author: Hancock, Jr., J.

text:
    Alice Kish et al., Appellants, v Board of Education of the City of New York et al., Respondents.
    Argued April 26,1990;
    decided June 28, 1990

      POINTS OF COUNSEL

      Robert J Bohner for appellants.

      Victor A. Kovner, Corporation Counsel (Jean Brandon and Ellen B. Fishman of counsel), for respondents.
   OPINION OF THE COURT

Hancock, Jr., J.

In a personal injury case involving a claim of lost, past and future earnings resulting from an alleged permanent disability from work, evidence that the plaintiff voluntarily chose to retire is often so prejudicial as to be inadmissible; it may be allowed, however, in the court’s discretion in limited circumstances, where it has significant probative value with respect to a validly raised question about the plaintiff’s malingering or motivation for not working. Under the particular circumstances here, the trial court did not abuse its discretion in allowing relevant proof of plaintiff’s retirement and, therefore, the order of the Appellate Division should be affirmed.

I

On April 26, 1978, plaintiff, then 50 years of age and employed by defendant Board of Education as a teacher, fell in a school auditorium and injured her knee. In the jury trial of her negligence action against defendants — which took place eight years later and consumed 13 trial days over a three-week period — the issues of liability and damages were vigorously disputed. On cross-examination of plaintiff and her witnesses, as well as on summation, defense counsel raised questions concerning where, how and why plaintiff fell and whether the Board of Education had received notice of the claimed defect. Defense counsel cast doubt on plaintiff’s credibility by, among other things, showing inconsistencies between her trial and pretrial testimony about the location of the alleged defect in the auditorium and the length of time prior to the accident that plaintiff had not attended assemblies there. At the close of the evidence, the trial court submitted the issue of defendants’ negligence to the jury, and in a special verdict, the jury found unanimously that defendants were not responsible.

Prior to the opening of trial, on plaintiff’s motion in limine to preclude any evidence of her receipt of benefits as barred by the collateral source rule, the trial court ordered defense counsel to refrain from "any reference to any benefits [plaintiff] may have received [emphasis added]”. In her opening, defense counsel stated, among other things, that "Mrs. Kish is going to try to convince you that the reason that she hasn’t been able to work is because of that sprained knee and the supposed negligence of the City. I think what the evidence is going to show you is that Mrs. Kish has preferred not to look for any work.”

In support of her claim for lost earnings, plaintiff submitted evidence that she was totally and permanently disabled from the knee injury and the psychological effect of the accident. Throughout the trial, defendants disputed the nature and extent of the impairment to plaintiff’s knee and questioned whether the impairment was related to the accident rather than to a previously existing condition. The defense offered proof that, contrary to plaintiff’s testimony, she was not in good health at the time of her injury and that she had received treatment for various ailments on over 30 occasions in the months immediately preceding the accident. In particular, defendants contested the claim that the knee injury and the ensuing emotional problems were so disabling as to prevent her from accepting gainful employment.

During the trial, evidence was adduced suggesting that plaintiff’s emotional difficulties were the result of the health problems of her husband and her son rather than her knee injury. As evidence of the contention that plaintiff could have worked had she desired to do so, defense counsel presented testimony of an expert in vocational rehabilitation who testified concerning the availability of jobs for someone with plaintiff’s disability. In addition, an administrator from the medical bureau of the Board of Education described the various accommodations in working conditions that could be made to enable a teacher with a physical disability such as plaintiff’s to resume employment. Moreover, plaintiff’s own psychologist stated that returning to work would benefit plaintiff psychologically and that "eventually she probably could” return to work.

The issue concerning plaintiff’s retirement arose when defense counsel was permitted, over objection, to develop in cross-examining plaintiff that she had retired approximately one year and eight months after the accident. The court denied plaintiffs ensuing motion for a mistrial. In dismissing the argument that defense counsel, by asking about retirement, had violated its in limine order and the collateral source rule of Healy v Rennert (9 NY2d 202, 205-208), the court stated to plaintiffs attorney, "[C]ounselor, I am familiar with the collateral source rule and it has not been violated in this case. ” (Emphasis added.)

Except for a single unsolicited reference made by a defense witness to the amount of plaintiffs pension, the court’s in limine ruling precluding any mention of benefits received by plaintiff was not violated. The court immediately struck the defense witness’s gratuitous statement as to plaintiffs pension and gave the jury an appropriate instruction to disregard it. Plaintiffs counsel made no objection to this instruction and requested no further instruction pertaining to the question of plaintiffs retirement, then or at any other time. In its final instructions to the jury, the court used the exact words requested by plaintiff: "In considering the amount of money which the plaintiff has lost by reason of her inability to work there is no evidence in this case that plaintiff is receiving any moneys from any outside source and you are not to consider or speculate about any such sums in deliberating on lost income.”

Plaintiff took no exception to the charge and does not raise one on appeal. She does argue, however, that the court’s admission of proof of her disability retirement was so prejudicial as to have inevitably influenced the jury’s verdict.

The Appellate Division unanimously affirmed, without opinion. We now affirm.

II

Plaintiffs primary contention on appeal is that the trial court, in permitting proof of plaintiffs retirement, acted in contravention of the collateral source rule established in Healy v Rennert (supra). We disagree. In Healy, the court held that it was error to permit the defendant to show that, as a result of injuries sustained in the accident, plaintiff, a New York City fireman, could retire at three quarters of his regular salary. Our holding was based on the potential prejudice of that proof — i.e., that evidence of "the acceleration and increase in the amount of payments of plaintiffs pension” might unduly affect the outcome of the case, influencing the jury to reach a verdict based upon a belief that the plaintiff was "not harmed rather than on questions of negligence and contributory negligence.” (9 NY2d, at 207 [emphasis added].) Similarly, we held that it was improper to permit the defendant to show collateral source payments from plaintiffs membership in a health insurance plan, relying on the rule prevailing in most jurisdictions that "the damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance effected by him and to the procurement of which the wrongdoer did not contribute” (id., at 206).

The theory underlying the collateral source rule is simply that a negligent defendant should not, in fairness, be permitted to reduce its liability in damages by showing that the plaintiff is already entitled by contract or employment right to reimbursement for such items as medical expenses and lost wages. That rule is not necessarily violated where proof is offered showing that a plaintiff is not permanently disabled and has stopped working solely for a non-injury-related reason, such as voluntary retirement. While, to be sure, such evidence relates to the issue of damages, its purpose and effect may not at all be to offset specific amounts against the sum which a plaintiff might otherwise be awarded, but only to undermine the very basis for the claim — i.e., that the plaintiff stopped working because of the effect of the injury.

Plaintiff argues, however, that even if proof of her retirement does not fall within the strict bounds of the Healy preclusionary rule, it should, nevertheless, be excluded. She would have us adopt a categorical rule that the prejudicial impact of such proof invariably outweighs its probative value even though devoid of reference to specific monetary benefits, and even where offered solely as bearing on the issue of plaintiffs motives and credibility. Such a holding would amount to a substantial enlargement of Healy and we decline to adopt it.

We recognize that proof of a plaintiff’s retirement, even standing alone, may carry with it significant potential for prejudice since the jurors might speculate about pension benefits in assessing damages. To avoid such prejudice, the admission of retirement evidence should be precluded unless it is centrally relevant to issues in substantial dispute bearing on the legitimacy of the claim of permanent disability — for example, plaintiff’s motivation for not working and defense claims of exaggeration or malingering. If retirement proof is allowed, the court should caution the jury in its final instructions that there is no evidence in the case of any retirement benefits and that the jury must not speculate as to the possibility of plaintiff’s receipt of such benefits in assessing damages or determining liability or any other issue in the case (cf., Matter of Lanzano v City of New York, 71 NY2d 208, 212). Additionally, if requested, the court should give limiting instructions at the time the retirement evidence is received.

In the case before us, the court did not abuse its discretion in permitting proof of plaintiff’s retirement. Plaintiff’s motivation in not resuming her work was made a central issue throughout the trial. Defense counsel challenged the seriousness of her knee injury and whether the injury and its emotional consequences had, in fact, disabled her from work. Substantial evidence was adduced to the effect that suitable work was available, that plaintiff was physically capable of working, that workplace adjustments could be made to accommodate her physical condition and that working would be of benefit to her psychologically. The fact that she had voluntarily terminated her employment and elected to take retirement status (as opposed to having received any amounts of retirement income) was of sufficient probative value on the critical issue of whether plaintiff, although claiming to be unable to work because of her injury, had, in truth, ceased working because she preferred not to work at all. In its final instructions to the jury, the court could not have made it clearer that there was "no evidence * * * that Plaintiff [was] receiving any money from any outside source” and that the jurors were "not to consider or speculate about any such sums” in fixing plaintiff’s loss due to her inability to work.

