author: Fuchsbekg, J. Jones, J.

text:
    James P. McGowan, Respondent, v Mayor of City of New York et al., Appellants.
    Argued. April 27, 1981;
    decided June 4, 1981

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Alfred Weinstein and Leonard Koerner of counsel), for appellants.
    I. Plain language of the Administrative Code provision invoked by plaintiffs and identical usage of the term “designate” in a closely related provision establish that designation, in the sense of a distinctive title, in addition to detail to service is a condition of the salaries contemplated by the code. Such designation is no mere matter of form. It is an expression of the exercise of the police commissioner’s discretion to reward superior service. (Matter of Detective Endowment Assn., Police Dept., City of N. Y. v Leary, 36 AD2d 289, 30 NY2d 577; People ex rel. Sampson v Dunning, 113 App Div 35; Matter of Albano v Kirby, 36 NY2d 526; Matter of Tonis v Board of Regents of Univ. of State of N. Y., 295 NY 286; Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283.) II. History, confirming our reading of the code provision, establishes that it was not intended to change the long-established practice under which the police commissioner in his discretion distinguished among those detailed to the detective division, (New York State Bankers Assn. v Albright, 38 NY2d 430; Rankin v Shanker, 23 NY2d 111; Williams v Williams, 23 NY2d 592; French v Banco Nacional de Cuba, 23 NY2d 46; Matter of Capone v Weaver, 6 NY2d 307; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; People ex rel. O’Connor v Girvin, 227 NY 392; People v Ballard, 134 NY 269; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Union Free School Dist. No. 21 of Town of Cheektowaga v Nyquist, 38 NY2d 137.) III. Assuming that plaintiff’s assignment to duty would otherwise entitle him to a commander of detective squads salary, recovery is precluded because such assignment violated vital charter provisions governing budget administration. (Matter of McGovern v Patterson, 273 App Div 35, 298 NY 530; Wilmerding v La Guardia, 268 App Div 496; Matter of Broderick v City of New York, 295 NY 363; Belmar Contr. Co. v State of New York, 233 NY 189; Matter of Daly v McGoldrick, 280 NY 210; People ex rel. Plancon v Prendergast, 219 NY 252; Matter of Flaherty v Craig, 226 NY 76; Matter of Love v Bronstein, 43 AD2d 426; Donovan v City of New York, 33 NY 290; Lutzken v City of Rochester, 7 AD2d 498.) IV. There is no warrant for equitable relief. It was error to award recovery for a period subsequent to the commencement of the action, and, in view of change in law affecting possible defenses applicable to such subsequent period, prejudicial. (Boissevain v Boissevain, 252 NY 178; Dietzel v City of New York, 218 NY 270; Thomann v City of Rochester, 256 NY 165; Losei Realty Corp. v City of New York, 254 NY 41; Duryea v Mayor, Aldermen & Commonalty of City of N. Y., 26 Hun 120.)

      Murray A. Gordon, Michael J. Horowitz, Philip A. Lacovara, Gerald Goldman and William R. Stein for respondent.
    I. The sole legal issue raised by the city on this appeal —the city’s liability under the Administrative Code — has been finally determined in prior proceedings and is not now reviewable by this court. (National Sur. Corp. v Peccichio, 48 Misc 2d 77; Bloom v Mayor of City of N. Y., 35 AD2d 92, 28 NY2d 952; Cook v City of Binghamton, 24 AD2d 122; Dale Renting Corp. v Bard, 39 Misc 2d 266, 19 AD2d 799; Farragher v City of New York, 19 NY2d 831; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Israel v Wood Dolson Co., 1 NY2d 116; Stoner v Culligan, Inc., 32 AD2d 170; Matter of Board of Educ. v Nyquist, 31 NY2d 468; Stoddard v City of New York, 12 NY2d 792.) II. The Administrative Code was correctly construed by the courts below as creating a statutory right to higher compensation for actual performance of assigned duties of detective command and supervision. (Matter of Hagan v Murphy, 39 Misc 2d 82, 19 AD2d 862, 14 NY2d 701; Rudman v Cowles Communications, 30 NY2d 1.) III. The budget provisions of the New York City Charter do not defeat recovery here. (Matter of Blyn v Bartlett, 50 AD2d 442, 39 NY2d 349; People ex rel. Plancon v Prendergast, 219 NY 252; People ex rel. O’Loughlin v Prendergast, 219 NY 377; Moore v Mayor, Alderman & Commonalty of City of N. Y., 73 NY 238; Rason Asphalt v Town of Oyster Bay, 6 AD2d 810.) IV. The period of respondent’s recovery is perfectly proper. (Matter of Becker & Assoc. v Levitt, 65 AD2d 865; Nolan v County of Otsego, 55 AD2d 422; Bankers Trust Co. of Albany, N.A. v Martin, 51 AD2d 411; Brunner v City of New York, 200 Misc 850, 280 App Div 965; Redner v City of New York, 53 Misc 2d 148; Salesian Soc. v Village of Ellenville, 41 NY2d 521; Tomich v Cohen, 33 AD2d 736; Jimenez v Seickel & Sons, 22 AD2d 643.)
   OPINION OF THE COURT

Fuchsbekg, J.

The substantive issue we are called upon to determine„is whether, under section 434a-3.0 of the New York City Administrative Code, a New York City police lieutenant whom the police commissioner assigned to act in a supervisory capacity in the detective division became entitled per se to an increase in his level of compensation. Insisting that he was, the plaintiff, James P. McGowan, whose case has been severed from consolidated actions in which a considerable number of other lieutenants and sergeants sought similar relief, sued for the statutory salary differential.

Section 434a-3.0, which outlines the methodology for structuring the detective division, authorizes the commissioner to staff it with members of the regular police force whom he “details” to such “service”. In police parlance, “detailing” is accomplished by a routine personnel order by which a change of police duty is identified and effected. Of particular interest to this case is subdivision c of section 434a-3.0 which, added to this statute when it was amended in 1964, specified that, among the persons “so detailed,” the commissioner is authorized to “designate lieutenants as commanders of detective squads” and sergeants as “supervisors” of such squads.

As the sole basis for his demand for a salary level beyond that which his rank as police lieutenant would have called for had he been detailed to other duty, the plaintiff relies on subdivision c’s statement that lieutenants and sergeants “while performing duty in [the detective] division and while so designated as commanders * * * or supervisors * * * shall be paid such salary as may be determined by the may- or” (emphasis supplied). It is undisputed that some individuals who were so assigned to these posts were also clearly, and indeed expressly, “designated” as such by the commissioner and, during the period they held these designations, were the recipients of the salary differentials fixed by the Mayor accordingly. It is also uncontested that neither the plaintiff nor, for that matter, any of the other suitors from whose cases his was severed, was ever the subject of such a designation or the beneficiary of a corresponding financial emolument.

