York (54 NY2d 269, 271, supra), we were presented with the question "whether a cause of action lies in favor of a child for injuries suffered as a result of a preconception tort committed against the mother”. There, the mother suffered a perforated uterus during the course of an abortion. Four years later, she gave birth to a brain-damaged child, whose injuries were allegedly attributable to the defendants’ negligence in perforating the mother’s uterus. We declined, as a matter of policy, to recognize a cause of action on behalf of the child, believing that to do so would "require the extension of traditional tort concepts beyond manageable bounds” (id., at 271-272). Among other things, we were concerned with "the staggering implications of any proposition which would honor claims assuming the breach of an identifiable duty for less than a perfect birth” and the difficulty, if such a cause of action were recognized, of confining liability by other than artificial and arbitrary boundaries (id., at 273, citing Park v Chessin, 46 NY2d 401; Howard v Lecher, 42 NY2d 109).

The case now before us differs from Albala only in that the mother’s injuries in this case were caused by exposure to DES instead of by medical malpractice. A different rule is justified, therefore, only if that distinction alters the policy balance we struck in Albala.

The primary thrust of plaintiffs’ argument and the Appellate Division’s decision is that DES itself alters that balance. From the Legislature’s actions in modifying the applicable Statute of Limitations and reviving time-barred DES cases and from our adoption of a market-share liability theory in Hymowitz, plaintiffs perceive a public policy favoring a remedy for DES-caused injuries sufficient to overcome the countervailing policy considerations we identified in Albala. The implication, of course, is that the public interest in providing a remedy for those injured by DES is stronger than the public interest in providing a remedy for those injured by other means — medical malpractice, for example. We do not believe that such a preference has been established.

To be sure, recent developments demonstrate legislative and judicial solicitude for the victims of DES, but they do not establish DES plaintiffs as a favored class for whose benefit all traditional limitations on tort liability must give way. To the extent that special rules have been fashioned, they are a response to unique procedural barriers and problems of proof peculiar to DES litigation.

For example, the Legislature’s enactment of a "discovery” Statute of Limitations was directed at opening up traditional avenues of recovery by removing a procedural barrier that was unreasonable given the nature of DES injuries. Nothing in the legislation suggests that the Legislature intended to expand the basis for liability. Indeed, the language of the statute suggests the opposite conclusion. The discovery rule applies in cases of injury caused by "the latent effects of exposure to any substance * * * upon or within the body” (CPLR 214-c [2]). Exposure is defined as "direct or indirect exposure by absorption, contact, ingestion, inhalation or injection” (CPLR 214-c [1]). Implicit in this language is the notion that some contact with the substance is essential to a cause of action, an element lacking here.

Similarly, our adoption of market-share liability was not prompted by some uncontrolled momentum favoring recovery by all DES plaintiffs; rather, it was justified because identification of the DES manufacturer was an insurmountable barrier in the "singular case [where] manufacturers act[ed] in a parallel manner to produce an identical, genetically marketed product, which causes injury many years later” (Hymowitz v Lilly & Co., supra, at 508). These unique features of DES cases not only made identification difficult, but also made it less relevant to culpability than in other products liability actions, since the tortious conduct of DES manufacturers pervaded the industry. Thus, the market-share theory was adopted "to apportion liability so as to correspond to the over-all culpability of each defendant, measured by the amount of risk of injury each defendant created to the public-at-large.” (Id., at 512.) The Hymowitz decision did not create a new cause of action; it simply adjusted the rules governing a traditional cause of action to circumvent what in this limited context were unreasonable obstacles.

In the present case, however, neither plaintiffs, the Appellate Division, nor the dissent has identified any unique feature of DES litigation that justifies the novel proposition they advance — recognition of a multigenerational cause of action that we have refused to recognize in any other context. The fact that this is a DES case does not by itself justify a departure from the Albala rule.

Closer to the mark, though still falling short, is plaintiffs’ second argument. They note that Albala was a negligence case and that we left open the question whether a different result might obtain under a strict products liability theory, because of the potentially different policy considerations in such a case (see, Albala v City of New York, supra, at 274, n). Having now examined the question in the context of this particular strict products liability claim, we find no basis for reaching a different conclusion than we did in Albala.

On one hand, weighing somewhat more heavily in favor of recovery in a strict products liability action than in ordinary negligence actions is the policy of diverting the burden of product-caused injuries from the innocent victim to the manufacturer. The product manufacturer is generally in a better position than an individual tort-feasor to distribute this burden by passing the costs along to customers in the cost of the product. This is one justification offered for holding manufacturers of defective products strictly liable for injury caused by their products without regard to privity, foreseeability or due care (see, Codling v Paglia, 32 NY2d 330, 341; Prosser and Keeton, Torts, at 692-693 [5th ed]).

Of course, imposing liability on the manufacturer in such circumstances also serves to encourage the development of safer products (Codling v Paglia, supra, at 341; Sukljian v Ross & Son Co., 69 NY2d 89, 95), but this rationale is not a distinctive feature of strict products liability theory, since imposition of liability on a negligent tort-feasor is also based in part on a policy of deterrence (see, McDougald v Garber, 73 NY2d 246, 254). This factor, therefore, does not appear to add anything new to the mix of policy considerations that was not also present in Albala. We recognize, however, that a widely distributed product, if defective, presents a risk to a broad range of potential victims. For that reason, although the need for deterrence is not unique to the products liability context, it may have added weight there.

Despite these considerations, the countervailing ones remain strong enough to preclude us from recognizing a cause of action here. To begin, the concerns we identified in Albala are present in equal measure here. The nature of the plaintiffs’ injuries in both cases — birth defects — and their cause — harm to the mothers’ reproductive systems before the children were conceived — are indistinguishable for these purposes. They raise the same vexing questions with the same "staggering implications” (Albala v City of New York, supra, at 273). As in Albala, the cause of action plaintiffs ask us to recognize here could not be confined without the drawing of artificial and arbitrary boundaries. For all we know, the rippling effects of DES exposure may extend for generations. It is our duty to confine liability within manageable limits (see, Tobin v Gross-man, 24 NY2d 609, 619; Prosser, Palsgraf Revisited, 52 Mich L Rev 1, 27). Limiting liability to those who ingested the drug or were exposed to it in útero serves this purpose.

At the same time, limiting liability in this fashion does not unduly impair the deterrent purposes of tort liability. The manufacturers remain amenable to suit by all those injured by exposure to their product, a class whose size is commensurate with the risk created. In addition, we note that the tort system is not the only means of encouraging prescription drug safety; the Federal Food and Drug Administration has primary responsibility for that task (see, Note, A Question of Competence: The Judicial Role in the Regulation of Pharmaceuticals, 103 Harv L Rev 773). We do not suggest, as some have (see, id.), that for this reason the judicial system should abandon its traditional role. But in light of the FDA’s responsibility in this area, the need for the tort system to promote prescription drug safety is at least diminished.

That the product involved here is a prescription drug raises other considerations as well. First, as in most prescription drug cases (see, Vinson & Slaughter, Products Liability: Pharmaceutical Drug Cases, at 123-140), liability here is predicated on a failure to warn of dangers of which the manufacturers knew or with adequate testing should have known. Such a claim, though it may be couched in terms of strict liability, is indistinguishable from a negligence claim (see, Wolfgruber v Upjohn Co., 72 AD2d 59, affd on opn below 52 NY2d 768). Concepts of reasonable care and foreseeability are not divorced from this theory of liability, as they may be under other strict products liability predicates. Thus, the effort to distinguish this case from Albala is strained.

More important, however, is recognition that public policy favors the availability of prescription drugs even though most carry some risks (see, Brown v Superior Ct., 44 Cal 3d 1049, 751 P2d 470, 478-479; Restatement [Second] of Torts § 402A, comment k; Vinson & Slaughter, op. cit., at 123-126). That is not to say that drug manufacturers should enjoy immunity from liability stemming from their failure to conduct adequate research and testing prior to the marketing of their products. They do not enjoy such immunity, as evidenced by our recognition of liability in favor of those who have been injured by ingestion or in útero exposure to DES. But we are aware of the dangers of overdeterrence — the possibility that research will be discouraged or beneficial drugs withheld from the market. These dangers are magnified in this context, where we are asked to recognize a legal duty toward generations not yet conceived.

The dissent would have us believe that this case involves nothing but application of straightforward strict products liability doctrine. But this case is fundamentally different in the same way that Albala was fundamentally different from other negligence cases. In neither this case nor Albala was the infant plaintiff exposed to the defendants’ dangerous product or negligent conduct; rather, both were injured as a consequence of injuries to the reproductive systems of their mothers.

We agree with the dissenter that " Tike cases should be treated alike’.” (Dissenting opn, at 397.) This is not only a fundamental principle of justice, it is also the underpinning of the doctrine of stare decisis. It is, indeed, precisely why we are bound to apply the rule of Albala here, in the absence of some difference between the two cases upon which a principled distinction can be drawn.