Finally, we reject plaintiff’s argument that the court abused its discretion in denying her mistrial motions and that she was deprived of a fair trial by the conduct of defense counsel. As noted, the record does not support her contention that defense counsel repeatedly violated the in limine ruling pertaining to collateral source evidence. Many of the incidents of alleged misconduct involve matters which were either permissible under the court’s rulings or arguments which were not inappropriate in the context of a sharply contested lawsuit where the main defense to plaintiff’s claim of permanent injury was that she simply preferred not to work. Indeed, after the jury verdict, when plaintiff moved to set it aside as against the weight of the evidence — a motion which the court appropriately denied on the ground that such "was strictly a jury question” — her counsel expressed no objection to the court’s treatment of the collateral source question and made no assertion of any impropriety by defense counsel.

There is, thus, no basis for disturbing the Appellate Division’s affirmance on the collateral source issue; nor do we believe that any of plaintiff’s remaining arguments support a reversal.

Accordingly, the order should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order affirmed, with costs.

      . We reject plaintiffs further contention that the Healy court’s holding that the jurors should not have been permitted to consider plaintiff’s motivation in retiring at three-quarters pay compels the exclusion of the evidence offered here on the issue of plaintiff’s motivation. In Healy v Rennert, the court specifically noted that "[pjlaintiffs motivation in applying for a pension had no bearing on the issues in [the] case” and that, in any event, the "jurors are likely to have been confused by the instruction” (9 NY2d 202, 208 [emphasis added]). Here, in contrast, plaintiff’s motivation in deciding to take retirement status is highly relevant. There was a serious dispute as to whether plaintiff’s injury was as serious as she claimed and whether she had stopped working because of disability from the injury or because she simply wished to retire.

      . Contrary to plaintiff’s suggestion, the Supreme Court in Eichel v New York Cent. R. R. Co. (375 US 253, 254-255) did not adopt a rule that the prejudice from the type of evidence offered here would invariably outweigh its probative value. The evidence which the Eichel court held to be properly excluded on the issue of motivation was plaintiff’s receipt of benefits under the Railroad Retirement Act, not the fact of plaintiff’s retirement. (See generally, Hrnjak v Graymar, Inc., 4 Cal 3d 623, 484 P2d 599, 604-605; 1 NY PJI2d 654-656; 1 NY PJI2d 445-448 [1989 Cum Supp].)


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    In the Matter of Raquel Marie X., an Infant. Mr. and Mrs. C., Respondents; Mr. T., Appellant, et al., Respondent. In the Matter of Baby Girl S. Adoptive Parents, Appellants; Natural Father et al., Respondents.
    Argued May 1,1990;
    decided July 10, 1990

      POINTS OF COUNSEL

      Domenick J. Porco for appellant in the first above-entitled matter.

      Richard S. Birnbaum for Mrs. T., respondent in the first above-entitled matter.

      Alan D. Scheinkman and Ronald J. Bavero for Mr. and Mrs. C., respondents in the first above-entitled matter.

      Richard J. Strassfield, Law Guardian, for Raquel Marie X. in the first above-entitled matter.

      Alan D. Scheinkman for appellants in the second above-entitled matter.

      Joseph T. Gatti, Burke Probitsky and Paul G. Reilly, Jr., for Natural Father, respondent in the second above-entitled matter.

      George Anthony Terzian and Mary A. Clarke for Natural Mother, respondent in the second above-entitled matter.

      Kevin C. Fogarty, as guardian ad litem for Baby Girl S. in the second above-entitled matter.

      Sue Wimmershoff-Caplan for the Committee for Mother and Child Rights, Inc., and another, amici curiae.

   OPINION OF THE COURT

Kaye, J.

The focus of these appeals, involving the adoption of newborn infants, is Domestic Relations Law § 111 (1), which provides that — while an unwed mother’s consent is always required — an unwed father’s consent to the adoption of his under-six-month-old child is required only where he has openly lived with the child or the mother for six continuous months immediately preceding the child’s placement for adoption, openly acknowledged his paternity during such period, and paid reasonable pregnancy and birth expenses in accordance with his means (Domestic Relations Law § 111 [1] [e]). We conclude that the statutory requirement that the father openly live with the mother before the child’s placement for adoption neither legitimately furthers the State’s interest nor sufficiently protects the father’s, and that section 111 (1) (e) must therefore be declared unconstitutional.

While the facts in both cases have been developed at length elsewhere (see, Matter of Raquel Marie X., 150 AD2d 23; Matter of Baby Girl S., published in part at 141 Misc 2d 905, affd without opn 150 AD2d 993), only a few are pertinent to the present analysis.

Both cases are adoption proceedings involving out-of-wedlock children whose birth mothers executed consents to their adoption. The putative adoptive parents were strangers to the children. In each case the child is a girl now just two years old —Baby Girl S. was born on April 24, 1988, Raquel Marie on May 26, 1988. Baby Girl S. was placed for adoption by her mother on April 27, 1988, two days after her birth; Raquel Marie on July 22, 1988, two months after her birth. In each case, the biological parents did not live together for any sustained period of time prior to the child’s placement. However, after the initial estrangement during which each unwed mother sought adoption for the child — thus implicating the lives of hopeful adoptive parents — the biological parents reunited and the mother thereafter supported the father’s efforts to gain custody of the child. No question of fitness or abandonment is in issue.

In Raquel Marie, on November 4, 1988, approximately three months after the child was placed for adoption, the biological parents — Louise and Miguel — were married, but they do not have custody of the child, who has lived virtually her entire life with her adoptive parents in New Hampshire. The trial court, after a hearing limited to the issue of the need for Miguel’s consent under Domestic Relations Law § 111 (1) (e), concluded that while Louise and Miguel lived separately in the relevant six-month period before placement — during which he several times assaulted her — they had a sufficiently continuous and ongoing relationship to meet the "living together” requirement of the statute, loosely construed; the court additionally found that, in the key six-month period, Miguel had openly held himself out as the child’s father and contributed to the pregnancy and birth expenses, thus entitling him to veto the adoption.

The Appellate Division took a different view of the couple’s tumultuous relationship in the six months preceding placement, concluding that it was "neither normal nor stable.” (150 AD2d, at 26.) In that Miguel failed to satisfy the "living together” requirement of the statute, the Appellate Division determined that he had no right to veto the adoption. While the court explicitly premised its holding on Miguel’s failure to meet the "living together” requirement, it additionally observed that there was little evidence of Miguel’s compliance with the remaining two requirements of Domestic Relations Law § 111 (1) (e), or of any effort on his part to manifest substantial parental responsibility. Miguel’s appeal is before us as a matter of right, on a constitutional question (CPLR 5601 [b]).

In Baby Girl S., while the biological parents (Regina and Gustavo) also did not live together in the relevant six-month period preceding the child’s placement, the affirmed findings of the Surrogate established a course of conduct over several months that prevented Gustavo from even knowing of the pregnancy or his paternity, thus rendering literal compliance with the statute impossible. The Surrogate, unanimously affirmed by the Appellate Division, concluded that the adoption should fail both because of fraud of the adoptive parents during the proceeding and because — reading a "savings clause” into the statute for prevention by others — Gustavo did as much as possible to fulfill the statutory requirements and therefore was entitled to veto the adoption. The Surrogate on November 15, 1988, ordered the child transferred from the adoptive parents to Gustavo, with whom she has since remained. After the Appellate Division affirmance, we granted the prospective adoptive parents’ motion for leave to appeal.

Concluding that the "living together” prong of Domestic Relations Law § 111 (1) (e) renders the statute unconstitutional, we now reverse the Appellate Division order in Raquel Marie; in Baby Girl S., we affirm on the statutory ground and affirmed findings of Gustavo’s substantial parental interest, without reaching the question of fraud on the part of the adoptive parents.

The New York Statute Against the Backdrop of Five Supreme Court Cases

Assessment of the New York statute and the parties’ claims regarding its validity can only be undertaken in the context of the five Supreme Court cases that have shaped the constitutional contours of the unwed father-child relationship.