Nevertheless, Special Term and the Appellate Division overruled the city’s contention that designation by the commissioner was an unfulfilled condition precedent to any possible recovery by Lieutenant McGowan. Instead, in the main because, in the view of these courts, it would have been fairer to have treated all those assigned to command or supervisory service equally, they held that de facto service in these posts sufficed to mandate the ordinance’s salary benefits. In effect, at least in this context, any distinction between the terms “detail” and “designate” was rendered meaningless by these decisions. The result, after a drawn-out course of litigation at nisi prius and in the Appellate Division, was a monetary judgment for the plaintiff. For the reasons which follow, we reach a contrary conclusion.

Preliminary, we note that the wisdom or fairness of the statutory scheme, on which, as already indicated, the courts below so decisively commented, and to which the parties have alluded extensively in their briefs, is besides the point. No constitutional infirmity or violation of statutory law having been raised, these essentially are considerations for the Legislature and not for the courts (Matter of Rapp v New York City Employees’ Retirement System, 42 NY2d 1, 6). Thus, it matters not if, in its practical application, as plaintiff hypothesizes, the ordinance may produce “organizational weaknesses”, “chafed command relationships” or “chaotic” personnel practices, including the possibility that, because of the impact of seniority, the lack of an increase in the salary of a detailed but undesignated commander of a detective squad may mean that the commander will receive a lower salary than that of a detective under his command. Absent the constraint of any overriding legal or constitutional principle, it was similarly a matter for legislative judgment alone as to whether, especially given the quasi-military nature of the police, it would enhance rather than handicap their performance to vest the commissioner, who, in any event, is empowered to make and terminate the assignments in question as he sees fit, with authority to selectively designate from among those whom he favors with appointment to leadership roles, the ones who, in his judgment, deserve what the city’s brief calls merit increases to “sharpen motivation and reward outstanding performance”.

Focusing then on the applicable Administrative Code provision, we begin with a bit of unrefuted history of the circumstances that preceded, accompanied and followed its enactment. From these we observe that, well before subdivision c was incorporated in the 1964 enactment (Local Laws, 1964, No. 17 of City of New York), it had been the practice to allocate fewer budgetary lines for supervisors and commanders of detective squads than the number of officers who would be given such assignments. In exercising discretion as to the choice of designees, each commissioner, not surprisingly, would adopt different criteria. So, according to an affidavit by former Chief of Detectives Albert Seedman, submitted on behalf of the plaintiff and his then consolidated confreres, at least since 1956 “a rough form of seniority was in effect to allocate the limited number of budgetary lines to the greater number of supervisors and commanders of detective squads”. (Cf. Matter of Hagan v Murphy, 39 Misc 2d 82, 87, affd 19 AD2d 862, affd 14 NY2d 701.) And, according to an affidavit of a chief personnel officer for the police department, in his time and experience the commissioner would designate individuals only after the officer’s “entire performance and experience record” had been reviewed before a board composed of high ranking officers.

It was in this setting that section 434a-3.0 of the Administrative Code was introduced “by request of the Police Commissioner” (1964 Proceedings of the Council of the City of New York, p 679) and unanimously passed following a favorable committee report (id., p 981). This report stated, in pertinent part (id., p 977):

“[The bill] incorporates into law positions presently authorized and provided for in the budget, namely

* * *

“(c) commanders and supervisors of detective squads who must be lieutenants and sergeants, respectively, at a salary to be determined by the Mayor.

“The positions of commander of detective squad, supervisor of detective squad, first, second and third grade detective have long been established in the Police Department’s organization. However, except for the position of first grade detective, there has been no statutory authority for these designations. In order to provide a foundation for departmental organization, it is deemed necessary to include these designations within the Administrative Code.”

That the proposed law was not intended to alter the practice of limiting the number of detective squad members who would be both detailed and designated appears from the bill jacket. Aside from the commissioner’s request, it contains a memorandum to the Mayor’s counsel from the director of the city budget in which the latter gives assurance that “the proposal, in general, would formalize what we are doing presently, and from that standpoint additional costs are not evident”.

This contemporaneous comment turned out to be prophetic. Significantly, it was the nature of implementing legislative and executive action which made it so. Because there thereafter was no increase in the limited number of designees, no budget increase followed in the wake of the passage of the bill. In fact, no change in the number of supervisory positions funded adversely affected any budget until 1970-1971, and then it was to lower it.

Nor did the fact that many officers who were detailed to command or supervisory service went undesignated and unfunded go unnoticed. In 1967, the International Association of Chiefs of Police issued “An Organizational Study of the Police Department, New York City, N.Y.”, in which it was publicly opined that “[a] major problem exists in the police department in regard to the present rank structure (and accompanying pay grades of detectives). The present structure has caused a morale problem within the detective and supervisory ranks as well as the uniformed force because of the inequities involved * * * Members who are performing investigative tasks are paid the same salary as their supervisors in many instances” (p 404).

This history is of far more than passing interest. To paraphrase Justice Holmes, this case is one in which a page of history may be worth even more than a volume of logic (New York Trust Co. v Eisner, 256 US 345, 349). Thus, in the absence of a manifestation of intent to change a long-established practice, ordinarily no design to do so will be attributed to legislative action (Uniformed Firefighters Assn. Local 94, IAFF, AFL-CIO v Beekman, 52 NY2d 463, 471-472; Matter of Delmar Box Co. .[Aetna Ins. Co.], 309 NY 60, 66). Here there was no such manifestation. To the contrary, we have affirmative statements that the bill was to give legislative sanction to a pre-existing custom (cf. People ex rel. O’Connor v Girvin, 227 NY 392, 396).

The practical construction of the code amendment, as actually perceived, need be of no less moment (see La Guardia v Cavanaugh, 53 NY2d 67; Matter of Bernstein v Toia, 43 NY2d 437, 448). The budgetary actions of the police commissioner, the Mayor, and the Board of Estimate in the years in question are all incompatible with a premise that the enactment mandated a change. Furthermore, repeated failure of corrective action on the part of the city council or the Mayor who, as a member of the Board of Estimate, plays a legislative as well as an executive role (New York City Charter, §61), without more connotes acquiescence (Engle v Talarico, 33 NY2d 237, 242).

But, above all, the statute stands on its own feet. Carefully examined, it confirms that service on detail to the detective division is not the same as designation. It expressly distinguishes between those whom the police commissioner has put on “detail to service in said division” (subd a), and “members of the force so detailed [whom] the commissioner may designate”, including patrolmen and policewomen as detectives of the first, second and third grades (subd b) and “lieutenants as commanders of detective squads and sergeants as supervisors of detective squads” (subd c).