The dissent, however, discounts the precedential value of Albala because it was based on "policy grounds” and therefore —in the dissenter’s view — "poses no legal bar to recovery” (dissenting opn, at 394). That the Albala rule is based on policy grounds, however, should not diminish its status as a rule of law. All legal rules, including those the dissent relies upon, are policy-based.

By adhering to Albala, therefore, our decision today follows established law. The dissenter, on the other hand, would expand liability beyond traditional bounds in the face of precedent from this court to the contrary, and accuses the majority of usurping the legislative function by failing to do so (dissenting opn, at 397). It strikes us as a unique view of the judicial role that would allow the court to expand liability at will, but require legislative action before adhering to established limits.

In sum, the distinctions between this case and Albala provide no basis for a departure from the rule that an injury to a mother which results in injuries to a later-conceived child does not establish a cause of action in favor of the child against the original tort-feasor. For this reason, we decline to recognize a cause of action on behalf of plaintiff Karen En-right.

Accordingly, the order of the Appellate Division should be modified, with costs to defendants, by granting defendants’ motions for summary judgment dismissing the third cause of action and, as so modified, affirmed. The certified question should be answered in the affirmative.

Hancock, Jr., J.

(dissenting). Karen Enright is one of a class of thousands of persons who have allegedly suffered devastating abnormalities and injuries resulting from defendants’ marketing of DES. Is there any basis in the law or social policy or any principled reason in justice and fairness for holding that she — unlike other members of the class— should not be permitted to prove her case? I am convinced there is no such basis or reason. Today, however, in what appears to mark an abrupt change in the course of New York strict products liability jurisprudence, a cut-back on recent precedent and a rejection of policy established by the Legislature and accepted by our Court, the majority denies her the right to sue.

Under settled strict products doctrine (see, e.g., Codling v Paglia, 32 NY2d 330, 338-342; Prosser and Keeton, Torts § 98 [5th ed]) and Hymowitz v Lilly & Co. (73 NY2d 487, cert denied — US —, 110 S Ct 350), there can now be no question that persons in the position of Karen Enright’s mother would have a right to recover for injuries to their reproductive systems. Yet, the majority holds that Karen Enright has no right to recover, solely because she was not conceived at the time that her mother was exposed to DES in útero. But the majority gives no satisfactory reason why this fact justifies the decision to exclude her from the class of those permitted to recover for injuries caused by DES. For reasons which follow I cannot accept this result and vote to affirm the order of the Appellate Division holding that Karen Enright states a valid cause of action in strict products liability.

I

Preliminarily, I note that the question of whether there can be a recovery in a products liability case for a preconception injury is before us in a dismissal motion under CPLR 3211 (a) (7). Thus, the case presents no legal hurdles with respect to foreseeability or causation. Clearly it cannot be said as a matter of law — assuming it was foreseeable that Karen’s mother’s uterus might be deformed from the DES — that it was not also foreseeable that Karen Enright would be born prematurely because of this deformity and afflicted with cerebral palsy and the other appalling consequences from which she suffers. Nor is the possibility of additional difficulties in establishing causation at trial a reason for dismissal (see, Woods v Lancet, 303 NY 349, 356; Prosser and Keeton, op. cit., § 55, at 368; Comment, Preconception Torts: Foreseeing the Unconceived, 48 U Colo L Rev 621, 625-627). The complaint alleges that plaintiff’s injuries were foreseeable and that they were caused by her mother’s exposure to DES. In deciding whether plaintiff has stated a cause of action on this motion we must assume these allegations to be true (see, Becker v Schwartz, 46 NY2d 401, 408). In any event the majority does not ground its decision on these or other propositions of tort law, but rather on what it perceives to be policy reasons which dictate that Karén Enright’s claim should be dismissed.

The matrix of social policy and legal precedent on which Karen Enright founds her claim has been constructed by the Legislature and our Court. In 1986, the Legislature passed the Governor’s Program Toxic Torts bill and adopted a "discovery” Statute of Limitations (CPLR 214-c) for the express purpose of remedying the injustice of denying any right to relief to persons suffering from the latent effects of injuries from DES and other substances (L 1986, ch 682). In signing the Toxic Torts bill into law, the Governor noted that "this measure * * * remedies a fundamental injustice in the laws of our State which has deprived persons suffering from exposure to toxic or harmful substances from having an opportunity to present their case in court[,]” that "[t]his measure remedies the injustices suffered by all of the currently known categories of victims of exposure * * * including] persons who have suffered serious injuries as a result of exposure to diethylstilbestrol (DES)” and that "this legislation culminates a multiyear effort by these victims to achieve this long overdue reform in our law. It is a victory for justice, and an example of democracy in action” (Governor’s Mem of approval, 1986 McKinney’s Session Laws of NY, at 3182-3184).

In Hymowitz v Lilly & Co. (73 NY2d 487, supra), this Court recognized the unique characteristics of DES and gave practical effect to the intent of the Legislature’s important and much-heralded reform. In a precedent which created a means for a victim of DES to recover notwithstanding her inability to identify the manufacturer, the Hymowitz Court stressed that the "insidious nature” of DES injuries, the expectations created by the Legislature and the "dictates of justice and fairness” justified the remedy. The Court wrote:

"Indeed, it would be inconsistent with the reasonable expectations of a modern society to say to these plaintiffs that because of the insidious nature of an injury that long remains dormant, and because so many manufacturers, each behind a curtain, contributed to the devastation, the cost of injury should be borne by the innocent and not the wrongdoers. This is particularly so where the Legislature consciously created these expectations by reviving hundreds of DES cases. Consequently, the ever-evolving dictates of justice and fairness, which are the heart of our common-law system, require formation of a remedy for injuries caused by DES (see, Woods v Lancet, 303 NY 349, 355; see, also, Kaye, The Human Dimension in Appellate Judging: A Brief Reflection on a Timeless Concern, 73 Cornell L Rev 1004).” (Id., at 507 [emphasis added].)

The majority, nonetheless, gives CPLR 214-c a narrow reading as support for its refusal to recognize Karen Enright’s claim, suggesting that "[i]mplicit in [its] language is the notion that some contact with the substance is essential” (majority opn, at 385). Nothing in the statute’s legislative history nor in its wording leads to this construction. Indeed, "exposure” under the statute "means direct or indirect exposure by absorption, contact, ingestion, inhalation or injection” (CPLR 214-c [1] [emphasis added]). As the Commentary notes, the new discovery rule applies "when the plaintiff has been the victim of exposure to a toxic substance, the critical term 'exposure’ is broadly defined” (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C214-c:l, at 631 [emphasis added]). Given the broad language in the statute and the legislative history, the majority’s unduly constricted reading of the statute is inconsistent with the fundamental notion that remedial statutes are to be liberally construed to effectuate their aims and to promote justice (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 321).

In Codling v Paglia (32 NY2d 330, supra), the seminal case in which we adopted strict products liability in this State, we summarized the reasons in social policy, in the economic realities of mass production and distribution and in the considerations of "justice and common sense” for the rule that manufacturers which place defective products in the stream of commerce should bear the financial burdens of their harmful consequences — rather than the innocent persons who suffer the harm (id., at 340-342; Restatement [Second] of Torts § 402A, comment c). These general policies underlying strict products liability as well as the special policies pertaining to DES recognized by the Legislature in adopting CPLR 214-c and implemented by our Court in Hymowitz apply no less to Karen Enright’s claim than to the claims of other DES victims. What, then, are the policy reasons seen by the majority as compelling today’s decision? There appear to be three. None is availing.

First, the majority cites defendants’ arguments concerning the "staggering implications” and "rippling effects” (majority opn, at 386, 387) that a decision upholding Karen Enright’s claim might have. But this sort of "floodgates of litigation” alarum seems singularly unpersuasive in view of our Court’s repeated admonitions that it is not "a ground for denying a cause of action that there will be a proliferation of claims” and "if a cognizable wrong has been committed that there must be a remedy, whatever the burden of the courts.” (Tobin v Gross-man, 24 NY2d 609, 615 [emphasis added]; see, Bovsun v Sanperi, 61 NY2d 219, 231; Battalla v State of New York, 10 NY2d 237, 240-242.) Beyond that, however, when defendants’ arguments are applied here to urge that although claims of DES daughters should be allowed the claims of granddaughters should not be, their forebodings strike a peculiarly ironic note: i.e., the very fact of the "insidious nature” of DES which may make the defendants liable for injuries to a future generation is advanced as the reason why they should not be liable for injuries to that generation. Should we be saying to these defendants and other companies which manufacture drugs "you must be careful to produce reasonably 'safe’ drugs and to warn of the risks of taking such drugs but in deciding whether a drug is 'safe’ you may completely ignore the havoc a particular drug may wreck on a future generation?” I think not.

