author: Gabrielli, J. Fuchsberg, J.

text:
    Clara Carrick, Individually and as Administratrix of the Estate of William Carrick, Deceased, and as Natural Guardian of His Minor Issue, Appellant, v Central General Hospital et al., Respondents.
    Argued September 9, 1980;
    decided November 13, 1980

      POINTS OF COUNSEL

      Robert D. Becker and Michael D’Agostino for appellant.
    I. The provisions of CPLR 205 (subd [a]) should be given a broad and liberal construction. (Gaines v City of New York, 215 NY 533; Graziano v Pennell, 371 F2d 761; George v Mt. Sinai Hosp., 47 NY2d 170; Amato v Svedi, 35 AD2d 672.) II. The court below inappropriately extended George v Mt. Sinai Hosp. to bar the wrongful death actions herein. (George v Mt. Sinai Hosp., 47 NY2d 170; Mogavero v Stony Creek Dev. Corp., 53 AD2d 1021; Titus v Poole, 145 NY 414; Kavanau v Virtis Co., 32 AD2d 754; Caffaro v Trayna, 35 NY2d 245.) III. Assuming, arguendo, that George v Mt. Sinai Hosp. is not distinguishable from the case at bar then this court should by establishing judicial precedent, uphold the validity of the subsequent wrongful death action. (George v Mt. Sinai Hosp., 47 NY2d 170; Grant v Guidotti, 66 AD2d 545; Stutz v Guardian Cab Corp., 273 App Div 4; Moragne v States Mar. Lines, 398 US 375; Ratka v St. Francis Hosp., 44 NY2d 604.) IV. Should this court disallow the wrongful death claim under CPLR 205, it should permit amendment under CPLR 203. (Caffaro v Trayna, 35 NY2d 245; United States Fid. & Guar. Co. v Smith Co., 46 NY2d 498.)

      Howard S. Davis and Barry M. Hoffman for Central General Hospital, respondent.
    I. A wrongful death action may not take advantage of the extension of time benefits provided in CPLR 205 (subd [a]) where a prior wrongful death action was dismissed for failure to appoint a personal representative prior to institution of suit and the Statute of Limitations expired prior to commencement of the second suit. (Boffe v Consolidated Tel. & Elec. Subway Co., 171 App Div 392, 226 NY 654; Cruz v Mount Sinai Hosp., 61 AD2d 915; Sharrow v Inland Lines, 214 NY 101; Shaw v Fairyland at Harvey’s, 45 Misc 2d 493, 26 AD2d 576; Goldberg v Camp Mikan-Recro, 42 NY2d 1029; Ratka v St. Francis Hosp., 44 NY2d 604; Erickson v Macy, 236 NY 412; George v Mt. Sinai Hosp., 47 NY2d 170; Caffaro v Trayna, 35 NY2d 245.) II. Appellant should not be permitted to raise arguments not raised in the proceedings below. (Berger v Fete Cab Corp., 57 AD2d 784; Marine Midland Bank v Gleason, 62 AD2d 429, 47 NY2d 758.)

      John H. Nelson for Dr. Ali Koprenska, respondent.
    I. The action was not commenced within two years after the death of decedent and therefore should be dismissed as barred by the Statute of Limitations. (Romano v Romano, 26 AD2d 123, 19 NY2d 444; Santaniello v De Francisco, 44 AD2d 831; Calabrese v Coch, 44 AD2d 819; Leun v Brenner, 203 App Div 643; Cohen v Steigman, 249 App Div 819; Jones v 416 Pleasant Ave. Holding Corp., 276 App Div 842, 304 NY 893.) II. The first action was not brought by a proper party, that is, the personal representative of the decedent and was therefore a nullity. It cannot serve as a basis for extending or tolling the Statute of Limitations. (Holmes v City of New York, 269 App Div 95, 295 NY 615; Weiner v Pacific Pharms., 298 NY 346; Stutz v Guardian Cab Corp., 273 App Div 4; Ward v Petrie, 157 NY 301; MacAffer v Boston & Me. R. R., 268 NY 400; Leonard v Pierce, 182 NY 431; Bartlett v Sanford, 244 App Div 722; Pardee v Mutual Benefit Life Ins. Co., 238 App Div 294; Nagel v Nagel, 242 App Div 845; Genesee Val. Trust Co. v Newborn, 167 Misc 220.) III. Since no personal representative was appointed until after the Statute of Limitations had run, the action for wrongful death is time-barred. (Matter of Sellers v Motor Vehicle Acc. Ind. Corp., 20 AD2d 350; Stutz v Guardian Cab Corp., 273 App Div 4; Cohen v Steigman, 249 App Div 819; Davis v State of New York, 22 AD2d 733; Shaw v Fairyland at Harvey’s, 45 Misc 2d 493; Matter of Meng, 227 NY 264; Boffe v Consolidated Tel. & Elec. Subway Co., 171 App Div 392, 226 NY 654.) IV. CPLR 205 (subd [a]) is inapplicable to this situation since there was not a valid pre-existing action to which this section could be applied. (Goldberg v Camp Mikan-Recro, 42 NY2d 1029; Ratka v St. Francis Hosp., 44 NY2d 604.) V. CPLR 205 (subd [a]) is inapplicable since this was instituted by a different legal entity. (Streeter v Graham & Norton Co., 263 NY 39.)
   OPINION OF THE COURT

Gabrielli, J.

When an action is dismissed for reasons other than a failure to prosecute or a fatal defect involving the merits of the underlying claim, CPLR 205 (subd [a]) permits the plaintiff to commence a new action within six months of the dismissal even though the action would otherwise be time-barred under the applicable period of limitations. In this case, we are called upon to consider whether this six-month extension is available to a plaintiff whose wrongful death action has been dismissed solely for want of a duly appointed administrator.

Plaintiff commenced the instant action for damages arising from the personal injuries and wrongful death of her spouse, who died on November 11, 1975, allegedly as a result of the negligent medical treatment he received at the hands of defendants. She served her first summons with notice on October 17, 1977, less than one month before the two-year Statute of Limitations for wrongful death actions would have expired (see EPTL 5-4.1). Since she had not yet been issued letters of administration authorizing her to bring suit on behalf of the decedent’s estate and his distributees at the time the action was commenced, however, plaintiff was forced to denominate herself the "proposed administratrix” in the caption on her summons.

Defendants promptly moved for a dismissal of the personal injury and wrongful death causes of action, contending that the absence of a duly appointed administrator was fatal to both claims. Although Special Term initially denied the motions for reasons which need not concern us here, the court ultimately upheld defendants’ position and dismissed plaintiff’s causes of action on July 17, 1978.

Within two weeks of this dismissal, plaintiff commenced a second action by serving defendants with a summons and complaint. By this time, plaintiff had been issued the necessary letters of administration and was therefore able to characterize herself as "administratrix” in the captions.

Defendants once again moved for dismissal of both claims, this time alleging that the causes of action were barred by the applicable Statute of Limitations (see CPLR 214-a; EPTL 5-4.1). Plaintiff countered the motion by invoking CPLR 205 (subd [a]), which provides as follows: "If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff * * * may commence a new action upon the same transaction or occurrence * * * within six months after the termination”. Plaintiff took the position that she was entitled to benefit from the extension of the limitations period provided in CPLR 205 (subd [a]) because she had previously commenced a timely action based upon the same allegations concerning defendants’ purportedly negligent conduct.

Special Term agreed and denied the motions to dismiss, concluding that both the personal injury claim and the wrongful death claim were salvageable because of the extension provisions of CPLR 205 (subd [a]). The Appellate Division, however, held that the wrongful death cause of action should have been dismissed. Although it recognized that the savings provisions of CPLR 205 (subd [a]) operated to revive the otherwise time-barred "survival” action for the decedent’s personal injuries and conscious pain and suffering (see George v Mt. Sinai Hosp., 47 NY2d 170), the Appellate Division found that the "unique” characteristics of the wrongful death claim precluded the use of CPLR 205 (subd [a]) as a means of resurrecting that cause of action. The court reasoned that since the appointment of a qualified administrator is an essential element of the right to bring suit for wrongful death, plaintiff’s first action, which was commenced prior to the issuance of letters of administration, was "tantamount to no suit whatsoever” (71 AD2d 226, 229). Thus, according to the Appellate Division, plaintiff had not actually commenced a timely wrongful death action within the meaning of CPLR 205 (subd [a]), and therefore the claim could not be salvaged through the operation of that statute.

Our analysis of the statute and relevant case law, however, leads us to a contrary conclusion. The natural point of departure for our consideration of the present problem lies in our recent decision in George v Mt. Sinai Hosp. (47 NY2d 170, supra), wherein we applied CPLR 205 (subd [a]) to a situation similar to that presented here. In George, the administratrix of an estate commenced a "survival” action seeking damages for the decedent’s personal injuries (see EPTL 11-3.2) after an earlier action for the same relief had been dismissed because it mistakenly had been brought in the name of the decedent, who obviously lacked capacity to sue. The question before this court on appeal in George was whether an action improperly brought in the name of a deceased individual constituted a prior "action” entitling the plaintiff to utilize the six-month extension provided in CPLR 205 (subd [a]). Taking a position similar to that adopted by the Appellate Division in the instant case, the defendant in George urged this court to hold that no timely prior "action” had been commenced for purposes of CPLR 205 (subd [a]), since the first action brought in the name of a decedent was a "nullity”. We squarely rejected this argument, however, observing that resolution of questions involving CPLR 205 (subd [a]) "is not aided by * * * use of the word 'nullity’ ” (George v Mt. Sinai Hosp., supra, at p 176). Indeed, we noted that “[t]he- statute by its very nature is applicable in those instances in which the prior action was properly dismissed because of some fatal flaw; thus to suggest that it should not be applied simply because there was a deadly defect in the prior action seems nonsensical” (id., at p 179).