This carefully made distinction between “detail” and “designation” was recognized in Matter of Detective Endowment Assn., Police Dept., City of N. Y. v Leary (36 AD 2d 289, affd 30 NY2d 577), where patrolmen assigned to work in the detective division complained that assignment to detective work without such designation and increased salary benefits amounted to performance of out-of-title work. Sáid the Appellate Division, in language not unsuitable to the case before us now: “Section 434a-3.0 of the Administrative Code of the City of New York gives the Police Commissioner power to detail members of the force to the Detective Bureau. Subdivision e provides that any member so detailed shall retain his or her rank in the force and shall be eligible for promotion as if continuing to serve in the uniformed force with the time served in the Detective Bureau counting as if served in his or her rank or grade for credit in the uniformed force. The designation of patrolmen as detectives is wholly within the discretion of the Police Commissioner, and may be revoked at his pleasure (Ibid., subd. f.)” (36 AD2d, p 291; emphasis supplied.)

Finally, the distinction between one detailed and one designated is reinforced by the conjunctive aspect of the critical clause “while performing duty in such division and while so designated”. If performance of duty was to be' sufficient warrant for higher pay, the prepositional phrase “while so designated”, to say the least, would be superfluous. Such disregard of chosen language would, however, fly in the face of the fundamental statutory construction principles that an “enacting body will be presumed to have inserted every provision for some useful purpose” (Matter of Albano v Kirby, 36 NY2d 526, 530; McKinney’s Cons Laws of NY, Book 1, Statutes, § 98, p 223) and that the use of different terms in close proximity within the same sentence strongly supports the conclusion that different concepts were intended (Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283, 286).

Accordingly, the judgment for the plaintiff and the orders brought up for review should be reversed and judgment granted in favor of the defendants.

Jones, J.

(dissenting). I would affirm the order of the Appellate Division for the reasons stated in the opinion of Justice Edward Greenfield at Trial Term. It need only be added that the arguments advanced by the city in our court grounded in the particular language of the code are not persuasive. The diction of section 434a-3.0 is precise. The verb phrase “detail to service” is used in subdivision a to refer to the assignment of personnel to the detective division without reference to identification of particular duty within the division. By distinction the verb “designate” is employed in subdivision b to refer to the identification of the duties and responsibilities to be performed within the division. Nothing in the code suggests the necessity for any formalistic ritual to establish entitlement to increased salary on the part of individuals who have both been detailed to service in the division and assigned to duty in and are in fact perfoming the duties of the particular title.

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

Judgment appealed from and orders of the Appellate Division brought up for review reversed, with costs, and judgment granted in favor of defendants.

Appendix A

§ 434a-3.0 Detective division. — a. The commissioner shall organize and maintain a division for detective purposes to be known as the detective division and shall, from time to time, detail to service in said division as many members of the force as he may deem necessary and may at anytime revoke any such detail.

b. Of the members of the force so detailed the commissioner may designate:

1. patrolmen not exceeding two hundred seventy-five in number, and policewomen not exceeding five in number, as detectives of the first grade, who while performing duty in such division and while so designated as detectives of the first grade, shall be paid the same salary as lieutenants; and

2. a certain number of patrolmen and a ceratin number of policewomen, as detectives of the second grade, who while performing duty in such division and while so designated as detectives of the second grade, shall be paid the same salary as sergeants; and a certain number of patrolmen and a certain number of policewomen as detectives of the third grade, who while performing duty in such division and while so designated as detectives of the third grade shall be paid such salary as may be determined by the mayor.

c. The commissioner may designate lieutenants as commanders of detective squads, and sergeants as supervisors of detective squads, who while performing duty in such division and while so designated as commanders of detective squads or supervisors of detective squads shall be paid such salary as may be determined by the mayor.

d. 1. The person who may be assigned by the commissioner to the command of such division while acting in such capacity shall receive the same salary as a captain detailed to act as inspector. The commanding officer of the detective division upon being retired while acting in that office and capacity, shall receive a pension of not less than one-half of the full salary or compensation received by him as such commanding officer.

2. The provisions of paragraph one of this subdivision d. shall remain in effect only so long as the person who is assigned to the command of such division on the date on which this paragraph two takes effect continues to hold such assignment. Upon the termination of the assignment of such person, including, but not limited to, termination by retiring from the police force or other removal from or vacation of his position on the police force, or by revocation of his assignment, the provisions of paragraph one of this subdivision d. shall be deemed repealed, effective upon the date of such termination, and shall become void, inoperative and without any force or effect.

e. Any member of the force detailed to such division while so detailed shall retain his or her rank in the force and shall be eligible for promotion the same as if serving in the uniformed force, and the time during which he or she serves in such division shall count for all purposes as if served in his or her rank or grade in the uniformed force.

f. The commissioner may at his pleasure revoke any designation made pursuant to the provision of this section. (Amended by L. L. 1964, No. 17, April 27.)

      . The full text of section 434a-3.0, including, of course, the language we have quoted, is to be found at the foot of this opinion as Appendix A.

      . In all, two interlocutory Appellate Division orders have been brought up for review (CPLR 5501, subd [b]). The later of these, a 1979 order affirming a judgment which, among other things, directed an assessment of damages for all the plaintiffs including Lieutenant McGowan in the consolidated actions, is before us as of right because of a dissent on a question of law (CPLR 5601, subd [d]; see 7 Weinstein-Korn-Miller, NY Civ Prac, par 5601.24), our scope of review not being confined to the arguments expressed in that dissent (Matter of Duchnowski, 31 NY2d 991). The earlier Appellate Division order, entered in 1975, unanimously affirmed so much of a judgment which, in essence, declared that failure to award the salary differential to all those, who, in fact, commanded or supervised detective squads offended the Administrative Code, but modified that judgment to the extent of reinstating certain defenses. The 1975 order is here for review by our permission (CPLR 5602, subd [a], par 1, cl [ii]), the application having been timely made upon the entry of final judgment.

      . In light of our interpretation of section 434a-3.0, we have no occasion to consider or pass on the city’s points regarding either the effect of the budgetary provisions contained in former sections 123 and 124 of the New York City Charter or the propriety of an award of damages for the period subsequent to the time when Lieutenant McGowan’s action was commenced.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    In the Matter of Kenneth A. Patterson, Repsondent, v Harold J. Smith, as Superintendent of the Attica Correctional Facility, et al., Appellants.
    Argued April 30, 1981;
    decided June 9, 1981

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Frederick R. Walsh and Shirley Adelson Siegal of counsel), for appellants.
    I. A prisoner has no standing to challenge a memorandum in prison files which describes him as a security risk. There is no basis here for invoking the protections of the due process clause. (Marchesani v McCune, 531 F2d 459; Roe v United States Attorney, 618 F2d 980; Meachum v Fano, 427 US 215; Moody v Daggett, 429 US 78; Greenholtz v Nebraska Penal Inmates, 442 US 1; Jones v North Carolina Prisoners’ Union, 433 US 119; People ex rel. Brown v Johnston, 9 NY2d 482; People ex rel. Rabinowitz v Smith, 51 AD 2d 682; People ex rel. Batista v Zelker, 39 AD2d 343; People ex rel. Harris v La Vallee, 16 AD2d 990.) II. Aside from the fact that respondent has no legal right to a due process hearing, the disciplinary hearing directed here would be entirely inappropriate. (Matter of Amato v Ward, 41 NY2d 469.) III. Respondent failed to exhaust his administrative remedies as he did not file any complaint with the inmate grievance committee. (Matter of La France v Ward, 64 AD2d 989.)