Second, the majority suggests that permitting a cause of action for Karen Enright could result in "overdeterrence — the possibility that research will be discouraged or beneficial drugs withheld from the market.” (Majority opn, at 388.) But in deciding whether a particular claim for injuries from DES should be sustained, the deterrence factor is inconsequential. The wrongful conduct of the drug companies in producing and marketing DES and similarly harmful products for use by pregnant women stopped more than a generation ago when the enormity of the damage from DES became known. The sole question now involves the remedy for this past wrong, not deterrence: i.e., whether the remedy for DES victims made possible by the Legislature in CPLR 214-c and given effect by our Court in Hymowitz should be withheld from a granddaughter who suffers injuries from this wrong. But even if deterrence is assumed to be a relevant issue, should we be any less concerned with deterring the development of unsafe drugs which may cause latent damage to the third generation than to the second? Again, I think not.

Finally, in what has the ring of an economic cost-benefit analysis, the majority suggests that its generational line-drawing is proper because the manufacturers’ exposure to liability is "commensurate with the risk created.” (Majority opn, at 387.) The argument is seen at once to be at odds with the rule that on this motion to dismiss Karen Enright’s complaint (CPLR 3211 [a] [7]) the court must accept as true her allegations that she is a member of the class of persons to whom the risk of injury was foreseeable (see, Becker v Schwartz, supra, at 408). But, in any event, the statement that liability should stop at Karen’s mother’s generation because it "is commensurate with the risk” is not a statement of an argument or of a legal or policy reason for a particular result. Rather, it is simply a statement of the Court’s own policy determination as to where the risk — and, hence, the liability — stops. If, as the majority apparently believes, there are economic and social considerations which require that there be some arbitrary cutoff point in cases of this kind, such a statute of repose could easily be engrafted on the Toxic Torts legislation which revived the long-outlawed dormant injury claims for DES and other substances (see, CPLR 214-c; see generally, Comment, Preconception Torts: Foreseeing the Unconceived, 48 U Colo L Rev 621; Phillips, An Analysis of Proposed Reform of Products Liability Statutes of Limitations, 56 NC L Rev 663; Note, Statutes of Limitations and the Discovery Rule in Latent Injury Claims: An Exception or the Law?, 43 U Pitt L Rev 501, 520-523). Suffice it to say, our Legislature has not chosen to cut off the claims of injured persons in Karen Enright’s generation.

II

As the primary support for its decision, the majority refers to Albala v City of New York (54 NY2d 269), a negligence case involving a single act of medical malpractice. One point must be emphasized. The decision in Albala poses no legal bar to recovery for a preconception tort and the case cannot be cited for that purpose. The Albala Court denied recovery for a preconception tort under the circumstances in that case solely on policy grounds, not for any legal or metaphysical reason arising from the fact that the injury occurred before the plaintiff was conceived. Indeed, the Albala opinion leaves little doubt that, in a proper case, there would be no legal impediment to a cause of action based on a preconception injury. In distinguishing Jorgensen v Meade Johnson Labs. (483 F2d 237 [10th Cir 1973]) the Court in Albala highlighted the significant difference between a malpractice case and one “for which there is strict liability without fault.” (Id., at 274, n.) The Court explained:

“Under a products liability theory, once a defect in manufacture or design is established or there has been a failure to give adequate notice of foreseeable potential hazards, the liability of the manufacturer is extended to the entire class of persons thereby affected regardless of privity, foreseeability or due care (Codling v Paglia, 32 NY2d 330). Accordingly, the necessity of establishing manageable bounds for liability is conspicuously absent. Since Jorgensen was not therefore concerned with the policy issues presented in the instant appeal, any reliance thereon is misplaced (see, also, Robertson, Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1978 Duke LJ 1401, 1436, 1438).” ad., at 274, n [emphasis added].)

Thus, as the Albala opinion makes clear (id., at 274, n), the single act of malpractice in that case did not involve the compelling social and economic policies which prompted our adoption of strict products liability (see, e.g., Codling v Paglia, supra, at 338-342; Prosser and Keeton, op. cit., § 98; infra, at 392). More importantly, Albala implicated none of the deeply felt special concerns for the victims of the widespread marketing of DES which influenced the enactment of CPLR 214-c (see, Governor’s Mem of approval, op. cit., at 3182-3184; Besser v Squibb & Sons, 146 AD2d 107, 114).

In addition to what would seem to be the decisive policy differences between a malpractice action and a strict products liability action based on toxic tort, there is one significant factor impelling the Court’s decision in Albala that has no bearing here — “the undesirable impact of encouraging the practice of 'defensive medicine’.” (Albala v City of New York, 54 NY2d 269, 274, supra.) The action in Albala was for the consequences of an improperly performed abortion. In denying recovery for injuries to a subsequently conceived child, the Court stressed:

"A physician faced with the alternative of saving a patient’s life by administering a treatment involving the possibility of adverse consequences to later conceived offspring of that patient would, if exposed to liability of the magnitude considered in this case, undoubtedly be inclined to advise against the treatment rather than risk the possibility of having to recompense a child born with a handicap. Accordingly, society as a whole would bear the cost of our placing physicians in a direct conflict between their moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of danger. ” (Id., at 274 [emphasis added].)

Karen Enright’s case, of course, does not involve the doctor-patient relationship and does not concern questions pertaining to the standard of knowledge, ability and care required of physicians. No "undesirable impact” of encouraging defensive medicine can result from a case of strict products liability based on the marketing of an unsafe drug where — as the Albala Court, itself, noted — "once * * * there has been a failure to give adequate notice of foreseeable potential hazards, the liability of the manufacturer is extended to the entire class of persons thereby affected regardless of privity, foreseeability or due care (Codling v Paglia, 32 NY2d 330).” (Albala v City of New York, supra, at 274, n [emphasis added].)

Moreover, this case presents none of the difficult moral dilemmas or problems of medical ethics (referred to in Albala) which can confront a physician called upon to render medical treatment to a mother which may possibly. impair her offspring. The sole question here is whether Karen Enright, an innocent member of the class of persons adversely affected by DES, should be permitted to recover. None of the policy considerations in Albala suggests that she should not be.

Ill

I am convinced that existing legal doctrine and established policy point unequivocally to a decision upholding Karen Enright’s cause of action. Let us assume for the sake of argument, however, that this is not so and that the appeal presents a "hard case” where there are no clearly discernible legal or policy guidelines. On this assumption, is there any underlying principled reason in fairness, justice or moral doctrine why Karen Enright’s claim should be turned away? (See, Dworkin, Taking Rights Seriously, ch 4, "Hard Cases”, at 81-130 [1978]; Murphy and Coleman, Philosophy of Law, at 52-59 [1984].) No such reason can be advanced because none exists. There are two fundamental principles of justice, however, which dictate that Karen Enright should be permitted to prove her case.

First, Karen Enright is a victim of what — if the allegations of her complaint are proven — amounts to a wrong of enormous proportions which inflicted grievous injuries on her and countless other innocent persons. Unless her case is barred on some legal or policy ground, she should be justly compensated for her injuries to the extent that our judicial system can accomplish this. Second, she is damaged no less than other victims of DES who make up the class. If they are permitted to recover, so should she be. To say that Karen Enright cannot recover is to abrogate one of the most basic of all principles — that "like cases should be treated alike”.

Our established strict products liability jurisprudence mandated by considerations of "justice and common sense” (see, e.g., Hymowitz v Lilly & Co., supra; Codling v Paglia, supra), the compelling social policies prompting the adoption of the Toxic Torts bill (CPLR 214-c), decisions in other jurisdictions allowing recovery for preconception torts and the legal commentary all call for a decision permitting Karen Enright to prove her claim (see, Jorgensen v Meade Johnson Labs., 483 F2d 237, supra; Renslow v Mennonite Hosp., 67 Ill 2d 348, 367 NE2d 1250; Prosser and Keeton, op. cit, § 55, at 367-370; Robertson, Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1978 Duke LJ 1401, 1435-1439; Collins, An Overview and Analysis: Prenatal Torts, Preconception Torts, Wrongful Life, Wrongful Death and Wrongful Birth: Time for a New Framework, 22 J Fam L 677; Comment, Preconception Torts: Foreseeing the Unconceived, 48 U Colo L Rev 621). Yet the majority denies her this right. This decision, I submit, amounts to an exercise in discretion and line-drawing reflecting social and economic policy choices which should be made not by Judges but by legislators. I dissent.

Judges Simons, Kaye, Alexander and Titone concur with Chief Judge Wachtler; Judge Hancock, Jr., dissents in part and votes to affirm in a separate opinion; Judge Bellacosa taking no part.

Order modified, etc.