This point was also stressed in that portion of our opinion in George in which we drew a sharp distinction between the issue in that case and the issue in our earlier decision in Goldberg v Camp Mikan-Recro (42 NY2d 1029). Goldberg involved an unsuccessful attempt by a plaintiff in a wrongful death action, who had brought his suit before being issued letters of administration, to amend his complaint in order to reflect his subsequent appointment as administrator. In seeking to amend his original complaint, the Goldberg plaintiff hoped to avoid the bar of the Statute of Limitations through the use of the "relation-back” provisions of CPLR 203 (subd [e]) (cf. Caffaro v Trayna, 35 NY2d 245). We, however, rejected the attempts of the Goldberg plaintiff to use CPLR 203 (subd [e]) to cure a "fatal” defect in his original action.

That Goldberg is not dispositive of the issue in the instant case is evident from our analysis of that case in our opinion in George. Although we noted in passing in George that the two cases were distinguishable in that Goldberg involved an action for wrongful death while George involved a "survival” action for personal injuries, the critical and more compelling aspect of our analysis rested in the distinction we drew between the operation of CPLR 203 (subd [e]), which was at issue in Goldberg, and the operation of CPLR 205 (subd [a]), which was the source of the controversy in George. In this connection, we observed: "While the relation-back provisions of CPLR 203 are dependent on the existence of a valid pre-existing action, CPLR 205 (subd [a]) was created to serve in those cases in which the prior action was defective and so had to be dismissed” (George v Mt. Sinai Hosp., supra, at pp 179-180). In short, the result in George differed from the result in Goldberg not because the former involved a “survival” action and the latter involved an action for wrongful death, but rather because Goldberg involved the application of CPLR 203 (subd [e]), which contemplates a "valid pre-existing action to which [an] amendment can relate back” (George v Mt. Sinai Hosp., supra, at p 179), while George involved the application of CPLR 205 (subd [a]), which specifically contemplates a prior defective action subject to dismissal upon timely motion.

Our opinion in George thus stands squarely for the proposition that the extension provisions of CPLR 205 (subd [a]) are available to a plaintiff who seeks to recommence an action, notwithstanding that the prior action upon which the plaintiff relies was "invalid” in the sense that it contained a fatal defect. Contrary to the view expressed by the Appellate Division in the present case, the fact that the prior action was so defective as to be "tantamount to no suit whatsoever” simply does not preclude the use of that remedial provision to revive an otherwise time-barred cause of action, provided, of course, that a prior timely action, however flawed, actually was "commenced” within the meaning of CPLR 304 (see George v Mt. Sinai Hosp., supra, at p 178; Smalley v Hutcheon, 296 NY 68; Erickson v Macy, 236 NY 412). Although the "defect” in the prior action in George was the named plaintiff’s lack of capacity to sue, we find no reason to withhold application of the holding in George to a case such as this, where the "defect” in the prior action was the absence of one of the formal elements of the cause of action, a duly appointed administrator. That the defect in George went only to the named plaintiff’s capacity to bring suit while the defect in the present case involved the essential elements of the plaintiff’s cause of action simply does not provide a reasoned basis for distinguishing the two cases and denying the plaintiff in this case the relief that was afforded the plaintiff in George. In both cases, the prior action commenced by the plaintiff was fatally flawed; and, as we held in George, the existence of such a "fatal flaw” is not in itself a legitimate ground for denying the plaintiff use of CPLR 205 (subd [a]).

Our comments in George regarding the fundamental distinction between the nature of a wrongful death action as a creature of statute and the nature of common-law personal injury action prosecuted under the authority of EPTL 11-3.2 do not compel a contrary conclusion. It is important to note here that we did observe in George that, like most of the other statutory requirements for wrongful death actions, the statutory requirement of a duly appointed administrator is in the nature of a condition precedent to the right to bring the suit and, as such, is an essential element of the claim (George v Mt. Sinai Hosp., supra, at pp 176-177). We did not, however, conclude in George that the difference between the role of an administrator in a wrongful death action and a "survival” action was of dispositive significance in problems involving the application of CPLR 205 (subd [a]). Indeed, we plainly left the question open for further analysis at some future date.

We do not intend to suggest by our holding today that there is no legal significance at all in the distinction stressed in George between the role of an appointed administrator in wrongful death actions and the role of an appointed administrator in "survival” actions for a decedent’s personal injury. Our decision in the present case merely reflects our view that the distinction has no bearing upon the question whether a wrongful death action improperly commenced by a person other than a qualified administrator constitutes a prior "action” within the ambit of CPLR 205 (subd [a]). We recognize, however, that in any case involving the application of CPLR 205 (subd [a]), it is necessary to ascertain not only whether a prior "action” was timely commenced, but also whether the manner in which the prior action was "terminated” rendered the plaintiff ineligible for the six-month extension under the terms of that statute. It is in connection with this inquiry that the special function of an appointed administrator as an essential element of the cause of action acquires analytical significance.

CPLR 205 (subd [a]) by its terms is unavailable where the prior action was terminated "by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a ñnal judgment upon the merits” (emphasis supplied). In George, there was no doubt that the termination of the prior action was not a "final judgment upon the merits”, since the merits of a "survival” action are not implicated when the action is dismissed for want of an administrator or executor with capacity to sue. In wrongful death cases such as the instant one, however, a dismissal for want of the essential element of an appointed administrator does, in a sense, implicate the merits of the cause of action, at least in a technical sense, and, thus, a legitimate question arises as to whether the prior dismissal due to the lack of an appointed administrator disqualifies the plaintiff from receiving the benefits of the CPLR 205 (subd [a]) extension.

Although we are aware that the problem may exist on some highly abstract, theoretical plane, however, we do not believe that it ultimately presents a serious impediment to the application of CPLR 205 (subd [a]) in wrongful death cases such as this. As noted above, the statute excludes from its coverage only those actions that were previously terminated in "a final judgment upon the merits”. It does not, however, preclude use of the statute to resuscitate an action that was previously dismissed "because of some error [not] pertaining * * * to the merits of the underlying claim” (George v Mt. Sinai Hosp., supra, at pp 178-179 [emphasis supplied]). It has been held, for example, that a dismissal arising from the failure of a condition precedent to the right to bring suit is not a "final judgment upon the merits” for purposes of CPLR 205 (subd [a]) (Buchholz v United States Fire Ins. Co., 265 App Div 467, affd on other grounds 293 NY 82; see 1 Weinstein-Korn-Miller, NY Civ Prac, par 205.05). Similarly, we permitted a plaintiff to recommence his action under an earlier version of CPLR 205 (subd [a]) (Civ Prac Act, § 23) where a prior action based upon essentially the same claim had been dismissed due to the absence of a sufficient allegation on the important question of damages (Richard v American Union Bank, 253 NY 166). These decisions flow naturally from the sound premise that under CPLR 205 (subd [a]) a'suitor is entitled to have "one adjudication of the substance or merit of his cause where he has initiated a suit in time” (Buchholz v United States Fire Ins. Co., 269 App Div 49, 51; cf. Utica Sheet Metal Corp. v Myers-Laine Corp., 45 AD2d 116, 118).

In sum, for purposes of applying CPLR 205 (subd [a]), a "final judgment upon the merits” does not necessarily result every time a cause of action is dismissed for want of a formal, albeit essential, element of the claim. Although the prior dismissal may operate as a "direct estoppel” in the sense that a subsequent action between the same parties based upon identical allegations would be barred by traditional res judicata principles (see 5 Weinstein-Korn-Miller, NY Civ Prac, par 5011.08, p 50-74), the dismissal does not constitute a "final judgment upon the merits” precluding application of CPLR 205 (subd [a]) to a subsequently commenced action unless it actually represents a definitive adjudication of the factual or legal merits of the underlying claim.

Under this analysis, there can be no doubt that the prior dismissal of plaintiff’s wrongful death cause of action was not a "final judgment upon the merits” within the meaning of CPLR 205 (subd [a]), notwithstanding that the dismissal was based upon plaintiff’s failure to establish one of the essential elements of her right to bring suit. Like any condition precedent, the requirement of a qualified administrator in a wrongful death action, while essential to the maintenance of the suit, is in no way related to the merits of the underlying claim. Thus, a dismissal due to the omission of this requirement must be regarded as a tangential matter not affecting the validity of the claim itself. It follows that a disposition based solely upon the absence of a duly appointed administrator does not preclude reprosecution of the underlying claim through the mechanism of CPLR 205 (subd [a]) once a qualified administrator has been appointed.

The foregoing analysis requires a reversal of the Appellate Division order in the instant case. The Appellate Division dismissed plaintiff’s wrongful death cause of action for untimeliness on the basis of its erroneous assumption that the extension of the limitations period provided in CPLR 205 (subd [a]) was unavailable to plaintiff as a method for reviving that previously dismissed claim. Inasmuch as we conclude that that statute may be applied when a prior wrongful death action has been dismissed due to the lack of an appointed administrator, we can see no reason not to permit plaintiff to prosecute her action on behalf of the decedent’s distributees.