      Ronald C. Berger for respondent.
    I. Petitioner has a constitutional right to be free from unfounded allegations of misbehavior made by the State. (Montanye v Haymes, 427 US 236; Meachum v Fano, 427 US 215; Jones v North Carolina Prisoners’ Union, 433 US 119; Pell v Procunier, 417 US 817; Wolff v McDonnell, 418 US 539; Board of Regents v Roth, 408 US 564; Meyer v Nebraska, 262 US 390; Jenkins v McKeithen, 395 US 411; Anti-Fascist Committee v McGrath, 341 US 123; Quinn v Syracuse Model Neighborhood Corp., 613 F2d 438.) II. Appellants are required by departental regulations to give petitioner a hearing. (Montanye v Haymes, 427 US 236.) III. In the absence of a hearing on the allegations of misbehavior, petitioner is entitled to have the confidential memorandum removed from his prison file. (Menard v Saxbe, 498 F2d 1017; Matter of Dorothy D., 49 NY2d 212; Matter of Henry v Looney, 65 Misc 2d 759; Matter of Smith [Earl], 63 Misc 2d 198; Chastain v Kelley, 510 F2d 1232; Matter of Collins v Hammock, 52 NY2d 798; Matter of Hynes v Karassik, 47 NY2d 659.) IV. Appellants waived any right to argue that petitioner failed to exhaust his administrative remedies.
   OPINION OF THE COURT

Meyer, J.

This appeal presents the question whether a prison inmate is entitled as a matter of due process to a trial concerning the correctness of an entry in his permanent file that he was involved in a plan to escape from a correctional facility. By article 78 proceeding petitioner sought expungement from his records of all references to such an escape plan. The order entered at Special Term did not direct ex-pungement. It did, however, prohibit consideration of the alleged escape plan upon any application by petitioner for transfer, assignment, programs, temporary release, conditional release, parole or request for commutation unless within 90 days after receipt of the order the Department of Correctional Services commenced a disciplinary proceeding based upon the allegation. The Appellate Division affirmed, without opinion, two Justices dissenting.

The order of the Appellate Division should be reversed, without costs, on the ground, expressly pleaded in respondents’ answer, that petitioner did not pursue the administrative remedy available to him under section 139 of the Correction Law. Petitioner argues that we should not dismiss the proceeding on that ground because it was waived at the hearing before Special Term and because there is nothing in the record to establish that the grievance procedure was ever expressly brought to his attention. For the reasons that follow we conclude that the proper course, both as a matter of jurisprudence and as a matter of correction law, is to dismiss without prejudice to any further action or proceeding petitioner may be advised to bring after his complaint has been considered under the grievance procedure which section 139 of the Correction Law makes available to him.

Section 139 was enacted as a result of the Attica uprising. The McKay Commission, appointed to look into the causes of that uprising and make recommendations for change, concluded that a major cause of inmate tension was the lack of a nonviolent means of resolving grievances (Memorandum of State Executive Department, McKinney’s Session Laws of NY, 1975, pp 1705-1706). Because relief in the courts was deemed “neither a workable nor a desirable solution,” the grievance procedure enacted by the section was proposed as “an alternative to burdening the courts with matters which can and should be resolved administratively” and which by giving the department the “opportunity to correct it [a departmental procedure or practice] before the grievance is referred for outside review” placed “the responsibility where it ought to be” (id., p 1706). The Governor agreed, commenting in his message of approval that the grievance resolution committees to be established under the bills “will provide a meaningful and readily available forum for the fair resolution of grievances in each institution” (id., pp 1781-1782).

As enacted the section requires the State Comissioner of Correctional Services to “establish, in each correctional institution under his jurisdiction, grievance resolution committees to resolve grievances of persons within such correctional institution” (subd 1), and to “promulgate rules and regulations establishing such procedures for the fair, simple and expeditious resolution of grievances as shall be deemed appropriate, having due regard for the constitutions and laws of the United States and of the state of New York” (subd 2). It also permits application to the commissioner for review of the grievance resolution committee’s decision and requires the commissioner, if a party deems his resolution of the complaint to be unsatisfactory, to refer the matter to the State Commission of Correction for review and recommendation (subd 3).

Acting pursuant to section 139, the commissioner by Directive No. 4040 dated August 9, 1976 has established an Inmate Grievance Program. Section III of that directive defines a grievance as follows:

“A grievance is a complaint about the substance or application of any written or unwritten policy, regulation, or rule of the Department of Correctional Services or any of its program units, or the lack of a policy, regulation or rule, or a complaint about any behavior or action directed toward an inmate.

“The grievance procedure shall be the means of determining whether or not any specific complaint falls within the foregoing definition of a grievance. Whenever such an issue is raised, the grievance may be filed and the disagreement resolved through regular grievance review procedure.” (Emhpasis supplied.)

In view of that broad definition and the power of the Grievance Resolution Committee to determine what falls within it, there can be no question that petitioner’s complaint is cognizable under the grievance program. Nor, in view of the absence from both statute and directive of language excluding from the procedure matters that would not normally be considered by the courts, is it material that petitioner’s complaint refers-to the fact that he was transferred from Ossining to Clinton and then to Attica. Though place of confinement is normally an administrative matter to be decided by the commissioner (Meachum v Fano, 427 US 215; Montanye v Haymes, 427 US 236), his discretion in this respect is not wholly unfettered (People ex rel. Brown v Johnston, 9 NY2d 482, 484; Matter of Johnson v Ward, 64 AD2d 186, 188). Moreover, transfer is here only collaterally involved, for while petitioner suggests that he was transferred because of the escape plan notation in his file he does not ask to be returned to Ossining, but rather to have the notation removed from his file so that in the future it cannot serve as a basis for an undesired transfer or prevent his receiving a desired privilege.

Essentially petitioner’s claim is that the file notation may play an important role in his prison life although he has not only not had an opportunity to confront his accuser but also may, when formal disciplinary action is taken against him, be unable to prove his innocence because of the passage of time and release or transferral of those who could bear witness in his behalf, among other difficulties. The commissioner’s problems are, on the one hand, the importance of information concerning escape plans to the security of institutions under his control, the necessity for protection of informants from retribution, and the administrative problem that would be created if every such notation necessitated a due process hearing, and, on the other, the effect on inmate morale (and consequent unrest) of the uncontrolled and unanswered entry in an individual inmate’s records of adverse information. That the commissioner has not lost sight of the latter problem is clear from subdivision B of section VII of Directive No. 4040, which provides that “No copies of a grievant’s complaint may go into the grievant’s central file without the grievant’s direct consent,” and from department Directive No. 0701, which establishes a procedure for the review of an inmate’s designation as a central monitoring case (see People ex rel. Williams v Ward, 73 AD2d 941).