      . It is true enough, as the dissent points out, that CPLR 214-c is a remedial statute and such statutes should be "liberally construed to effectuate their aims” (dissenting opn, at 392). But even a remedial statute must be given a meaning consistent with the words chosen by the Legislature — those words define the scope of the remedy that the Legislature deemed appropriate. In our view, the role of the courts is to give effect not only to the remedy, but also to the words that delimit the remedy. Under the dissenter’s formulation, apparently, the courts are free to extend the remedy as far as they see fit; the statute merely provides a starting point and a direction.

      . This — not fear of defensive medicine — was what we identified in Albala as "the central concern” that led to the policy choice we made in that case (see, 54 NY2d, at 273). The dissent fails to explain why this same concern is not equally implicated here, and thus fails to provide any basis for distinguishing Albala beyond the observation that DES cases are "special” (dissenting opn, at 391, n 1). While we agree that DES cases have unique features, the question is not simply whether DES cases are special, but whether they are different in some way that justifies a departure from the established rule that applies to other cases.

      . The Court in Hymowitz in devising its national market-share formulation emphasized that its action was prompted by the unusual nature of the problems caused by DES, in these words:
      "We stress, however, that the DES situation is a singular case, with manufacturers acting in a parallel manner to produce an identical, genetically marketed product, which, causes injury many years later, and which has evoked a legislative response reviving previously barred actions. Given this unusual scenario, it is more appropriate that the loss be borne by those that produced the drug for use during pregnancy, rather than by those who were injured by the use, even where the precise manufacturer of the drug cannot be identified in a particular action.” (73 NY2d 487, 508 [emphasis added].)
      The majority suggests (majority opn, at 385) that DES strict products cases are not special and should be treated no differently from other tort cases such as malpractice. Such suggestion is clearly at odds with the above-quoted passage from Hymowitz and with the record of special concern for DES victims shown by the Legislature (see, e.g., Governor’s Mem of approval, July 30,1986,1986 McKinney’s Session Laws of NY, at 3182) and by our Court in Hymowitz.

      . To be sure, as the majority points out (majority opn, at 388), both this case and Albala are "different from other negligence cases” in that in both the plaintiffs "were injured as a consequence of injuries to the reproductive systems of their mothers.” But this difference is of no consequence (see, infra, at 394-396).


source: Caselaw Access Project

author:
Hancock, Jr., J.
      Kaye, J.

license: Public Domain

text:
    In the Matter of Randy K., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued February 6, 1991;
    decided March 26, 1991

      POINTS OF COUNSEL

      Robert T. Johnson, District Attorney (Karen Swiger and Peter D. Coddington of counsel), for appellant.

      David H. Berman for respondent.

      Victor A. Kovner, Corporation Counsel (Pamela Seider Dolgow and Leonard Koerner of counsel), amicus curiae.

      Judith Waksberg and Lenore Gittis for The Juvenile Rights Division of The Legal Aid Society, amicus curiae.

   OPINION OF THE COURT

Hancock, Jr., J.

Family Court Act § 340.1 (2) mandates that where, as here, a respondent is not in detention, a fact-finding hearing shall commence not more than 60 days after the conclusion of the initial appearance except as provided in subdivision (4) of the statute. Subdivision (4) permits a court to adjourn a fact-finding hearing on its own motion or on motion of the presentment agency for good cause shown for not more than 30 days. Subdivision (5) provides that the "court shall state on the record the reason for any adjournment of the fact-finding hearing” (Family Ct Act § 340.1 [5] [emphasis added]). Finally, subdivision (6) states that successive motions to adjourn "shall not be granted in the absence of a showing, on the record, of special circumstances” (§ 340.1 [6] [emphasis added]).

In this case, respondent failed to appear at a timely set fact-finding hearing and a bench warrant was issued. Approximately 150 days passed before he was involuntarily returned on the warrant. During that time, the presentment agency made no motion to adjourn the hearing and no adjournment was ever ordered. Accordingly, the court made no statement of the reason for any adjournment on the record. The question in this case is posed by the presentment agency’s argument that the issuance of the bench warrant following respondent’s failure to appear at the first scheduled hearing should have the practical effect of relieving the agency and the Family Court of their obligations to meet the statutory requirements of showing good cause for the initial 30-day adjournment under subdivision (4) (b) and special circumstances for subsequent adjournments under subdivision (6). Stated another way, should respondent’s failure to appear be held to have resulted in a waiver of the requirements under Family Court Act § 340.1 (4), (5) and (6) that adjournments of hearings must be by permission of Family Court on a showing of good cause or special circumstances? The Appellate Division granted respondent’s motion to dismiss the proceeding, concluding that Family Court Act § 340.1 was not satisfied since the agency “did not avail itself of the statutory provisions for obtaining adjournments” (160 AD2d 338, 340). We agree and, accordingly, for reasons stated below, affirm.

I

On February 17, 1988, the presentment agency filed a petition charging that respondent, while aiding another, committed acts which if committed by an adult would constitute the crimes of robbery, first and second degrees. Specifically, the petition alleged that a 13 year old, Jose B., was walking home from school when he was kicked and knocked down by another schoolmate, Joseph B., who held a knife to Jose’s neck. Respondent, also then 13 years old, allegedly ran to the scene and poked Jose’s arm with his own knife. In response to Joseph’s demands, Jose gave Joseph all his money — one dollar and 10 cents. Then Joseph and respondent ran away.

Respondent failed to appear before the court on February 17 and a bench warrant was issued. On May 26, 1988 respondent was brought in on that warrant and made his initial appearance. Family Court set the fact-finding hearing date for July 8, 1988. Again, respondent failed to appear and another bench warrant was issued. On December 5, 1988, the authorities brought respondent to court on the second warrant. Family Court adjourned the matter until December 12, 1988 in order to decide respondent’s omnibus motion and again adjourned the hearing on December 12 because of respondent’s unrelated arrest. The fact-finding hearing was held on January 25, 1989.

Respondent made a motion to dismiss on speedy hearing grounds. At issue was the 150 days between July 8 and December 5, 1988. Family Court denied respondent’s motion to dismiss the petition as violative of the speedy hearing provision concluding that respondent’s "voluntary absence from the court is not in any way chargeable to the People, or to the court”. After the fact-finding hearing, Family Court found that the charges in the petition were sustained. The Appellate Division reversed on the law, and granted respondent’s motion to dismiss the petition. This court granted leave to appeal and we now affirm.

II

Once a juvenile delinquency petition is filed, a respondent is statutorily entitled to a speedy fact-finding hearing (Family Ct Act § 310.2). Section 310.2 is analogous to the general speedy trial provision applicable to adult prosecutions (see, CPL 30.20). But, in addition, the Family Court Act provides, in an entirely separate statute, specific time limitations to govern fact-finding hearings. This section (Family Ct Act § 340.1) has no criminal procedure analogue (cf, CPL 30.30; see, Matter of Frank C., 70 NY2d 408, 412-414). Section 340.1 is "a true 'speedy trial’ provision[.j * * * [B]oth its language and its underlying purpose are directed toward bringing the accused juvenile to trial within [the] specified * * * period * * * [barring] adjournments in the event of 'good cause shown’ or 'special circumstances.’ ” (Matter of Frank C., supra, at 413-414.) In contrast to a criminal prosecution, juvenile delinquency proceedings are civil in nature,, the purpose, in part, being rehabilitation of the child through consideration of the needs and interests of the child (see, Family Ct Act § 301.1; see generally, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 301.1, at 263-267). The speedy hearing provision furthers this purpose by assuring swift and certain determinations of juvenile delinquency proceedings (see, Mem in support of A-7974-A, Bill Jacket, L 1982, ch 920; see generally, People ex rel. Guggenheim v Mucci, 32 NY2d 307).

Obviously, in order to achieve these aims, supervision and monitoring by Family Court are important. Section 340.1 furnishes the mechanism. It sets forth strict time requirements (Family Ct Act §340.1 [1], [2]). These requirements must be met "except as provided in subdivision four” (id.). Subdivision (4) permits a court to adjourn a fact-finding hearing for 30 days for "good cause” shown (§ 340.1 [4]). Successive motions to adjourn may not be granted unless "special circumstances” are shown on the record to exist, and such circumstances shall not include calendar congestion or the status of the court’s docket (§ 340.1 [6]). The court is required to state the reason for any adjournment on the record (see, § 340.1 [5]).

The fact-finding hearing here should have commenced within 60 days of respondent’s May 26, 1988 initial appearance unless a statutory exception applies (§ 340.1 [2]). There is no dispute that the fact-finding hearing was delayed for 150 days without a motion for an adjournment, without an order of adjournment and, accordingly, without any statement on the record for the "reasons for the adjournment” (see, § 340.1 [4]-[6]). The presentment agency argues that, notwithstanding the "technical” noncompliance with the statute, the motion to dismiss should not be granted under these facts because the juvenile did not appear at the timely set fact-finding hearing, a bench warrant was issued for his arrest and these facts would clearly have justified an adjournment for "good cause” and "special circumstances”. Thus, the agency argues that it has demonstrated "special circumstances” as a matter of law and it should not be required to perform the "useless” and "resource-wasting tasks” of seeking successive adjournments.