The evolution of the case law, and corresponding amendments of the New York statute, are themselves a commentary on changing family patterns and social attitudes toward unwed fathers (see generally, Note, Certainly Not Child’s Play: A Serious Game of Hide and Seek with the Rights of Unwed Fathers, 40 Syracuse L Rev 1055 [1989]; Raab, Lehr v Robertson: Unwed Fathers and Adoption — How Much Process is Due?, 7 Harv Women’s LJ 265 [1984]; Comment, Caban v Mohammed: Extending the Rights of Unwed Fathers, 46 Brooklyn L Rev 95 [1979]; Note, The Unwed Father’s Rights in Adoption Proceedings: A Case Study and Legislative Critique, 40 Alb L Rev 543 [1976]; Comment, The Emerging Constitutional Protection of the Putative Father’s Parental Rights, 70 Mich L Rev 1581 [1972]).

Until the 1970’s, unwed fathers had no legally recognized interest. That point is amply illustrated by the 1972 Supreme Court decision in Stanley v Illinois (405 US 645), where children born during a nonmarital cohabitation that spanned 18 years, under Illinois law became wards of the State upon their mother’s death.

Stanley established that a father’s interest "in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection” (id., at 651); the sense of the parental tie as a fundamental interest appears throughout the court’s opinions in this area. Illinois’ blanket assumption that all unwed fathers were unfit was found to have violated both equal protection and due process, which entitled Stanley to a hearing on “his fitness as a parent before the State could terminate his parental rights. The Supreme Court rejected the State’s claim that unmarried fathers could reasonably be presumed unqualified to raise their children, and recognized that a father in Stanley’s situation had a constitutional interest in his relationship with his nonmarital children entitled to the same protection against State interference as the interests of other custodial parents.

Following Stanley, the New York Legislature in 1976 added Domestic Relations Law § 111-a, for the first time requiring that an unwed father in enumerated circumstances be given notice of an adoption proceeding, which would then entitle him to present evidence relevant to the best interests of the child (L 1976, ch 665). Still an unwed father in New York had no right to veto an adoption to which the mother had consented.

In 1978, relying on Stanley, Leon Quilloin sought the right to veto the adoption of his 11-year-old child by the boy’s stepfather. While Quilloin’s name appeared on the birth certificate, he never had custody, or regularly supported or visited the child, nor did he attempt to legitimate him until receiving notice of the proposed adoption. Rejecting Quilloin’s equal protection and due process claims, the Supreme Court identified the issue, unresolved by Stanley, as one of the degree of protection a State must afford "the rights of an unwed father in a situation, such as that presented here, in which the countervailing interests are more substantial.” (Quilloin v Walcott, 434 US 246, 248.)

Noting its long recognition that the relationship between parent and child is a constitutionally protected one, the court stated that it had little doubt that the Due Process Clause would be offended if the State were to attempt to break up a biological family over the objection of parents and children solely in the perceived best interests of the children. However, it found no violation in view of Quilloin’s failure to have or seek custody of his son, where the result of the adoption would be to give legal recognition to an existing family unit. The nature of Quilloin’s actual relationship with his son was also central to the court’s rejection of his equal protection claim. The court emphasized that he "never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child” (id., at 256) — a responsibility that a once-married father would have exercised during marriage — and the absence of such a relationship justified differential treatment.

Stanley involved an unwed father with actual custody of his children at the time the State attempted to terminate his parental rights, Quilloin an unwed father who had never had custody. Caban v Mohammed (441 US 380) — decided in 1979, just one year after Quilloin — concerned an unwed father who for several years, but no longer, had custody of his children. Under the New York law then in effect, he was entitled only to notice of the proposed adoption and an opportunity to present evidence on the children’s best interests.

A sharply divided Supreme Court struck down the New York statute on equal protection grounds, applying the intermediate level of scrutiny applicable to gender-based distinctions and concluding that the "undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of á child of theirs is at issue, does not bear a substantial relationship to the State’s asserted interests.” (Id., at 394.) Since Caban and his children had lived together as a family for several years, the "case demonstrates that an unwed father may have a relationship with his children fully comparable to that of the mother.” (441 US, at 389.) While agreeing the State had important interests in furthering the adoption of nonmarital children into "a normal, two-parent home” (id., at 391), the majority concluded that gender-based distinction of section 111 was too broad to be substantially related to this interest.

According to the State, a requirement of the consent of unwed fathers would impede the adoption process because they are often impossible to locate, whereas mothers tend to remain with their children. Specifically reserving the question whether such difficulties would justify different treatment concerning newborn adoptions, the majority found that in the case of older children, the State’s problem could be solved by a more finely drawn distinction, as in "cases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child.” (Id., at 392.)

In an effort to bring New York’s statute into compliance with Caban, the Legislature in 1980 amended Domestic Relations Law § 111 (L 1980, ch 575; see, Sponsor’s Mem, 1980 NY Legis Ann, at 242-243). Rejecting proposals to require the consent of all unwed fathers, the Legislature opted to provide them with a veto right only in specified circumstances which in its view objectively and unambiguously manifested that, through his efforts, there was a substantial, continuous, meaningful family relationship available to the child. Recognizing a distinction between the adoption of newborns and older children, the Legislature set up one test for an unwed father’s veto right in the case of an under-six-month child (Domestic Relations Law § 111 [1] [e]) and a different test for an over-six-month child — requiring financial support, visitation and communication with the child (Domestic Relations Law § 111 [1] [d]). No exception is made in section 111 (1) (e) — as in section 111 (1) (d) — for prevention of the father’s efforts to satisfy statutory requirements, by the person having custody of the child. That is eásentially the statute before us today.

Twice since Caban, the Supreme Court has considered questions relating to the unwed father-child relationship, although Domestic Relations Law § 111 (1) (e) was not in issue in either case. In 1982, in Lehr v Robertson (463 US 248), the court sustained New York’s notice statute — Domestic Relations Law § 111-a — in a case where the unwed father, seeking to block the stepfather’s adoption, had never during the child’s two years lived with her or the mother or provided financial support.

In Lehr, which rested solely on procedural due process grounds, the court in defining the father’s liberty interest characterized "the rights of the parents [as] a counterpart of the responsibilities they have assumed” (id., at 257), and emphasized that the court’s recognition of such rights had been, for the most part, in the context of a recognized family unit. Analysis of the previous three cases demonstrated the distinction between a mere biological connection and an actual relationship of parental responsibility. Commenting on the biological link, the court stated that its significance was "that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.” (Id., at 262.) As Lehr had never grasped the opportunity to form a relationship with his daughter, the due process issue was whether New York had given adequate procedural protection to his opportunity to do so, and the court concluded that it had.

As for Lehr’s equal protection claim, again emphasizing that "the existence or nonexistence of a substantial relationship between parent and child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child” (id., at 266-267), the court held that the New York statutes did not operate to deny Lehr equal protection, because he (like Quilloin) had never established a substantial relationship with his child, and hence (unlike Caban) was not similarly situated with the child’s mother.

Finally, only last term in Michael H. v Gerald D. (491 US 110) the Supreme Court considered the constitutionality of the California statutory scheme governing the rights of a biological father of a child born to a woman married to and living with another man at the time of conception. While the efforts of the alleged biological father to gain visitation were denied, five Justices, in concurrence and dissent, indicated that such a father might have a constitutionally protected liberty interest in his relationship with the child when the mother was married to another man at the time of birth. Even the author of the two-Justice plurality opinion noted that the court had previously assumed in Lehr that the Constitution might require that some protection be accorded the biological father’s opportunity to develop a relationship with the child, and left open the question whether there would be a different result if the marital parents did not wish to raise the child as their own. The four dissenters found that Michael H. had fully met the court’s test for constitutional protection — he not only had a biological connection but also had come forward to participate in the child’s rearing and shown a willingness to assume his parental responsibilities.

Thus, it is plain that within two decades the interest of unwed fathers in a relationship with their children has gained significant recognition in the law, and the dimensions of that interest are by now well defined. The protected interest is not established simply by biology. The unwed father’s protected interest requires both a biological connection and full parental responsibility; he must both be a father and behave like one (see, Bartlett, Re-Expressing Parenthood, 98 Yale LJ 293 [1988]). When an unwed father promptly commits himself to custody — signifying "provision for the physical and emotional needs of children, provision of guidance and direction to children, and living with children on a day-to-day basis” (Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v Robertson, 45 Ohio St LJ 313, 350 [1984]) — in adoption proceedings by strangers he is entitled to the constitutional due process and equal protection guarantees accorded other parents before his rights are terminated.