Without intimating any conclusion concerning petitioner’s due process contention, we note that the situation in the instant case bears some similarity to that which confronted us in Holt v Board of Educ. (52 NY2d 625). There tenured teachers sought to compel removal from their files of critical evaluations as to which no formal disciplinary proceeding had been brought. Our holding that such notations could properly be placed in the teacher’s file without formal procedures was grounded in part on the fact that appeal to the Commissioner of Education was available should an abusive practice occur and that the teacher’s union could negotiate in collective bargaining for the right to respond to or cause removal from the file of a document or letter found to constitute an abuse. By the grievance procedure mandated by section 139, prison inmates have been provided with essentially similar methods of dealing with an adverse file entry. In view of the declared legislative policy to have such matters dealt with by grievance resolution committees rather than by the courts, this proceeding should have been dismissed without prejudice (Matter of Buxton v Winch, 78 AD2d 758; Matter of Scott v Smith, 77 AD2d 681, 682; People ex rel. Williams v Ward, supra; Matter of La France v Ward, 64 AD2d 989), unless respondents must be held to have waived petitioner’s failure to resort to the grievance resolution procedure.

Petitioner’s waiver argument is predicated on the failure to bring Directive No. 4040 to his attention and a statement by the Assistant Attorney-General at the Special Term hearing. That the Assistant Attorney-General’s statement related to petitioner’s efforts to get a copy of the file notation and was not intended as a waiver as to this expungement proceeding is clear from his motion, made five pages later, to dismiss the proceeding as premature. Nor can we conclude that petitioner’s lack of awareness of the procedure requires a finding of waiver. Subdivisions 1 and 2 of section 138 of the Correction Law require the publication and posting of “rules and regulations defining and prohibiting inmates [sic] misconduct” and that every inmate be provided with a written copy of such rules and regulations. However, Directive No. 4040 neither defines nor prohibits inmate misconduct. In view of the salutory purpose of section 139 and Directive No. 4040, of the fact that petitioner apparently moved promptly after hearing of the file notation to obtain a copy of it and caused the instant proceeding to be brought promptly after receipt of it, and of the Assistant Attorney-General’s concession at Special Term that the file notation problem is one that is cropping up all the time, we conclude that dismissal of the proceeding should be without prejudice to petitioner’s institution of a grievance proceeding under Directive No. 4040, and of any further action or proceeding he may be advised to bring at the conclusion of that proceeding.

Accordingly, the order of the Appellate Division should be reversed and the proceeding dismissed, without costs, and, as above noted, without prejudice.

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

Order reversed and the proceeding dismissed, without costs, and without prejudice to further proceedings as stated in the opinion herein.


text:
    In the Matter of Mary Delmar, on Behalf of Herself and All Others Similarly Situated, Respondent, v Barbara Blum, as Commissioner of New York State Department of Social Services, Appellant, and Joseph D’Elia, as Commissioner of the Nassau County Department of Social Services, Respondent.
    Argued May 6, 1981;
    decided June 9, 1981

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Evelyn M. Tenenbaum and Shirley Adelson Siegel of counsel), for appellant.
    I. The use of the per capita method to pro rate one spouse’s share of home relief has a rational basis. (Dandridge v Williams, 397 US 471; Matter of Padilla v Wyman, 34 NY2d 36.) II. There is a reasonable basis for distinguishing between Supplemental Security Income applicants and Supplemental Security Income recipients. (Matter of Howard v Wyman, 28 NY2d 434; Dandridge v Williams, 397 US 471; Gilchrist v Harris, 493 F Supp 859.)

      Kathleen Whelan and Leonard S. Clark for Mary Delmar, respondent.
    Respondents’ utilization of the “per capita” method to determine the amount of interim assistance is improper. (Matter of Lee v Smith, 43 NY2d 453; Jones v Califano, 576 F2d 12; Matter of Padilla v Wyman, 34 NY2d 36; Matter of Patricia A., 31 NY2d 83.)
   OPINION OF THE COURT

Meyer, J.

At issue on this appeal is the recoupment to which the Commissioner of Social Services is entitled for payments made under the State’s home relief program to sustain petitioner during the period between her application for, and actual receipt of, benefits under the Federal Supplemental Security Income (SSI) program. Specifically the question is whether, despite the facts that petitioner’s eligibility for interim home relief increased the benefits paid to petitioner and her husband only incrementally, and that once petitioner began to receive SSI benefits the commissioner treated petitioner and her husband as separate households in calculating the husband’s home relief benefit, the commissioner can, with respect to the interim payments only, treat petitioner and her husband as a single two-person household and recoup, on a pro rata basis, one half of the total home relief benefits paid to petitioner and her husband during the interim period. We hold that in these circumstances the commissioner may recover no more than the increment actually provided by reason of petitioner’s eligibility and, therefore, affirm the order of the Appellate Division.

The home relief program is funded and controlled entirely by the State. As a condition of the grant of home relief benefits to petitioner, she was required to apply for SSI benefits. Having been found eligible for home relief, petitioner received those benefits while her SSI application was pending. Upon approval of the SSI application, petitioner became eligible for benefits retroactively to the date of application. In this case the period involved was approximately 16 months.

Pursuant to a Federal-State agreement, the retroactive payment of $2,226.78 was sent directly to the local Social Services Department so that it could withhold an amount equivalent to the interim home relief benefits paid pending a ruling on petitioner’s SSI entitlement. By its pro rata calculation the agency determined that petitioner had received interim benefits in excess of the amount of the retroactive payment and, therefore, notified petitioner that the entire amount of the check had been withheld.

Petitioner in a statutory fair hearing challenged the agency’s calculation, contending that it could properly recoup only the incremental increase since that represented the amount of money actually expended by the State on her behalf. She pointed out that at the time of her application for benefits her husband was receiving home relief benefits fixed at the level of a household of one, which were increased when her application for interim home relief benefits was approved, to the level fixed for a household of two. Since the law assumes that two persons living together can live less expensively than they could if they lived apart, the incremental increase in benefits was, she noted, substantially less than the benefit payable had petitioner been treated as a household of one. However, for purposes of its recoupment of interim benefits, the agency used not the amount of the increment, but one half of the total benefits provided to the household. The agency rejected petitioner’s contention and this article 78 proceeding ensued.

The Appellate Division sustained petitioner’s contention, holding that since petitioner and her husband received their funds from separate sources, they could not be treated as a single household for purposes of calculating the amount of home relief received by petitioner during the interim between application for and approval of petitioner’s SSI benefits. We affirm, but on a somewhat different analysis.