The agency’s argument, of course, misses the point. The question is not what permission the court might have granted or what findings of good cause or special circumstances it might have made if the motions for adjournments mandated by section 340.1 (4) and (6) had been made. It is certainly possible, even probable, that some adjournments would have been permitted because of respondent’s failure to appear and that the case would have been saved from dismissal. Had the required procedures been followed, it appears unlikely that the matter would have been left to drift untended for approximately five months. The sole question, then, is not what might have happened if the statute had been complied with but what should happen because it was not complied with. Provisions of Family Court Act § 340.1 are mandatory. The Legislature has seen fit to require as a condition for adjourning a hearing that the court must order it and make findings on the record of good cause for the first 30-day adjournment and of special circumstances for subsequent adjournments. The statute contains no exception from these mandates when the juvenile has failed to appear and is being sought under a bench warrant.

At least one lower court, however, has agreed with the agency’s argument (see, Matter of Jerome S., 157 AD2d 286) as would the dissent. While we are not unsympathetic to the agency’s concerns, particularly in light of the reality of a much overworked Family Court system (see, Wachtler, Ch. J., 1990 State of the Judiciary), we nonetheless conclude that creating such an exception would amount to nothing less than an impermissible judicial rewriting of the statute.

Providing for an automatic retroactive adjournment of unlimited duration based solely upon a failure of a juvenile to appear for a hearing and the issuance of a bench warrant would in no way advance the aims of ensuring a swift and certain determination of the proceeding and supervision of the juvenile. Under the rule suggested, until the warrant is executed and the child is returned to court, the presentment agency and the court could do nothing. The proceeding could languish in the docket of Family Court. There would be no sanction. The agency would have no incentive to proceed and the court no responsibility for monitoring the case and inquiring into the reasons for the delay.

Holding that a juvenile’s failure to appear and the issuance of a bench warrant effect an "automatic” adjournment for "special circumstances” would be contrary to the clear mandate of the statute which provides that, except for adjournments based upon the required showing on the record (see, Family Ct Act § 340.1 [2]-[6]), a hearing must be héld within 60 days of respondent’s initial appearance. The proffered rule would interject the notion of "chargeable time” under CPL 30.30 into this Family Court proceeding. Whatever practical purposes may be advanced by the agency’s rule, it would transform Family Court Act § 340.1 into a prosecutorial readiness rule — not a speedy hearing rule. As this Court has emphasized, however, the principles set forth in CPL 30.30, which governs adult criminal proceedings and focuses only on prosecutorial delays, are not to be read into Family Court Act § 340.1. The two statutes have "very different language, history and purposes” (Matter of Frank C., 70 NY2d, supra, at 412). Notábly, the Legislature enacted the strict time requirement of Family Court Act § 340.1 despite expressed concerns with the burdens it would impose on the Family Court system (id., at 414, citing Bill Jacket, L 1982, ch 920, Mem of Office of Court Admin and Mem of Assn of Judges of Family Court of State of NY).

The dissent agrees with the presentment agency that the failures of the agency and the court to comply with Family Court Act § 340.1 may be ignored and the statutory requirements treated as " ’essentially empty act[s]’ ” (see, dissenting opn, at 409). That a failure to make a timely motion should be forgiven because the motion, if made, would have been granted would be a novel and surprising doctrine in any context. Suffice it to say the presentment agency offers no authority to support it and we do not choose to adopt it here in view of the mandatory speedy trial protections that the Legislature has chosen to enact.

The dissent’s arguments in favor of a blanket rule which would permit all time periods following a juvenile’s failure to appear in court to be "charged” to the juvenile are better addressed to the Legislature than adopted by our Court as the basis for an exception which neither the language of the statute nor its history suggests the Legislature ever intended.

In sum, we agree with the Appellate Division that the statutory speedy hearing provision was not satisfied and that this proceeding should be dismissed. Accordingly, the order of the Appellate Division should be affirmed, without costs.

Kaye, J.

(dissenting). The majority concludes that a designated felony petition must be dismissed under Family Court Act § 340.1 because, after respondent failed to appear for the fact-finding hearing and a bench warrant for his arrest was issued, the presentment agency and the Family Court did not calendar and adjourn the case at successive 30-day intervals during the period of his absence. I cannot agree that this result is required by section 340.1 or any other section of the Family Court Act, or indeed by sound considerations of policy, and I therefore must dissent.

There is no question that a juvenile prosecuted under a designated felony petition has a right to a speedy fact-finding hearing. A respondent who has been paroled, like Randy K., is entitled to have that hearing commence not more than 60 days after the conclusion of his initial appearance (Family Ct Act §§ 310.2, 340.1 [2]). Likewise, there is no question that the statutory provisions are intended to assure swift and certain adjudication of delinquency proceedings (Matter of Frank C., 70 NY2d 408, 413).

But those principles, while undisputed, do not answer the question presented by this case: what procedural consequences flow from a respondent’s failure to appear at a scheduled fact-finding hearing and the issuance of a bench warrant?

The statute itself does not answer that question.

Section 340.1 provides that, for a paroled respondent, "the fact-finding hearing shall commence not more than sixty days after the conclusion of the initial appearance except as provided in subdivision four.” (Family Ct Act § 340.1 [2].) Under subdivision (4), the court may adjourn the hearing on its own motion, the presentment agency’s motion, or the respondent’s motion for good cause shown for not more than 30 days (Family Ct Act § 340.1 [4] [a], [b]). Other specific provisions apply when the respondent has committed a homicide or other crime which incapacitated the victim, or where the case is adjourned in contemplation of dismissal (Family Ct Act § 340.1 [4] [a], [c]). The court must state the reasons for any adjournment on the record (Family Ct Act § 340.1 [5]). The court can grant successive adjournment motions only when there is a showing on the record of special circumstances; "calendar congestion or the status of the court’s docket or backlog” may not constitute special circumstances (Family Ct Act § 340.1 [6]).

As seems plain from reading these provisions, together with the Commentary that surrounds the statute, section 340.1 is addressed to delays within the system, and not at all to delays occasioned solely by the respondent’s own flight. As the Appellate Division correctly observed in Matter of Jerome S. (157 AD2d 286, 291): "The adjournment provisions of the statute were intended to function as a means of forestalling unwarranted delay, not as a sword to be employed by a respondent who delays the proceeding and then subsequently argues that it must be summarily dismissed as a consequence.”

Indeed, we have recognized that section 340.1 was intended to address all sources of delay within the system, not just those connected with the presentment agency, and that such delays can justify dismissal of the petition (Matter of Frank C., 70 NY2d, supra, at 414). Our interpretation was premised on the statute’s specific exemption of "calendar congestion or the status of the court’s docket or backlog” from the special circumstances justifying successive adjournments (Family Ct Act § 340.1 [6]). A respondent’s failure to appear is not delay within the system.

Nor does any other provision of article 3 of the Family Court Act indicate that the Legislature considered that it was addressing the procedural consequences of a respondent’s failure to appear, although such a provision might logically have been included in a number of places other than section 340.1 — for example, section 310.2 (providing that a respondent has a right to a speedy hearing); section 312.2 (5) (giving the court authority to issue a bench warrant when a respondent fails to appear); or section 320.5 (3) (authorizing the court to direct detention of a respondent when it finds a substantial probability that he will not return to court on a scheduled date).

The legislative history of article 3 is equally barren of support for the majority’s conclusion. That history indicates that the Legislature’s objective in enacting the law was to codify the substantial changes that had taken place in the decisional law in the 20 years since enactment of the Family Court Act. It was expected that, by so doing, the article would make the law more comprehensible, and thereby assure "the delivery of swift and certain justice in a Family Court juvenile delinquency proceeding” (Mem in support of A-7974-A, Bill Jacket, L 1982, ch 920). There is no reference in the history to the possibility that that expectation might be thwarted by respondents not appearing. The legislation was opposed by both the Office of Court Administration and the Association of Judges of the Family Court of the State of New York on the ground that the time constraints of section 340.1 were unrealistic and would cause hardship. No one mentioned the possibility of dismissal of cases based on a respondent’s failure to appear.

The failure of the Legislature to have considered the absconding respondent is perhaps not surprising. Article 3 was enacted in 1982 (L 1982, ch 920). Not until 1984 did the Legislature adopt a provision specifying that time after a bench warrant has been issued following an adult’s failure to appear in a criminal case is not includable for speedy trial purposes (CPL 30.30 [4] [c]; see also, Bellacosa, 1984 Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 30.30, 1991 Supp Pamph, at 62). Thus, it appears that in 1982, when the relevant provisions of the Family Court Act were enacted, the Legislature had not considered the problem of speedy trial requirements where a bench warrant has been issued in either the adult or the juvenile context.