Accordingly, the order of the Appellate Division insofar as appealed from should be reversed, with costs, and the order of the Supreme Court, Nassau County, reinstated.

Fuchsberg, J.

(concurring). I support the tight rationale by which the court arrives at the conclusion that the plaintiff is not barred from prosecuting her wrongful death action. But, my vote is also impelled by overriding considerations relevant not only to the disposition of the present case but also to the constantly recurring ones in which we must treat with similar problems. For instance, it is that broader base on which also rests my decision to join in the comprehensive dissent authored by Judge Meyer in Jones v State of New York (51 NY2d 943). A separate, though brief, comment is therefore in order at this point.

For one thing, I record a strong conviction that the time is long past when we can blithely accept the formalisms on which this claim, and that in Jones, were rejected below. Always providing an opposing party has not been prejudiced by the technical oversight, ameliorative lawgiving, judicial and legislative, has now repeatedly pronounced that procedural niceties of the character which present themselves in each of these cases need not overwhelm the dictates of justice (see Court of Claims Act, § 9, subd 8; § 10, subd 6; General Municipal Law, § 50-e; Beary v City of Rye, 44 NY2d 398, 411; Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139, 142-143). Concordantly, it is well to repeat that the fluidity of even as seemingly conclusive a concept as the adjective "jurisdictional” connotes depends in the end on the legal and factual context to which it is applied (see Lacks v Lacks, 41 NY2d 71, 74; Nuernberger v State of New York, 41 NY2d 111, 113).

In this perspective, I also touch on stare decisis. That doctrine does not interdict the re-examination of old policy in the light of new. For, "Certainty is desirable only insofar as it operates to produce the maximum good and the minimum harm and thereby to advance justice” (Fox v Snow, 6 NJ 12, 25 [Vanderbilt, Ch. J.]; see, generally, Matter of Higby v Mahoney, 48 NY2d 15, 22, 25 (dissenting opns).

Chief Judge Cooke and Judges Jasen, Jones and Wachtler concur with Judge Gabrielli; Judge Fuchsberg concurs in a separate opinion; Judge Meyer concurs for the reasons stated in the last paragraph of the dissenting opinion in Jones v State of New York (51 NY2d 943).

Order insofar as appealed from reversed, etc.

      . CPLR 203 (subd [e]) provides: "A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading”.

      . Implicit in our analysis is a rejection of plaintiffs contention that the absence of a duly appointed administrator in her first wrongful death suit constituted a mere defect in the capacity of the named plaintiff to bring the action. It is well established that the existence of a qualified administrator is essential to the maintenance of the action and that the statutory right to recover for wrongful death does not even arise until an administrator has been named through the issuance of letters of administration (e.g., Boffe v Consolidated Tel. & Elec. Subway Co., 171 App Div 392, affd without opn 226 NY 654). Indeed, our recent reaffirmation of this principle in George v Mt.

        Sinai Hosp. (47 NY2d 170, 176-177, supra) would seem to foreclose the possibility of reducing the statutory requirement of an appointed administrator to a mere question of capacity to sue, at least in the absence of a legislative alteration of the language of the statute (cf. Sharrow v Inland Lines, 214 NY 101).
      Similarly, we decline to adopt plaintiff’s suggestion that we recognize a common-law right to sue for wrongful death and thereby avoid the difficulties that strict adherence to the statutory requirements sometimes entails. Such a course was expressly foreclosed when we refused to "create” a common-law counterpart to the statutory wrongful death cause of action in Liff v Schildkrout (49 NY2d 622) and Ratka v St. Francis Hosp. (44 NY2d 604).

      . The subsidiary question in George was whether the prior action had been terminated by a "voluntary discontinuance” within the meaning of CPLR 205 (subd [a]) and, if so, whether the terms of the stipulation by which the action had been discontinued precluded the defendant from asserting that CPLR 205 (subd [a]) was unavailable to the plaintiff by reason of the discontinuance (George v Mt. Sinai Hosp., 47 NY2d 170, 180-181, supra).

      . We note that our holding in this case was foreshadowed by the decision of the Appellate Division in Boffe v Consolidated Tel. & Elec. Subway Co. (171 App Div 392, affd without opn 226 NY 654, supra), which was cited in George v Mt. Sinai Hosp. (47 NY2d 170, 177, supra). In Boffe, the Appellate Division dismissed a wrongful death action that had been commenced prior to the Appointment of an administrator on the ground that "the due appointment and qualification of the administrators are necessary elements to the cause of action”, but, significantly, the court went on to observe that there was nothing to prevent the plaintiff whose wrongful death action had been dismissed from recommencing the action under section 405 bi the Code of Civil Procedure, the predecessor of CPLR 205 (subd [a]) (171 App Div, at pp 394-395).

      . Inasmuch as the six-month extension provided in CPLR 205 (subd [a]) is applicable, the fact that plaintiff did not actually receive her letters of administration until approximately one month after the two-year limitation period specified in EPTL 5-4.1 had run does not, in itself, prevent her from recommencing the action within six months of the dismissal of her prior defective action'. As we held in Sharrow v Inland Lines (214 NY 101), the statutory requirement that the action be brought within two years of the death upon which it is based is a limitation only upon the available remedy and not upon the right created by the statute. Were we to hold that an action for wrongful death simply does not lie in a case where an administrator has not been appointed within two years of the death, we would effectively be re-enshrining the two-year time period as a limitation upon the right to recover for wrongful death.
      Our recent decision in Ratka v St. Francis Hosp. (44 NY2d 604) does not compel a contrary conclusion. Although we referred in that case to "the need for timely appointment of a personal representative to commence the action” (id., at p 611), it is clear from the context that we did not intend to suggest that a wrongful death action may never be maintained where letters of administration are not issued within two years of the death. Indeed, had such been the case, it would have been unnecessary for us to consider in Ratka the central question posed in that case: whether the toll for infancy provided in CPLR 208 operates to extend the two-year limitations period for wrongful death actions where the ultimately appointed administrator was a minor at the time of the death. Our reference in Ratka to the "need for timely appointment of a personal representative” was, in fact, only a restatement of the general principle that in order for the action to be maintainable, an administrator must be appointed within the applicable limitations period including any tolls or extensions of the limitations period which may be available. Because we concluded in Ratka that the toll for infancy was not available, the failure in that case to have an administrator appointed within two years of the death was fatal to the cause of action. The same conclusion would not necessarily follow, however, in a case such as this, where the six-month extension provided in CPLR 205 (subd [a]) is available. In such a case, the appointment of an administrator no later than six months after the original action is dismissed should suffice to satisfy the "need for timely appointment of a personal representative”.


source: Caselaw Access Project

author: Gabrielli, J.

license: Public Domain

text:
    David L. Cohen, an Infant, by His Father, Alan Cohen, Appellant, et al., Petitioner, v Pearl River Union Free School District et al., Respondents.
    Submitted October 6, 1980;
    decided November 18, 1980

      POINTS OF COUNSEL

      Gerald S. Jacobs for appellant.
    The Statute of Limitations as set forth in section 50-i of the General Municipal Law with respect to the filing of a late notice of claim under section 50-e is tolled with respect to an infant under CPLR 208. (Matter of Beary v City of Rye, 44 NY2d 398.)

      O’Neil Kelly for respondent.
    I. Section 50-e of the General Municipal Law provides that an application be made for permission to file a notice of claim within one year and 90 days from the date of the occurrence. (Matter of Beary v City of Rye, 44 NY2d 398; Sarsick v Kibec, 73 AD2d 751.) II. The absence of notice to respondent mandates affirmance. (Camarella v East Irondequoit Cent. School Bd., 34 NY2d 139.)
   OPINION OF THE COURT

Gabrielli, J.

Where notice of claim has not been served within the 90-day period specified in section 50-e (subd 1) of the General Municipal Law, an individual possessing a potential tort claim against a public corporation may apply to the court pursuant to section 50-e (subd 5) for an extension of the time within which to serve such notice upon the defendant. As amended in 1976 (L 1976, ch 745, § 2), the statute provides that "[t]he extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation”. Section 50-i (subd 1, par [c]) of the General Municipal Law, which limits the time for bringing an action against a public corporation to "one year and ninety days after the happening of the event upon which the claim is based”, has generally been regarded as a Statute of Limitations subject to the tolls for infancy and insanity provided in CPLR 208 (Sadler v Horvath, 44 AD2d 905; Matter of Hurd v County of Allegany, 39 AD2d 499, 502; Corbett v Fayetteville-Manlius Cent School Dist., 34 AD2d 379; Abbatemarco v Town of Brookhaven, 26 AD2d 664; La Fave v Town of Franklin, 20 AD2d 738; see Matter of Beary v City of Rye, 44 NY2d 398, 408; see, also, Zeitler v City of Rochester, 32 AD2d 728; cf. Russo v City of New York, 258 NY 344). Today we hold that the period specified in the amended version of section 50-e (subd 5) during which a court may authorize service of a late notice of claim is completely coextensive with the time limited for commencing an action against a public corporation and is therefore similarly subject to the tolling provisions of CPLR 208.