The precise issue before us is a narrow one, and a full appreciation of the commissioner’s intricate argument requires that we place the instant controversy in perspective. The basic concept that economies of scale and shared expenses enable persons living together to live less expensively than they could live separately is unchallenged. That elementary principle is reflected in public assistance statutes which provide only incremental increases in assistance as the size of the eligible household increases (e.g., Social Services Law, § 131-a). Federal law limits the application of that concept where a needy recipient resides with an independent nonneedy individual, however, and the commissioner does not deny that an SSI recipient and a recipient of aid to dependent children (ADC) who lived together would be treated as discrete households for purposes of calculating the amount of ADC benefits to be provided (see US Code, tit 42, § 602, subd [a], par [24]).

The commissioner asserts, however, that since the home relief program is completely State-funded, these Federal limitations do not apply and that she, therefore, has the power to treat an SSI recipient and a home relief recipient as a. single two-person household in calculating the amount of home relief benefits. In other words, she could at any time reduce the husband’s home relief benefits from the grant of a household of one, to one half of the grant for a household of two. Given that power, the commissioner claims that it is within her power during the interim period when both petitioner and her husband are receiving home relief to attribute one half of the home relief grant to petitioner.

Whatever the commissioner’s asserted power in this regard, she has chosen not to exercise the right to treat an SSI recipient and a home relief recipient as a single household once the SSI recipient actually receives the Federal benefits. Recognizing this, the commissioner seeks to articulate a reasonable basis for the divergent treatment of these households before and after the actual receipt of SSI benefits. Citing Matter of Padilla v Wyman (34 NY2d 36, 41), the commissioner points out that one of the assumptions underlying the economies of scale theory, namely, the potential for oversight of household expenses by a single agency, is present during the interim period when both petitioner and her husband receive home relief, but absent when petitioner actually begins receiving the SSI benefits. This, it is claimed, justifies treating petitioner and her husband as one household for purposes of attribution on a per capita basis only during the interim period. Furthermore, the commissioner notes that since Federal law requires that an SSI recipient be excluded from an ADC household, it is administratively convenient on a monthly basis to adopt the same approach with respect to home relief. That consideration is absent when the agency calculates how much is to be withheld from a retroactive SSI payment because that is always a onetime, nonroutine calculation.

While the method of recoupment advanced by the commissioner could be characterized in the abstract as neither irrational nor whimsical were the issue one of legislative enactment, by no means does it justify the recoupment exacted from petitioner in this case. We note at the outset that the commissioner has not exercised her power to promulgate a regulation which would specify the method of attributing home relief benefits within a household during the interim period. For all that petitioner knew when she accepted the home relief increment, she would be considered a separate household before the arrival of the first SSI payment as she would certainly be treated after its arrival. The absence of a regulation makes it particularly unfair to accept the commissioner’s method of attribution since a person is not likely to assume that the acceptance of home relief benefits during the interim period will cause a net loss of funds in the long term. Therefore, even if the commissioner’s position were otherwise not objectionable, the absence of a regulation which advises applicants of that stance makes it unfair to apply it here.

There is, moreover, a more fundamental objection to the commissioner’s method of attributing interim home relief benefits. We accept for purposes of argument that the commissioner could by regulation direct per capita attribution of home relief during both the interim period and the period after the SSI payment is first received. However, it is questionable whether a regulation governing only the interim period could direct per capita attribution, if the SSI recipient was to be excluded from the household after receipt of the first SSI payment.

It is critical to focus on the purpose of these interim benefits in order to recognize the incongruity inherent in such a regulatory scheme. The governing statute originally disqualified anyone eligible for SSI benefits from home relief benefits. However, it was recognized that this made no provision for SSI applicants during the period between the application for and the receipt of SSI benefits. Subdivision (a) of section 158 of the Social Services Law was, therefore, amended so that the home relief disqualification would not take effect until the applicant actually received the first SSI payment. The agency is then entitled to reimbursement for interim benefits provided and can deduct the appropriate amount from the first SSI payment. In short, these interim benefits are in the nature of a loan, or a substitute for SSI benefits, and the ordinary formulas by which public assistance is attributed to a recipient household do not readily apply. It is sophistry to divide a total award in half when petitioner has been lent only the increment found necessary to tide petitioner and her husband over until her SSI benefits arrive.

Indeed, the procrustean application of the “per capita” attribution formula has led to an unintended and surely undesirable result: petitioner would have been better off to have rejected the interim benefits and attempted to manage on her husband’s home relief benefits, until the arrival of the first SSI payment. The other consequence is that the State has benefited from petitioner’s need of interim benefits because it has paid less overall than it would have if petitioner had waited for the SSI benefit. Clearly, the purpose behind the amendment to subdivision (a) of section 158 of the Social Services Law and of the Federal-State agreement was not to discourage SSI applicants from accepting the temporary assistance they need. Yet, if we consider the divergent treatment before and after the receipt of the initial SSI payment, that is precisely the effect of the commissioner’s current position.

In sum, the commissioner’s explanation has no persuasive force when considered against the unfairness and disruptive effect that its acceptance would engender. Accordingly, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed.

      . By regulation the State limits recoupment to the amount of the initial SSI benefits check (see 18 NYCRR 370.11 [d]).

      . At the hearing the following figures were used to illustrate the point. Assume that a one-person household received a basic needs grant of $94 and a shelter and fuel allowance of $169 for a total monthly grant of $263. If a second eligible person were added to the household, the maximum grant would be raised to $353. The additional monthly cost of providing for the second member of the household is only $90.

      . Using the example referred to in footnote 2, the agency would claim the right to recoup $176.50, although it increased the home relief benefits by only $90 because of petitioner’s eligibility.

      . 18 NYCRR former 352.30 (b) provided: “A person in receipt of SSI shall not be regarded as a member of the household for the purpose of determining need and amount of assistance.”


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Louis Carter, Appellant.
    Argued May 4, 1981;
    decided June 9, 1981

      POINTS OF COUNSEL

      David F. Kunz for appellant.
    I. Defendant’s conviction of the crime of assault in the first degree must be reversed because defendant’s rubber boots did not increase the danger to the victim. (People v Cwikla, 60 AD2d 40, 46 NY2d 434; People v Davis, 65 AD2d 515; People v Rumaner, 45 AD2d 290; People v France, 57 AD2d 432; Matter of Taylor, 62 Misc 2d 529; People v Klosis, 48 AD2d 705.) II. Defendant’s conviction of the crime of assault in the first degree must be reversed because there is no evidence that the rubber boots of defendant produced the victim’s injury. III. The court’s charge failed to adequately instruct the jury to make an independent finding that the rubber overshoes worn by defendant were dangerous instruments.