Lacking any indication that the Legislature did — or does— in fact intend that proceedings should be dismissed in these circumstances, we should resolve the question in light of the purposes of article 3, which are "the needs and best interests of the respondent as well as the need for protection of the community” (Family Ct Act § 301.1).

The majority contends that its interpretation of the statute is a necessary one to protect juveniles like respondent, for otherwise such proceedings could "languish in the docket of Family Court,” with no incentive on the agency’s part to proceed and no responsibility on the court’s part to monitor the case (majority opn, at 404). But the record here paints a quite different picture, and suggests that the majority’s fears are ill founded. This respondent was located twice and brought back to court involuntarily so that the proceeding could go forward.

Nor is a juvenile respondent alone in the system, powerless to prevent a case from languishing. A Law Guardian must be appointed at the initial appearance to represent the respondent throughout the case unless independent legal representation is available (Family Ct Act § 320.2 [2]). While a juvenile may "simply forg[et] about” a court date, as the majority suggests happened here (majority opn, at 403, n 1), the Law Guardian should not permit — and it is part of the Guardian’s function not to permit — the case to languish because of the respondent’s forgetfulness or for any other reason.

Far from advancing the needs and interests of juveniles such as respondent, the rule announced by the majority actually disserves their interests. It seems far less likely that juveniles such as respondent who have already failed to appear once will be paroled pending fact-finding hearings. This case illustrates why. A first bench warrant was issued for respondent after he failed to appear on February 17, 1988, when the designatéd felony petition was filed. Respondent was brought back involuntarily on May 26, arraigned on the petition and paroled again, even though at that point the court could have ordered him held in detention because of his earlier failure to appear (Family Ct Act § 320.5 [3] [a]). Had the court done so, there would have been no speedy trial reason to dismiss the petition. After our decision, Family Court Judges will likely direct detention rather than risk dismissal.

The majority’s assumption that permitting such juveniles to avoid resolution on the merits serves their interests overlooks the purpose behind juvenile delinquency proceedings. Unlike criminal prosecutions, punishment is not a purpose of such proceedings (Family Ct Act §352.1 [2]; § 353.5 [2]; Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 350.1, at 495-497). Family Court Judges have a wide choice of dispositional alternatives designed to serve juveniles’ needs. We have no basis whatever to assume that these alternatives do not do exactly that, and that releasing a respondent because of his own failure to appear is a superior alternative.

Finally, it must be noted that the respondent’s interest is not the only one to be considered here.

The majority opinion imposes upon Family Court a duty to monitor cases where respondents do not appear. How that duty should be discharged is unclear, for the majority fails to specify what steps will satisfy its monitoring requirement. Will it be sufficient for the presentment agency simply to state, at 30-day intervals, that it is continuing efforts to locate the respondent and requires a further adjournment? Such a procedure may rightly be called an "essentially empty act * * * adding paperwork and calendar congestion for little practical effect” (Besharov, 1989 Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 310.2, 1991 Cum Ann Pocket Part, at 69). Or is there now to be a full-scale hearing every 30 days, with Family Court having to hear witnesses and make findings as to whether sufficient efforts have been exerted to locate the respondent? With approximately 3,000 outstanding juvenile warrants in New York City alone, such a requirement should not be lightly implied.

While the majority opinion makes no mention of it, the Family Court Act also mandates that the community’s need for protection be considered in any juvenile delinquency proceeding (Family Ct Act § 301.1). That need is ill served by a rule which permits respondents to evade the law by their own acts or omissions — a rule which, since announced less than a year ago by the Appellate Division, will apparently require dismissal of more than 100 cases (Matter of Miguel B., NYLJ, Feb. 28, 1991, at 26, col 1).

I would reverse the Appellate Division order, and reinstate Family Court’s determination committing respondent to the supervision of the Division for Youth.

Judges Simons, Alexander and Titone concur with Judge Hancock, Jr.; Judge Kaye dissents and votes to reverse in a separate opinion in which Chief Judge Wachtler and Judge Bellacosa concur.

Order affirmed, without costs.

      . Respondent’s counsel here suggests that respondent was living at a known address during the pendency of this proceeding and hypothesizes that this 13-year-old respondent may have simply forgotten about the initial hearing date. Of course, because no adjournment motions were made, the true facts were never developed in the record.

      . Nor is there any merit to the presentment agency’s argument that giving the speedy hearing requirement (Family Ct Act § 340.1) its intended effect will " 'reward’ a respondent who, as here, voluntarily chose not to appear for his fact-finding hearing, with dismissal of the petition.” (Appellant’s brief, at 17.) It is because the statute was not complied with — not because respondent "eluded capture” — that the petition was dismissed. In any event, as amicus Juvenile Rights Division of the Legal Aid Society of the City of New York notes "there is no record showing that respondent’s absence was in fact 'voluntary’ ” (amicus brief, at 7).

      . The categorical rule that the presentment agency would have us adopt would apply not only to 13 year olds, but to children as young as 7 years of age (see, Family Ct Act § 301.2 [1] [a]). As amicus Juvenile Rights Division of the Legal Aid Society of the City of New York points out ”[t]here are any number of innocent explanations for a child’s failure to attend a court date, including mere forgetfulness, the inability of a parent to transport and accompany the child to court * * * or a child’s confusion or misunderstanding of court procedures * * *. Once a date has been missed, it is unlikely that a child will know what steps should be taken to arrange for a new date, or even be aware that such action is necessary” (amicus brief, at 7-8).

      . In its statutory construction argument the dissent maintains that because Family Court Act § 340.1 was enacted in 1982 — two years before the Legislature decided to amend the Criminal Procedure Law to include a specific exception for abscondment (see, CPL 30.30 [4] [c]) from the prosecutorial readiness requirement of CPL 30.30 — we should assume that even though it did not do so, the Legislature intended to write in a similar exception to the speedy hearing provision in Family Court Act § 340.1 (see, dissenting opn, at 408). No precedent or rule of construction is cited to support this argument. Whatever the logic of this reasoning, the argument seems particularly perplexing in view of the fact that twice since 1984 Family Court Act § 340.1 has been amended (L 1985, ch 663; L 1990, ch 223) and the Legislature has not seen fit to write in a similar exception.


author: Simons, J.

text:
    In the Matter of Consolidated Edison Company of New York, Inc., Respondent, v New York State Division of Human Rights, on Complaint of Pamela M. Easton, Appellant.
    Argued February 5, 1991;
    decided March 26, 1991

      POINTS OF COUNSEL

      Sheila A. Donohue and Lawrence Kunin for appellant.

      David J. Reilly for respondent.
   OPINION OF THE COURT

Simons, J.

Complainant Pamela Easton is a black woman employed in the calendaring unit of petitioner’s law department and, if the qualifications listed in petitioner’s newspaper advertisement for applicants control, she was qualified for promotion to supervisor of that section: she is a high school graduate, has extensive experience in calendaring and, as her record indicates, has supervisory ability. Notwithstanding these qualifications, complainant was passed over for two promotions given to white men who petitioner claimed were better qualified but who arguably did not satisfy the experience requirements. Accordingly, she filed a complaint charging petitioner with a discriminatory practice. After her complaint was sustained by the Commissioner, petitioner instituted this proceeding challenging his order. A divided Appellate Division annulled the determination and vacated the order. The questions presented are whether (1) the Commissioner’s finding of discrimination is supported by substantial evidence, (2) the complaint was timely filed and (3) the relief ordered is sustainable.

Complainant began work as a clerk B, a nonmanagerial position, in the calendar unit of petitioner Consolidated Edison’s law department in 1975. At the time the unit consisted of five employees: a supervisor, one clerk A and three clerk B’s. It was subsequently expanded to include an assistant supervisor. During the 10 years that complainant was employed there she was the only black and the only woman in the calendaring unit. Although her work consistently met high standards, she did not receive a promotion to clerk A until 1980. Thereafter, in addition to her regular duties as the senior clerk in the calendar department, complainant aided the assistant calendar supervisor.

In 1978, Charles Gallagher, a white male, was assigned to the calendar unit as a clerk B and trained by complainant. Within a year, he was promoted to clerk A. In February 1982 complainant took maternity leave. When she returned the following August, she learned for the first time that the assistant calendar supervisor had resigned and that Gallagher, despite his lack of prior supervisory experience and his limited time in the unit, had been promoted to the position. In January 1983, Gallagher was again promoted, from assistant calendar supervisor to calendar supervisor. Complainant was not informed of the availability of either position, nor was she considered for them or given the opportunity to apply for them.