The Unwed Father’s Constitutional Interest In the Case of Newborns

In the case of a child placed for adoption at birth, the father can have no more than a biological connection to the child, there having been no chance for a custodial relationship. Protection of his parental interest would depend, then, upon recognition of a constitutional right to the opportunity to develop a qualifying relationship with the infant.

That open question is before us today: is the full measure of constitutional protection — the right to a continued parental relationship absent a finding of unfitness — ever required where a child is placed for adoption before any real relationship can exist, and if so, what actions on the unwed father’s part would demonstrate his willingness to take parental responsibility sufficient to give rise to such rights? We conclude that such an interest must be recognized in appropriate circumstances, and we do so as a matter of Federal constitutional law; the parties’ exclusive reliance on Federal law affords us no basis for considering the issue under our own State Constitution.

In Caban, involving an unwed father who did not have a current custodial relationship with his children, the court gave determinative significance to the fact that he nonetheless had demonstrated a continuing willingness to have such a relationship. Conversely, in Lehr and Quilloin, rejecting the fathers’ claims that their relationships were also worthy of the maximum protection, the court emphasized their failure to grasp such opportunities for a significant relationship as had been available. Thus, it is apparent that the biological parental interest can be lost entirely, or greatly diminished in constitutional significance, by failure to timely exercise it or by failure to take the available legal steps to substantiate it.

Consequently, in an adoption proceeding by strangers, an unwed father who has been physically unable to have a full custodial relationship with his newborn child is also entitled to the maximum protection of his relationship, so long as he promptly avails himself of all the possible mechanisms for forming a legal and emotional bond with his child (see, Buchanan, The Constitutional Rights of Unwed Fathers Before and After Lehr v Robertson, 45 Ohio St U 313; see also, In re Adoption of B.G.S., 556 So 2d 545 [La 1990]; In re Baby Girl Eason, 257 Ga 292, 358 SE2d 459 [1987]). In Lehr in fact, Justice Stevens spoke of "the opportunity” the biological link offers the unwed father to develop an interest entitled to full constitutional protection (Lehr v Robertson, 463 US, at 262, supra). This implies, however, that in order to have the benefit of the maximum protection of the relationship — the right to consent to or veto an adoption — the biological father not only must assert his interest promptly (bearing in mind the child’s need for early permanence and stability) but also must manifest his ability and willingness to assume custody of the child (see, Buchanan, op. cit., 45 Ohio St LJ, at 362-368; see also, Note, Certainly Not Child’s Play: A Serious Game of Hide and Seek with the Rights of Unwed Fathers, 40 Syracuse L Rev 1055, 1079-1084 [1989]).

Notably, in Lehr and Quilloin, the Supreme Court also emphasized that the result of permitting stepfather adoptions would be legal recognition of a de facto family already in existence, a State interest it viewed as outweighing the parental interests of the fathers who had not grasped the opportunity to solidify their relationships with their children. This State interest in recognizing the legal rights of a stepfather who has shouldered the parental role left open by the biological father’s failure to do so, is not present in the cases before us, involving proposed adoption by parties who were strangers to the children.

This is not to say that the unwed father’s failure to form ties with his newborn child may not be sufficiently great to constitute a sort of waiver or abandonment that would give rise to a State interest in providing the child with a permanent, stable home through adoption, as well as an interest on the part of prospective adoptive parents who have committed themselves to the child. The unwed father’s right is decidedly limited in duration. Nonetheless, a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship.

The Relation Between the State Interest and the Private Interest

Where a fundamental interest of this nature is at issue, any legislation limiting or burdening it at the very least must meet two tests: the statute must further a powerful countervailing State interest, and there must be a close fit between the governmental objective sought and the means chosen to achieve it. These standards would apply whether the analysis were undertaken as a matter of due process or equal protection (see, Caban v Mohammed, 441 US 380, supra [equal protection]; Stanley v Illinois, 405 US ,645, supra [equal protection and due process]; see also, Matter of Malpica-Orsini, 36 NY2d 568, and especially 578 [Jones, J., dissenting], appeal dismissed sub nom. Orsini v Blasi, 423 US 1042).

Unquestionably, substantial State interests are at stake in the adoption laws generally, and the consent provisions particularly (see, Matter of Malpica-Orsini, supra; see also, McCarthy, The Confused Constitutional Status and Meaning of Parental Rights, 22 Ga L Rev 975 [1988]). The distinctions drawn in Domestic Relations Law § 111 (1), based on parents’ gender and children’s age, reflect the inherently different position, alluded to by Justice Stevens in his Caban dissent, of an unwed mother alone faced with the enormous responsibility of making crucial decisions about the future of her newborn child. As the child grows older, the urgency underlying certain of those decisions arguably diminishes, and at that point there may be less justification for requiring the biological father’s participation rather than allowing him to fulfill his responsibilities through financial support and occasional visitation or communication, as contemplated by Domestic Relations Law § 111 (1) (d). Moreover, as Justice Stevens further noted, available statistics strongly indicate that infants are more likely to be adopted and more readily bond with adoptive parents. To the extent that the State has an interest in encouraging the adoption of these children, the statute promotes that end by limiting the necessity for paternal consent, thus making the process surer and speedier.

While the State cannot deny all unwed fathers who have never lived with their newborn children the right to veto adoption, plainly it can do a great deal to promote its own substantial interests, as well as the integrity of the adoption process. The State can deny a right of consent to all unwed fathers who do not come forward to immediately assume their parental responsibilities, and it can prescribe conditions for determining whether the unwed father’s manifestation of interest in his child is sufficiently prompt and substantial to require full constitutional protection (see generally, Note, Unwed Fathers and the Adoption Process, 22 Wm & Mary L Rev 85,135-137 [1980]).

Domestic Relations Law § 111 (1) (e) attempted to do precisely that. Indeed, the Legislature rejected an alternative proposal by the Law Revision Commission which envisioned according courts discretion to dispense with the unwed parent’s consent where, in the court’s opinion, the " 'parent has not manifested a significant parental interest in the child and is not prepared to assume the obligations of parenthood.’ ” (1980 Report of NY Law Rev Commn, Recommendation to Legislature Relating to the Rights of Fathers in the Adoption of Children Born Out of Wedlock, 1980 McKinney’s Session Laws of NY, at 1672, 1673-1674.) Instead, the Legislature chose the current requirements, which the bill’s sponsor opined "follow the Supreme Court’s opinion which accords protection to fathers who 'participated in the rearing’ of the child, who * * * had 'manifested a significant paternal interest in the child,’ ” and that the bill would be a "reasonable, unambiguous and objective standard to guide agencies and courts.” (Sponsor’s Mem, 1980 NY Legis Ann, at 243.)

The desire to fashion reasonable, unambiguous and objective standards is surely understandable in these matters of high sensitivity. But given that unwed fathers who grasp the opportunity to shoulder the responsibilities of parenthood are entitled to as much protection of their rights in adoption proceedings as other parents, the "living together” requirement of Domestic Relations Law § 111 (1) (e) — which cuts off their interest by imposing as an absolute condition an obligation only tangentially related to the parental relationship— cannot stand.

Where the State interest is in determining the existence of a significant parental concern for a relationship with the child, the difficulty with the "living together” requirement stems from its focus on the relationship between father and mother, rather than father and child. When the child is surrendered for adoption by the mother at birth — as in the case of Baby Girl S. — under Domestic Relations Law § 111 (1) (e) the father can qualify for a veto right only if he has continuously lived with the mother for a full six months preceding the birth — in which case it seems unlikely that there would even be a conflict between father and mother on the question of adoption. Even if a father theoretically could qualify by living only with the child during a portion of the period prior to placement, by definition the statute in every instance requires some period of living with the mother, which does not establish parental responsibility toward the child.

The "living together” requirement can easily be used to block the father’s rights. But even more significantly, it permits adoption despite the father’s prompt objection even when he wishes to form or actually has attempted to form a relationship with the infant that would satisfy the State as substantial, continuous and meaningful by any other standard.