The infant petitioner in this case, Daniel Cohen, sustained an injury to his foot while he was participating in a junior varsity soccer game played on the grounds of the Pearl River High School. The accident, which occurred on September 30, 1975, was allegedly caused by a "hidden object” protruding from the ground. The infant took no steps to recover damages for his injury until December 5, 1977, when his father, acting for himself and in his son’s behalf, made application for judicial leave to serve a late notice of claim upon both the Pearl River Union Free School District and the Orangetown Central School District, the home school district of his infant son. The Orangetown School District did not oppose the application, but the Pearl River School District did object, arguing that it had been prejudiced by petitioner’s procrastination in providing it with notice and that, in any event, the time during which permission to serve late notice of claim could be granted had long since expired.

Although Special Term initially denied the application, it ultimately granted the requested relief upon reconsideration of its earlier decision in light of our holding in Matter of Beary v City of Rye (44 NY2d 398, supra).* After concluding that our decision in Beary authorized retroactive application of the amended version of section 50-e (subd 5) to petitioner’s case, Special Term went on to hold that the application for leave to serve late notice was not untimely, since the time for applying for such leave had been tolled during the injured party’s infancy in accordance with CPLR 208. The Appellate Division, however, reversed the order of Special Term, expressing its view that nothing in the legislative history or the language of section 50-e (subd 5) as amended warranted the importation of the CPLR 208 toll for infancy into the limitations period specified in that statute. We disagree.

As a threshold matter, it is necessary for us to consider whether the expanded limitations period contained in the amendments to section 50-e (subd 5) may be applied retroactively to petitioner’s claim, which arose some ÍIV2 months before the amendment’s effective date of September 1, 1976. Under the former version of section 50-e (subd 5) (L 1945, ch 694, § 1, as amd by L 1959, ch 814, § 1), the application for permission to serve late notice of claim was required to be made within "one year after the happening of the event upon which the claim is based”, and it was well established that the tolls and extensions contained in CPLR article 2 were inapplicable to this limitations period (see Matter of Martin v School Bd. of Union Free Dist. No. 28, 301 NY 233; Russo v City of New York, 258 NY 344, 348-349, supra; Winter v City of Niagara Falls, 190 NY 198). Thus, unless the expanded limitations period contained in the amended version of section 50-e (subd 5) is deemed to be applicable to petitioner’s claim, the claim would have to be treated as untimely, since petitioner failed to make application for leave to serve late notice within the one-year period specified in the predecessor statute.

In Matter of Beary v City of Rye (44 NY2d 398, supra), we were called upon to consider whether the liberalized criteria for granting leave to serve late notice should be applied retroactively, and, in that connection, we held that the provisions of the 1976 amendment were available to individuals whose right to make application for such leave was still viable under the former one-year limitations period on the date the amendment became effective. We refused in Beary, however, to accord full retroactive effect to the expanded limitations period contained in the amendment to section 50-e (subd 5), because we were concerned that "[t]he result of treating the amendment as to time as though it were retrospective would * * * be to open the door to an unknown number of claims the defense to which is unprepared and unpreparable” (44 NY2d, at pp 413-414).

Nevertheless, our refusal in Beary to accord full retroactive effect to the time provisions in the amendment cannot be considered dispositive of the retroactivity problem in the instant case. In Beary, we were faced with, among other things, the potential claims of two infants whose injuries had been sustained in 1969 and 1973 respectively (Rodriguez v City of New York, 54 AD2d 692, affd 44 NY2d 398; Matter of Pauletti v Freeport Union Free School Dist. No. 9, 59 AD2d 556, affd 44 NY2d 398). It was in connection with these situations that we expressed our concern that full retroactive application of the portion of the 1976 amendment "which replaces the one-year period with one measured only by the Statute of Limitations that otherwise would be applicable would make it possible for infants to newly file claims which had their genesis in events occurring up to 18 years earlier (see CPLR 208)” (44 NY2d, at p 413). It is thus evident that our holding in Beary was addressed only to the question whether the time provisions in the amendment should be given unlimited retroactive effect in light of the very real possibility that unlimited retroactivity would lead to an extended retrospective tolling of the time during which application for leave to serve late notice must be made. We did not there consider, however, a situation such as the present one, where the claim was less than one year old at the time the amendment took effect and was therefore still viable under the one-year limitations period specified in the repealed version of section 50-e (subd 5), although no application for leave to serve late notice was actually made within the one-year period. In such a case, there is no need to invoke the expanded time period specified in the amended version of section 50-e (subd 5) in order to revive a claim that "had passed beyond the power of judicial recall” by the time the amendment became effective (44 NY2d, at p 413). Instead, the only question is whether the claimant, whose potential claim was still alive on the amendment’s effective date, should be permitted to benefit from the liberalized time provisions in the amendment so that the outer limit of his time for applying for leave to serve late notice is measured by the limitations period set forth in the new version of section 50-e (subd 5) rather than by the more restrictive period described in the predecessor statute.

We conclude that an individual in petitioner’s position, whose right to apply for leave to serve late notice of claim had not yet expired on the date the amendment became effective, should be afforded the benefits of the new time provisions in section 50-e (subd 5) when he makes application to the court for such leave. No serious prejudice to the potentially liable public corporation would result from such a limited retrospective application of the amendment, since the public corporation was already at risk with respect to these claims on the amendment’s effective date pursuant to the former version of section 50-e (subd 5). There is thus no danger of "the revival of ancient claims as distinguished from the mere continuance of ones that have not finally expired” (44 NY2d, at p 414), and the rationale by which we excluded stale claims from the amendment’s remedial reach in Beary would have no application. In short, we can perceive no inconsistency with the legislative purpose underlying the notice of claim provisions in affording the amendment’s expanded time provisions limited .retrospective effect. Accordingly, we hold that, for claims arising after September 1, 1975, the outer limit of the period during which the claimant may apply for leave to serve late notice of his claim is to be measured by "the time limited for the commencement of an action by the claimant against the public corporation”, as specified in the current version of section 50-e (subd 5), and not by the one-year period following "the happening of the event upon which the claim is based”, as was required by the predecessor provision.

Having thus resolved the problem of which version of section 50-e (subd 5) is to be applied to petitioner’s claim, we turn now to resolve expressly the question which was impliedly answered in Matter of Beary v City of Rye (supra): whether the period during which a court may grant an extension of the time within which to serve notice of claim is tolled during the infancy of the claimant in accordance with CPLR 208. We find the statutory language quite clear on this point and have no hesitancy in answering the question in the affirmative. By its terms, the amendment version of section 50-e (subd 5) makes the period during which such an extension may be granted coextensive with the Statute of Limitations governing the claim (General Municipal Law, § 50-i, subd 1, par [c]). Thus, where the time for commencing an action on the claim is tolled under CPLR 208, there will be a concomitant tolling of the time during which late notice of claim may be served (see Matter of Beary v City of Rye, 44 NY2d 398, 408, supra). Indeed, were this not the case, we would have had no need to consider in Beary whether the time provisions in the amended version of section 50-e (subd 5) were retroactively applicable, since the claims in question in Beary (Rodriguez v City of New York, 54 AD2d 692, affd 44 NY2d 398, supra; Matter of Pauletti v Freeport Union Free School Dist. No. 9, 59 AD2d 556, affd 44 NY2d 398, supra) were more than one year and 90 days old at the time application for leave to serve late notice was made and thus were beyond salvation even under the amendment, unless, of course, the CPLR 208 toll for disability was available.

We are not persuaded by the respondent school district’s argument that the legislative purpose underlying notice of claim statutes would be frustrated by the importation of the toll for infancy into the period during which an extension to serve notice of claim may be granted. At the time the amendment to section 50-e (subd 5) was enacted, the Legislature was clearly aware of the numerous decisions holding the toll for infancy applicable to the Statute of Limitations governing claims against public corporations (General Municipal Law, § 50-i, subd 1, par [c]; see Judicial Conference Report on the CPLR, reprinted in McKinney’s Session Laws, 1976, pp 2090-2091). Inasmuch as the Legislature chose to define the period during which an extension of the time for serving notice of claim upon a public corporation may be granted by making direct reference to the Statute of Limitations for such claims, we must assume that the Legislature did in fact intend to incorporate the decisional law construing this Statute of Limitations into the provisions governing extensions of the time for serving notice.

That the Legislature made a conscious choice to render the extension provisions of section 50-e (subd 5) subject to the CPLR 208 toll for infancy is evidenced by the language it used in amending the statute. The amended version of section 50-e (subd 5) provides that "[t]he extension shall not exceed the time limited for the commencement' of an action by the claimant against the public corporation” (emphasis supplied). The insertion of the italicized phrase would have been entirely unnecessary had the Legislature not deliberately intended to stress that the disability of the individual claimant should be taken into account in measuring the maximum period of the extension that may be granted under section 50-e (subd 5).