Following Gallagher’s promotion to supervisor, petitioner decided to fill the vacant assistant calendar supervisor’s position. It approached several white employees but none expressed an interest in the position and so it advertised for candidates in the newspaper. The advertisement stated that candidates had to be high school graduates, possess extensive experience in calendaring and have supervisory ability. It does not appear from the record that petitioner identified any other qualifications for the position before filling it. There were no responses to the advertisement and the position remained vacant for several weeks. During that time Ms. Easton spoke to her shop steward about filing a complaint charging petitioner with discrimination in its promotion practices. Petitioner subsequently approached her and two white male employees to determine if they were interested in the position. Complainant met the objective qualifications listed in the newspaper advertisement and she claimed supervisory ability because she had obtained the second highest possible score on the management skills tests administered by petitioner and had performed many of the duties of assistant supervisor in the transition periods between 1980 and 1983. Nevertheless, after a pro forma interview of complainant, petitioner appointed Daniel Mercado to the position. Mercado is identified as a white hispanic employed outside the calendar unit.

Complainant filed a complaint with respondent New York State Division of Human Rights alleging that petitioner had engaged in unlawful discriminatory practices by denying her promotion to a managerial position based on her sex and race. The claims related to the openings filled by Gallagher in June of 1982 and by Mercado in 1983. Respondent found probable cause and recommended a public hearing pursuant to Executive Law § 297. After hearings the Administrative Law Judge found for petitioner but on review the Commissioner of Human Rights reversed that decision. He found that the "[practice of promoting white males in available supervision positions in the Calendar Unit has been clearly established [by petitioner’s] method of approaching certain employees and not others, despite whatever qualifications they possessed”. He noted that petitioner lacked a coherent procedure of posting job vacancies, listing qualifications or describing the application process and that this practice "appears to be standard operating procedure which has, and continues to have an adverse impact on Complainant.” The Commissioner determined that petitioner had passed over complainant for promotion to these supervisory positions because of her sex and color and ordered it to offer her a managerial position similar to that denied to her with back pay and benefits, to circulate an announcement to its supervisory personnel that race and sex discrimination were unlawful, and to pay damages in the sum of $10,000 for hurt, humiliation and mental anguish.

A majority of Justices at the Appellate Division, recognizing that complainant had established a prima facie case of discrimination, found that petitioner had rebutted the claim by evidence that the successful candidates had higher qualifications. Two Judges dissented, believing petitioner had denied complainant the opportunity for promotion or promotion to a supervisory position because of her sex and color.

We agree with the dissenters at the Appellate Division that there is substantial evidence to support the Commissioner’s determination. The record indicates that complainant, because of her race and sex, was never given more than perfunctory consideration for management level positions within the calendar unit while white male employees with less experience were considered and promoted. Accordingly, we conclude there should be a reversal and the Commissioner’s order should be reinstated.

I

The determination of the State Commissioner of Human Rights must be confirmed if it is supported by substantial evidence (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 179-180). Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (id., at 180). It exists when the proof is " 'so substantial that from it an inference of the existence of the fact found may be drawn reasonably.’ ” (Matter of Holland v Edwards, 307 NY 38, 44, quoting Matter of Stork Rest. v Boland, 282 NY 256, 273.) Although a contrary decision may be reasonable and also sustainable, a reviewing court may not substitute its judgment for that of the Commissioner if his is supported by substantial evidence (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, supra, at 179-180; Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72, 79; Matter of Mize v State Div. of Human Rights, 33 NY2d 53, 56). Complainant has satisfied that standard here.

There is evidence in the record that complainant, acknowledged by petitioner to be a competent employee, received her first promotion to clerk A only after five years’ employment. In contrast, Gallagher, who was trained by complainant, was promoted to clerk A before complainant was and after he had worked less than a year in the calendar unit. Moreover, even though complainant had assisted her supervisor in his responsibilities before Gallagher was promoted, she was not notified when he retired and the position became vacant. Instead, Gallagher was hand picked as his replacement. When Gallagher was again promoted, from assistant calendar supervisor to calendar supervisor, petitioner did not announce that it planned to fill the assistant supervisor’s vacancy. Rather, it approached several white employees, all of whom were either employed in other departments or less senior than complainant. When these contacts failed to produce a candidate for the job, petitioner advertised for applicants outside the company, without considering complainant, and when the advertisements failed to generate any applications, petitioner finally approached complainant. She received only superficial consideration, however, and the position was given to Mercado. In short, complainant, who met the listed qualifications for the job, was denied advancement twice without ever receiving serious consideration and others, who did not, were promoted ahead of her.

Petitioner attempts to rebut this prima facie case of discrimination by asserting that it had "legitimate, independent and nondiscriminatory reasons to support” its employment decision (Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938-939). It contends that the Commissioner’s determination is not supported by substantial evidence because in each instance the successful candidates possessed credentials which merited greater recognition. Thus, petitioner isolates qualifications such as the successful applicants’ college training as the basis for its choices and ignores their inexperience, even though a college education was not listed as a qualification for the job and petitioner had solicited other candidates who did not possess college degrees. For example, complainant, who had worked in the unit substantially longer than other applicants, was not even considered for the position in 1982. Instead, Gallagher, who had worked there only a limited time, had no supervisory experience, and who complainant had trained, was promoted. When the position again opened in 1983, petitioner was not considered until she complained to her union representative and, although experience was again a priority, Mercado was promoted though he had worked for the company less than three years and had worked in the calendar section only two weeks during his training rotation. Indeed, Mercado had been rejected for the assistant supervisor’s position 15 months earlier because he lacked the knowledge required to perform the job. That deficiency did not prevent him from being preferred over complainant in 1983, however. As with the promotion of Gallagher, complainant’s extensive experience was trumped by qualities not required for the position.

Based on this showing, there is substantial evidence in the record that complainant had been the victim of race and sex discrimination and the Commissioner’s finding of discrimination should be reinstated.

II

Next, petitioner asserts the complaint was untimely. The Human Rights Law requires that a complaint be filed within one year after the alleged unlawful discriminatory practice (Executive Law § 297 [5]) and petitioner contends that any complaint relating to the promotion of Gallagher to assistant supervisor was time barred. Gallagher was promoted to assistant supervisor in June of 1982 while complainant was on maternity leave. Shortly thereafter, complainant received a telephone call asking her to return to work early to assist during a personnel shortage in the calendar unit. Complainant returned on August 23, 1982 and learned, for the first time, that Gallagher had been promoted to assistant calendar supervisor. She filed her complaint within one year of acquiring that knowledge, on August 12, 1983, and therefore the complaint was not time barred as to the 1982 discriminatory action (see, Matter of Board of Educ. v State Div. of Human Rights [Burns], 56 NY2d 257, 262 [Statute of Limitations begins to run from the time complainant learned of act in April 1978]; Matter of Queensborough Community Coll. v State Human Rights Appeal Bd., 41 NY2d 926 [Statute of Limitations begins to run when complainant is told of discriminatory decision]; Matter of Trans World Airlines v State Human Rights Appeal Bd., 113 AD2d 889, 890).

Ill

Turning to the relief accorded complainant, the propriety of the Commissioner’s order must be viewed in light of broad discretion the statute grants him (Matter of Maloff v City Commn. on Human Rights [Schriber], 46 NY2d 902, 904; New York Inst, of Technology v State Div. of Human Rights, 40 NY2d 316, 324; Albemarle Paper Co. v Moody, 422 US 405, 418-419; see, Executive Law § 297 [4] [c]). Unlawful discrimination having been found, the remedy need only be reasonably related to the discriminatory conduct. Unless the award is so arbitrary and capricious as to constitute an abuse of discretion, it is not erroneous as a matter of law (Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72, 79, supra; Matter of Mize v State Div. of Human Rights, 33 NY2d 53, 55, supra; Matter of Holland v Edwards, 307 NY 38, 46, supra).

In the present case, the Division ordered petitioner to notify its supervisory employees, in writing, that they were obliged to comply with the nondiscrimination provisions of the Human Rights Law, to offer complainant promotion, with back pay, to a position comparable to the one unlawfully denied her by petitioner, and to pay complainant $10,000 in compensatory damages for the hurt, humiliation and mental anguish she suffered as a result of the unlawful discrimination against her. Each of these remedies is specifically authorized by the statute and is warranted by the evidence in the record.

The statute authorizes the Division to issue an order requiring petitioner "to cease and desist” from any unlawful discriminatory practice (Executive Law § 297 [4] [c] [i]). In order to ensure that petitioner does, in fact, "cease and desist” from such unlawful race and sex discrimination in employment, the Division ordered that it remind its supervisory level employees, in writing, that racial or sexual discrimination is illegal. This minimal burden is within the statutory authorization and does not rise to the level of an abuse of discretion by the Division. The Division is also authorized to order petitioner to "upgrade” complainant’s position and compensate her with back pay (Executive Law § 297 [4] [c] [ii]). Indeed, this Court has noted than an award of back pay to a proven victim of discrimination "would seem to be a rather normal sanction to be imposed” (see, Matter of Mize v State Div. of Human Rights, 33 NY2d, 53, 56, supra) and upgrading complainant to a position comparable to one twice unlawfully denied her was appropriate in the circumstances.