Nor does the "living together” requirement sufficiently further the State interest. The other two requirements of Domestic Relations Law § 111 (1) (e) — public acknowledgement of paternity within the six-month period preceding placement, and payment of pregnancy and birth expenses — already ensure that the father is both identifiable and, to some extent, ready to support the child financially. At any rate, the "living together” requirement adds nothing to either of those important considerations. Although the State plainly has a significant interest in fostering the well-being of the child by ensuring swift, permanent placement (see, Note, Lehr v Robertson: Putting the Genie Back in the Bottle: The Supreme Court Limits the Scope of the Putative Father’s Right to Notice, Hearing and Consent in the Adoption of his Illegitimate Child, 15 U Tol L Rev 1501, 1550-1553 [1984]), the State’s objective cannot be constitutionally accomplished at the sacrifice of the father’s protected interest by imposing a test so incidentally related to the father-child relationship as this one, directed as it is principally to the father-mother relationship.

Finally, the adoptive parents argue that the requirement promotes a strong State interest in assuring that the child has "stable” family relationships, presumably meaning a two-parent family. While the requirement might at first blush appear to promote that result between the biological parents, any connection between that objective and the means chosen to promote it disappears with the realization that the issue arises only when, over the father’s objection, the mother has surrendered the newborn infant and consented to adoption. Moreover, it is hardly obvious that the State has a sufficiently strong interest in ensuring that children are raised in a two-parent family to defeat the biological father’s right to a parental relationship. Indeed, since the State permits adoption by a single adult (Domestic Relations Law § 110), this argument also fails.

Accordingly, the "living together” requirement specified in Domestic Relations Law § 111 (1) (e) renders the statute unconstitutional as there is an insufficient fit with any valid State interest.

The remaining two statutory requirements are in a sense overlapping, since an acknowledged father under Family Court Act § 514 is already required to pay certain pregnancy and birth expenses. Although Domestic Relations Law § 111 (1) (e) is challenged only as to the "living together” requirement, we know with certainty from the format of the existing statute as well as the contemporaneous expressions of intent that the Legislature would not have wished to have the unchallenged portions of the statute stand alone as the sole measure of an unwed father’s commitment to the child, entitling him to veto an adoption. Therefore, while mindful of the extraordinary significance of so doing, we have no recourse but to declare section 111 (1) (e) unconstitutional in its entirety.

We recognize from a mere statement of the problem, from the considerable commentary on the subject, and from the wide array of approaches taken by other States — which do not impose our "living together” requirement — that it is no easy task to formulate unambiguous standards that both encapsulate the qualifying relationship and protect all of the important interests involved. Nonetheless, that effort is required.

Application of the Law to the Facts

Establishing a proper substitute is of course the prerogative of the Legislature, not the courts. Until there is new legislation, however, it will be necessary for courts to resolve cases before them — including the two present appeals. In setting forth criteria that are to be considered by courts needing in this interim period to determine whether an unwed father has established the requisite interest for a right of consent, we underscore that we are not prescribing necessary or even appropriate elements for any new statute, or speculating as to its constitutionality.

While the Legislature might ultimately adopt different criteria, in this period courts will be guided by principles gleaned from the Supreme Court decisions, which define an unwed father’s right to a continued parental relationship by his manifestation of parental responsibility. In the case of newborn infants, we take this to mean that the qualifying interest of an unwed father requires a willingness himself to assume full custody of the child — not merely to block adoption by others. In this connection, any unfitness, or waiver or abandonment on the part of the father would be considered by the courts, as they would whenever custody is in issue (see, Matter of Bennett v Jeffreys, 40 NY2d 543).

An assertion of custody is not all that is required. The Supreme Court’s definition of an unwed father’s qualifying interest recognizes as well the importance to the child, the State and all concerned that, to be sufficient, the manifestation of parental responsibility must be prompt. In reaching this determination, courts should give due weight to the remaining portions of Domestic Relations Law § 111 (1) (e), which were directed to that same objective and are unchallenged in this litigation. Perhaps most significantly, they establish the period in which the father’s manifestation of responsibility for the child is to be assessed — the six continuing months immediately preceding the child’s placement for adoption. The interim judicial evaluation of the unwed father’s conduct in this key period may include such considerations as his public acknowledgement of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other factors evincing a commitment to the child.

Applying such considerations leads us to affirm the Appellate Division order in Baby Girl S., where there are extensive affirmed findings supported by the record to sustain the unanimous conclusion reached by the courts that Gustavo, the biological father himself seeking full custodial responsibility virtually from the time he learned of Regina’s pregnancy, did everything possible to manifest and establish his parental responsibility. The Surrogate recited Gustavo’s persistent and uniformly rebuffed expressions of concern, offers of support and requests for custody, as well as his legal efforts to establish paternity and secure custody — within the six months preceding the infant’s placement — concluding from the evidence that he was "a concerned father” (141 Misc 2d, at 915), that he "obviously did all he could have done under the circumstances” (id., at 916), and that "Gustavo’s concern for his child is, at the very least, as substantial and significant as Mr. Caban’s concern for his children.” (Id., at 917.)

Though Miguel also wishes to assume custody, we cannot conclude in Raquel Marie that in the key six-month period he established his parental responsibility, and the matter must be remitted to the Appellate Division for further review of the facts. Having held that Miguel failed to satisfy the "living together” prong of section 111 (1) (e), the Appellate Division stated that it did not need to go any further in its factual review, observing only that "little evidence of compliance with [the remaining two statutory] requirements was adduced by the natural father in this case.” (Id., at 29.) Thus, while the trial court was satisfied that Miguel had manifested parental responsibility sufficient for a veto over the child’s adoption, the Appellate Division explicitly did not complete a review of the facts necessary to that determination.

Nor is the need for further review obviated by the fact of the marriage, as Miguel contends. Marriage obviously may be considered as one factor in determining whether the father has manifested the requisite parental responsibility, but the marriage must be timely in order to be considered substantial. It is surely not impermissible for the State, in order to protect children and prospective adoptive parents from heartbreak and uncertainty, to impose as a requirement for the automatic right of consent to adoption of a newborn infant that any marriage take place by the time the child is born (Domestic Relations Law § 24 [1]).

Accordingly, in Raquel Marie the Appellate Division order should be reversed, with costs, and the matter remitted to the Appellate Division for further proceedings in accordance with this opinion, and in Baby Girl S. the Appellate Division order should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

In Matter of Raquel Marie X.: Order reversed, etc.

In Matter of Baby Girl S.: Order affirmed, with costs.

      . While the issue is not necessary to our disposition in this case, we cannot overlook the extensive affirmed findings of fraud on the court. Fraud on a court is intolerable in any proceeding; it is particularly so in adoption proceedings where misrepresentations may be calculated to circumvent statutory notice provisions and cut off constitutionally protected interests (see, e.g., Domestic Relations Law § 111 [3] [b]; Matter of Bennett v Jeffreys, 40 NY2d 543, 549).

      . Before considering the constitutionality of the statute, we reject Miguel’s contention that his marriage to Louise on November 4,1988 — some five months after Raquel Marie’s birth and three months after her placement for adoption — alone requires his consent to the adoption, pursuant to Domestic Relations Law §24 (1), which legitimates a child born out of wedlock when the parents subsequently marry. In this respect we agree with the Appellate Division that the consent of the father is automatically required only for the adoption "of a child conceived or born in wedlock” (see, Domestic Relations Law § 24 [1]). Acceptance of Miguel’s argument would otherwise render that provision meaningless, and introduce a new uncertainty into every adoption; unwed parents could marry at any point before an adoption became final and thereby acquire an absolute veto (see, 150 AD2d, at 30). Miguel’s alternative contention that the marriage fortifies his constitutional argument is dealt with at page 409, infra.