      Sol Greenberg, District Attorney (F. Patrick Jeffers and L. Michael Mackey of counsel), for respondent.
    I. It was proper for the jury to find that, in the manner in which they were used, defendant’s boots were dangerous instruments. (People v Bouldin, 40 AD2d 1045; People v Cwikla, 60 AD2d 40; People v Rumaner, 45 AD2d 290.) II. The evidence was sufficient as a matter of law for the jury to find that the victim’s injuries were caused by defendant’s kicking and stomping on her face and head with his boots. III. The trial court’s charge to the jury was proper. (People v Robinson, 36 NY2d 224; People v Cerrato, 24 NY2d 1; People v Adams, 21 NY2d 397.) IV. The issues raised in defendant’s pro se supplemental brief do not warrant reversal in that the conviction of assault in the first degree was established beyond a reasonable doubt and defendant was afforded the effective assistance of counsel. (People v Cossentino, 38 NY2d 760; People v Smith, 31 AD2d 847; People v Brown, 7 NY2d 359; People v Brabson, 9 NY2d 173; People v Lampkins, 21 NY2d 138; People v Camacho, 16 NY2d 1064; People v Brady, 16 NY2d 186; People v Pobliner, 32 NY2d 356; People v Anthony, 24 NY2d 696; People v Marks, 6 NY2d 67.)
   OPINION OF THE COURT

Jasen, J.

The issue on this appeal is whether a rubber boot used to stomp upon the head of a helpless victim is a dangerous instrument within the meaning of the Penal Law.

On the afternoon of February 26, 1978, defendant was driving through the City of Albany with his girlfriend, Frances Coleman, when the two began to quarrel. Defendant pulled his car to the curb in the vicinity of 10 Lark Drive. Coleman exited the car and began to walk away. As she was leaving, defendant viciously assaulted her. He began by striking her several times with his fists. She fell to the ground. While she lay helpless on the pavement, defendant kicked and “stomped” her several times in the head and face. Coleman lapsed into a coma. At the time of trial several months later, the victim remained in a comatose state and the People’s medical expert testified that in his opinion her condition would never improve.

Defendant was charged in a two-count indictment with attempted murder and assault in the first degree. The assault charge was predicated upon subdivision 1 of section 120.10 of the Penal Law, which defines assault in the first degree as intentional causation of serious physical injury “by means of a deadly weapon or a dangerous instrument.” After a jury trial, defendant was acquitted on the attempted murder charge and convicted of first degree assault.

On appeal, defendant contended, inter alia, that the pair of rubber boots which he was wearing at the time of the assault could not be considered a “dangerous instrument” within the meaning of the Penal Law. The Appellate Division unanimously rejected this argument and affirmed defendant’s conviction. There should be an affirmance.

The term “dangerous instrument” is defined in subdivision 13 of section 10 of the Penal Law as “any instrument, article or substance * * * which, under the circumstances in which it is used * * * * is readily capable of causing death or other serious physical injury.” The statute makes no attempt to give an absolute definition of the term or to provide a list of items which can be considered dangerous instruments. Instead the statute states plainly that any “instrument, article or substance”, no matter how innocuous it may appear to be when used for its legitimate purpose, becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury. (See Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 10.00, p 21.) The object itself need not be inherently dangerous. It is the temporary use rather than the inherent vice of the object which brings it within the purview of the statute.

The courts of this State have consistently adopted this use-oriented approach. In People v Cwikla (60 AD2d 40, revd on other grounds 46 NY2d 434), for example, we noted our agreement with the Appellate Division that a common handkerchief with which a victim was gagged and which led to his asphyxiation was a “dangerous instrument” within the meaning of the Penal Law. In a like manner, leather boots used to kick a victim in the face (People v Rumaner, 45 AD2d 290) and a spatula used to inflict a cut (People v Bouldin, 40 AD2d 1045) have been found to satisfy the statutory standard. Thus, although the rubber boots in issue are not inherently dangerous, we must determine whether the evidence in this case is sufficient to support the jury’s conclusion that they were readily capable of causing serious physical injury in the way in which they were used.

Here, there is evidence that the defendant used the rubber boots to stomp upon the head and face of his victim, causing her head to contact the pavement below with tremendous force. The jury apparently concluded that the pair of boots, when used in this fashion, was readily capable of causing serious physical injury and, thus, was a “dangerous instrument” within the meaning of subdivision 13 of section 10 of the Penal Law. On this record, we cannot say that such a conclusion was erroneous as a matter of law.

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

Chief Judge Cooke and Judges Gabrielli, Jones, Watchler, Fuchsberg and Meyer concur.

Order affirmed.

       Many other jurisdictions have also taken the view that the status of an object as a dangerous instrument is to be determined by its use. (See, e.g., State v Bradley, 254 Iowa 211, app dsmd and cert den 374 US 490 [shoe as “dangerous weapon”] ; People v Buford, 69 Mich App 27 [boot as “dangerous weapon”]; Orrill v State, 509 P2d 930, 932 [Okla] [boot as “dangerous weapon”] ; Medlin v United States, 207 F2d 33 [shoe as “dangerous weapon”] ; see, also, Commonwealth v Appleby, — Mass —, —, 402 NE2d 1051, 1057 [riding crop as “dangerous weapon”]; State v Mercier, — RI —, —, 415 A2d 465, 467 [car as “dangerous weapon”]; People v Goolsby, 284 Mich 375, 378 [car as “dangerous weapon”]; see, generally, Kicking As Aggravated Assault or Assault with Dangerous or Deadly Weapon, Ann., 333 ALR3d 922.)


text:
    In the Matter of Marshall Bloomfield, as Committee of Esther Warren, an Incompetent Person, Deceased. New York State Department of Mental Hygiene, Appellant-Respondent; New York City Health and Hospitals Corporation, Respondent-Appellant.
    Argued May 8, 1981;
    decided June 11, 1981

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Morton H. Meyer, Shirley Adelson Siegel and Thomas P. Dorsey of counsel), for appellant-respondent.
    I. New York State, in its sovereign capacity, is entitled to priority in payment of its claims before other creditors including the City of New York. (Marshall v New York, 254 US 380; Aponte v Maritime Overseas Corp., 300 F Supp 1075; Smith v Meader Pen Corp., 255 App Div 397; Matter of Solomon, 18 Misc 2d 984; Matter of Colwin, 98 Misc 2d 676; Matter of Livingston, 30 Misc 2d 71, 14 AD2d 264; Matter of Lazaroff, 84 F2d 982; People v Van Schaick [General Ind. Corp. of Amer.], 251 App Div 236.) II. Established rules of statutory construction do not permit section 104 of the Social Services Law to be interpreted as granting the City a priority in payment of its claim before that of the State. (Jewish Hosp. of Brooklyn v “John Doe”, 252 App Div 581; Gould v State of New York, 196 Misc 488; Commissioners of State Ins. Fund v Dinowitz, 179 Misc 278; Matter of Park Rug Shops Stores [Abraham], 55 Misc 2d 600; Matter of Lehrer-Howard, Inc., 181 Misc 683; Lamonte v Shapiro, 44 Misc 2d 643.)