The Division’s authority to award compensatory damages to the victims of unlawful discrimination for the mental anguish occasioned by the discrimination is also firmly established (Executive Law § 297 [4] [c] [iii]; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, supra, at 184; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143, 147). The Commissioner’s award of damages here is supported by the evidence and is within the range of awards previously approved by this and other courts (see, e.g., Matter of Lutheran Social Servs. v State Div. of Human Rights, 142 AD2d 950, affd 74 NY2d 824 [$25,000]; Matter of New York State Dept. of Correctional Servs. v McCall, 109 AD2d 953 [$10,000]). Complainant was the victim of petitioner’s discrimination based on both sex and race and the record reflects the hurt, humiliation and mental anguish its conduct caused her. Moreover, the effects of the discrimination were, as the Commissioner notes, renewed every working day when complainant reported to white males petitioner had promoted over her.

Inasmuch as the remedial provisions of the Division order are authorized by statute and supported by credible evidence in the record, the Division’s order with awards of promotion, back pay and compensatory damages for mental anguish should be reinstated by this Court.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the order of the State Division of Human Rights reinstated.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Judgment reversed, with costs, and respondent’s determination reinstated.


author: Per Curiam.

text:
    The People of the State of New York ex rel. Michele Maxian, on Behalf of Damon Roundtree, et al., Respondents, v Lee Brown, as Commissioner of the New York City Police Department, et al., Appellants. The People of the State of New York ex rel. Martin Murphy, on Behalf of James Lovells, et al., Respondents, v Lee Brown, as Commissioner of the New York City Police Department, et al., Appellants.
    Argued February 8,1991;
    decided March 26, 1991

      POINTS OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Fay Leoussis, Leonard Koerner, Francis F. Caputo and Stephen J. McGrath of counsel), for appellants.

      Michele Maxian, Robert M. Baum and Ivar Goldart for respondents.

      Henry J. Steinglass, Anthony Ferrara, Jack Hoffinger, Jack Litman, Gerald Lefcourt, Ursula Bentele, Charles Adler and
      James Shorris for Association of the Bar of the City of New York and others, amici curiae.

   OPINION OF THE COURT

Per Curiam.

Under CPL 140.20 (1), a police officer, after performing without unnecessary delay the required preliminary police duties, must without unnecessary delay bring a person arrested without a warrant to a local criminal court for arraignment. This appeal involves consolidated habeas corpus proceedings challenging the various prearraignment delays to which persons arrested in New York County were subject. The first proceeding (the Roundtree proceeding) was heard in Supreme Court, New York County (Soloff, J.), and the second proceeding (the Lovells proceeding) was heard in the same court (McQuillan, J.). The trial courts reviewed the existing arrest procedures in New York County and granted the petitions to the extent of providing that arrestees held in custody for more than 24 hours without arraignment are entitled to release unless an acceptable explanation for the delay is given. The Appellate Division affirmed and granted leave to this court. We find no reason on the record before us to disturb the order of the court below.

In January 1990, the Legal Aid Society established a practice of filing habeas corpus proceedings against the New York City Police and Correction Commissioners on behalf of arrestees who remained in prearraignment custody in excess of 24 hours. As of April 20, 1990, there were in excess of 9,000 such arrestees. Justice Soloff consolidated these writs into one proceeding (the Roundtree proceeding). At the time of the decision, each arrestee had been arraigned. Justice Soloff nonetheless invoked the mootness exception because the issue surrounding the prearraignment delay is "the quintessential issue 'capable of repetition, yet evading review’ ”. Neither party now disputes that the issues raised are properly reviewable under this mootness exception.

Justice Soloff expressly detailed the facts concerning some representative relators, including Sei Boo who was arrested for selling umbrellas without a license and was arraigned 94 Vi hours after arrest and Harold Fernandez who was arrested for a "B” felony drug sale and arraigned approximately 45 hours after his arrest. Justice Soloff reviewed the Second Circuit’s decision in Williams v Ward (845 F2d 374 [2d Cir 1988], cert denied 488 US 1020) which held that the Fourth Amendment of the United States Constitution was not violated when arrestees in the Boroughs of Manhattan, The Bronx, Brooklyn and Queens were arraigned within 72 hours of arrest.

Reaching essentially the same factual conclusions as the Second Circuit in Ward, she concluded that the arrest-to-arraignment steps follow a general pattern: "the arrestee is brought to the arresting officer’s precinct where the case is reviewed by a superior officer, forms are filled out and fingerprints usually taken. The next stop is Central Booking for photographing, and either initial or, if needed, further fingerprinting and transmission of the prints to Albany. Also at Central Booking, the defendant is usually interviewed by a Criminal Justice Agency (CJA) caseworker to obtain information for the court to use at arraignment in fixing a securing order. At Central Booking, the arrestee and officer part company. During the time that fingerprint records are awaited and CJA is at work, the arresting officer goes to the District Attorney’s complaint room to have the case evaluated and the complaint drawn. If the complaint room is closed, the officer returns the next day. All the paper work is then assembled. The defendant, meanwhile, must be collected from whatever precinct he has been lodged if space limits at 100 Centre Street have not permitted him to be brought directly from Central Booking to the courthouse. Once in the courthouse, the case papers must be docketed and the [arrestee] * * * must be made available for counsel interview, interviewed and arraigned.”

Justice Soloff also found, consistent with the Second Circuit’s conclusions in Ward, that the initial 11 to 15 hours following arrest are generally consumed by the above police functions and the "totality of the processes” can usually be completed "in 24 hours with time to spare including any travel which must be done within New York County”. She found all the arrestees were held longer than 24 hours and that little attempt was made to explain the delays. The trial court concluded that, under these circumstances, a period of delay over 24 hours raises a presumption that the delay is unnecessary within the meaning of CPL 140.20 (1), requiring, on demand, a satisfactory explanation of that delay. "Obviously”, the court noted, "there are situations which will justify considerably greater delay as well as those which will not. Moreover, the nature of this proceeding * * * makes it unnecessary and inappropriate (as well as impossible) to try to identify and evaluate all of the situations which might require relief’. Accordingly, she granted the habeas petitions to the extent of ordering that an arrestee who has been held in custody for more than 24 hours without an acceptable explanation is entitled to immediate release.

Thereafter, the Legal Aid Society continued its practice of filing writs of habeas corpus for other New York County warrantless arrestees (the Lovells proceeding). Justice McQuillan granted in part certain of these habeas petitions on the basis of unexplained delays in arraignments exceeding 24 hours, relying on Justice Soloffs decision in the Roundtree proceedings interpreting CPL 140.20 (1) and on his interpretation of the New York State Constitution (art I, § 12 ["unreasonable seizure”]; § 6 ["due process”]).

The Appellate Division affirmed the two judgments of Supreme Court (164 AD2d 56). Upon reviewing Justice Soloffs factual findings as to the period necessary to produce and "affirming] them as such”, the Appellate Division agreed that generally there is "no reason why the prearraignment process cannot be completed within 24 hours.” (164 AD2d, at 66.) Accordingly, the court agreed with the guideline "that a delay of arraignment of more than 24 hours is presumptively unnecessary and, unless explained, constitutes a violation of CPL 140.20 (1)” (id., at 68). The Appellate Division then granted respondents’ motion for leave to appeal to this Court.

CPL 140.20 (1) requires that "[u]pon arresting a person without a warrant, a police officer, after performing without unnecessary delay all recording, fingerprinting and other preliminary police duties required in the particular case, must * * * without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question.” (Emphasis added.) The Legislature did not set rigid temporal limits in enacting CPL 140.20 (1); nor do we in construing it (see, Matter of Ayers v Coughlin, 72 NY2d 346). Rather, the statute requires that a prearraignment detention not be prolonged beyond a time reasonably necessary to accomplish the tasks required to bring an arrestee to arraignment.

As the Appellate Division below recognized, this obligation is important given that "the deprivation entailed by prearraignment detention is very great with the potential to cause serious and lasting personal and economic harm to the detainee. * * * [T]his deprivation is one as to which no predicate is established in advance and, indeed, which may ultimately be found to have been unwarranted.” (164 AD2d, at 63.) It is against this backdrop and the realities of the arrest process as it exists in large urban centers such as New York County that we review the Appellate Division’s order. The Appellate Division concluded that the steps leading up to arraignment can generally be accomplished well within 24 hours after arrest and that the delays present in each of the consolidated proceedings here were "unnecessary” within the meaning of CPL 140.20 (1). We find no reason on this record to disturb this conclusion.

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

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

Order affirmed, without costs.