      . Illinois, for example requires that the father have lived with the child for at least half the length of its life prior to placement (with no reference to living with the mother) unless prevented from doing so (111 Stat Annot, ch 40, U 1510, §8 [a] [3]), and South Carolina has requirements similar to Domestic Relations Law § 111 (1) (e), but in the disjunctive (SC Code Annot § 20-7-1690 [A] [5]). In Maine, a putative father named in the birth record, or currently providing or attempting to provide support, or involved in or attempting to be involved in a family relationship with the child, upon notice must petition for custody of the child. If the court finds that paternity has been established, and that the father is willing and able to take custody, he has the right to consent to the adoption (Me Rev Stat Annot, tit 19, § 532-C). Other States require that the unwed father have established paternity prior to the adoption proceeding (see, e.g., Ark Code Annot § 9-9-206 [a] [2]; Burns Indiana Stat Annot § 31-3-1-6 [a] [2]), or even simply require consent of both biological parents (see, Ariz Rev Stat Annot § 8-106). A number of States have granted veto rights to unwed fathers on condition that they file a notice of paternity and intent to support the child within specified time limits — which may be as short as five days — provided they have not otherwise abandoned the child (see, e.g., Utah Code Annot § 78-30-4; Neb Rev Stat § 43-104.02).
      Strict construction of the cited statutes has generally been upheld against constitutional challenge, although in several cases involving the affirmative thwarting of the father’s efforts to pursue his parental rights, they have been held unconstitutional as applied (see, In re Application of S.R.S. & M.B.S., 225 Neb 759, 408 NW2d 272 [1987]; Wells v Children’s Aid Socy., 681 P2d 199 [Utah 1984]; and Ellis v Social Servs. Dept. of Church of Jesus Christ of Latter-Day Saints, 615 P2d 1250 [Utah 1980]; see also, 1990 Utah Laws ch 245 [revised statute allows father to assert interest upon proof of impossibility of timely filing]).


author: Per Curiam.

text:
    In the Matter of Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, Respondent, v 198 Broadway, Inc., et al., Respondents, and Henry Modell and Co., Inc., Appellant.
    Decided July 10, 1990

      APPEARANCES OF COUNSEL

      Walter Feldesman, David Rosenberg and Michael G. Shannon for appellant.

      Philip L. Graham, Jr., John C. Hardiman and Karen A. Popp for Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, respondent.
   OPINION OF THE COURT

Per Curiam.

Having unsuccessfully prosecuted two appeals and two prior motions in this court, respondent Henry Modell and Co. (Modell) has now moved for an order "recalling and amending the remittitur” of our 1983 decision upholding petitioner’s right to possess the commercial premises that respondent formerly sublet. The motion is plainly untimely and, for that reason it should be dismissed (22 NYCRR 500.11 [g] [3]; see, e.g., Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 999). Further, because the motion is utterly without legal support and was evidently made for the purpose of delaying enforcement of petitioner’s seven-year-old judgment, we conclude that, as specifically requested by petitioner, a sanction in the amount of $2,500 should be imposed upon respondent Modell (see, 22 NYCRR 130-1.1 — 130-1.5).

The present motion is the most recent of a lengthy series of efforts by respondent to overturn a 1982 Appellate Division decision awarding petitioner possession of certain commercial space located at 198 Broadway in Manhattan (88 AD2d 511). The underlying dispute concerned respondent’s right to renew its sublease in the face of the decision by the master tenant not to renew its master lease. Respondent took an appeal to this court pursuant to leave granted by the Appellate Division, and we affirmed the Appellate Division order (59 NY2d 170).

Respondent reacted to this decision, which was rendered in 1983, by initiating and pursuing what we later characterized as "a barrage of litigation” (Modell & Co. v Minister, Elders & Deacon of Refm. Prot. Dutch Church, 68 NY2d 456, 460), including a declaratory judgment action based on a new legal theory, an unsuccessful appeal to this court from the Appellate Division order dismissing that action (see, id., affg 114 AD2d 751), two postappeal motions addressed to this court’s disposition of that appeal (see, 69 NY2d 741, 897), and two separate motions to vacate the dispossess judgment that we upheld in 1983. Each of these motions to vacate was based on purported "newly discovered evidence” and relied upon yet another legal theory. Following the trial court’s denial of the second motion to vacate — and respondent’s unsuccessful attempts both to reargue and to appeal from this denial — respondent made the present motion, which seeks "clarification” of our 1983 ruling.

The motion is "frivolous” within the meaning of rule 130-1.1 (a) of the Uniform Rules for Trial Courts, since it is "completely without merit in law or fact” and "cannot be supported by a[ny] reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1 [c] [1]). In addition to its having been made almost seven years after the time for making such motions expired (see, 22 NYCRR 500.11 [g] [3]), the motion is procedurally insupportable. Although it has denominated the present request a motion "to recall and amend the remittitur” to "clarify” a prior decision of this court, Modell is, in substance, asking the court to consider yet another "new” legal theory, ostensibly, supported by more "newly discovered evidence”. Notably, much of the "newly discovered evidence” was either available or reasonably discoverable in the early stages of this litigation. Further, the newly coined legal theory is really nothing more than a recast version of Modell’s prior arguments, all of which have already been rejected.

The present motion is also "frivolous” in that it was evidently "undertaken primarily to delay or prolong the resolution of the litigation” (McKinney’s 1990 New York Rules of Court [22 NYCRR] § 130-1.1 [c] [ii]). In reaching this conclusion, we have considered, as part of "the circumstances under which the conduct took place” (22 NYCRR 130-1.1 [c]), the extended history of this litigation and the numerous postjudgment efforts respondent has made to overturn the judgment. While some of the steps respondent took were legitimate and of at least colorable merit, many others, most notably respondent’s two prior reargument motions addressed to this court, its second motion to vacate the judgment and its related efforts to reargue and/or appeal the denial of that motion, were so lacking in factual or legal merit as to demonstrate an intention to use the courts not as a means of resolving a genuine legal dispute but rather as a mechanism to delay respondent’s inevitable eviction. We have also considered respondent’s own status as a sophisticated corporate entity, the fact that respondent has been represented throughout the litigation by experienced counsel and respondent’s obvious motive to postpone the surrender of valuable commercial premises for as long as possible.

Finally, in fixing the sanction at $2,500, we have taken into account the need to deter respondent from engaging in further frivolous motion practice in connection with this litigation, as well as the facts that petitioner has been unfairly deprived of the use of its property for a protracted period and that the time and attention of more than a dozen Judges of this State have been diverted unnecessarily. We have selected an amount within the lower range of permissible sanctions (see, 22 NYCRR 130-1.2), because this is the first time that sanctions have been imposed by our court and we deem it prudent to proceed cautiously in this area. While an additional sanction on the attorneys in this case is authorized by the rules, we elect not to impose one, in the absence of a specific request for such relief by Modell’s adversary. Because of these circumstances, we leave for another day the questions of when, and in what situations, the parties’ attorneys should be penalized for "frivolous conduct”.

Accordingly, the motion to recall and amend remittitur should be dismissed, with costs; a sanction in the amount of $2,500 should be imposed upon respondent Henry Modell and Co.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Alexander taking no part.

Motion to recall and amend remittitur dismissed with $100 costs and necessary reproduction disbursements. Application for sanctions granted and sanctions in the amount of $2,500 imposed upon Henry Modell and Co., Inc.

       Petitioner’s express request for the imposition of sanctions pursuant to subpart 130-1 of the rules furnished respondent with adequate notice that such relief would be considered and rendered a formal hearing unnecessary (see, 22 NYCRR 130-1.1 [d]).


author: Bellacosa, J. Titone, J.

text:
    In the Matter of George Long et al., Appellants, v Adirondack Park Agency, Respondent.
    Argued June 5,1990;
    decided July 2, 1990

      POINTS OF COUNSEL

      Walter O. Rehm III for appellants.

      Robert Abrams, Attorney-General (Lawrence A. Rappoport, O. Peter Sherwood, Peter H. Schiff and Douglas H. Ward of counsel), for respondent.

      Robert L. Beebe for Lake George Association and another, amici curiae.

   OPINION OF THE COURT

Bellacosa, J.

The Adirondack Park Agency (APA) has been granted a limited oversight responsibility and review power with respect to zoning variance determinations of local governments within its park land jurisdiction. In affirming the dismissal of the petition to annul the APA’s reversal of the grant of a zoning variance, we hold that the 30-day period within which APA must rule under Executive Law § 808 (3) commences no later than upon APA’s receipt of notice of the variance grant together with the hearing record and other pertinent materials on which it was made. This interpretation of the timing mechanism provision harmonizes interrelated parts of the over-all statutory design and insures that APA review is meaningful and in furtherance of the policies underlying the Adirondack Park Agency Act.

Petitioners own a seven-acre resort with frontage on Basin Bay, Lake George, in the Town of Bolton. They applied on May 19, 1988 for a variance to convert the resort into a 32-unit condominium development. The Bolton Town Zoning

Board of Appeals (ZBA) sent APA notice of the application on May 19 (Executive Law § 808 [3]; 9 NYCRR 582.6 [b]) and granted it on June 13.