We note that, contrary to respondent school district’s contentions, the fact that the requirements of section 50-e are in the nature of conditions precedent to the right to bring suit does not in itself preclude the application of the various tolls and extensions provided in CPLR article 2 to the time periods specified in subdivision 5 of that statute. To be sure, when an act such as service of notice of claim must be performed within a specific time as a means of complying with a statutory condition precedent, the time period in question operates as a limitation upon the right to recover rather than as a limitation only upon the remedy, and the tolls and extensions delineated in the CPLR generally may not be invoked to alter the statutorily designated deadline for the performance of the act (see Russo v City of New York, 258 NY 344, 348-349, supra; Sharrow v Inland Lines, 214 NY 101, 107-108; Winter v City of Niagara Falls, 190 NY 198, supra; Hill v Board of Supervisors, 119 NY 344; Siegel, New York Practice, § 51, at p 52). Nevertheless, where the Legislature has itself chosen to measure the time for complying with the condition precedent by making direct reference to an external Statute of Limitations, as it has done in this instance, there is no basis in law for withholding application of the tolls and extensions which ordinarily affect that Statute of Limitations. This is particularly so in a case such as this, where the Legislature has manifested a clear intention that the toll for disability be taken into account in calculating the maximum time available for an extension under section 50-e (subd 5).

There remains one additional point requiring further discussion. In holding that the CPLR 208 toll is not available to enlarge the period during which an infant may be granted an extension of the time within which to serve notice, the Appellate Division observed that a contrary conclusion would lead to an "incongruous result”, since "the limitation of one year and 90 days in which a court may exercise its discretion to grant late filing, based on the disability of infancy, would be automatically extended by the disability itself’ (70 AD2d 94, 105-106). We, however, find nothing incongruous about such a result. By incorporating the toll for disability into the limitations period specified in section 50-e (subd 5), the Legislature merely enlarged the time frame during which a court could lawfully grant an infant permission to serve late notice of claim. Once the authority of the court was expanded in this manner, it remained necessary for the Legislature to furnish a set of guidelines for the court to use in determining whether it should exercise its discretion in favor of a particular claimant. In this connection, the Legislature quite reasonably indicated that the infancy or other disability of the claimant is an appropriate factor to be taken into account when an application for an extension is made pursuant to section 50-e (subd 5). Thus, the "anomaly” which the Appellate Division perceived is readily explainable, and there is no incongruity in recognizing that the period during which an extension may be granted may be expanded to include the entire period during which the claimant’s disability obtains. Of course, it goes without saying that the mere availability of the toll does not in itself •mandate that an extension be granted in every case involving an infant or an individual having another disability covered by CPLR 208. The decision to grant or deny an extension under section 50-e (subd 5) is still purely a discretionary one, and the courts remain free to deny an application for an extension in the interests of fairness to the potentially liable public corporation. The incorporation of the toll into the period of limitations specified in section 50-e (subd 5) merely confers upon the courts the authority to entertain the otherwise untimely applications of disabled claimants; it does not, however, dictate that such applications automatically be granted.

In the present case, there must be a reversal, since the Appellate Division denied petitioner’s application for an extension of the time to serve notice solely on the basis of its erroneous assumption that the time for making such application had expired. Inasmuch as the Appellate Division found it unnecessary to consider the propriety of granting an extension in light of its legal conclusion that it had no authority to entertain the application, however, we must now remit the matter to that court so that it will have an opportunity to exercise its discretion and to pass upon the question whether an extension should be granted under the particular facts and circumstances presented in the case (see CPLR 5613; Cohen and Karger, Powers of the New York Court of Appeals, § 174). We note that a remittal is particularly appropriate in this case, since there is an unresolved assertion by the respondent school district that it had no actual notice of the incident upon which the claim is based and is therefore without the means to retrace the events in question and to prepare an adequate defense (cf. Cedano v City of New York, 51 NY2d 896).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for further proceedings in accordance with this opinion.

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

Order reversed, etc.

      . For a thorough discussion of the history of section 50-e of the General Municipal Law in our courts and an explanation of the concerns which ultimately impelled the Legislature to amend that statute, see Graziano, Recommendations Relating to Section 50-e of the General Municipal Law and Related Statutes (Twenty-First Ann Report of NY Judicial Conference, 1976, pp 358-451).

      . Special Term granted the application for relief only insofar as it requested an extension of the time within which to serve notice of the infant Daniel Cohen’s claim. The court concluded that any claim which the infant’s father might have was time-barred, since the toll provided in CPLR 208 could not operate to enlarge his rights under section 50-e (subd 5). No appeal was taken from this aspect of Special Term’s ruling, and, consequently, we have no occasion to address ourselves to it in the instant appeal.

      . The presently effective version of section 50-e (subd 5) of the General Municipal Law reads in its entirety as follows:
      "5. Application for leave to serve a late notice.
      "Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.
      "An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the public corporation.”


author: Wachtler, J.

text:
    The People of the State of New York, Appellant, v Harold Benjamin, Also Known as Harold Miley, Respondent.
    Argued October 10,1980;
    decided November 18,1980

      POINTS OF COUNSEL

      John J. Santucci, District Attorney (Ira I. Schreiber of counsel), for appellant.
    The report of men with guns, coupled with respondent’s evasive and simultaneously furtive conduct of backing away from the police as he reached toward the waistband of his trousers gave rise to a reasonable suspicion that he was armed and that he presented a danger of imminent physical injury. Accordingly, Officer Loran was justified in stopping respondent and making an immediate pat down of him. (Terry v Ohio, 392 US 1; People v Cantor, 36 NY2d 106; People v Stewart, 41 NY2d 65; People v Green, 35 NY2d 193; Brinegar v United States, 338 US 160; People v McLaurin, 56 AD2d 80, 43 NY2d 902; People v Williams, 52 AD2d 520, 41 NY2d 65; Whiteley v Warden, 401 US 560; People v Horowitz, 21 NY2d 55; People v De Jesus, 55 AD2d 196.)

      Rudy Hirschheimer for respondent.
    The police officer did not have reasonable grounds to suspect that he was in danger of physical injury, within the meaning of CPL 140.50 to justify a frisk of appellant. (People v Wynn, 54 AD2d 366; People v McLaurin, 56 AD2d 80; People v Stewart, 41 NY2d 65; People v Green, 35 NY2d 193; People v De Bour, 40 NY2d 210.)
   OPINION OF THE COURT

Wachtler, J.

We are once again concerned with the circumstances which must exist before a police officer can conduct a limited pat-down search of a citizen during a street encounter. The Appellate Division held that a loaded handgun was unlawfully seized and should be suppressed. We reverse.

On the evening of October 27, 1977, William Loran, a veteran police officer, was on motor patrol in the Borough of Queens when he received a radio run advising him that there were men with guns at a specified street location. He and his partner, both wearing plainclothes, arrived on the scene and left their unmarked car so that they could walk along the sidewalk. Approximately 30 people were gathered on the street. As they approached within 10 feet, the defendant, who was standing on the sidewalk, stepped backwards toward the curb while simultaneously reaching beneath his jacket with both hands to the rear of his waistband. Immediately, Officer Loran ordered the defendant to keep his hands in view, and conducted a limited pat-down search which produced the loaded weapon. At the suppression hearing Officer Loran said that his action was precipitated by the fear that “possibly [the defendant] had a gun secreted.”

Defendant moved to suppress the weapon on the ground that the frisk was conducted in violation of his constitutional right to be free from unreasonable searches and seizures. Officer Loran testified fully at the hearing as to the circumstances of the arrest, but there was no explanation in any detail of the source of the radio report which first alerted the police to the presence of the men with guns. The motion was denied and defendant pleaded guilty to criminal possession of a weapon in the third degree (Penal Law, § 265.02). With two Justices dissenting, the Appellate Division reversed on the ground that the evidence should have been suppressed. The People now appeal.

At the outset we reaffirm that a stop and frisk is a more obtrusive procedure than a mere request for information or a stop invoking the common-law right of inquiry, and as such normally must be founded on a reasonable suspicion that the particular person has committed or is about to commit a crime (People v De Bour, 40 NY2d 210, 223; see Terry v Ohio, 392 US 1; CPL 140.50, subd 1; People v Cantor, 36 NY2d 106). We also note that an anonymous tip of "men with guns”, standing alone, does not justify intrusive police action, and certainly does not rise to the level of reasonable suspicion warranting a stop and frisk (People v De Bour, supra, p 224; People v Bronk, 66 Misc 2d 932, affd 31 NY2d 995). Therefore, immediately after the radio call, Officer Loran had at most only the common-law right to inquire, but no right or justification to subject any person at the scene to a search (People v Stewart, 41 NY2d 65). However — and this bears emphasis— nothing said thus far should be taken to indicate that a police officer is prevented from observing circumstances at the scene and, if necessary, taking due precaution for his own safety (People v Stroller, 42 NY2d 1052, People v Stewart, supra).

A police officer is entitled, and in fact is duty bound, to take action on a radio call. However, if a defendant later raises a legal challenge as to the permissible extent of such action, the People must take the initiative to show that in view of all the circumstances the action taken was justified (People v Lypka, 36 NY2d 210). This can be done by sufficient explanation of the source of the call and proof of its reliability (People v Lypka, supra) or alternatively by showing that the information conveyed was so specific and congruous with that which was actually encountered that its reliability reasonably could have been assumed (Draper v United States, 358 US 307; see People v McLaurin, 56 AD2d 80, 84 [dissenting opn], revd on dissenting opn 43 NY2d 902; People v Kinlock, 43 NY2d 832).

In either event, these cases illustrate that a radioed tip may have almost no legal significance when it stands alone, but that when considered in conjunction with other supportive facts, it may thus collectively, although not independently, support a reasonable suspicion justifying intrusive police action. The instant case demonstrates that this additional support can, as well, be provided by factors rapidly developing or observed at the scene.