      Allen G. Schwartz,-Corporation Counsel (Marjorie E. Bornes and Ronald E. Sternberg of counsel), for respondent-appellant.
    I. The courts below erred in not recognizing and enforcing the City’s statutory preference. The City should have priority in payment out of the estate assets. (Baker v Sterling, 39 NY2d 397; Matter of Tripp, 275 App Div 36; Matter of Hofmann, 261 App Div 556; Matter of Wesley, 156 App Div 403; Matter of Lambert, 207 Misc 307; Matter of Cooke, 181 Misc 748; Matter of Andrews, 179 Misc 876; Matter of Rubin, 74 Misc 2d 503; Matter of Herman, 44 Misc 2d 585; Matter of Lee, 220 NY 532.) II. Assuming that there exists a common-law “sovereign” preference of the State, the City and State must share pro rata in the distribution of the estate assets. (Matter of Rubin, 74 Misc 2d 503; Matter of Herman, 44 Misc 2d 585.)
   OPINION OF THE COURT

Jasen, J.

In this proceeding to settle the final account of an adjudicated incompetent, the issue presented is whether a claim by the New York State Department of Mental Hygiene for reimbursement of expenses incurred for the care and maintenance of an incompetent has priority over a claim by the New York City Health and Hospitals Corporation for reimbursement of such expenses.

Esther Warren, an adjudicated incompetent, died at the Rockland Psychiatric Center in Orangeburg, New York, on June 24, 1977. Thereafter, her committee instituted the present proceeding pursuant to section 78.29 of the Mental Hygiene Law to have her account judicially settled and approved. At the time, the balance in the estate was $8,422.63. Claims were submitted by the New York State Department of Mental Hygiene (the “State”) and the New York City Health and Hospitals Corporation (the “City”). The State’s claim was for $6,991.76 and represented expenses incurred for the care and maintenance of Esther Warren at the Rockland Psychiatric Center for the period October 26, 1976 to June 23, 1977. The City’s claim was for $7,844.36 and represented the balance due for the institutional care provided to the incompetent at Bellevue Hospital from February 21, 1971 to July 2, 1971. Both claimants, asserting that they were preferred creditors, requested full reimbursement of the amounts expended on behalf of Esther Warren.

Special Term, after allowing $2,943.89 for administrative and funeral expenses, ordered that the remaining balance in the estate of $5,478.74 be distributed to the claimants on a pro rata basis, with the State receiving $2,585.97 and the City receiving $2,892.77. Special Term rendered no opinion articulating its reasoning for this pro rata distribution. On appeal, a pnanimous Appellate Division affirmed Special Term’s order, without opinion, and granted both the State and the City leave to appeal.

In this court, the State contends that, in its capacity as sovereign, it has a common-law prerogative right of priority which entitles it to full payment of its claim ahead of any amounts owing to the City. For its part, the City, relying on its statutory preference under section 104 of the Social Services Law, asserts that its claim has priority over that of the State. Alternatively, the City contends that, at the very least, its statutory preference under the Social Services Law entitles it to share pro rata with the State in the distribution of the incompetent’s estate. We agree with the position advanced by the State.

At early common law, the Crown of Great Britain enjoyed a prerogative right over its subjects which entitled it to priority in the payment of the debts owed to it from the assets of an insolvent debtor. This prerogative right could only be defeated by the passing of title to a creditor, either absolutely or by the procurement of a lien, before the sovereign sought to enforce its claim against the debtor. (See Giles v Grover, 9 Bing 128; Matter of Henley & Co., 9 Ch D 469.) Of course, we are no longer governed by the Crown. However, by virtue of section 35 of our Constitution of 1777, the common law of England was adopted by New York and the State, as sovereign, thereby succeeded to the Crown’s prerogative right of priority. (Marshall v New York, 254 US 380; Matter of Gruner, 295 NY 510; Matter of Carnegie Trust Co., 206 NY 390.) Moreover, under our present Constitution, the State of New York continues to enjoy this common-law preference. (NY Const, art I, § 14.) The purpose of this prerogative right to priority “is to protect the revenue of the State and to insure against loss of governmental moneys, to meet the expenses of government and to discharge public debts and obligations of the State.” (Matter of General Ind. Corp. of Amer., 251 App Div 236, 238, affd 275 NY 616; see Matter of Atlas Tel. Co., 273 NY 51, 55; see, generally, State’s Prerogative Right of Preference at Common Law, Ann., 51 ALR 1355.)

It is a well-established rule of construction that “a statute does not apply to the State, where its sovereign rights, prerogatives, or interests are involved, unless it is specifically mentioned therein or included by necessary implication.” (McKinney’s Cons Laws of NY, Book 1, Statutes, § 115.) The State Department of Mental Hygiene and its Office of Mental Health act in a sovereign capacity in providing care for the mentally ill. (Mental Hygiene Law, § 7.01.) Moreover, in contrast to common law, the Department of Mental Hygiene is now authorized by statute to recover amounts paid to the recipients of public assistance. (Mental Hygiene Law, art 43; see Baker v Sterling, 39 NY2d 397.) Hence, in order to establish that its claim against the estate of Esther Warren has priority over that of the State, the City must point to some clear expression from the Legislature which evinces an intent on the part of that body to abrogate the State’s common-law prerogative right with respect to the reimbursement of funds expended for public assistance. This the City is unable to do.

In support of its claim to priority, the City relies on subdivision 1 of section 104 of the Social Services Law. That statute provides that, in recovering amounts paid to the recipients of public assistance, “the public welfare official shall be deemed a preferred creditor.” This statute was enacted in order to provide the City with a preference over the “general creditors” of a recipient of public assistance. (See NY Legis Ann, 1964, p 322.) However, there is no express language in section 104 of the Social Services Law nor anything in its legislative history which indicates that the Legislature intended this statutory preference to be in derogation of the State’s common-law prerogative right. Thus, section 104 of the Social Services Law, standing alone, does not provide the basis for placing the City ahead of the State in the collection of moneys expended for public assistance.

Nor does the City’s reliance on the Mental Hygiene Law serve to alter this result. Under the predecessor statute to the current Mental Hygiene Law, the State was deemed a preferred creditor in regard to its claims against a public welfare recipient. (See Mental Hygiene Law, former § 39.) When this statute was recodified in its present form under article 43 of the Mental Hygiene Law (L 1972, ch 251), reference to the State’s preferred creditor status inexplicably was omitted. Once again, however, there is no mention made in the statute or in any of its legislative history which indicates that the State’s common-law right of priority thereby was abolished. As such, we are unable to glean from this unexplained deletion of the State’s statutory preference from the Mental Hygiene Law a purpose on the part of the Legislature to revoke the State’s prerogative right to priority.

In sum, the State, in recovering amounts expended for public assistance, continues to enjoy its prerogative right of preference which is superior to any statutory right conferred upon the City under the Social Services Law. Nor has the State’s common-law preference been abrogated, either expressly or by necessary implication, as a result of any of the statutory amendments relied upon by the City.

Accordingly, the order of the Appellate Division should be modified, without costs, to the extent of providing that the net estate of the deceased incompetent be distributed to New York State Department of Mental Hygiene and, as so modified, the order should be affirmed.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.