On June 16, the APA notified the ZBA that the application was subject to APA review and requested a copy of "the application materials”. APA received notice on June 21 that the application had been granted, together with the following application materials: the first page of the application; an undated narrative description of the proposed development; the recommendation of the Town Planning Board; and two letters in opposition. Although the APA, as a matter of course, requests a copy of hearing minutes from local ZBAs in every case it reviews, no transcript was provided in this case. The APA reversed the ZBA’s variance on July 19, noting that the ZBA had not provided a complete record of the evidence before it. No timely review of the APA determination was sought. Thus, the article 78 proceeding now before us, insofar as it seeks relief with respect to that determination, must be rejected on the threshold ground of untimeliness of the judicial proceeding.

On September 7, the APA was notified that the ZBA would consider petitioners’ revised variance application. The APA received further notice on September 26, without any accompanying materials, that the ZBA had again granted petitioners’ application. After an unheeded oral request, the APA, by letter dated October 7, requested documents concerning the variance, including a site plan of the affected area. The materials were provided on October 24 and the APA then reversed the new ZBA determination on November 14.

Petitioners brought this article 78 proceeding to annul APA’s overturnings of the June and September variances. Supreme Court granted the demanded relief, without opinion. A unanimous Appellate Division reversed and dismissed the petition, and we granted leave to appeal. Petitioners-appellants argue solely that the APA determinations are null as untimely under Executive Law § 808 (3) because they were rendered more than 30 days after the ZBA decisions were made. We are not persuaded and affirm the order of the Appellate Division.

Executive Law § 808 (3) provides: "3. Upon receipt of an application for a variance from any provision of an approved local land use program involving land in any land use area other than a hamlet, including any shoreline restriction, the local government body or officer having jurisdiction thereof shall give written notice thereof to the [Adirondack Park Agency] together with such pertinent information as the agency may deem necessary. If such variance is granted, it shall not take effect for thirty days after the granting thereof. If, within such thirty day period, the agency determines that such variance involves the provisions of the land use and development plan as approved in the local land use program including any shoreline restriction and was not based upon the appropriate statutory basis of practical difficulties or unnecessary hardships, the agency may reverse the local determination to permit the variance. If the agency so acts, the appropriate local government officer or body, as well as any other person aggrieved by such action, shall have standing to have such action reviewed under article seventy-eight of the civil practice law and rules.”

Petitioners assert that, because a granted variance "shall not take effect for thirty days” and the exercise of APA’s review power is keyed to a conditional "if’ clause preceding the "within such thirty day period”, it follows that the 30 days following the local government grant is strictly measured as the sole period of empowerment. Read in vacuum-like isolation with absolute literalness, the statute could be amenable to that construction. However, such a conclusion would be contrary to the purpose and intent of the underlying statutory scheme and would conflict with other operative features of the statute’s core overview procedures, especially the threshold burden of notice and supply of necessary materials for review. Thus, we approach the statute’s provisions sequentially and give the statute a sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose and which harmonizes all its interlocking provisions. It is axiomatic that such an approach is preferred (e.g., Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208), especially when an opposite interpretation would lead to an absurd result that would frustrate the statutory purpose (see, e.g., Matter of Schmidt v Roberts, 74 NY2d 513, 520; Matter of State of New York [Abrams] v Ford Motor Co., 74 NY2d 495, 500; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675; New York State Bankers Assn. v Albright, 38 NY2d 430, 437).

The statute begins with the imposition of a triggering burden on the local zoning board: "Upon receipt of an application for a variance * * * the local government body or officer having jurisdiction thereof shall give written notice thereof to the [APA] together with such pertinent information as the agency may deem necessary.” Notification and necessary information for APA to perform its specific and unifying overview review are the principal aims of Executive Law § 808 (3), as evidenced both by its textual primacy (McKinney’s Cons Laws of NY, Book 1, Statutes § 130) and the Legislature’s manifest intent in the Adirondack Park Agency Act (Executive Law art 27). When the statute is read contextually, we discern that the enactors of the statute contemplated and probably preferred that the APA would review local variance grants during the 30-day limbo period, assuming APA has been properly notified and. informed with the necessary materials to do the critical job entrusted to it.

To "preserv[e] the priceless Adirondack Park through a comprehensive land use and development plan,” the Adirondack Park Agency "serve[s] [this] supervening State concern transcending local interests” by "preventing] localities within the Adirondack Park from freely exercising their zoning and planning powers” by reviewing and even undoing zoning variances granted by local governments (Wambat Realty Corp. v State of New York, 41 NY2d 490, 494-495). The APA is charged with an awesome responsibility and the Legislature has granted it formidable powers to carry out its task (see generally, Executive Law art 27). A recent advisory report— already the subject of vibrant debate — concludes that the importance and urgency of the APA’s mission may require even broader powers on its part (see, Report by Commission on Adirondack Park in Twenty-First Century, at 69 [Apr. 1990]). It is inconceivable that the drafters of the present statute, while lessening the customary finality of local government control of the use of land within their own borders, would at the same time deliver back to local regulatory units a frustrative tool to open and close the 30-day APA review "window” by unilateral action or inaction. Thus, despite the skewed and inartful interlock of the statute’s several provisions, the threshold burden remains on the local boards to notify and supply necessary data to the APA. Otherwise, meaningful APA review could be prevented by failing to notify of a variance grant, for example, until the eve of the expiration of the 30-day period or until after it had passed. That would lead to absurd results and would sap the APA of its legislatively delegated authority (see, e.g., Matter of Schmidt v Roberts, 74 NY2d, supra, at 520; Matter of State of New York [Abrams] v Ford Motor Co., 74 NY2d, supra, at 500; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d, supra, at 675; New York State Bankers Assn. v Albright, 38 NY2d, supra, at 437). Equally frustrative would be the withholding of the relevant record of proceedings upon which to make a meaningful and timely review. If the 30-day period is to be triggered automatically by a variance grant without the threshold, functional prerequisites having been satisfied, the locality’s statutory and regulatory duties to promptly notify and promptly inform the APA would be rendered literally meaningless and useless (Executive Law § 808 [3]; 9 NYCRR 582.6 [b]).

Petitioners argue that extending the 30-day period of review by a commencement date running from the date when the APA has notice and necessary materials creates uncertainty and swings the time pendulum too far in APA’s favor, giving it an opportunity to indefinitely delay the effective date of a variance by merely requesting cumulative or unnecessary materials. Although these are not insignificant concerns and are complicated further by the plain language of the core part of the statute relied on by petitioners, a ready response is available. First of all, the record here shows the opposite. The APA acted properly, promptly and persistently in accordance with its mandate. Moreover, the availability of CPLR article 78 review to challenge any potential manipulation or misuse of the trust reposed in the APA’s vast review and enforcement responsibilities, as well as the advisory APA opinion mechanism for variance applicants (see, 9 NYCRR 582.6 [c]), provide counterbalancing, reasonable remedies and checks and balances. We note finally in this respect that the furnishing to APA of notice and full materials quickly in order to "start the clock” and fix the review period remains always with the local zoning body and property owners.

" '[I]n the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle.’ ” (Ferres v City of New Rochelle, 68 NY2d 446, 451, quoting People v Ryan, 274 NY 149, 152.) The purpose of preserving the Adirondack Park is served not only by a centralized process of review of zoning variances, but by procedural assurances that the reviews will be adequate and meaningfully consistent with statutory prescriptions and prerequisites designed to protect all parties and interests. We therefore read the statute in the progressive order the sentences were put together and as an integrated procedural package. By doing so, we construe the 30-day time limitation of Executive Law § 808 (3) as commencing no later than on the receipt by the APA of notice of a variance grant, along with necessary materials promptly and reasonably requested by the APA which are pertinent to meaningful review.

The Legislature — on its own initiative or at the instance of the APA, local government units, property owners or other interested persons — may find it appropriate and necessary to reexamine and fine tune the procedural mechanisms of this important land use oversight review protection, especially since the Legislature will no doubt be examining related and transcendent issues involving the' Adirondack Park arising out of the recent, plenary report of the Commission on the Adirondack Park in the Twenty-First Century, dated April 1990.

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

Titone, J.