A police officer directed to a location by a general radio call cannot reasonably be instructed to close his eyes to reality— neither the officer nor justice should be that blind. The officer was rightfully and dutifully on the scene and could not ignore possible indications of criminality, nor is there any logical reason for him to reject the natural mental connection between newly encountered facts and the substance of the radio message. More importantly, there certainly is no justification for holding that an officer in such a situation cannot take note of a significant occurrence indicating a possible threat to his life, merely because the call which directed him to the scene was in and of itself an insufficient predicate for intrusive action against a particular person.

It is quite apparent to an experienced police officer, and indeed it may almost be considered common knowledge, that a handgun is often carried in the waistband. It is equally apparent that law-abiding persons do not normally step back while reaching to the rear of the waistband, with both hands, to where such a weapon might be carried. Although such action may be consistent with innocuous or innocent behavior, it would be unrealistic to require Officer Loran, who had been told that gunmen might be present, to assume the risk that the defendant’s conduct was in fact innocuous or innocent. Such an assumption would be at odds with his reasonably acquired belief that he was in danger and his constitutionally authorized action (Terry v Ohio, supra). It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety. Considering the totality of the circumstances, including the radio call and the information acquired by observation at the scene, there was an ample measure of reasonable suspicion necessary to justify the limited intrusion which produced the loaded revolver.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for consideration of the facts (CPL 470.25, subd 2, par [d]; CPL 470.40, subd 2, par [b]).

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

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.


author: Per Curiam.

text:
    Martin Ginsberg, Respondent, v Francis Purcell, as County Executive of Nassau County, et al., Appellants.
    Argued October 13, 1980;
    decided November 18, 1980

      POINTS OF COUNSEL

      Edward G. McCabe, County Attorney (William S. Norden and Robert O. Boyhan of counsel), for appellants.
    I. Admission to the Bar is a continuing obligation to be met to hold judicial office and to receive judicial salary and entitlements. (Thaler v State of New York, 79 Misc 2d 621; Matter of La Carrubba v Klein, 59 AD2d 99, 46 NY2d 1009; Mandelkern v City of Buffalo, 64 AD2d 279; Pfingst v State of New York, 57 AD2d 163.) II. The County of Nassau is under no obligation to compensate a former Family Court Judge who is no longer a State officer. (Ledwith v Rosalsky, 244 NY 406.)

      Allen M. Kranz and Richard Hartman for respondent.
    Respondent was not removed as a Family Court Judge during the period in question. (Matter of La Carrubba v Klein, 59 AD2d 99, 46 NY2d 1009; Thaler v State of New York, 79 Misc 2d 621.)
   OPINION OF THE COURT

Per Curiam.

A Judge who prior to the adoption of the 1976 amendments to the judiciary article of the New York State Constitution was convicted of a felony and thus lost his license to practice law and who thereafter never sat as a Judge may not recover the salary of the office, notwithstanding the fact that no proceeding to remove him from office as a Judge has ever been brought.

The facts are uncontroverted. As stated in the papers on plaintiff's motion for summary judgment they are as follows: Plaintiff was appointed a Judge of the Family Court for Nassau County on July 10, 1972 and on November 7, 1972 was elected to a full 10-year term commencing January 1, 1973. Indicted in 1974, he was suspended with pay by the Administrative Judge of the Family Court on April 26, 1974. On December 27, 1974, he was convicted of perjury in the first degree, a felony (Penal Law, § 210.15), and on December 31, 1974 the county ceased paying him his salary. Though his conviction was thereafter affirmed by the Appellate Division (50 AD2d 804) and leave to appeal was denied (38 NY2d 943), no proceeding to remove him from office has ever been brought.

Plaintiff’s complaint demands the salary of the office for the period from January 1, 1975 through August 31, 1976, September 1, 1976 having been the effective date of the amendment to article VI of the Constitution inserting in subdivision i of section 22 the provision that a "judge or justice * * * may not exercise the powers of his office nor receive his judicial salary upon pleading guilty to or being found guilty of a felony pending review of the conviction by a court of appellate jurisdiction.” Special Term felt itself bound by our decision in Matter of La Carrubba v Klein (46 NY2d 1009 [affg on opn at App Div 59 AD2d 99]) and granted plaintiff judgment for salary in the amount of $81,648 but denied interest. The Appellate Division, likewise acting under constraint of Matter of La Carrubba, affirmed on the county’s appeal but on plaintiff’s cross appeal modified the judgment to add interest from August 31, 1976. The present appeal is before us as a matter of right (49 NY2d 878). The order of the Appellate Division should be reversed, with costs, and the complaint should be dismissed (CPLR 3212, subd [b]; Siegel, New York Practice, § 282).

The essence of La Carrubba’s holding was that since section 5 of article XIII of our Constitution excepts judicial officers from the Legislature’s power to make provision for removal of a public officer for misconduct, section 30 (subd 1, par e) of the Public Officers Law, which provides that a public office becomes vacant when its incumbent is convicted of a felony or a crime involving violation of his oath of office, cannot be applied to a judicial officer. What is here involved, however, is not an application of the Public Officers Law but of subdivision 4 of section 90 of the Judiciary Law. That subdivision provides that "Any person being an attorney and counsellorat-law who shall be convicted of a felony * * * shall upon such conviction, cease to be an attorney and. counsellor-at-law, or to be competent to practice law as such.” Under that provision disbarment is automatic upon conviction (Matter of Mitchell, 40 NY2d 153; Matter of Barash, 20 NY2d 154; cf. Matter of Gunning v Codd, 49 NY2d 495, 499). There is, thus, no question that plaintiff ceased to be an attorney upon his conviction on December 27, 1974.

The Appellate Division took note in La Carrubba (59 AD2d, note, at p 104) of the anomaly created by the Judiciary Law’s mandate of automatic disbarment and the constitutional provision (art VI, § 22, subd i) quoted above, which continues a Judge in office after conviction of a felony, pending judicial review of his conviction. We need not search for a reconciliation of the two provisions, for unlike Judge La Carrubba, who was not convicted until December 16, 1976, plaintiff was convicted in 1974, long before the language which causes the anomaly was added to the Constitution.

The question thus becomes whether it is a condition of receiving his salary that a Judge continue to be qualified to practice law, absent a constitutional direction (such as article VI, § 22, subd e) explicitly negating such a condition. An affirmative answer to that question results by implication from the requirement of subdivision a of section 20 of that article that to "assume the office of judge” one must have "been admitted to practice law in this state at least ten years.”

Notwithstanding that the last quoted words may be read simply as imposing an experiential requirement, we conclude, as did the Court of Claims in Thaler v State of New York (79 Misc 2d 621, 624), that it was, prior to September 1, 1976, a continuing requirement of the right to receive the salary of judicial office that "the occupant of the office must continue to be an attorney admitted to practice law in the State.” To be remembered is the fact that we deal not with whether a judicial office is vacant or when a judicial officer can be removed from office, but rather whether a judicial officer who by his own actions has disqualified himself as a lawyer can continue to collect the salary of the office, the functions of which he no longer in fact performs. Neither rules of construction nor considerations of policy require the holding that he may.

The Constitution is to be construed, as the Appellate Division noted in Pfingst v State of New York (57 AD2d 163, 165), to give its provisions practical effect, so that it receives "a fair and liberal construction, not only according to its letter, but also according to its spirit and the general purposes of its enactment.” The requirement that to be a Judge one also be an attorney for a given period imports not only the experiential background afforded by the time required but also "the character and general fitness requisite for an attorney” (Judiciary Law, § 90, subd 1, par a). The constitutional requirement that to assume office a Judge must be a lawyer can, therefore, quite properly be viewed as impliedly requiring, in order to protect the integrity of the Judge’s office, that he not only be a lawyer when he assumes office but that he continue to be qualified as a lawyer, not only intellectually but also in character and fitness (cf. Pfingst v State of New York, supra).

Moreover, considerations of policy sustain the interpretation of the Constitution which we hold governs this case, rather than that for which plaintiff argues. It "would invite scorn and disrespect for our rule of law” (Matter of Mitchell, 40 NY2d 153, 156, supra) were we to adopt plaintiff’s interpretation of the Constitution which, carried to its logical conclusion, would require the State or municipality to pay salary to a convicted Judge while he is in jail paying his debt to society for his felonious transgression against its laws. While that alone would not require the construction we now adopt, our conclusion is warranted by its compatibility with the purpose behind subdivision a of section 20 of the judiciary article of the Constitution and with the other provisions of that article. The only other constitutional provision with which there is arguably facial incompatibility is subdivision a of section 25. That subdivision directs that "The compensation of a judge * * * shall not be diminished during the term of office for which he was elected or appointed.” It is not, however, in any true sense of the words a diminishment of a Judge’s compensation to hold that, having both disqualified himself from carrying out the functions of his office and in fact not performed them, he may not require payment to him of the salary to which he would otherwise be entitled. More importantly, the purpose behind the provision against diminishment is to protect the independence of Judges against depredation by legislative control of the purse strings. That purpose suffers not at all by our holding that a Judge who, prior to September 1, 1976, caused himself to be disbarred may not recover the salary of the office in which he did not thereafter serve.