(dissenting). While the judicial construction of legislative enactments includes consideration of their "spirit and purpose” and " 'legislative intent is the great and controlling principle’ ” (Ferres v City of New Rochelle, 68 NY2d 446, 451), courts are not free to supplement statutory language with additional, judicially conceived requirements. Since that is precisely what the majority has done in this case and since, in my view, such judicial augmentation is not necessary for the rational implementation of the statutory scheme as it is written, I respectfully dissent.

As the majority acknowledges, the language in the statute at issue here is unambiguous. Locally issued variances affecting land use within the designated Adirondack Park area "shall not take effect for thirty days after the granting thereof’ and "[i]f, within such thirty day period, the [Adirondack Park Agency (APA)] determines that such variance * * * was not based upon the appropriate statutory basis of practical difficulties or unnecessary hardships, the agency may reverse the local determination” (Executive Law § 808 [3] [emphasis supplied]).

The 30-day period in which the APA must act is thus not left undefined; rather, it is specifically made coextensive with the 30-day period during which the granted variance remains ineffective. Indeed, the Legislature’s use of the term "such thirty day period” demonstrates a deliberate choice to use the same time span for determining the period within which both events must occur (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 254, at 418 ["the word ’such,’ when used in a statute, must, in order to be intelligible, refer to some antecedent, and will generally be construed to refer to the last antecedent in the context”]). Accordingly, the "ambiguity” that ordinarily justifies a judicial construction supplementing or filling in the interstices of a legislative enactment is not present here.

Moreover, the court’s own view of what method would best implement the underlying statutory policies cannot be cited as an alternative justification. ”[R]ules of construction are invoked only when the language used leaves [the statutory] purpose and intent uncertain or questionable^] [t]hey cannot be resorted to for the purpose of enabling the courts to enlarge or extend the legislative design or intent.” (People ex rel. New York Cent. & Hudson Riv. R. R. Co. v Woodbury, 208 NY 421, 425; accord, Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340.) ”[T]o interpret a statute where there is no need for interpretation, to conjecture about or add to * * * words having a definite meaning * * * are trespasses by a court upon the legislative domain” (McKinney’s Statutes § 76, at 168). This is especially so where, as here, the judicially chosen method conflicts with the explicit legislative design.

The rules of construction mandating avoidance of absurd consequences and frustration of legislative purpose also cannot fairly be invoked here. It is true, as the majority observes, that the most natural reading of the statute as drafted could result in the impairment of meaningful agency review where a locality fails, by design or neglect, to notify the APA of a variance grant. However, such impairment is, at most, a mere weakness in the legislative design; it is certainly not the sort of "absurd consequence” or complete frustration of the legislative goal that is typically cited as a ground for judicial redrafting. Indeed, the problem the majority perceives may well be illusory, since the APA’s statutory authority can easily be construed as entitling it to "reverse” a local variance grant as "not based upon * * * practical difficulties or unnecessary hardships” (Executive Law § 808 [3]) in cases where the absence of an adequate record prevents it from concluding otherwise.

Further, there is no sound reason to assume that the legislative "gap” the majority perceives and rushes to fill was unintentional. The Legislature has itself provided for mandatory written notice to the agency and the provision of necessary "pertinent information” "[u]pon receipt of an application for a variance” (Executive Law §808 [3]). Since the Legislature made explicit provision for notice at the initiation, but not the conclusion, of the local variance application process, it seems probable that the Legislature meant to create a system in which the APA, once having been notified of a particular application, would assume the responsibility of monitoring its progress. Such monitoring would ensure that an approval would not slip by unnoticed, even if the locality did not provide the APA with timely formal notice. Indeed, the absence of any legislative requirement that such postgrant formal notice be provided at all militates against a construction that relies on such notice as an event triggering the running of the agency’s deadline.

Moreover, the Legislature has provided a vehicle for addressing any concerns the APA may have about the inclination of a specific locality to cooperate with that agency’s State-level review of variance grants. The "variance grants” to be reviewed under Executive Law §808 (3) are variances from "approved local land use program[s]” (emphasis supplied). Such programs must be "approved” by the APA and "administered and enforced as provided for” (Executive Law § 808 [1]; see, §807). Thus, to the extent that there is concern about prompt notification to facilitate APA review, the matter can readily be resolved, within the express legislative design, by inclusion of appropriate regulations in the "local land use program” itself.

Finally, by superimposing a solution of its own devising, the majority has opened up several new anomalies and problems which will, no doubt, require further judicial tinkering in the future. For example, although the majority has squarely held that the 30-day period for the APA to act commences to run "on the receipt by the APA of notice of [the] variance grant, along with necessary materials promptly and reasonably requested by the APA” (majority opn, at 423), its opinion leaves unclear whether the same rule is to apply to the running of the 30-day waiting period during which the variance grant remains "ineffective” under Executive Law § 808 (3). Presumably, the time periods for these two occurrences must be coextensive, since there would otherwise exist a period of "limbo” for the property owner during which its variance would be legally "effective” but would remain subject to reversal by the State administrative agency.

Regardless of its ultimate resolution of the above-mentioned question, the majority’s holding has paved the way for a whole new class of litigation to resolve what constitutes a "prompt” and "reasonable” agency request for "material” that is "necessary” and "pertinent to meaningful review.” Such a result is particularly objectionable in this context, since it will lead to a degree of uncertainty that is unacceptable in the area of land use decisions. Landowners who have succeeded in obtaining variances from local governments will be required either to comply indefinitely with the APA’s requests for further information or to commence article 78 proceedings to compel the agency to decide the matter before it on the basis of the information it already has. The courts will then have to determine, on a case-by-case basis, whether the additional agency request was "reasonable” and, if not, when the agency’s time for taking action, in fact, began to run. This is an unrealistic and overly burdensome approach to the problem of assuring "meaningful” APA review.

The majority’s interpretation of Executive Law § 808 (3) also gives the APA, anomalously, more discretion to delay in the approval of individual variances from local land use programs than it has in the far more environmentally significant area of approving class A and B regional projects. The agency’s discretion to request additional information in the latter area, which is governed by Executive Law § 809, is limited by the detailed rules and deadlines set forth in that section. Executive Law § 809 (2) (b), for example, provides that "[o]n or before fifteen calendar days after the receipt of [an] application” the agency must notify the project sponsor whether it deems the application complete. If additional information is needed, the statute provides that "[t]he submission * * * of the requested additional information shall commence a new fifteen calendar day period for agency review * * * for the purposes of determining completeness” (id.). On the other hand, if the agency fails to mail a notice of incompleteness within 15 days of its receipt of the application, "the application shall be deemed complete” (id; see also, Executive Law § 809 [6] [c] [agency request for additional information during review of application by permit holder for renewal or modification "shall not extend any time period for agency action contained in this section”]).

The existence of such detailed rules governing the postponement of the deadlines for the agency to act under Executive Law § 809 when it perceives a need for more information suggests to me that the omission of similar provisions in Executive Law § 808 (3) was not a mere legislative oversight. Furthermore, the minutely detailed provisions in Executive Law § 809 suggest that if there are to be such postponements under section 808 (3), they ought to be governed by legislatively designed rules, and not by such imprecise standards as the "reasonableness” or "promptness” tests the majority has devised.

There is no dispute that the goal of the APA Act to "preserv[e] the priceless Adirondack Park through a comprehensive land use and development plan” and the legislatively chosen method of accomplishing that goal by "preventing] localities within the Adirondack Park from freely exercising their zoning and planning powers” (Wambat Realty Corp. v State of New York, 41 NY2d 490, 494-495; see, majority opn, at 421) are both laudable and deserving of judicial support. The precise issue presented here, however, is not whether the Legislature’s goals are to be advanced as a general matter, but rather whether the Legislature has established procedures for handling variance applications that are workable and sufficiently clear to permit their implementation. Since I conclude that it has, I cannot concur in my colleagues’ analysis. If, upon further review, the Legislature deems its own scheme to be as deficient as the majority believes, it remains free to make the necessary statutory alterations.

In sum, I would hold that the APA’s November 14th reversal of the Zoning Board of Appeals decision was untimely and was therefore ineffective. Accordingly, I vote to reverse the Appellate Division order and grant the petition.

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

Order affirmed, with costs.

       Apparently, that is precisely what the APA did in this case when on July 19th it reversed the local Zoning Board of Appeals initial decision on the ground that a complete record of the evidence had not been provided.