For the foregoing reasons, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Wachtler taking no part.

Order reversed, etc.

      . That provision has been superseded by further constitutional amendments effective April 1, 1978.

      . We need not reach and do not consider the effect on our conclusion of the amendments to article VI of the Constitution relating to suspension from office and suspension of pay, effective September 1, 1976 and April 1, 1978.


author: Jasen, J. Chief Judge Cooke

text:
    In the Matter of Syracuse Aggregate Corporation, Respondent, v Paul Weise et al., as Members of and Constituting the Town of Camillus Board of Zoning Appeals, Appellants.
    Argued October 13, 1980;
    decided November 18, 1980

      POINTS OF COUNSEL

      Bradley J. Carr for appellants.
    I. The Board of Zoning Appeals had jurisdiction to review and revoke the excavation permit issued by the building inspector. (Matter of Levien v Board of Zoning & Appeals of Inc. Vil. of Russell, 64 Misc 2d 40; Matter of Levine v Buxenbaum, 19 Misc 2d 504; Matter of Hinna v Board of Appeals of Town of Hempstead, 11 Misc 2d 349; Matter of Bachety v Volz, 65 Misc 2d 176, 39 AD2d 842.) II. In an appeal from a determination of the Board of Zoning Appeals, the decision of the board is presumed to be correct and the courts may not substitute their own judgment for the judgment of the board unless it clearly appears to be arbitrary, capricious or contrary to law. (Matter of Cowan v Kern, 41 NY2d 591; Corter v Zoning Bd. of Appeals for Vil. of Fredonia, 46 AD2d 184; Matter of Davison v Segur, 24 AD2d 797; Matter of First Nat. Bank of Glens Falls v Sheehan, 30 AD2d 912; Matter of Falvo v Kerner, 222 App Div 289; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; Matter of Campus v Delany, 62 AD2d 990; Matter of Mandell v Purcell, 54 AD2d 935; Matter of Collins v Behan, 285 NY 187; Matter of Kadish v Simpson, 55 AD2d 911.) III. The decision of the Board of Zoning Appeals in this case was neither arbitrary nor capricious, is supported by substantial evidence in the record and is proper in all respects. (Matter of Kenyon v Quinones, 43 AD2d 125; Matter of Laucella v Siegel, 38 AD2d 973; Matter of New York City Housing Redevelopment Bd. v Foley, 23 AD2d 84, 16 NY2d 1071; Matter of Foxluger v Gossin, 65 AD2d 922; Matter of Held v Guiliano, 46 AD2d 558.) IV. As a matter of law, the building inspector misinterpreted the zoning ordinance of the Town of Camillus when he issued an excavation permit in a residential R-3 district. V. The public policy of New York and the Town of Camillus is to limit nonconforming uses until they expire. (Matter of Harbison v City of Buffalo, 4 NY2d 553; Matter of

      Off Shore Rest. Corp. v Linden, 30 NY2d 160.) VI. The right to continue a nonconforming use does not include a right to extend, change or enlarge it. (Matter of Cave v Zoning Bd. of Appeals pf Vil. of Fredonia, 49 AD2d 228; Matter of Fairmeadows Mobile Vil. v Shaw, 16 AD2d 137; Breed v Town of Clay, 21 Misc 2d 856; Marra v State of New York, 61 AD2d 38.) VII. Regarding expansion of nonconforming quarries, New York has adopted the narrow rule that limits the quarry to those areas in use at the time the quarry became nonconforming. (People v Gerus, 19 Misc 2d 389; Breed v Town of Clay, 21 Misc 2d 856; Town of Hempstead v Goldblatt, 9 NY2d 101; Matter of Dolomite Prods. Co. v Kipers, 19 NY2d 739, 20 NY2d 743, 389 US 214; New York Trap Rock Corp. v Town of Clarkstown, 1 AD2d 890, 3 NY2d 844, 356 US 582; Town of Somers v Camarco, 284 App Div 979, 308 NY 537; People ex rel. Ventres v Walsh, 121 Misc 494; People v Gerus, 19 Misc 2d 389.) VIII. A nonconforming use cannot be extended where the increase in volume changes the character or dimension or effect of the use. (Matter of Fairmeadows Mobile Vil. v Shaw, 16 AD2d 137; Matter of Cave v Zoning Bd. of Appeals of Vil. of Fredonia, 49 AD2d 228; Thayer v Baybutt, 29 AD2d 486; Incorporated Vil. of Williston Park v 280 Hillside Ave. Rest. Corp., 55 AD2d 927; Town of Oyster Bay v Avalon Yacht & Cabana Club, 38 AD2d 604.)

      Sidney Devorsetz for respondent.
    I. The only credible evidence leads to the inescapable conclusion that the entire subject property is impressed with a nonconforming use. II. The protective umbrella of a legal nonconforming use extends to the entire parcel if the manifest intent is to appropriate the entire parcel to such use from its inception. (Thomson Inds. v Incorporated Vil. of Port Washington North, 27 NY2d 537; Matter of Dolomite Prods. Co. v Kipers, 23 AD2d 339, 19 NY2d 739; New York Trap Rock Corp. v Town of Clarkstown, 3 NY2d 844, 356 US 582; People ex rel. Ventres v Walsh, 121 Misc 494; Matter of Fairmeadows Mobile Vil. v Shaw, 16 AD2d 137; Marra v State of New York, 61 AD2d 38; American Ind. Contr. Co. v Travelers Ind. Co., 54 AD2d 679; Carhuff v Barnett's Bake Shop, 54 AD2d 969; Ruhm v C. P. Craska, Inc., 59 AD2d 1016; Gilmore v Beyer, 46 AD2d 208; McGovern v Anzolone, 22 Misc 2d 895.) III. The only use to which the subject premises can reasonably be put is as a gravel bed.
   OPINION OF THE COURT

Jasen, J.

At issue on this appeal is whether a prior nonconforming use involving the extraction of sand, gravel and related materials from a parcel of land extends to the entire parcel or is limited to that portion of the parcel actually excavated at the time the municipality adopted a zoning ordinance prohibiting the expansion of the nonconforming use.

In this article 78 proceeding, petitioner seeks to annul a determination of the Board of Zoning Appeals of the Town of Camillus. The property in question is a 25-acre parcel of land located in the Town of Camillus. Petitioner, a domestic corporation engaged in the business of quarrying gravel, purchased the property on April 27, 1978 from Arthur Herring. Mr. Herring acquired the property in 1926 and from that date had engaged in the business of extracting various grades of sand, gravel, topsoil and fill from the parcel which he sold commercially. Over the years during which he conducted this business, Mr. Herring made various improvements to the land, including an interior network of haul roads extending across the length of the parcel, a structure located in the center of the property housing processing equipment for excavated materials and a storage shed for tools used in the mining operation. Although his principal activities were concentrated in a five-acre portion of the parcel where a clearly identifiable excavation developed, Mr. Herring occasionally would, depending on the demands of his customers, strip topsoil and extract various types and gradations of surface gravels from throughout the property.

Effective September 27, 1961, the property in question was zoned residential R-3. Section 26-15 of the new zoning ordinance provided in pertinent part:

"All building structures and uses not conforming to the regulations of the district in which they are located at the time of adoption of this Ordinance shall be known and regarded as 'nonconforming’.
"A nonconforming * * * use may be continued subsequent to adoption of this Ordinance provided that * * * no such use shall be enlarged or increased to occupy a greater area of land than was occupied at the effective date of the adoption of this Ordinance.”

Thereafter, the Town of Camillus adopted an ordinance requiring those engaging in the excavation of soil and earth to obtain a permit from the town building inspector.

In early 1977, petitioner contracted with Mr. Herring to purchase the property contingent upon petitioner’s acquisition of an excavation permit. Petitioner then prepared and submitted to the town topographic maps and reclamation plans which called for excavation of approximately 20 acres of the parcel. On March 31, 1978, the town building inspector issued petitioner a one-year mining permit. Thereafter, petitioner purchased the property from Mr. Herring.

On April 5, 1978, a councilman for the Town of Camillus appealed the building inspector’s issuance of the permit to the Board of Zoning Appeals of the Town of Camillus (hereinafter the "Board”). After a public hearing was held to consider the matter, the Board revoked petitioner’s excavation permit, apparently finding that petitioner’s proposed activities would constitute an improper expansion of Herring’s prior nonconforming use. Petitioner then commenced the present article 78 proceeding seeking to annul the Board’s determination.

At Special Term, petitioner contended that the Board had acted arbitrarily in revoking the excavation permit because petitioner had a right to engage in the planned excavation as the present owner of the prior nonconforming use established by Mr. Herring. Special Term rejected petitioner’s contention and dismissed the petition, finding that only five acres of the 25-acre parcel actually had been mined by Herring at the time of the 1961 zoning ordinance and that the nonconforming use could not be extended beyond the five-acre portion so mined.

A unanimous Appellate Division reversed and annulled the Board’s determination. The Appellate Division found that even though petitioner’s predecessor in interest may not have excavated on every portion of the parcel, Mr. Herring’s activities on the property prior to the 1961 zoning ordinance sufficiently manifested an intent to appropriate the entire parcel of land for purposes of excavation and quarrying. Accordingly, the Appellate Division concluded that petitioner was entitled to the benefit of Herring’s nonconforming use which extended to the entire 25 acres of the parcel. We agree.

Before reaching the issue of the extent of the prior nonconforming use, we note that the Board failed to make any factual findings in support of its determination. Ordinarily, such a deficiency would require that the matter be remanded to the Board as proper judicial review of such determinations is impossible unless the zoning authority makes findings of fact and delineates those findings which provided the basis for its decision. (Matter of Community Synagogue v Bates, 1 NY2d 445, 454-455; Matter of Collins v Behan, 285 NY 187; cf. Matter of Elite Dairy Prods. v Ten Eyck, 271 NY 488, 498.) However, because the record clearly indicates that the Board’s action in revoking petitioner’s excavation permit is contrary to law, we agree with the approach taken by the Appellate Division in not remanding the matter in order for the Board to go through the formality of making factual findings in support of a determination which cannot be sustained. (Cf. Matter of Von Kohorn v Morrell, 9 NY2d 27, 34; Matter of New York City Housing & Redevelopment Bd. v Foley, 23 AD2d 84, affd 16 NY2d 1071; see, also, Elmira Soc. for Prevention of Cruelty to Animals v Town Bd. of Town of Big Flats, 58 AD2d 691.)

The parties do not dispute that Mr. Herring acquired a nonconforming use at the time of the enactment of the 1961 zoning ordinance or that petitioner, as the present owner of the property, is entitled to protection in its continued enjoyment of that use. (Town of Somers v Camarco, 308 NY 537; People v Miller, 304 NY 105.) Rather, the sole point of contention between the parties relates to the extent of the nonconforming use to which petitioner is entitled.

While the precise question presented on this appeal has not heretofore been considered by this court, the rules relating to nonconforming uses are well settled. Although the overriding policy of zoning is aimed at the ultimate elimination of nonconforming uses (Matter of Harbison v City of Buffalo, 4 NY2d 553, 559-560), nevertheless, a zoning ordinance cannot prohibit an existing use to which the property has been devoted at the time of the enactment of the ordinance. (Ilasi v City of Long Beach, 38 NY2d 383, 387; Lutheran Church in Amer. v City of New York, 35 NY2d 121, 129.) However, to establish a right to a nonconforming use, the person claiming the right must demonstrate that the property was indeed used for the nonconforming purpose, as distinguished from a mere contemplated use, at the time the zoning ordinance became effective. (See Matter of Harbison v City of Buffalo, 4 NY2d 553, supra; People v Miller, 304 NY 105, supra; see, generally, 3 Rathkopf, Law of Zoning and Planning, p 58-3.) Moreover, although not every inch of the property need be embraced by the use in order to entitle the entire parcel to exemption from a restrictive ordinance, by the same token use of a limited portion of the premises will not necessarily serve to pre-empt the entire parcel as against a later prohibitory zoning ordinance. (See, e.g., Matter of Dolomite Prods. Co. v Kipers, 23 AD2d 339, affd 19 NY2d 739; see, generally, 82 Am Jur 2d, Zoning and Planning, § 197.)

The test most often employed in determining the extent of a nonconforming use is "whether the nature of the incipient nonconforming use, in the light of the character and adaptability to such use of the entire parcel, manifestly implies an appropriation of the entirety to such use prior to the adoption of the restrictive ordinance.” (Matter of Fairmeadows Mobile Vil. v Shaw, 16 AD2d 137, 142, quoting Gross v Allan, 37 NJ Super 262, 272.) Application of this standard necessarily entails an examination of the nature of the particular nonconforming use in issue as well as the activities engaged in by the landowner in effectuating that use prior to the adoption of the restrictive ordinance.

By its very nature, quarrying involves a unique use of land. As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it (see, e.g., Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160; Matter of Harbison v City of Buffalo, 4 NY2d 553, supra; Matter of Cave v Zoning Bd. of Appeals of Vil. of Fredonia, 49 AD2d 228), quarrying contemplates the excavation and sale of the corpus of the land itself as a resource. Depending on customer needs, the land will be gradually excavated in order to supply the various grades of sand and gravel demanded. Thus, as a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed.

It is because of the unique realities of gravel mining that most courts which have addressed the particular issue involved herein have recognized that quarrying constitutes the use of land as a "diminishing asset”. (See, e.g., County of Du Page v Elmhurst-Chicago Stone Co., 18 Ill 2d 479.) Consequently, these courts have been nearly unanimous in holding that quarrying, as a nonconforming use, cannot be limited to the land actually excavated at the time of enactment of the restrictive ordinance because to do so would, in effect, deprive the landowner of his use of the property as a quarry. (McCaslin v City of Monterey Park, 163 Cal App 2d 339; County of Du Page v Elmhurst-Chicago Stone Co., 18 Ill 2d 479, supra; Hawkins v Talbot, 248 Minn 549; Moore v Bridgewater Twp., 69 NJ Super 1; Borough of Cheswick v Bechman, 352 Pa 79; but see Town of Wayland v Lee, 325 Mass 637.)

In this case, quarrying has been conducted on the property since 1926. From that time, materials have been removed from various portions throughout the parcel. For example, fine gravel was taken from the northern section while coarse and medium size gravel was mined from the southern areas. As mentioned earlier, service roads were placed throughout the parcel and a processing structure was erected strategically in the center of the property. In fact, no part of the land was ever dedicated to a use other than the quarrying of sand and gravel. Given such outward manifestations of intent and in light of the unique character of the business engaged in, it can only be concluded that the nonconforming use extends throughout the property even though the principal excavation was limited to a five-acre portion of the parcel.

This is not to say that a landowner, merely by preparing to engage in a gravel operation and undertaking a few self-serving acts of a very limited nature, will have thrown a protective mantle of nonconforming use over his entire parcel of land as against a later prohibitory zoning ordinance. Nor is it possible to extend the protection of a permitted nonconforming use established on one parcel of land to physically separate though adjoining parcels. (Matter of Dolomite Prods. Co. v Kipers, 23 AD2d 339, affd 19 NY2d 739, supra; New York Trap Rock Corp. v Town of Clarkstown, 1 AD2d 890, affd 3 NY2d 844.) But where, as here, the owner engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property.

In conclusion, our holding in no sense affords petitioner a carte blanche to engage in its mining operation. To the contrary, the town can adopt measures reasonably regulating the manner in which petitioner uses its quarry (Town of Hempstead v Goldblatt, 9 NY2d 101, affd 369 US 590) and may even eliminate this nonconforming use provided that termination is accomplished in a reasonable fashion (see Modjeska Sign Studios v Berle, 43 NY2d 468; Matter of Harbison v City of Buffalo, 4 NY2d 553, 562-563, supra). The town, however, may not prevent petitioner from doing that which it has a legal right to do by arbitrarily denying petitioner a permit to continue to use the land in conjunction with the previously engaged in quarrying operation. (Town of Somers v Camarco, 308 NY 537, 541, supra.)

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

Chief Judge Cooke

(dissenting). Although I agree that generally the scope of a nonconformingvuse of property for soil mining is not limited solely by the extent of actual excavation at the time the zoning ordinance was adopted, I would remit the matter to Supreme Court for remand to the Board of Zoning Appeals — a course which the majority concedes is ordinarily proper.

There is no question that Mr. Herring engaged in soil mining or quarrying prior to adoption of the restrictive ordinance and thus was entitled to continue his operations as a nonconforming use. The only disputed issue is the extent of that nonconforming use.

I agree with the majority that given the peculiar nature of soil mining, it is unrealistic and unreasonable to define the extent of such a nonconforming use by the extent of actual excavations existing when the ordinance was adopted. This is so because soil mining or quarrying manifestly contemplates gradual excavation along both vertical and horizontal lines as demand dictates. To recognize the unique quality of this form of land use, however, does not resolve the factual question concerning the extent to which a particular parcel has been dedicated to such use. Just as excavation of only a portion of the property does not define the extent of the nonconforming use, use of a limited portion generally should not and does not render the entire parcel nonconforming (see Matter of Dolomite Prods. Co. v Kippers, 23 AD2d 339, affd 19 NY2d 739).

It is because resolution of this case turns on the facts that I am compelled to dissent from the majority’s action. Here, the Board of Zoning Appeals failed to make factual findings and at least some members employed an improper standard in reaching a decision. Without fact findings by the board and a coherent basis for its determination, this court cannot properly review the board’s action (see Matter of Community Synagogue v Bates, 1 NY2d 445). The only proper course in such a case is to remit to Supreme Court with directions to remand the matter to the board for that body to make factual findings and conclusions consistent with the proper standards (see id.; Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289, [decided herewith]).

Contrary to the majority, I cannot view such a remand as a mere "formality”. The board is free to accept or reject testimony in resolving relevant fact questions and may draw inferences from those facts in determining Mr. Herring’s intention and the extent to which he effectuated that intention. This court does not enjoy the same fact-finding power. Notwithstanding its limited review function, this court has made a factual determination that the entire 25-acre parcel may be mined as a nonconforming use. It is this unjustifiable invasion of the board’s function that is objectionable and in which I cannot concur.

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

Order affirmed.

       Our failure to remand in this case is not the result of a factual determination on our part. As the dissent properly notes, we have no power to find facts. Rather, our holding is premised upon our view that the record before the Board supports but one conclusion, to wit: petitioner’s nonconforming use extends throughout the parcel. Hence, under these circumstances, a remand to the Board is unnecessary.